Lower Court Judges' Appointment, Posting: HC rule on legality of president's authority
The High Court yesterday questioned the legality of the constitutional provisions that empower the president to appoint Supreme Court and lower court judges and also to control the appointment, promotion and posting of and disciplinary measures against lower court judges.
In a ruling, the HC asked the government to explain in four weeks why the relevant articles -- 95(2)(b), 98, 115, 116 and 116(A) -- of the constitution should not be declared illegal and unconstitutional.
Article 116 of the original charter of 1972 had empowered the SC to decide on the posting, promotion and leave of lower court judges. The top court had also control over the magistrates' exercise of judicial power and could discipline the judicial service staff, when necessary.
Over the years, this article has been amended several times, curtailing the apex court's powers.
Currently, the powers to control and discipline subordinate courts are vested in the president, who exercises these powers in consultation with the SC.
However, under article 48 (3) of the constitution, the president acts on the advice of the prime minister. This gives the government ample scope to exercise power over the judiciary.
Legal experts view the present system as "dual rule" in the judiciary.
Chief Justice Surendra Kumar Sinha has himself said such a "dual rule" was hampering the judicial work and was also increasing justice-seekers' sufferings.
"The Supreme Court alone cannot take steps regarding lower court judges' promotion and transfer or any disciplinary actions against them due to the [present] article 116. Judges cannot be appointed to fill many vacant posts at district courts on time due to the dual rule," he said in a message on October 31 last year, the ninth anniversary of the separation of the judiciary from the executive.
The lower judiciary was separated from the executive branch on November 1, 2007, following the Supreme Court directives in Masdar Hossain case, popularly known as the separation of judiciary case.
Yesterday, the HC in its ruling asked the respondents to explain why they should not be ordered to take necessary steps to amend the relevant articles of the constitution so that the president need not take the PM's advice for appointing any judge.
The respondents are the Speaker, the SC registrar general and the secretaries to the cabinet division and the law ministry.
The HC bench of Justice Quazi Reza-Ul Hoque and Justice Mohammad Ullah came up with the ruling, following a petition filed by SC lawyer Eunus Ali Akond.
In his November 3 petition, Eunus challenged the legality of articles 95(2)(b), 98, 115, 116 and 116(a).
Article 115 says, “Appointments of persons to offices in the judicial service or as magistrates exercising judicial functions shall be made by the president in accordance with rules made by him in that behalf.”
Article 116 says, “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.”
Eunus told The Daily Star yesterday that under article 95(2)(b) of the 1972 constitution, lower court judges had to have three years' experience as district judges for becoming an HC judge.
But the same article in the present constitution has no such provisions, he said, adding that this change was brought through the fourth amendment in January 1975.
Similarly, article 98 of the 1972 constitution was changed through the fourth amendment. As a result, the president does not need to consult the chief justice before appointing Supreme Court judges, he said.
The same constitutional amendment brought changes to article 115 of the original charter. Because of the change, the president need not consult the chief justice before appointing lower court judges.
Eunus said under article 116 of the 1972 constitution, the SC had full authority over the posting, transfer and promotion of lower court judges. But through the fourth amendment, the powers were vested in the president, who now does the job in consultation with the SC.
Contacted, Attorney General Mahbubey Alam said he would contest the HC ruling during the hearing.
The president is the symbol of unity of the nation and his authority cannot be curtailed, he said, adding that parliament had the power to bring changes to the constitution.
Eminent jurist Dr Shahdeen Malik told The Daily Star the HC ruling meant the constitutional validity of these articles had to be looked into.
“It promises to be a very important and interesting question,” he added.
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