The High Court has issued a ruling asking why Article 116 of the Constitution, which grants the president authority over the discipline, appointment, promotion, and leave of magistrates in subordinate courts, should not be declared invalid.
The order was issued by a High Court bench comprising Justice Farah Mahbub and Justice Debashish Roy Chowdhury, on Sunday following a preliminary hearing on a writ petition filed by seven Supreme Court lawyers on August 25.
The writ argues that the responsibility for disciplinary control of magistrates should be vested in the Supreme Court rather than the president.
Article 116 of the Constitution states that the president holds control over subordinate court magistrates, including their appointment, promotion, and leave.
This provision has been contested by the petitioners, who claim it infringes on judicial independence, as the control of magistrates should rest solely with the Supreme Court.
In addition, lawyer Shishir Monir noted that the writ petition challenges the constitutionality of the Bangladesh Judicial Service (Discipline) Rules 2017.
The court has also called for a report from the registrar general on the progress of establishing a separate judicial secretariat, in line with a Supreme Court directive issued in 2012, to be submitted within 60 days.
Respondents in the writ include the Ministry of Law’s Legislative and Parliamentary Affairs Division, the Law and Judiciary Department secretary, and the Supreme Court registrar.
According to Monir, the provision in Article 116 requires the president to consult the Supreme Court in matters related to magistrates' disciplinary actions, yet it enables potential executive interference in judicial affairs.
He said that this compromises judicial independence, a core principle of the Constitution.
In Bangladesh’s original 1972 Constitution, the Supreme Court was assigned sole authority over magistrates' disciplinary matters.
This was amended in 1974, shifting control to the president through the 4th Amendment.
Later, in 2011, the 15th Amendment Act reinstated the current provision under Article 116 after the Supreme Court declared the Fifth Amendment unconstitutional.
Monir argued that Article 116's provision stands against the independence of the judiciary and that judicial independence has become stagnant due to the law ministry’s control over subordinate courts.
This, he said, restricts judicial officers from carrying out their duties independently.
