The Appellate Division has stayed a High Court verdict that directed the government to establish a separate and independent secretariat for the Supreme Court within three months.
The order was passed on Tuesday by a bench of the Appellate Division led by the chief justice after hearing an appeal filed by the state against the High Court judgment.
The government filed the appeal on May 21, challenging the verdict delivered by a High Court bench comprising Justice Ahmed Sohel and Justice Debashish Roy Chowdhury on September 2 last year.
The full 185-page verdict was published on April 7.
In the judgment, the High Court declared unconstitutional the provision of Article 116 of the Constitution that vests authority in the president over the control and discipline of magistrates serving in subordinate courts, including matters related to posting, promotion and leave.
The court ruled that the authority to control and discipline judicial magistrates should rest with the Supreme Court. It also scrapped the Judicial Service (Discipline) Rules, 2017.
Lawyer Mohammad Shishir Monir represented the writ petitioners, while Senior Advocate Sharif Bhuiyan served as amicus curiae. The state was represented by then attorney general Md Asaduzzaman.
The writ petition was filed on August 25, 2024, by seven Supreme Court lawyers challenging the validity of Article 116 of the Constitution and the Judicial Service (Discipline) Rules, 2017, and seeking a directive to establish a separate secretariat for the judiciary.
The High Court issued a rule in the matter on October 27, 2024.
Under Article 116 of the Constitution, the president exercises control and disciplinary authority over members of the judicial service and magistrates performing judicial functions, in consultation with the Supreme Court.
The petitioners argued that the provision allows executive interference in judicial administration, undermining the independence of the judiciary.
They noted that under the 1972 Constitution, authority over the control and discipline of subordinate court judges and magistrates was vested in the Supreme Court.
The power was transferred to the president through the Fourth Amendment in 1974. The requirement that the president exercise the authority in consultation with the Supreme Court was later added through the Fifth Amendment.
Although the Fifth Amendment was subsequently declared unconstitutional by the Appellate Division, the current provision of Article 116 was reintroduced through the Fifteenth Amendment to the Constitution in 2011 and remains in force.