Dhaka – Bangladesh’s Supreme Court has regained full administrative control over lower court judges, restoring a key element of judicial independence.
The authority includes matters such as postings, promotions, and leave applications – matters which would require the President’s approval under the current legal settings.
This shift follows a ruling on Tuesday by a High Court bench, comprising Justices Ahmed Sohel and Debasish Roy Chowdhury, which declared a 2011 constitutional amendment related to the control and discipline of the subordinate judiciary unconstitutional and void.
The court reinstated the original Article 116 from the 1972 Constitution, thereby fully vesting control and disciplinary authority over subordinate court judges in the Supreme Court.
Consequently, the Supreme Court will no longer require the President’s approval for transfers or disciplinary measures.
The bench also directed authorities to establish a separate Secretariat for the judiciary within three months, based on a proposal from the Supreme Court, to ensure its administrative independence. Furthermore, the court nullified the 2017 disciplinary rules for judges, deeming them unconstitutional and allowing the Supreme Court to operate autonomously.
Mohammad Shishir Manir, the lawyer who defended the petition, stated that the order fully restores the Supreme Court’s control. “The Ministry of Law will have no control over the transfer and discipline of judges in the name of the appropriate authority from now on. They will be able to deliver judgments without fear,” he said.
Attorney General Md Asaduzzaman represented the state during the hearing, while senior lawyer Sharif Bhuiyan served as amicus curiae.
The ruling stems from a writ petition filed on August 25, 2024, by seven Supreme Court lawyers: Mohammad Saddam Hossain, Zahirul Islam, Mustafizur Rahman, Abdullah Sadique, Md Mizanul Haque, Aminul Islam Shakil, and Zayed Bin Amzad.
They sought to transfer authority over magistrates from the President to the Supreme Court.
The petitioners argued that the original 1972 Constitution vested this control in the Supreme Court. While the Fourth Amendment in 1974 shifted authority to the President, the Fifth Amendment added a clause requiring “consultation with the Supreme Court”. The 15th Amendment in 2011 reinstated the provision in Article 116 after the Fifth Amendment was declared unconstitutional.
The petitioners contended that presidential control over magistrates compromises judicial independence and that the Supreme Court should retain full authority.
On October 27 of last year, a High Court bench comprising Justice Farah Mahbub and Justice Debashish Roy Chowdhury issued a rule questioning the constitutionality of Article 116 and another rule demanding an explanation for why a separate Secretariat for the Judiciary should not be formed.
