Final hearing on rule challenging legality of constitutional article 116 postponed

The High Court has postponed the final hearing on a rule it issued earlier questioning the legality of Article 116 of the Constitution, which grants the president authority over the control and discipline of lower court judges.

An HC bench of Justice Ahmed Sohel and Justice Debasish Roy Chowdhury postponed the hearing until Tuesday (29 April).

The hearing on the rule was held for the second consecutive day today (24 April), where Advocate Shishir Manir presented arguments on behalf of the petitioner.

Following the court hearing, Advocate Shishir Manir told reporters, "During the proceedings, I argued that the authority to oversee and discipline judges in subordinate courts rests with the President. To implement this, these powers have been delegated to the Law Ministry under the Rules of Business. Consequently, the transfer, promotion, and disciplinary regulations for subordinate court judges remain under the purview of the Law Ministry. 

"This creates a dual system of control – the Chief Justice's authority on one hand and the Law Ministry's on the other. To liberate subordinate court judges from this dual governance, an independent and separate secretariat under the Chief Justice, operating under an independent sovereign framework, is essential."

He further said, "It is evident to the High Court that now is the opportune moment to establish an independent and sovereign judiciary, moving away from this dual system of governance. Capitalising on this moment is crucial to achieve a landmark event in Bangladesh's history. Failure to grant them independence will perpetually hinder the improvement of judicial quality."

On August 25 last year, Shishir Manir, on behalf of 10 lawyers, filed a writ petition in the High Court, seeking a directive for the restoration of Article 116 of the original 1972 Constitution, which empowered the Supreme Court to decide on the posting, promotion and leave of lower court judges.

In October, the High Court bench of Justice Farah Mahbub and Justice Debasish Roy Chowdhury issued a rule asking authorities concerned to explain why Article 116 of the current Constitution should not be declared unconstitutional.

Article 116 of the current constitution says that 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 be vested in the president and shall be exercised by him in consultation with the Supreme Court.

Under the original 1972 Constitution, Article 116 vested the Supreme Court with the authority to oversee postings, promotions, and leave of lower court judges. It also granted the top court control over magistrates' judicial functions and the power to discipline members of the judicial service when needed.