High Court issues rule over Constitutional provisions on judges’ appointments

The High Court has issued a rule asking why some of the Constitutional provisions over appointment, promotions and transfers of judges will not be declared illegal.

On Sunday, the bench of justices Quazi Reza-Ul Hoque and Mohammad Ullah issued a rule after a hearing of a petition challenging the provisions.

Four, including the Cabinet secretary, law secretary and Supreme Court's registrar general have been ordered to come up with explanations within four weeks.

On Nov 3 last year, Supreme Court lawyer Younus Ali Akhand filed a petition challenging the 1975 Fourth Amendment and the 2011 Fifteenth Amendment, when the Constitution’s Sections 95 (1), 95 (2b) and 116 were amended.

After Sunday's hearing Akhand said that the court asked why Sections 48 (3), 95 (1), 95 (2b), 98, 115 and 116 of the Constitution will not be declared illegal.

>>Section-48 (3) says, "In the exercise of all his [The president's] functions, save only that of appointing the Prime Minister pursuant to clause (3) of article 56 and the Chief Justice pursuant to clause (1) of article 95, the President shall act in accordance with the advice of the Prime Minister:

Provided that the question whether any, and if so what, advice has been tendered by the Prime Minister to the President shall not be enquired into in any court.    

>> 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-98 says "Notwithstanding the provisions of article 94, if the President is satisfied that the number of the Judges of a division of the Supreme Court should be for the time being increased, the President may appoint one or more duly qualified persons to be Additional Judges of that division for such period not exceeding two years as he may specify, or, if he thinks fit, may require a Judge of the High Court Division to sit in the Appellate Division for any temporary period:

Provided that nothing in this article shall prevent a person appointed as an Additional Judge from being appointed as a Judge under article 95 or as an Additional Judge for a further period under this article."

>>Section-115 says, "Appointments of persons to offices in the judicial service or as magistrates exercising judicial functions shall be made by the President in accordance with rules made by him in that behalf."

>>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 challenged the 1975 Fourth Amendment and the 2011 Fifteenth Amendment, when the Constitution’s Sections 95 (1), 95 (2b) and 116 were amended.

"These sections were not stipulated in this way in the 1972 Constitution. The amendments contradict with the Constitution's Section 109," he said on Sunday.

>>Section-109 says, "The High Court Division shall have superintendence and control over all courts and tribunals subordinate to it."

"After hearings that continued for almost one and a half months, the court issued a rule on to maintain the independence of judiciary," said petitioner Akhand.

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, which the lawyer claims contradicts the Constitution.

In a message on Oct 31 last year, marking 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.

Section 116 was amended during the military regime of Ziaur Rahman in 1978 to vest powers of control of the judiciary in the hands of the president.

In 2011, the Awami League-led coalition government restored the four fundamental principles of the Constitution through the Fifteenth Amendment but did not bring back the old Section 116.

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 that the chief justice’s proposal was 'self-contradictory' and that there was 'no need' to change that section of the Constitution.

"On one hand, it is said 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.