The High Court has ordered the creation of a separate secretariat for the judiciary within three months, marking a significant step toward strengthening judicial independence in Bangladesh.
In a landmark verdict delivered on Tuesday, September 2, the court also struck down the Judicial Service (Discipline) Rules, 2017, which governed disciplinary actions in subordinate courts.
The ruling was issued by a High Court bench comprising Justice Ahmed Sohel and Justice Debashish Roy Chowdhury, following the final hearing of a rule petition filed in connection with a writ challenging the constitutional validity of Article 116 and the 2017 disciplinary rules. The court had earlier scheduled the verdict for September 2 after holding a hearing on August 13.
Lawyer Mohammad Shishir Manir represented the writ petitioners, while Senior Advocate Sharif Bhuiyan served as amicus curiae. Attorney General Md Asaduzzaman appeared for the state.
The verdict consisted of three key directives:
First, the court declared Article 116 of the Constitution, as amended through the Fifteenth Amendment Act of 2011, to be unconstitutional and nullified. The original 1972 Constitution had placed administrative control—covering posting, promotion, leave, and discipline—of judicial officers in subordinate courts under the Supreme Court. However, the Fourth Amendment in 1975 transferred this authority to the President, effectively placing it under executive control. The Fifteenth Amendment later modified this to require the President to act "in consultation with" the Supreme Court, a provision the court now found inadequate for ensuring judicial independence.
With the annulment of the amended Article 116, the original constitutional framework has been restored, returning full administrative control of the subordinate judiciary to the Supreme Court.
Second, as a direct consequence of the restoration of the original Article 116, the Judicial Service (Discipline) Rules, 2017, formulated under the previous executive-influenced framework, have been quashed. The court held that these rules were enacted based on an unconstitutional delegation of power and are therefore no longer valid.
Third, the High Court ordered the establishment of a separate secretariat for the judiciary under the Supreme Court within three months. This body will handle administrative, personnel, and logistical matters related to the subordinate courts, ensuring operational autonomy from the executive branch.
The petition was originally filed on August 25 of the previous year by seven Supreme Court lawyers, who challenged the constitutionality of Article 116 and the 2017 rules, while also seeking the creation of an independent judicial secretariat. The High Court issued a formal rule on October 27, directing the government to respond.
Petitioners argued that the President’s authority over judicial officers, ostensibly exercised "in consultation with" the Supreme Court, allowed de facto executive interference in judicial appointments and discipline, undermining the principle of separation of powers and judicial independence. They emphasised that true consultation must involve meaningful input from the judiciary, not mere formality.
Historically, the 1972 Constitution vested full control of the subordinate judiciary in the Supreme Court. The Fourth Amendment (1975) shifted this power to the President. The Fifth Amendment later added the phrase “in consultation with the Supreme Court,” but the Appellate Division later declared the Fifth Amendment unconstitutional in part. The Fifteenth Amendment (2011) reintroduced a similar provision, which now stands invalidated by this ruling.
Legal experts view the verdict as a historic move toward restoring judicial autonomy, aligning Bangladesh’s judicial administration more closely with constitutional principles and international standards of an independent judiciary.