SC Secretariat Ordinance: Judges may hold executive posts

Lower court judges will be able to hold executive positions in the law ministry as well as state entities even after the establishment of a Supreme Court secretariat aimed at keeping the judiciary free from the executive's influence, says a draft ordinance.

Upon the SC's recommendations, lower court judges may be appointed to the offices of various ministries or departments, agencies and institutions of the government, according to section 7(3) of the draft "Supreme Court Secretariat Ordinance 2025".

Terming this "a form of double standards", several Cabinet Division officials told this newspaper that it's unacceptable that judges would demand the separation of the judiciary from the executive and also want to hold posts in ministries or other government institutions at the same time.

Seeking anonymity, a joint secretary at the public administration ministry said many lower court judges are currently serving in the law ministry. "If a separate secretariat is formed for the judiciary, why should they continue working in the ministry? This goes against the very principle of judicial separation."

The draft ordinance, prepared by the High Court Division of the SC, was sent to the Cabinet Division on October 13 through the law ministry. The following day, the inter-ministerial committee on legal scrutiny of the Cabinet Division reviewed the draft and returned it to the ministry with 18 observations.

In its observation, the committee said section 7(3) contradicts article 22 of the constitution, which states: "the State shall ensure the separation of the judiciary from the executive organs of the State."

The drafting of the ordinance gained momentum after an HC bench on September 2 directed the government to establish a separate secretariat for the SC within three months.

Following the hearing of a writ petition, the HC declared article 116 unconstitutional and ordered that the corresponding provision of the 1972 constitution be reinstated. The earlier provision had empowered the SC to deal with transfers, promotions, and discipline of lower court judges.

The draft ordinance said the SC secretariat would be given the status of a ministry-level entity, with full authority over planning, formulation, budget, expenditure management of judiciary-related projects.

The secretariat would also oversee subordinate courts, administrative tribunals, all judicial officers and staff, as well as all issues regarding their discipline, control and postings, it said.

Once the SC secretariat is set up, it will be able to directly communicate with any ministry or division of the government, and vice versa. At present, such communication takes place through the law ministry.

The inter-ministerial committee has objected to several clauses of the draft ordinance and advised the law ministry to reconsider those.

Section 7(2) of the draft said, "The SC secretariat, on behalf of the president, will perform all necessary administrative duties concerning the control and disciplinary matters of the members of judicial service."

The Cabinet Division has advised the law ministry to review whether the proposed section 7(2) contradicts article 116 of the constitution. The article says matters relating to transfer, promotion, and discipline of lower court judges lie with the president, subject to consultation with the SC.

Section 9 of the draft ordinance said an eight-member committee, headed by the senior-most judge of the Appellate Division of the SC, would oversee planning, approval and implementation of projects for judicial institutions.

The committee recommended removing this clause, noting that the government already has specific ministries and departments to carry out such functions.

It also suggested scrapping clause 12(4), which said any proposal from the SC secretariat regarding the judiciary's expenditure limit cannot be changed without consultation with the chief justice.

Clauses 12(7) and (8) will provide the chief justice with the authority to allocate and use a budget for the SC. The committee advised that the finance ministry's inputs be sought on these matters.

The committee also recommended using the term "servant" instead of "officer" throughout the draft ordinance.

On October 15, Law Adviser Asif Nazrul told reporters that the draft ordinance would be sent to the advisory council within a few weeks.

At several past events, he expressed hope that a SC secretariat would be set up within the tenure of this government.