In a major development, the High Court on Tuesday declared the 4th and 5th Amendments to the Constitution as unconstitutional that had shifted disciplinary control over subordinate court judges from the Supreme Court to the President under Article 116.
It also ordered the government to establish a separate secretariat at the Supreme Court within three months.
The HC bench also observed that the Supreme Court, not the President, will have the powers of control and discipline of the lower court judges from now on.
* Article 116 restored empowering SC to decide posting, promotion, leave of lower court judges
* Article 115 upheld authorising President to appoint subordinate judges
* Establish a separate Secretariat for judiciary at SC in 3 months
The HC bench restored the original provision of article 116 of the constitution of 1972 that had empowered the Supreme Court to decide on the posting, promotion and leave of lower court judges.
Article 116 says, "The control (including the power of posting, promotion and grant of leave) and discipline of persons employed in the judicial service and magistrates exercising judicial functions shall vest in the President and shall be exercised by him in consultation with the Supreme Court."
The verdict also struck down executive-issued disciplinary rules that empowered the law ministry to act as the final authority in disciplinary matters involving lower court judges - calling such provisions a violation of the principle of separation of powers.
However, the bench upheld Article 115, which vests the appointing authority of subordinate judges in the President.
The HC bench comprising Justice Ahmed Sohel and Justice Debasish Roy Chowdhury delivered the judgment disposing of a public interest litigation filed by 10 Supreme Court lawyers.
They are Mohammad Saddam Hossen, Md Asad Uddin, Md Muzahedul Islam, Md Zahirul Islam, Mustafizur Rahman, Shyikh Mahdi, Abdullah Sadiq, Md Mizanul Hoque, Aminul Islam Shakil and Jayed Bin Amjad.
The petitioners appealed to the HC to restore the original provision of article 116 of the charter of 1972 that had empowered the Supreme Court to decide on the posting, promotion and leave of lower court judges.
In response to the petition, the HC bench had earlier, on October 27, 2024, issued a rule asking the interim government to explain why the existing Article 116 should not be struck down as unconstitutional. The provision, as it stands, gives the President the power to control the service matters of lower court judges 'in consultation with the Supreme Court,' creating what the court described as a 'dual administrative structure' that undermines judicial independence.
In the rule, the HC asked the respondents (law secretary and SC registrar general) to explain why the provisions of article 116 of the Constitution and the Bangladesh Judicial Service (Disciplinary) Rules, 2017 should not be declared contradictory to the constitution and why they should not be directed to establish a separate judicial secretariat at SC premises.
During the hearing on the rule, the law ministry submitted an affidavit to the bench led by Justice Ahmed Sohel last month, saying that the state has a concrete and prioritised policy to establish a separate judicial secretariat with full logistic support.
"With regard to the prayer for direction to establish a separate secretariat, the state submits that it has no objection if separate secretariat is established thereon and ready to assist to the same effect," the ministry said in the affidavit.
Deputy Attorney General Mohammad Mehedi Hasan placed the affidavit on behalf of the law ministry opposing the writ petition.
Earlier, Attorney General Md Asaduzzaman and Intervener Advocate Ahsanul Karim placed arguments before the HC, saying that article 116 of the constitution has also ensured the check and balance among the state organs, as the law ministry cannot transfer a single judge or give any posting to any judge without permission from the SC.
On the other hand, Dr Sharif Bhuiyan, amicus curiae (friend of court), and writ petitioners' lawyer Mohammad Shishir Manir told the court that the article 116 has destroyed the independence and separation of the judiciary which are the fundamental structure of the Constitution.
