HC orders separate judicial secretariat within 3 months

The High Court has directed the government to establish a separate secretariat for the judiciary within three months, marking a major step toward ensuring judicial independence in Bangladesh.

At the same time, the court declared unconstitutional the 2017 Judicial Service (Discipline) Rules, which governed disciplinary actions for lower court judges. The verdict came from a High Court bench comprising Justice Ahmed Sohel and Justice Debashish Roy Chowdhury following the final hearing of a writ petition filed by seven Supreme Court lawyers.

The ruling, delivered on Tuesday, has three major components:

Restoration of Article 116: The court struck down amendments made to Article 116 of the 1972 Constitution, restoring it to its original form. In the original Constitution, control over the subordinate judiciary—including postings, promotions, and discipline—was vested solely in the Supreme Court. This authority was later transferred to the President through the Fourth Amendment and modified further in the Fifteenth Amendment, which required the President to act "in consultation with the Supreme Court." With the High Court’s verdict, full control once again lies with the Supreme Court.

Cancellation of 2017 Discipline Rules: Since the amended Article 116 has now been nullified, the disciplinary rules formulated under it in 2017 have also been declared void.

Judicial Secretariat Ordered: The court directed the government to establish a separate secretariat for the judiciary under the Supreme Court's authority within three months. This move is intended to strengthen the structural independence of the judiciary from the executive branch.

The writ petition was filed on August 25, 2023, challenging the legality of Article 116 as amended and the 2017 discipline rules, while also seeking a directive to form a separate judicial secretariat. The High Court issued a rule on October 27, 2023, following the petition.

Representing the petitioners, lawyer Mohammad Shishir Monir argued that the President's administrative control over the judiciary—carried out via the executive—amounted to interference, undermining judicial independence. The state was represented by Attorney General Md. Asaduzzaman, while Senior Advocate Sharif Bhuiyan appeared as amicus curiae.

According to Monir, “Article 116 as amended has allowed the executive to interfere in judicial matters under the guise of presidential authority, which contradicts the principle of judicial independence enshrined in the 1972 Constitution.” He noted that the Fourth Amendment in 1974 shifted control of magistrates from the Supreme Court to the President. Subsequent amendments added language requiring consultation with the Supreme Court, but executive dominance remained.

In 2010, the Appellate Division declared the Fifth Amendment unconstitutional. Subsequently, the Fifteenth Amendment Act of 2011 reinstated the current version of Article 116, which has now been invalidated by the High Court.