High Court restores SC authority over lower court judges, orders separate judicial secretariat within 3 months

The High Court has struck down provisions of the Constitution that gave the president authority over subordinate courts, restoring the Supreme Court's control over judges of the lower judiciary.

In the ruling delivered today (2 September), the bench of Justice Ahmed Sohel and Justice Debasish Roy Chowdhury declared parts of Article 116 of the Constitution illegal and void, and directed the formation of a separate secretariat for the judiciary within three months.

Article 116 stated, "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, promotion, 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."

However, following the amendments to the article, 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.

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.

The case was initially placed with the bench led by Justice Farah Mahbub. But, after her appointment to the Appellate Division in March this year, the bench was dissolved. 

Later, Shishir Monir applied for the case to be heard by a new bench.

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