High Court issued a rule questioning legality of article 116 of constitution granting President control over lower courts.
A HC bench of Justice Farah Mahbub and Justice Debasish Roy Chowdhury passed the order, after holding hearing on a writ petition filed by seven Supreme Court lawyers.
The article states that the President shall have control over the judicial service and magistrates performing judicial functions, including authority over postings, promotions, and leave grants. This power is to be exercised in consultation with the Supreme Court.
The petitioners made secretaries of the Legislative and Parliamentary Affairs Division, Law and Justice Division and Supreme Court Registrar respondents in the writ. Advocate Mohammad Shishier Manir moved the plea before the court.
Regarding the lower judiciary, the original Article 116 of 1972 constitution empowered the Supreme Court to have control over the affairs of lower judiciary, including the posting, promotion, grant of leave and discipline of the judges and judicial magistrates.
But the parliament, through the fourth amendment to the constitution during the AL rule in 1975, scrapped that authority of the SC and gave it to the president. Bangabandhu Sheikh Mujibur Rahman, who was then prime minister, grabbed the presidency through the constitutional amendments and established one-party rule – BAKSAL.
Another amendment, adopted during the military rule, allowed the president to appoint judges in consultation with the Supreme Court.
Though there was a provision for consultation in exercising the president's power over the lower court, practically this consultation is meaningless if the executive does not cooperate with the Supreme Court, experts have observed.
Bd-Pratidin English/ARK
