The High Court on Tuesday declared the amendment to article 116 of the constitution relating to the control and discipline of subordinate judiciary unconstitutional and void.
The HC bench of Justice Ahmed Sohel and Justice Debasish Roy Chowdhury passed the order returning the full authority to the Supreme Court.
With this order, the Supreme Court will have full authority over lower court judges, including matters related to their posting, promotion and granting of leave, restoring the judiciary’s administrative independence.
The judgment reinstates the original article 116 as it appeared in the constitution of 1972.
With this, the control and disciplinary authority over judges of subordinate courts is now fully vested in the Supreme Court.
The HC also asked the authorities concerned to establish a separate Secretariat within three months as per the proposal of the Supreme Court authority.
Besides, the disciplinary rules created for the judges in 2017 have been declared contradictory to the constitution. As a result, the Supreme Court will no longer need to seek the President's approval for the transfer and disciplinary measures of judges.
Advocate Mohammad Shishir Manir stood for the petitioner while Attorney General Md Asaduzzaman represented the state.
Senior lawyer Sharif Bhuiyan was also present during the hearing as amicus curiae.
Speaking to reporters, Shishir Manir said the order has fully restored the Supreme Court’s control over judges, including their postings, promotions and leave approvals.
From now on, the Ministry of Law will have no control over the transfer and discipline of judges in the name of the appropriate authority. They will be able to deliver judgments without fear, he said.
After delivering a verdict, judges will no longer have to fear being transferred in the dead of night due to the wrath of the executive authority and the order is a historic order.
Earlier on August 25, last year, seven lawyers of the Supreme Court filed a writ petition seeking to transfer the authority of controlling magistrates of subordinate courts (posting, promotion, and leave approval) from the President to the Supreme Court.
They are Advocate Mohammad Saddam Hossain, Zahirul Islam, Mustafizur Rahman, Abdullah Sadique, Md Mizanul Haque, Aminul Islam Shakil and Zayed Bin Amzad.
According to the petition, the 1972 Constitution originally vested the control of magistrates in subordinate courts with the Supreme Court. The1974 4th Amendment shifted this authority to the President.
Later, the 5th Amendment inserted the clause "in consultation with the Supreme Court." When the Appellate Division of the Supreme Court declared the 5th Amendment unconstitutional, the 15th Amendment Act of 2011 reinstated the current provision in Article 116.
The petitioners argue that giving the President control over magistrates compromises judicial independence. They believe the Supreme Court should retain full control over magistrates for a truly independent judiciary.
On October 27, last year, the HC bench of Justice Farah Mahbub and Justice Debashish Roy Chowdhury, issued a rule asking the government to explain as to why Article 116 of the Constitution, which grants the President the authority to control magistrates of subordinate courts, including matters of posting, promotion and leave approval, should not be declared unconstitutional.
It also issued another rule asking the government to explain as to why a separate Secretariat for Judiciary should not be formed.
The registrar general of the Supreme Court was asked to submit a progress report within 60 working days.
