Supreme Court, not president, to have authority over lower court judges: HC

The High Court today observed that the Supreme Court, not the president, will have the powers of control and discipline of the lower court judges from now on.

The court restored the original provision of article 116 of the constitution of 1972 that had empowered the Supreme Court to decide on the posting, promotion and leave of lower court judges.

The HC also directed the government to establish a separate secretariat for the judiciary in three months.

The bench of Justice Ahmed Sohel and Justice Debashish Roy Chowdhury delivered the verdict following a writ petition challenging the legality of article 116 of the constitution, which gives the powers of control and discipline of the lower court judges to the president.

Following the same petition, another HC bench on October 27 last year, issued the rule questioning the legality of article 116 of the constitution.

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."

In the rule, the HC asked the respondents (law secretary and SC registrar general) to explain why the provisions of article 116 of the Constitution and the Bangladesh Judicial Service (Disciplinary) Rules, 2017 should not be declared contradictory to the constitution and why they should not be directed to establish a separate judicial secretariat at SC premises.

The HC came up with the rule following the petition filed by 10 SC lawyers in this regard. They are Mohammad Saddam Hossen, Md Asad Uddin, Md Muzahedul Islam, Md Zahirul Islam, Mustafizur Rahman, Shyikh Mahdi, Abdullah Sadiq, Md Mizanul Hoque, Aminul Islam Shakil and Jayed Bin Amjad.

They also appealed to the HC to restore the original provision of article 116 of the charter of 1972 that had empowered the Supreme Court to decide on the posting, promotion and leave of lower court judges.

During the hearing on the rule, the law ministry submitted an affidavit to the bench led by Justice Ahmed Sohel last month, saying that the state has a concrete and prioritised policy to establish a separate judicial secretariat with full logistic support.

"With regard to the prayer for direction to establish a separate secretariat, the state submits that it has no objection if separate secretariat is established thereon and ready to assist to the same effect," the ministry said in the affidavit.

Deputy Attorney General Mohammad Mehedi Hasan placed the affidavit on behalf of the law ministry opposing the writ petition.

"It transpires from the writ petition that the petitioners miserably failed to disclose that how Article 116 of the Constitution is inconsistent with the basic structures and further failed to provide any concrete arguments on how Article 116 is ultra vires the Constitution. As such, the rule is liable to be discharged for ends of justice," according to the affidavit.

Earlier, Attorney General Md Asaduzzaman and Intervener Advocate Ahsanul Karim placed arguments before the HC, saying that article 116 of the constitution has also ensured the check and balance among the state organs, as the law ministry cannot transfer a single judge or give any posting to any judge without permission from the SC.

Meanwhile, Dr Sharif Bhuiyan, amicus curiae (friend of court), and writ petitioners' lawyer Mohammad Shishir Manir told the court that the article 116 has destroyed the independence and separation of the judiciary which are the fundamental structure of the constitution.