Escolar Documentos
Profissional Documentos
Cultura Documentos
CHAPTER 5
TENURE OF JUDGES
5.1) Introduction:
The tenure of judges is crucial aspect of judicial independence and accountability. It is closely
connected to judicial appointment discussed in Chapter Four. When a person is appointed to
judicial office, the next essential question is whether the tenure of his or her office is adequately
secure or not. If the tenure of judges is not secure they may be subject to discipline or removal in
an arbitrary manner .thus the tenure of judges is also tied to judicial discipline which is an
important aspect of judicial accountability.
80
Security judicial tenure signifies permanent tenure which is essential to protect judges from day
to day political or other undue pressures, HAMILTON says nothing will contribute so much as
permanent judicial tenure to the independence spirit in the judges,
5.2.2) Changes of Tenure and Terms and Conditions:
Security of judicial tenure may be endangered by changes of tenure, terms and other conditions
of service. One potential risk to judicial tenure is that the executive Government may be tempted
to remove judges by reducing the tenure of judges in office. Another risk is that if the executive
Government does not like the existing judges, It may reduce the judicial salary or change other
conditions of service so that the judges give up their office with a view to earning more money in
legal practice. Therefore, judicial independence requires that the tenure of judges and other terms
and conditions of their service should not be changes to their disadvantage.
The Montreal Declaration 1983 states that terms of office of the judges , their independence ,
security , adequate remuneration and conditions of service shall be secured by law and shall not
be altered to their detriment , It further provides that the retirement age should not be altered for
judges in office without their consent.
The UN Basic Principles 1985 provide that the term of office of judges, their independence,
security adequate remuneration, and condition of service, pensions and the age of retirement
shall be adequately secured by law. Unlike the Montreal Declaration 1983 there is no express
provision preventing alterations or changes of terms and conditions of service. In fact , it should
be ensured that any changes of the tenure and other terms and conditions of service are not
applicable to existing judges , In this regard , the Beijing Statement 1995 provides that the tenure
of judge ;must not be altered to the disadvantage of the judge during her or his term of office
In England, the judicial Pensions Act 1959 introduced a mandatory retirement age of 75 for
superior judges but it was not applied to the existing judges. Again the judicial pensions and
Retirement Act 1993 reduced the retirement age to 70 which were not applicable to persons
appointed to judicial offices before the change came into effect. Now all English judges enjoy
security of tenure until the mandatory retirement age of 70 years and during this period they hold
office subject to good behavior.
81
82
measure and only in special circumstances which render necessary. Therefore, part-time ,
temporary or periodical appointment of judges should not be made as a regular practice to avoid
continued need for appointment of permanent judges.
83
supreme
Court or Chief Justice pr Judge or additional judge of the High Court immediately before the
commencement of the second proclamation (10th amendment) order 1977 shall, if he has
attained the age of 62 years on the date of such commencement, stand retired on the date
During their terms of office, subordinate court judges may be removed only on the specific
grounds and by means of the procedures prescribed by statutory law. Despite this, tenure during
the pleasure of the president under Art 134 is not consistent with the values of security of judicial
tenure. In secretary, Ministry of Finance v Masdar Hossain (2000) the Appellate Division of the
Supreme Court observed that although subordinate court judges hold office during the pleasure
of the president under Art 134 of the constitution, security of tenure of their office is assured by
Art 135. Article 135(2) of the Constitution provides:
84
(2) No such person shall be dismissed or removed or reduced in rank until he or she has been
given a reasonable opportunity of showing cause why that action should not be taken:
Provided that this clause shall not apply Where a person is dismissed or removed or reduced in rank on the ground of conduct which
has led to his or her conviction of a criminal offence; or
Where the authority empowered to dismiss or remove a person or to reduce him in rank Is
satisfied that, for a reason recorded by that authority in writing, it is not reasonably
practicable to give that person an opportunity of showing cause; or
Where the president is satisfied that in the interest of the security of the state it is not
expedient to give that person such an opportunity.
5.4) Conclusion:
In Bangladesh, constitutional and statutory law fix the mandatory retirement age for judges of
the Supreme Court and subordinate courts. Before attaining the mandatory retirement age,
Supreme Court judges may be removed from office for the causes of physical or mental
incapacity or gross misconduct investigated by the Supreme Judicial Council. Therefore, the
tenure of Supreme Court Judges may say to be adequately secured. However, the appointment of
additional judges to the High Court Division of the Supreme Court is not compatible with
security of tenure. As discussed above, all judges of the High Court Division are temporarily
appointed for two years as additional judges and thereafter they may be appointed as permanent
judges. Since there is no guarantee of appointment as permanent judges, additional judges might
exercise judicial powers with a hope for permanent position. This is not consistent with judicial
independence and therefore the practice should be discontinued. However, additional judges may
be appointed to meet any temporary necessity, for example to reduce the backlog of cases.
85
Although similar to Supreme Court Judges subordinate court judges hold office until a
mandatory retirement age, the provision of forced retirement is not consistent with the principles
of security of judicial tenure. It is likely that because of the tenure during the pleasure of the
president, subordinate judges may be forced to retire before attaining the mandatory retirement
age simply by misusing the public interest clause which is not clearly defined in the Public
Servants (Retirement) Act 1974. Therefore, provision should be made to ensure that until
attainment of the mandatory retirement age subordinate court judges should hold office during
good behavior and competence without being subject to forced retirement.