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IN the SUPREME COURT of BANGLADESH APPELLATE DIVISION (Civil) Present: Surendra Kumar Sinha, CJ Government of Bangladesh and Others: Md

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IN the SUPREME COURT of BANGLADESH APPELLATE DIVISION (Civil) Present: Surendra Kumar Sinha, CJ Government of Bangladesh and Others: Md 272 Government of Bangladesh =VS= Asaduzzaman Siddiqui (S. K. Sinha, CJ) 6 LM (AD) 2019 (1) IN THE SUPREME COURT OF BANGLADESH APPELLATE DIVISION (Civil) Present: Surendra Kumar Sinha, CJ Government of Bangladesh and others: Md. Abdul Wahhab Miah, J ... Appellants. Nazmun Ara Sultana, J Syed Mahmud Hossain, J Muhammad Imman Ali, J Hasan Foez Siddique, J =VS= Mirza Hussain Haider, J th th st nd rd Date of hearing: 8 , 9 , 21 , 22 , 23 , 24th, 25th, 28th, 29th, 30th May, 2017 and 1st June, 2017. Advocate Asaduzzaman Siddiqui and others: rd Date of Judgment: 3 July, 2017. ... Respondents. Result: Dismissed CIVIL APPEAL NO.06 OF 2017. (From the judgment and order dated 05.05.2016 passed by the High Court Division in Writ Petition No.9989 of 2014.) ADVOCATES WHO APPEARED IN THIS CASE: For the Appellants: Mr. Mahbubey Alam, Attorney General, with Mr. Murad Reza, Additional Attorney General, Mr. Momtaz Uddin Fakir, Additional Attorney General, Mr. Biswajit Debnath, Deputy Attorney General, Mr. Motaher Hossain Sazu, Deputy Attorney General, Mr. Md. Ekramul Hoque, Deputy Attorney General, Mr. Kh. Diliruzzaman, Deputy Attorney General, Mr. Masud Hasan Chowdhury, Deputy Attorney General, Mr. Amit Talukdar, Deputy Attorney General, Mr. Sheikh Saifuzzaman, Assistant Attorney General, Mr. Bashir Ahmed, Assistant Attorney General, Ms. Mahfuza Begum, Assistant Attorney General, instructed by Mr. Haridas Paul, Advocate-on-Record. For the Respondents: Mr. Munzill Murshed, Advocate, instructed by Mr. M. Ashrafuzzaman Khan, Advocate-on-Record. AS AMICI: Mr. T.H. Khan, Senior Advocate, Dr. Kamal Hossain, Senior Advocate, Mr. Abdul Wadud Bhuiyan, Senior Advocate, Mr. M. Amirul Islam, Senior Advocate, Mr.Rokanuddin Mahmud, Senior Advocate, Mr. Ajmalul Hossain, Senior Advocate, Mr. A. J. Mohammad Ali, Senior Advocate, Mr. A.F. Hassan Ariff, Senior Advocate, Mr. M.I.Farooqui, Senior Advocate, Mr. Fida M. Kamal, Senior Advocate. The Law Messenger 6 LM (AD) 2019 (1) Government of Bangladesh =VS= Asaduzzaman Siddiqui (S. K. Sinha, CJ) 273 Constitution of Bangladesh, 1972 Articles 22, 94(4), 116A and 147 The independence of the judiciary is the foundation stone of the constitution– The independence of the judiciary is the foundation stone of the constitution and as contemplated by article 22, it is one of the fundamental principles of State policy. The significance of an independent judiciary, free from the interference of other two organs of the government as embodied in article 22 has been emphasized in articles 94(4), 116A and 147 of the constitution. There has been a historic struggle by the people of this country for independence of judiciary, to uphold the supremacy of the constitution and to protect the citizens from violation of their fundamental rights and from exercise of arbitrary power. In Anwar Hossain (supra) this court observed that “Democracy, Republican Government, Unitary State, Separation of Powers, Independence of the Judiciary, Fundamental Rights are basic structures of the Constitution” (emphasis supplied). Therefore, the constitutional principle of independence of judiciary precludes any kind of partisan exercise of power by the Parliament in relation to the judiciary, in particular, the power of the Parliament to remove the Judges of the Supreme Court. (Surendra Kumar Sinha, CJ) ...(Para-325) What is mala fides? “Mala fides or bad faith” means dishonest intention or corrupt motive in the exercise of powers or a deliberately malicious or fraudulent purpose, on the part of the decision maker. Mala fides includes those cases where the motive force behind an action is personal animosity, spite, vengeance, personal gratification or benefit to the concerned authority or its friends or relatives. (Halsbury’s Laws of India, Vol-1, P.319 and CS Rowjee V. A.P., AIR 1964 SC 962). An independent ground of attack, malafides (Malice in fact) should be distinguished from mala fides (malice in law). According to Megaw LJ, it always involves a grave charge and it must not be treated as a synonym for an honest mistake. (District Council V. Kelly, (1978) 1 All ER 152). There is malice in law where “it is an act done wrongfully and willfully without reasonable or probable cause and not necessarily an act done from ill feeling and spite. It is a deliberate act in disregard of the rights of others’. (A.P. V. Goverdhanlal Pitti, (2003) 4 SCC 739). Colourable exercise of power is equated with malice in law (Wadhwa V. Bihar, AIR 1979 SC 659) and in such a case, it is not necessary to establish that the respondent was actuated by a bad motive. (Venkataraman V. India, AIR 1979 SC 49). (Surendra Kumar Sinha, CJ)...