The High Court on Sunday asked the authorities concerned to explain why the Article 116 of the Constitution, which grants the President authority over the control of judges in lower courts, should not be declared illegal.
Article 116 empowers the President to control matters related to lower court judges, including their appointment, promotion, leave and disciplinary action.
In response to a writ petition, the HC bench comprising Justice Farah Mahbub and Justice Debashish Roy Chowdhury issued the rule.
The Cabinet Secretary, Law Secretary, and principal officers from the Chief Adviser's Office have been directed to reply to the rule within four weeks.
Advocate Mohammad Shishir Manir appeared on behalf of the petitioners while Deputy Attorney Generals Syeda Sazia Sharmin and
Tamim Khan represented the state during the hearing on the petition.
Earlier on August 25, ten Supreme Court lawyers including Advocate Saddam Hossain filed the writ petition with the HC challenging the legality of Article 116.
The writ petition sought a ruling on why Article 116 should not be declared unconstitutional, arguing that entrusting the President with control over lower court judges undermines judicial independence.
"Before the Fourth Amendment to the Constitution, the High Court Division was responsible for overseeing and controlling lower courts and tribunals. This provision previously safeguarded judicial independence. However, replacing 'Supreme Court' with 'President' has significantly curtailed and undermined the independence of lower courts," writ petitioners' lawyer Shishir Manir said.
He further stated that the Constitution's framework indicates that lower courts should be entirely independent and overseen by the Supreme Court.
"Despite the Fourth Amendment and subsequent 12th Amendment, no government has addressed this issue despite the observations in judgments concerning the Fifth, Eighth, and 13th Amendments," he said.
The lawyer noted that the judiciary's independence cannot be achieved if control and discipline over lower court judges remain with the executive branch.
"Therefore, the writ petition has been filed challenging the validity of the article," he added.
