HC questions president's authority over lower court judges

The High Court issued a rule today, questioning the validity of a constitutional provision that grants the president control over various matters concerning judges in lower courts. 

Article 116 of the Constitution empowers the president to deal with the appointment, promotion, leave, and disciplinary actions related to lower court judges.

The High Court bench, consisting of Justice Farah Mahbub and Justice Debashish Roy Chowdhury, issued the rule upon a writ petition filed on 25 August challenging the validity of this article.

The cabinet secretary, law secretary, and the principal secretary to the chief adviser, among others, have been directed to respond to the rule within four weeks.

The writ, filed by ten Supreme Court lawyers, sought a ruling on why Article 116 should not be declared unconstitutional, arguing that entrusting the president with control over lower court judges undermines judicial independence.

Advocate Mohammad Shishir Manir represented the petitioners in court, while deputy attorney generals Syeda Sazia Sharmin and Tamim Khan appeared on behalf of the state.

"Before the Fourth Amendment to the Constitution, the High Court Division was responsible for overseeing and controlling lower courts and tribunals. This provision previously safeguarded judicial independence," petitioners' lawyer Shishir Manir told The Business Standard.

"However, replacing 'Supreme Court' with 'President' has significantly curtailed and undermined the independence of lower courts."  

He said the Constitution's framework indicates that lower courts should be entirely independent and overseen by the Supreme Court.

"Despite the Fourth Amendment and subsequent 12th Amendment, no government has addressed this issue despite the observations in judgements concerning the Fifth, Eighth, and 13th Amendments," he added.

The lawyer noted that the judiciary's independence cannot be achieved if control and discipline over lower court judges remain with the executive branch.

"Therefore, the writ petition has been filed challenging the validity of the article," he added.

Article 116 of the 1972 Constitution

Regarding the lower judiciary, the original Article 116 of the 1972 Constitution empowered the Supreme Court to have control over the affairs of the lower judiciary, including the posting, promotion, grant of leave, and discipline of the judges and judicial magistrates.

But the parliament, through the fourth amendment during the AL rule in 1975, scrapped that authority of the SC and gave it to the president. Sheikh Mujibur Rahman, who was then prime minister, grabbed the presidency through the constitutional amendments and established one-party rule – BAKSAL.

Later in 1978, during the martial law regime, Article 116 was amended further through the martial law proclamation, and a provision was introduced saying the president would exercise the authority in consultation with the SC.

The Hasina-led AL government that always blasted the martial law regime, however, opted for retaining the provisions introduced by the martial law government.

In 2011, the 15th amendment to the constitution retained the same provision in Article 116.

"By this substitution of the word 'President' for the words 'Supreme Court' in Article 116, the independence of the lower judiciary has been totally impaired, curtailed, and whittled down," observed the SC in the 16th Amendment verdict, delivered in 2017.

"Though there was a provision for consultation in exercising this power, practically this consultation is meaningless if the executive does not cooperate with the Supreme Court," the apex court added.

Moreover, at first sight, it may seem that the president has been empowered by the amendment to exercise Article 116. But in reality, he himself cannot exercise the power. The prime minister exercises the power as the president performs all his functions on advice of the prime minister, except for the appointment of the PM and the chief justice.

Thus, the prime minister has retained control over the lower judiciary.

"There cannot be any independence in the judiciary if the disciplinary mechanism, including the power of appointment, posting, and promotion of the officers of the lower and higher judiciary, is kept in the hands of the executive," said the SC verdict.

The government also retains control of the appointment of judges of the Supreme Court, paying no heed to the constitutional obligation to make a separate law for the appointment of the apex court judges. Absence of specific law allows the government to appoint judges of its own choice.

Those provisions empowered ex-PM Hasina to establish her government control over the judiciary. And stage-managed elections helped her to establish complete control over the parliament too. She had retained her control over all three branches of the state and emerged as the 'all powerful leader' of Bangladesh.