Constitutional provisions over judges’ appointments challenged in High Court

The Constitutional provisions over appointment, promotions and transfers of judges have been challenged in the High Court following the chief justice’s remarks that it paved the way for a ‘dual rule’ in the country.

Court CorrespondentSupreme bdnews24.com
Published : 3 Nov 2016, 09:41 AM
Updated : 26 Feb 2017, 09:18 AM

Supreme Court lawyer Younus Ali Akhand filed a petition on Thursday challenging the 1975 Fourth Amendment and the 2011 Fifteenth Amendment, when the Constitution’s Sections 95 (1), 95 (2b) and 116 were amended.

 >> Section 95 stipulates the appointment of judges.

 >> Section 95 (1) says “The Chief Justice shall be appointed by the President, and the other Judges shall be appointed by the President after consultation with the Chief Justice.”

 >> Section 95 (2b) says “A person shall not be qualified for appointment as a Judge unless he is a citizen of Bangladesh and … (b) has, for not less than ten years, held judicial office in the territory of Bangladesh.”

 >>Section 116 says, "The control (including the power of posting, promotion and grant of leave) and discipline of persons employed in the judicial service and magistrates exercising judicial functions shall vest in the President and shall be exercised by him in consultation with the Supreme Court.]"

 In his petition, Akhand sought a rule asking why the provisions would not be declared illegal as it contradicts the Constitution.

 The Speaker, secretaries to the Cabinet Division and Law Ministry and the Supreme Court Registrar have been made party of the petition.

 “I will move to get a hearing done on Sunday,” Akhand told the media.

In a message to mark the ninth anniversary of the separation of the judiciary, Chief Justice Surendra Kumar Sinha sought substitution for Section 116 by the related section from the 1972 charter, holding it responsible for the 'dual rule'.

 "… Section 116 is one of the main reasons for the weakness of the judiciary," he said in his message on Monday.

The Section 116 now empowers the president to control the subordinate courts in consultation with the Supreme Court while the 1972 Constitution had vested the power in the Supreme Court.

 Justice Sinha said, it was a 'demand of the time' to bring back Section 116 as it was in the 1972 Constitution.

Law Minister Anisul Huq disagreed and told the media the next day that the chief justice’s proposal was 'self-contradictory' and that there was 'no need' to change that section of the Constitution.

"On the one hand, it is said that that (Section 96 of the 1972 Constitution) was a 'historical mistake'. On the other, there is a proposal to restore Section 116. It's self-contradictory!" Huq said.