A writ petition has been filed with the High Court (HC), challenging legality of the Article 116 of the Constitution that vested the control and discipline of persons employed in the judicial service and magistrates exercising judicial functions in the President.
Ten Supreme Court (SC) lawyers, including Mohammad Saddam Hossain and Md Asad Uddin, filed the writ petition on Sunday. Their lawyer Mohammad Shishir Manir placed it on their behalf.
The petitioners sought a rule from the HC upon the respondents to explain as to why the Article 116 should not be declared unconstitutional.
According to the Article 116, "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."
The writ petition also challenged legality of the Bangladesh Judicial Service (Disciplinary) Rules 2017 and sought direction to establish a separate secretariat for the judiciary.
Secretaries to the Legislative and Parliamentary Division and Law and Justice Division of Ministry of Law, and the SC Registrar General were made respondents in the petition.
The HC bench of Justice Naima Haider and Justice Sashanka Shekhar Sarkar might hold hearing on the petition next week, said lawyer Shishir Manir.
According to the writ petition, the Article 116 vested the responsibility of controlling and disciplining the lower court judges in the President.
However, direct interference of the executive branch of the state was observed in discharging this duty of the President, which undermined independence of the judiciary.
The petition further said independence of the judiciary is the fundamental structure of the Constitution, which has been destroyed by the Article 116.
At the same time, implementation of the disciplinary code of subordinate court judges has been practically entrusted to the Ministry of Law through it.
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