Judicial ethics is an expression which defies definition. In the literature, wherever there is a reference to judicial ethics, mostly it is not defined but attempted to be conceptualized. According to Mr. Justice Thomas of the Supreme Court of Queensland, there are two key issues that must be addressed: (i) The identification of standard to which members of the judiciary must be held; and (ii) a mechanism, formal or informal, to ensure that these standards are adhered to. A reference to various dictionaries would enable framing of a definition, if it must be framed. Simply put, it can be said that judicial ethics are the basic principles of right action of the Judges. It consists of or relates to moral action, conduct, motive or character of Judges; what is right or befitting for them. It can also be said that judicial ethics consist of such values as belong to the realm of judiciary without regard to the time or place and are referable to justice dispensation.
On the question of cross-examining the Chief Justice similar prayer was made in Venoy Chandra (Supra). The Supreme Court outright rejected the prayer observing that the criminal contempt of court undoubtedly amounts to an offence but it is an offence sui generis and hence for such offence, the procedure adopted both under the common law and the statute law, if any, has always been summary. The Court explained the summary procedure that the matter shall be disposed of by affording an opportunity to the contemnor. The Court observed “In such procedure, there is no scope for examining the Judge or Judges of the Court before whom the contempt is committed. To give such a right to the contemnor is to destroy not only the raison d’ētre for taking action for contempt committed in the face of the Court but also to destroy the very jurisdiction of the Court to adopt proceedings for such conduct.”
No further explanation is necessary in this regard. This is the accepted principle being followed in this sub-continent over a century and even if the contemnors have no knowledge, the learned Counsel having expertise of appearing before the highest Court of the country must have minimum knowledge in this regard. We are shocked in the manner of the learned Counsel has defended the contemnors and drafted the petitions and the affidavits. Normally in contempt proceedings the lawyers are cautious in the selection of words and language, and for their mistake the litigants suffer. These types of proceedings are sensitive matters and the Judges always caution the lawyers in admitting or defending the contemnors. In this case the lawyer has shown callousness. So this Court has committed no infirmity in rejecting the prayers made by the contemnors.
The second offending part of the publication is that the writer questioned how the members of Salauddin Qader Chowdhury’s family can meet one of the Judges who is in seisin of the matter? The writer did not disclose the name of the Judge but in his defence, he disclosed the name of the Judge and he was none but the Chief Justice of Bangladesh himself. This statement is also false, inasmuch as, the contemnors admitted in their affidavits that no member of the Salauddin Qader Chowdhury’s family met the Chief Justice. According to them, some one on their behalf met the Chief Justice and requested him not to keep A.H.M. Shamsuddin Chowdhury, J. in the Bench. Now the question is, how did he come to know that the family members of Salauddin Qader Chowdhury met with Chief Justice? Assuming that someone met the Chief Justice, now the question is did he commit any remotest type of misconduct only by meeting someone? The Chief Justice is the only authority to constitute benches of both the Divisions. If the litigants have any grievance against any Judge then who will decide such apprehension? If the Chief Justice did not have such power the administration of justice will collapse. Therefore, the Chief Justice is gateway to the litigants, lawyers and other interested persons. The Counsel had no semblance of idea about the functions of the Chief Justice of Bangladesh.
Besides administration of justice, being the guardian of the judiciary, the Chief Justice does administrative works relating to the entire judiciary in Bangladesh and in course of his administrative works, he sometimes takes notice of grievances of the litigants through their representatives, and in person who are unable to engage a lawyer. This is the normal business of the Chief Justice. The Constitution empowers the Chief Justice to constitute benches of both the Divisions. Sometimes the Chief Justice excludes a particular Judge from any bench and sometimes he gives power to another Judge and sometimes directs the Courts to refrain from hearing any particular matter and gives direction in which manner the particular type of case or cases should be disposed of. The contemnor questioned in which path the relatives of Salauddin Qader Chowdhury met the Chief Justice. The simple answer is, in the same path A.H.M. Shamsuddin Choudhury,J. met the Chief Justice. He questioned whether the victim’s family members met any Judge but in the affidavit he himself has admitted that someone requested the Chief Justice on his behalf. He then questioned whether it was within the ethics of a Judge? This writer has exceeded all norms. He questioned the ethics of the Chief Justice.
He then said, the Prime Minister postponed the tour program of one Justice abroad. The writer was pointing fingers at the Chief Justice. The Chief Justice in open Court declared that he postponed the program but did not explain anything. He then directed the Attorney General in open Court to make an official statement as to whether the office of the Prime Minister or the Prime Minister had prevented the Chief Justice to go abroad. The Attorney General being the chief Law Officer of the country intimated in open Court that neither the Prime Minister nor anyone from the office of the Prime Minister ever made any request to the Chief Justice preventing him from going abroad. Learned Counsel for the contemnors objected to this statement and prayed that the Attorney General should make a statement by sworn affidavit. We are astounded in the way the learned Counsel was nakedly making submissions which were beyond the norms and practice of this Court. The Court outright rejected his prayer and accepted the statement. So the writer in a calculated manner wanted to demean and undermine the power and the authority of the Chief Justice of Bangladesh and the Attorney General. He also made wild allegations against the Chief Justice of Bangladesh. He made libelous statements. These statements are not only contemptuous but they are also criminal offence.
