HC restores SC authority over lower court judges, orders separate secretariat for judiciary in 3 months

The High Court today (2 September) declared parts of Article 116 of the Constitution, which vested the control and discipline of subordinate courts in the president, to be illegal and void, restoring the Supreme Court's authority over subordinate judges.

The bench of Justice Ahmed Sohel and Justice Debasish Roy Chowdhury delivered the ruling, also ordering the formation of a separate secretariat for the judiciary within three months.

As a result of the ruling, lawyers said, the authority over the transfer and promotion of subordinate court judges has now returned to the Supreme Court. 

They also noted that it removes any obstacle to establishing a separate secretariat for the Supreme Court.

Article 116 states, "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."

Following the verdict, Advocate Shishir Monir, who argued for the writ application, told journalists that all matters concerning discipline, transfers, and leave of judges would now be vested in the Supreme Court.

"It had been transferred to the president in the middle; through today's verdict, it has been vested in the Supreme Court once again. At the same time, the Disciplinary Rules made in 2017 for subordinate judicial officers have been declared unconstitutional, and instructions have been given to form a separate Judicial Secretariat within three months," he said.

He added that the High Court had issued a certificate recognising the constitutional importance of the case, allowing a direct appeal.

"I believe this history of the judiciary working independently and standing with its head high is a glorious new journey for Bangladesh," he said.

Attorney General Md Asaduzzaman represented the state, Advocate Ahsanul Karim appeared as an intervener, and Advocate Sharif Bhuiyan presented his views as amicus curiae.

Sharif Bhuiyan said, "Article 116 has reverted to its 1972 state. This means the control and authority of the subordinate courts have been completely vested in the Supreme Court."

Notably, Article 116 of the original 1972 Constitution stated, "The control and discipline of persons appointed to the judicial service and of magistrates exercising judicial functions shall be vested in the Supreme Court."

On 25 August last year, lawyer Shishir Monir, on behalf of ten lawyers, filed a writ petition seeking reinstatement of Article 116 in its original form.

After a preliminary hearing, the High Court issued a rule asking why the current version of the article should not be declared unconstitutional.

Following the amendments, the functions relating to posting, transfer, promotion, leave, and discipline of judicial officers came under the executive branch, carried out by the Law and Justice Division of the Ministry of Law on behalf of the President.

The case was initially placed with the bench led by Justice Farah Mahbub.

After her appointment to the Appellate Division in March this year, the bench was dissolved. Subsequently, Shishir Monir applied for the case to be heard by a new bench.

On 20 April, Chief Justice Syed Refaat Ahmed formed a bench to hear the matter, which delivered the verdict today.