The High Court on Tuesday ordered the government to establish a separate secretariat in the Supreme Court in three months after investing full disciplinary control over subordinate judges in the apex court.
The bench of Justice Ahmed Sohel and Justice Debasish Roy Chowdhury delivered the landmark verdict, striking down important constitutional amendments and executive rules that had for long kept the judiciary under the executive.
The verdict was delivered after hearing a public interest litigation filed by lawyer Md Saddam Hossen and eight other Supreme Court lawyers after the August 5, 2024 ouster of the Sheikh Hasina-led Awami League regime amid a mass uprising.
鈥楾he respondents are directed to establish an independent secretariat for the Supreme Court of Bangladesh as proposed by the Supreme Court authorities, preferably within three months,鈥� the court ruled, citing the existing lack of institutional autonomy as a violation of Articles 28 and 29 of the constitution, which guarantee equality and non-discrimination.
The court declared unconstitutional both the 4th amendment (1975) and the 15th amendment (2011) that altered Article 116, shifting control over lower court judges鈥� discipline and administration from the Supreme Court to the president.
The bench held that these changes violated the principle of separation of powers.
鈥楢s the existing Article 116 has been declared ultra vires, the original version of Article 116 of the 1972 Constitution is hereby restored,鈥� the verdict said.
The original Article 116 that now stands reinstated states, 鈥楾he 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 Supreme Court.鈥�
The court also struck down the Bangladesh Judicial Service (Disciplinary) Rules, 2017, declaring them inconsistent with both the restored Article 116 and the precedent set in the Masdar Hossain case, which mandated a separate and independent judicial structure.
The court found that the current Article 116, under which the president exercises control 鈥榠n consultation with the Supreme Court鈥�, has created a 鈥榙ual administrative structure鈥�, allowing the law ministry to retain final authority in judicial matters. This, the court said, effectively subjugated the judiciary to the executive.
鈥楾he phrase 鈥榠n consultation with the Supreme Court鈥� is rendered meaningless under the existing arrangement,鈥� the judgment noted, echoing observations made in the 16th amendment case by the Appellate Division.
The court also granted a certificate allowing a direct appeal to the Appellate Division, saying the case involves important constitutional questions.
It noted that attorney general Md Asaduzzaman had raised no objection to the establishment of a separate secretariat for the Supreme Court.
It observed that true checks and balances鈥攁nd judicial independence鈥攃an only be ensured if Article 116 is restored to its original form by removing that phrase.
The existing Article 116 is not the best form and does not ensure proper checks and balances, it said.
It rejected the attorney general鈥檚 claim that giving the Supreme Court only a consultative role ensures balance among the three branches of the state.
The court clarified that 鈥榗hecks and balances鈥� is a technical term that refers to the full separation of powers, not to a limited form of consultation as argued by the attorney general.
The directive to establish a separate Supreme Court secretariat comes as chief justice Syed Refaat Ahmed鈥檚 own proposal on the matter remains pending, with 80 percent of his judicial reform agenda, unveiled on September 21, 2024, already achieved since taking office in August that year.
The court referred to multiple national and international reports backing the reform.
United Nations Human Rights Fact-Finding Report (2024鈥�25) recommended the establishment of independent mechanisms for judicial appointments and discipline.
Constitution Reform Commission, Judicial Reform Commission, and the National Consensus Commission called for the restoration of the Supreme Court鈥檚 control over subordinate courts.
The Consensus Commission, based on input from 31 political parties, urged amending Article 116 to eliminate executive influence.
The court also cited the Rules of Business conflict, noting that as long as Article 116 remains in its amended form, true separation of powers cannot be implemented, as all presidential decisions are subject to the advice of the prime minister under Article 48.
Article 116 of the 1972 constitution empowered the Supreme Court to control and discipline the subordinate courts and the judges and magistrates employed there.
The Supreme Court lost its authority to control the lower courts and judges as the president was empowered only to do this job by amending Article 116 through fourth amendment to the Constitution in 1975.聽
In 1975, the government also incorporated a new Article 116 A in the constitution stating that the lower court judges would be 鈥榠ndependent in the exercise of their functions subject to provisions of the Constitution鈥�.
Article 116 was amended again through the fifth Amendment to the constitution during the martial law proclamation in 1978, stating that the president will exercise the powers over the lower judiciary 鈥榠n consultation with the Supreme Court鈥�.
The 1978 amendment to Article 116 was declared illegal following a Supreme Court verdict that had declared the fifth amendment unconstitutional.聽
On June 30, 2011, the government enacted the 15th amendment to the constitution, paying no heed to an observation of the Supreme Court given in its verdict on the fifth amendment for the reinstatement of original Articles 鈥� Article 115 and 116.
Lawyer Mohammad Shishir Manir appeared for the writ petitioners, senior lawyer Ahsanul Karim supported the petition as intervener, and senior lawyer Sharif Bhuiyan gave opinions as an amici curiae.
