A writ has been filed in the High Court challenging the validity of Article 116 of the Constitution, which states that “the President is responsible for disciplinary control (including appointment, promotion and grant of leave) of magistrates performing the duties of subordinate courts”.
In the writ, a request has been made to issue a rule as to why Article 116 of the Constitution will not be unconstitutional. The validity of this provision has been challenged as the independence of the judiciary is undermined if the President is entrusted with the responsibility of controlling and disciplining the magistrates of the subordinate courts.
On Sunday (August 25), 10 lawyers of the Supreme Court filed this writ.
The writ petitioners are, lawyer Mohammad Saddam Hossain, Md. Asad Uddin, Md. Mujahidul Islam, Md. Zahirul Islam, Mostafizur Rahman, Sheikh Mahadi, Abdullah Sadiq, Md. Mizanul Haq, Aminul Islam Shakeel and Zayed Bin Amzad.
In the writ, the Ministry of Law’s Legislative and Parliamentary Affairs Department, the Secretary of the Law and Judiciary Department and the Registrar of the Supreme Court have been made respondents.
Advocate Mohammad Shishir Monir filed the writ petition on behalf of the petitioners. The writ also challenges the constitutional validity of the Bangladesh Judicial Service (Disciplinary) Rules, 2017.
The petition sought the court’s direction to establish a separate judicial secretariat and an interim order seeking direction to submit a progress report in compliance with the Supreme Court’s 2012 order before final disposal of the case.
The writ petition further states that under Article 116, the President is vested with the responsibility of disciplinary control (including appointment, promotion and grant of leave) of Magistrates performing the duties of subordinate courts.
The same article states that the President shall consult the Supreme Court in discharging the said duty. Direct interference of the executive branch of the state is seen in carrying out this responsibility, which is mainly entrusted to the President, which undermines the independence of the judiciary.
The 1972 Constitution vested this responsibility of discipline (including appointment, promotion and leave) of magistrates performing the duties of subordinate courts on the Supreme Court. In 1974, through the Fourth Amendment to the Constitution, the control of magistrates (including appointment, promotion and leave) was vested in the President.
Later the Fifth Amendment to the Constitution and the words ‘shall be applied by the President in consultation with the Supreme Court’ were inserted. Later, when the Appellate Division of the Hon’ble Supreme Court declared the Fifth Amendment Act unconstitutional, the present identical provision of Article 116 was replaced by the Fifteenth Amendment Act, 2011. At present this provision exists in Article 116 of the Constitution.
Arguments raised in the writ petition
1. Independence of the Judiciary is the basic structure of the Constitution. Article 116 has destroyed this basic structure. At the same time, the implementation of the disciplinary code of judges has been practically entrusted to the Ministry of Law.
2. The Fourth Amendment to the Constitution has already been repealed. The Fifth Amendment was declared unconstitutional. 116 was upheld in the Fifteenth Amendment, which is contrary to the independence of the judiciary and the rule of law.
3. In the absence of a separate secretariat, the independence of the judiciary has practically stagnated. Due to the control of the Ministry of Law over the subordinate courts, the officers of the judicial department are not able to conduct the judicial work independently.