HC starts final hearing on rule challenging legality of constitutional article 116

The High Court has begun 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 began the hearing today (23 April), where Advocate Shishir Manir presented arguments on behalf of the petitioner.

The court has set tomorrow (24 April) as the date for the next hearing on this matter.

Lawyers say the petition seeks to abolish Article 116 of the Constitution, transferring the president's authority over lower court judges to the Supreme Court's chief justice.

During yesterday's hearing, Shishir Manir explained the context of the petition. He stated, "The existence of Article 116 has led to negative experiences in the past. There have even been instances where courts were held at night for taking testimony from 17 witnesses in one day, citing 'orders from above'."

Shishir told the High Court, "Currently, there are 2,193 or 2,183 judges in the lower courts. If Article 116 is amended, many cases will no longer need to go to the High Court. A significant number of cases will be resolved in the lower courts."

The petitioner's lawyer also stated, "In the past, judges were transferred to Bandarban if they failed to lobby the Law Ministry. Witnessing these issues causes us distress. However, we believe abolishing Article 116 will restore the judges' dignity."

At this point, the High Court asked, "So, you [petitioners] have filed the petition due to these grievances?" The petitioner's lawyer nodded in agreement.

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.