The High Court has directed the authorities to establish a separate secretariat for the Supreme Court within three months, in line with the court’s recommendation.
The verdict, delivered on Tuesday by a bench comprising Justice Ahmed Sohel and Justice Debashis Roy Chowdhury, also reinstated Article 116 of the 1972 Constitution, which places the control and discipline of subordinate courts under the jurisdiction of the Supreme Court.
Under the original 1972 Constitution, the Supreme Court held authority over the posting, promotion, leave, and disciplinary control of judicial officers and magistrates serving in the judiciary. However, the Fourth Amendment of 1975 transferred these powers to the President. Later, the Fifth Amendment added that the President would exercise these powers in consultation with the Supreme Court.
Declaring these changes unconstitutional, the High Court ruled that the amendment to Article 116 by the Fourth Amendment in 1975 and the Fifth Amendment’s provision were both void. The court said Article 116 as it stood in the 1972 Constitution would automatically revive and remain effective from the date of the judgment.
The court also declared the 2017 Judicial Service (Discipline) Rules inconsistent with the Constitution.
The ruling came following a writ petition filed on August 25 last year by seven lawyers of the Supreme Court challenging the constitutionality of Article 116 of the current Constitution and the 2017 Judicial Service (Discipline) Rules, and seeking an order to establish a separate secretariat for the judiciary.
After a preliminary hearing, the High Court issued a rule on October 27, 2023, asking why the provision and the rules should not be declared unconstitutional and why a separate secretariat should not be established. The law ministry’s two secretaries and the registrar general of the Supreme Court were asked to respond.
The final hearing began on April 23 this year before the bench led by Justice Ahmed Sohel and concluded on August 13, with the verdict delivered on September 2.
Given the constitutional and legal significance of the case, the court also issued a certificate under Article 103 of the Constitution, allowing the matter to be appealed before the Appellate Division.
Barrister Mohammad Shishir Monir, along with Advocate Mohammad Saddam Hossain, represented the petitioners. Attorney General AM Amin Uddin, Additional Attorney General Anik R Haque, and Deputy Attorney General Mohammad Mehedi Hasan appeared for the state. Senior lawyer Sharif Bhuiyan served as amicus curiae, while senior lawyer Ahsanul Karim participated as an intervener.