The next statement he made is that, the tour of the Chief Justice was sponsored by the BNP-Jamat organizations. Here again how he was dared to make such statement is beyond comprehension. He then posed the question, “why a disputed businessman went abroad ahead of the tour. What was happening there?”. Of course possibly, he regained his senses and thereby could not disclose the name of the businessman, although he had the courage to disclose the name of the Chief Justice in the conversation with A.H.M. Shamsuddin Choudhury,J. wherefrom he got the information that the tour was sponsored by BNPJamat organizations. The writer used such derogatory language which stunned the Judges present in the Bench.
The contemnors did not disclose or type all the complete sentences of the conversation and intentionally delete some words. Though the contemnors produced the audio cassette, the members of the Bench did not feel any interest to listen to the conversation once they came to know that this conversation was made between the Chief Justice and A.H.M. Shamsuddin Choudhury,J. The learned Counsel submitted that Swadesh Roy did not collect the audio cassette from A.H.M. Shamsuddin Choudhury,J. He admitted that the conversation was made with none but A.H.M. Shamsuddin Chowdhury,J. He failed to notice that the Chief Justice maintains secrecy and confidentiality whenever a Judge meets him. Even if it is assumed that A.H.M. Shamsuddin Chowdhury,J. did not record the conversation, then the reporter secretly got it recorded or collected from other source but he failed to comprehend that he cannot do so far, it itself is an offence pure and simple. The subject of the discussion being related to the administration of justice and secret, it should not be made public and such publication is detrimental to public interest.
It is not a communication between two Judges. It is a conversation between a puisne Judge and the Chief Judge in confidence which imports a special degree of secrecy. It is a paramount necessity that the Judges of the highest Court should always act within the scope of their duties for the public interest and the administration of justice. And it is very greatly in the public interest that the Judges who are holding constitutional posts and concerned in every aspect of maintaining the rule of law, should act as a single unit, bound to each other by a certain loyalty to the rule of law, always of course within the scope of public interest. Where such a feeling, which may rightly be described as esprit de corps does not exist, it is clear that the process of rule of law must be gravely prejudiced. The law is conscious of this requirement and enforces it by means of laws and constitution. In this connection section 124 of the Evidence Act is relevant, which reads: “No public officer shall be compelled to disclose communications made to him in official confidence, when he considers that public interest would suffer by disclosure.”
The purpose of this section is clearly wider the mere overcoming of such objection. Here the writer stands on the same footing and he has committed criminal offence.
The concerned Judge was very much eager to clarify some words from the lips of the Chief Justice and repeatedly kept on putting questions. So it was apparent that he was deliberately putting the questions and met the Chief Justice on previous occasions requesting him to include him in the Bench and the last one was a deliberate attempt with a view to maligning the Chief Justice.
The writer claims that he is a law abiding citizen and his statements are based on truth and bonafide. We failed to understand which statement is true. None of the statements as discussed above are true except the conversation of the Chief Justice with A.H.M. Shamsuddin Choudhury, J. The topic of the conversation was the request of Chowdhury, J. to keep him in the Bench for hearing. The Chief Judge turned down his first request and then he wanted to be included in the hearing of the appeal in respect of the property of Mr. Moudud Ahmed. So A.H.M. Shamsuddin Chowdhury, J. met the Chief Justice before hearing of Salauddin Qader’s appeal or at least in the midst of the hearing. He knows that in the midst of hearing, a Judge cannot be included in a matter.
We fail to understand why the impugned reporting was made after the conclusion of the hearing of the appeal of Salauddin Qader Chowdhury on 16th July, 2015. Why the writer chose to publish this report after the conclusion of hearing and before the delivery of the judgment? If he had the bonafide intention as claimed, what prevented him from publishing the same before hearing of the matter? Why he published such a report just before the delivery of the judgment? Who would be benefited thereby if the Chief Justice had withdrawn himself from the Bench? Certainly it was Salauddin Qader Chowdhury. The writer might have ill motive to frustrate the delivery of judgment of Salahuddin Qader Chowdhury, otherwise he could have published the same before the hearing or at least before the conclusion of hearing.
Learned Counsel appearing for the contemnors submitted that as the writer had collected materials relating to a news about movement of Salauddin Qader Chowdhury’s family members who met the Chief Justice, there was some days delay in publishing but it was published with the motive that the Judges should be cautious at the time of delivery of judgment. This itself is a serious type of contempt. This is a lame excuse for, even if it is assumed that the writer or the editor has no knowledge about the law that during the pendency of a matter, any publication is made which interferes with the administration of justice amounts to criminal contempt. Their Counsel should know about it. This publication not only interferes with the administration of justice but also scandalizes the Court and the Judges, and therefore, the writer and the editor have certainly committed criminal contempt.
A.H.M. Shamsuddin Chowdhury, J. is the junior most Judge of the Appellate Division. By a sworn affidavit the contemnors stated that Chowdhury, J has consented to become a witness on behalf of the contemnors. We thought the statement as a ridiculous one but when the learned Counsel was serious to the statement we were beyond bewilderment. (Paras:133-147); .....The State =VS= Mr. Swadesh Roy, (Civil), 2017 (1)- [2 LM (AD) 576] ....View Full Judgment