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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.

5.2) General Perspectives on Judicial Tenure:

The principle of judicial independence requires that the tenure of judges should be adequately
secured; Security of tenure is an essential ingredient of the personal independence of a judge. In
order to ensure the administration of justice impartially and fearlessly judges should have a
guarantee that they will not be subject to discipline or removal because of their decisions or the
exercise of arbitrary discretion of the appointing authority.
5.2.1) Security of Tenure:
Security of tenure is a prerequisite to the maintenance of the individual independence of judge. It
is perhaps that most central of the guarantees of independence of the judiciary. The supreme
court of Canada termed it as the first of the essential conditions of judicial independence. In the
absence of security of tenure, judges may be removed from office at any time without any
reasonable grounds and thus, judicial independence can be undermined at a fundamental level
In order to ensure the independent exercise of judicial powers, judges should be free from the
fear or risk of arbitrary removal by the political branches of government. If judicial tenure
depends upon the pleasure of the executive government, judges cannot be free from the fear of
arbitrary removal. In this situation, judicial powers might be exercised by judges with a view to
pleasing the authority that has the power to terminate their service.

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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.

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5.2.3) Part-time Judges and Temporary or acting Judges:

In some countries including Australia and England, par-time judges are appointed for a fixed
term that is less than full time or for a fractional period, e.g. year to year. Since 2000 all part-time
judges in the ordinary courts in England, who are Deputy High Court Judges, Deputy Circuit
judges, Reorders , Deputy District Judges , Deputy Masters and Registers of the Supreme Court ,
Deputy District Judges are appointed for a period of not less than five years.
In some jurisdictions temporary judges are appointed to Full-time positions for a limited or fixed
period less than the full time tenure ending at the compulsory retirement age. For Example
temporary judges may be appointed to the High Court of India for a period not exceeding two
years and they are designated as additional or acting judges. After completion of the two years
they extended though they are appointed to permanent positions or their terms are extended
though there are instances in which additional judges were neither appointed to the permanent
bench nor re- appointed to the permanent bench nor re-appointed as additional judges.
The Montreal Declaration 1983 provides that the appointment of judges for a temporary period is
not consistent with judicial independence, but it does not object to part time judges if proper
safeguards are laid down to ensure impartiality and avoid conflict of interests. However the
Montreal Declaration neither defines the term proper safeguards nor explains what sorts of
safeguards should be laid down.
A judge holding office for a temporary period or appointed on a part time or periodical basis does
not enjoy security of tenure. Consequently, part-time or temporary judges might not be able to
perform their judicial functions fearlessly and independently. They are susceptible to being
influenced by external matters and pressures which may affect their judicial decisions. It is likely
that judges appointed on a part time, temporary or periodical basis might exercise judicial
powers with a hope of re appointment or full-time appointment in future. Therefore, public
confidence in the judiciary and the independence of judges may be affected seriously.
An important argument in favor of part-time, temporary or periodical appointment of judges is
that these appointment of judges is that these appointment are useful to reduce the backlog of
cases. This argument is probably acceptable if the appointments are made as a temporary

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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.

5.3) Bangladesh perspective:

This section evaluates the tenure o judges in Bangladesh by reference to the general principles
discussed above. It demonstrates that although Supreme court Judge hold office until a
mandatory retirement age, the practice of appointment of tenure is a concern for security of
tenure . the issue of judicial tenure in Bangladesh are discussed under two sub-headings : tenure
of supreme court judges , tenure of subordinate court judges.

5.3.1) Tenure of Supreme Court Judges:

The original Article 96 of the constitution of Bangladesh provided a guaranteed tenure of office
for Supreme court Judges up to there mandatory retirement at the age of 62 years. The mandatory
retirement age was first charged by the second proclamation (7th amendment) order 1976, which
created a separate supreme court and high court instant of the Supreme Court comprising the
appellate division and the high court division.
The retirement age for Supreme Court Judges was fixed at 65 years and that of high court judges
at 62 years. the second proclamation ( 7th amendment) order 1976, provided that from the
commencement date of the proclamation order person holding office as judges of high court
division and of the supreme court should held office as High Court Judges and persons holding
office as judges of the appellate division should hold office as Supreme court Judges .
consequently, appellate division judges who were to retire at the age of 62 years immediately
before the commencement of the order become supreme Court Judges with tenure to 65 years.
the second proclamation (10th amendment) order 1977 which re3-established the Supreme court
comprising the appellate and the High Court Division, again fix the retirement age at 62 years for
all Supreme court Judges , it provided,

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A person Holding office as Chief Justice or Judges or additional judges of the

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

5.3.2) Tenure of subordinate Court Judges:

Under article 134 of the constitution, the tenure of subordinate court judges depends upon the
pleasure of the president of Bangladesh. Article 134 provides, except as otherwise by this
constitution every person in the service of the republic shall hold office during the pleasure of the
president. the service of the republic means any service, post or office whether in a civil or
military capacity, in respect of the government of Bangladesh, and any other service declared by
law to be service of the republic.

In secretary, Ministry of Finance Vs Masdar Hossain (2000), a question arose whether

subordinate court judges service, that is, judicial service, is a service of the republic. The
appellate division of the supreme court held that although judicial service is a functionally and
structurally distinct and separate service from the civil executive and administrative services of
the republic , it is a service of the republic within the meaning of the constitution.

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:

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(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.

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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.