(Paras-364 & 365) Constitution of Bangladesh, 1972 Article 96 Code of Conduct– We reformulate the Code of Conduct in exercise of powers under article 96 as under: Code of Conduct (1) A Judge should participate in establishing, maintaining, and enforcing high standards of conduct, and should personally observe those standards so that the integrity and independence of the judiciary is preserved. The Law Messenger 274 Government of Bangladesh =VS= Asaduzzaman Siddiqui (S. K. Sinha, CJ) 6 LM (AD) 2019 (1) (2) A Judge should respect and comply with the constitution and law, and should act at all times in a manner that promotes public confidence in the judiciary. (3) A Judge should not allow family, social, or other relationships to influence judicial conduct or judgment. A Judge should not lend the prestige of the judicial office to advance the private interests of others; nor convey or permit others to convey the impression that they are in a special position to influence the Judge. (4) A Judge should be faithful to and maintain professional competence in the law, and should not be swayed by partisan interests, public clamor, or fear of criticism. (5) A Judge should be patient, dignified, respectful, and courteous to litigants, lawyers, and others with whom the Judge deals in an official capacity, and should require similar conduct of those officers to the Judge’s control, including lawyers to the extent consistent with their role in adversarial system. (6) A Judge should dispose of promptly the business of the court including avoiding inordinate delay in delivering judgments/orders. In no case a judgment shall be signed later than six months of the date of delivery of judgment. (7) A Judge should avoid public comment on the merit of a pending or impending Court case. (8) A Judge shall disqualify himself/herself in a proceeding in which the Judge’s impartiality might reasonably be questioned. (9) A Judge shall disqualify himself/herself to hear a matter/cause where he served as lawyer in the matter in controversy, or with whom the Judge previously practiced during such association as a lawyer concerning the matter, or the Judge or such lawyer has been a material witness. (10) A Judge shall not hear any matter if he/her knows or if he/she is aware or if it is brought into his/her notice that, individually or as a fiduciary, the Judge or the Judge’s spouse or children have a financial interest in the subject matter in controversy or is a party to the proceeding, or any other interest that could be affected substantially. (11) A Judge requires a degree of detachment and objectivity in judicial dispensation and he is duty bound by the oath of office. (12) A Judge should practise a degree of aloofness consistent with the dignity of his office. (13) A Judge should not engage directly or indirectly in trade or business, either by himself or in association with any other person. (14) A Judge must at all times be conscious that he is under the public gaze and there should be no act or omission by him which is unbecoming of his office and the public esteem in which that office is held. (15) A Judge should not engage in any political activities, whatsoever in the country and abroad. (16) A Judge shall disclose his assets and liabilities, if asked for, by the Chief Justice. The Law Messenger 6 LM (AD) 2019 (1) Government of Bangladesh =VS= Asaduzzaman Siddiqui (S. K. Sinha, CJ) 275 (17) Justice must not only be done but it must also be seen to be done. The behaviour and conduct of a member of the higher judiciary must reaffirm the people’s faith in the impartiality of the judiciary. Accordingly, any act of a Judge, whether in official or personal capacity, which erodes the credibility of this perception has to be avoided. (18) Close association with individual members of the Bar, particularly those who practice in the same court, shall be eschewed. (19) A Judge should not permit any member of his immediate family, such as spouse, son, daughter, son-in-law or daughter-in-law or any other close relative, if a member of the Bar, to appear before him or even be associated in any manner with a cause to be dealt with by him. (20) No member of his family, who is a member of the Bar, shall be permitted to use the residence in which the Judge actually resides or other facilities for professional work. (21) A Judge shall not enter into public debate or express his views in public on political matters or on matters that are pending or are likely to arise for judicial determination. (22) A Judge is expected to let his judgments speak for themselves. He shall not give interview to the media. (23) A Judge shall disqualify himself or herself from participating in any proceedings in which the Judge is unable to decide the matter impartially or in which it may appear to a prudent man that the Judge is unable to decide the matter impartially.
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