Big stride towards judicial autonomy

In a landmark verdict, the High Court yesterday ruled that the Supreme Court, not the president, will have the authority over the transfer, posting, and discipline of lower court judges.

It also ordered the government to establish a separate judicial secretariat within three months of receiving the judgment.

The bench of Justice Ahmed Sohel and Justice Debashish Roy Chowdhury delivered the judgment on a writ petition filed by several lawyers. It also scrapped article 116 of the constitution, which had vested these powers in the president, as well as provisions of the fourth and 15th amendments that upheld presidential control.

The court ruling restores the original 1972 provision of article 116, which empowers the Supreme Court to oversee the posting, promotion and leave of judges in the lower judiciary.

It also declared the Bangladesh Judicial Service (Disciplinary) Rules, 2017 unconstitutional, ruling that they wrongly placed lower court judges under presidential authority in consultation with the Supreme Court.

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."

The High Court noted that while article 109 of the constitution vests the Supreme Court's High Court Division with authority to supervise subordinate courts, in practice, this power rests with the president.

The president, who formally acts on the advice of the prime minister, appoints both the prime minister and the chief justice. This arrangement, the court said, entrenches executive influence over the judiciary.

The bench said that the president's "consultation" with the Supreme Court in matters concerning lower court judges becomes meaningless if the executive does not cooperate.

The HC judges said that article 22 of the constitution explicitly says that the judiciary must be separated from the executive. Any form of executive control over judges of the lower judiciary undermines the balance of power.

The bench also criticised the judicial service (disciplinary) rules, which designate the law ministry as the "appropriate authority" over lower court judges. This, the HC said, places judicial officers under executive control in violation of the constitutional principle of separation of powers.

The judges noted that while separate secretariats exist for the Jatiya Sangsad and the Election Commission, no such body has been created for the judiciary.

They observed that establishing a judicial secretariat would strengthen checks and balances among state organs and safeguard the separation of powers.

The full details of the verdict will be known once its full text is released.

Following the verdict, petitioners' lawyer Mohammad Shishir Manir hailed the ruling as "a glorious chapter in the country's judiciary".

"Through this verdict, our lower courts have been freed from political influence. The dignity and prestige of judges and officials have been restored," he told The Daily Star.

Deputy Attorney General Mohammad Mehedi Hasan, however, said the state would appeal the decision before the Appellate Division of the Supreme Court.

On October 27 last year, acting on the same petition, another HC bench issued a rule questioning the legality of article 116 and the Judicial Service (Disciplinary) Rules, 2017.

In the rule, the HC asked the respondents -- law secretary and SC registrar general -- to explain as to why the provisions of article 116 and the disciplinary rules should not be declared contradictory to the constitution, and why they should not be directed to establish a separate judicial secretariat on the SC premises.

The HC came up with the rule following the petition filed by 10 SC lawyers -- 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 Jaiadd Bin Amjad.

They also appealed to the HC to restore the original provision of article 116 of the charter of 1972.

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.

However, the affidavit, placed by Deputy Attorney General Mohammad Mehedi Hasan on behalf of the law ministry, opposed the writ petition's claim to scrap the current article 116.

According to the affidavit, the petitioners "failed to show how article 116 is inconsistent with the constitution's basic structure or to provide concrete arguments for declaring it unconstitutional". It added that, on those grounds, the writ petition should be dismissed in the interest of justice.

Earlier, Attorney General Md Asaduzzaman and Intervener Advocate Ahsanul Karim argued that article 116 maintains checks and balances among state organs, noting that the law ministry cannot transfer or post any judge without the Supreme Court's approval.

By contrast, amicus curiae Sharif Bhuiyan, along with petitioners' counsel Mohammad Shishir Manir and intervener Mahiuddin, contended that article 116 undermines judicial independence and the constitutional principle of separation of powers.