Control of lower judiciary transferred to SC from President

Full control of the lower judiciary switches over to Bangladesh Supreme Court from the President in a major constitutional change by court verdict, in tune with post-uprising reform recipe.

The High Court Wednesday handed down the judgment vesting in the Supreme Court the full responsibility of maintaining discipline of the judges serving in the subordinate courts, including determining their work stations, granting promotions and approving leave.

The court restored the original provision of Article 116 of the Constitution of 1972 that had empowered the Supreme Court to decide on the postings, promotions and leave of lower-court judges.

Also, the HC declares illegal the amendments brought to the Article 116 of the Constitution in different times.

It observes that the Supreme Court, not the President, will have the powers of control and discipline of the lower-court judges.

The HC also directs the government to establish a separate secretariat for the judiciary within three months.

A High Court bench comprising Justice Ahmed Sohel and Justice Debasish Roy Chowdhury delivered the verdict after hearing on a writ petition challenging the legality of the Article 116 of the Constitution.

The court also declares unconstitutional the "Bangladesh Judicial Service (Disciplinary) Rules 2017".

Following the same petition, another HC bench on October 27 last year had issued a rule questioning the legality of present form of the article 116 of the Constitution.

The impugned article in its earlier-amended form reads: "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 Law Secretary and the SC Registrar-General to explain as to 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 as to why they should not be directed to establish a separate judicial secretariat on the SC premises.

The petition of change was filed by ten SC lawyers, including Mohammad Saddam Hossen, while waves of major reforms undertaken by the interim government installed through last year's regime-changing uprising.

Lawyer Mohammd Shishir Manir appeared in the court proceedings on behalf of the writ petitioner, while Attorney-General Md Asaduzzaman represented the state. Lawyers Dr Sharif Bhuiyan took part in the hearing as amicus curiae or friend of court and lawyer Ahsanul Karim as an intervener.

In an instant reaction Shishir Manir said, "The verdict restored the Supreme Court's power for regulating the discipline of the judges serving in the subordinate courts, including determining their work stations, granting promotions and approving leave."

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