Move to set up judicial secretariat faces legal hurdles

Infographic: TBS

Highlights

• Law ministry drafts 'Supreme Court Secretariat Ordinance-2025' to establish a separate secretariat for judiciary
• Draft grants SC jurisdiction to regulate subordinate courts, transfer, post, promote judges, and enforce discipline
• However, this jurisdiction is vested in president under Article 116 of Constitution
• Legal experts say enacting an ordinance while Article 116 remains in force would contradict the Constitution
• Legal questions arise over ordinance promulgation, as two writs on Article 116 remain undisposed of
  

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The interim government has moved to establish a separate secretariat under the Supreme Court to handle the transfers, postings, promotions, and disciplinary matters of judges at subordinate courts, but the initiative has hit a legal roadblock. 

To this end, the law ministry has drafted the "Supreme Court Secretariat Ordinance-2025," which will be promulgated by the president after final approval from the Advisory Council. 

Legal experts argue that Article 116 of the Bangladesh Constitution grants the president authority over the transfer, posting, promotion, and discipline of subordinate court judges. 

Enacting a new ordinance while this article is in force would contradict the Constitution, raising questions about its validity. As a result, experts have called for the ordinance to be revised or amended. 

Officials maintain that the ordinance will end executive interference in the judiciary by granting the SC sole authority over subordinate court judges. 

Last November, two SC lawyers filed separate writ petitions in the High Court challenging the validity of Article 116. In response, the court issued a rule questioning its validity. The petitioners argue that, since the matter remains unresolved, legal uncertainties surround the ordinance's promulgation.

Article 116 states, "The president shall have control over the judiciary, including the posting, promotion, and leave of judicial personnel and magistrates, and shall exercise this authority in consultation with the SC." 

Legal experts argue that under this article, judicial postings, transfers, promotions, leave, and discipline remain under the executive branch, with the Law and Justice Division exercising these functions on the president's behalf. 

As a result, both the SC and the law ministry jointly control and supervise subordinate court judges, with the judiciary relying on the ministry for all matters, they continued. 

Constitutional expert Shahdeen Malik told The Business Standard, "The Constitution is the supreme law. Any law or ordinance must align with it; if made in violation, it will be considered 'void ab initio' – null and void." 

"To protect the judiciary from political interference, a separate secretariat is needed to oversee subordinate courts. However, Article 116 grants this authority to the president and supervisory jurisdiction to the Supreme Court." 

Malik emphasised, "If the proposed law transfers full jurisdiction to the SC, specifically the chief justice, this article must be amended or repealed." 

The establishment of a separate judiciary secretariat has long been a demand of judges, lawyers, and other stakeholders. It is essential for ensuring the rule of law and justice free from political influence and is constitutionally mandated. The historic Masdar Hossain case also directed its creation, but it remains unimplemented. 

Following the political changeover in August, Chief Justice Syed Refaat Ahmed took charge and advocated for the secretariat. A proposal was sent to the law ministry five months ago, and work began on its establishment. 

A draft ordinance has been prepared and finalised by officials from the Supreme Court and the law ministry. While the process initially progressed quickly, legal complications have now slowed its implementation. 

Lawyers and former judges believe the establishment of a separate judiciary secretariat should be completed under the current interim government to avoid uncertainty once a political government takes power. 

Past experience shows that political governments resisted separating the judiciary from the executive. Despite the SC's ruling, the judiciary was only formally separated during the caretaker government on 1 November 2007. 

After the political government took office, efforts to finalise the separation stalled, leaving judicial control largely with the executive branch. 

When asked, Shishir Monir, lawyer for the writ petition challenging the validity of Article 116, said, "The final hearing has begun. The case was partly heard, and the state was expected to present its statement. The state took four weeks for the hearing on February 19. If the state wishes, this writ can be resolved quickly." 

Barrister ASM Shahriar Kabir, counsel for the other writ petition, said despite the separation of the lower judiciary from the executive, the executive still interferes in the posting, promotion, and discipline of judicial officers due to current constitutional provisions. 

"As a result, true independence and separation, either institutionally or individually, are not achievable," he said, adding, however, such provisions were absent in the original 1972 Constitution. 

Article 116 of the 1972 Constitution granted the SC control over the lower judiciary regarding postings, promotions, leave, and discipline. 

According to Article 115, district judges were to be appointed by the president on the SC's recommendation. To ensure genuine separation, the legislature should restore the original Articles 115 and 116, he continued. 

Furthermore, without amending the Constitution, passing any ordinance to give effect to a separate judicial secretariat will be a mere joke, said Barrister Kabir. 

Former district judge Masdar Hossain, plaintiff in the landmark Masdar Hossain case for judiciary separation, stated, "Since the changeover on August 5, progress has stalled. Some oppose a separate secretariat. One of the 12 directions in the Masdar Hossain case was to establish such a secretariat, and there are no legal obstacles to doing so." 

Law Adviser Asif Nazrul could not be reached for comment. However, a senior law ministry official, speaking anonymously, told TBS that the ministry prepared the draft in February. "The issue of Article 116 was raised afterward, and the future of the ordinance depends on the outcome of two writs pending in the High Court regarding Article 116," he added. 

Section 4 of the draft ordinance states, "A Secretariat, called the SC Secretariat, shall be established under Article 109 of the Constitution. It shall not be under the jurisdiction or control of any ministry, division, or office, and will consist of a secretary and other officers as prescribed by rules." 

Section 5(1) of the ordinance states, "Notwithstanding any other law, rule, or division of functions, the Supreme Court Secretariat shall have authority over all secretarial duties related to the supervision and control of subordinate courts and tribunals, assisting the Supreme Court in administering justice." 

This includes determining the number, jurisdiction, powers, and composition of all subordinate civil and criminal courts and tribunals (except revenue courts), appointing and setting service conditions for chairmen and members of these courts and tribunals, and managing the appointment, posting, transfer, discipline, and other matters regarding officers, employees, and judges of subordinate courts. 

Section 6(1) states, "The Chief Justice shall have overall control of the Supreme Court Secretariat, with the Secretary serving as its administrative head. (2) The Secretary of the SC Secretariat shall hold the same status and privileges as the Senior Secretary to the government."