16th amendment
HC rule on provisions on judges appointment
The High Court (HC) yesterday issued a rule asking the authorities concerned to explain why a couple of constitutional provisions regarding the appointment, transfer and promotion of judges should not be declared illegal. It also asked the government to explain why it should not be directed to amend the Section 48 (3) of the Constitution, which imposes restriction on the President to discharge his duty in accordance with the Prime Ministers advice.
A bench of Justice Quazi Reza-Ul Hoque and Justice Mohammad Ullah issued the rule in response to a writ petition filed by Advocate Eunus Ali Akond.
The law secretary, Cabinet secretary, Speaker and Supreme Court (SC) registrar general were made respondents, and asked to reply to the rule within four weeks.
The court asked the government to explain why Sections 95 (1), 95 (2b), 98, 115 and 116 of the Constitution should not be declared illegal.
Section 48 (3) says: In the exercise of all his [the Presidents] 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 10 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 a 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 a 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, Akond challenged the Fourth Amendment in 1975 and the Fifteenth Amendment in 2011, which amended the Constitutions Sections 95 (1), 95 (2b) and 116.
These Sections were not stipulated in this way in the 1972 Constitution. The amendments are in contradiction with the Constitutions Section 109, Akond said. Section 109 says: The High Court Division shall have superintendence and control over all courts and tribunals subordinate to it.
The HC bench has heard arguments from both sides for almost one-and-a-half months. After conclusion of hearing, the HC bench on February 20 had kept the petition for delivering its order on February 26.
Later, Akond told reporters that the HC bench issued the rule over the constitutional sections to maintain the independence of the judiciary.
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 with the Supreme Court.
In a message on October 31, 2016, marking the ninth anniversary of the separation of the judiciary, Chief Justice Surendra Kumar Sinha had sought substitution for Section 116 by the related section from the 1972 charter, holding it responsible for the dual rule.
The Chief Justice said that Section 116 was one of the main reasons for the weakness of the judiciary. Section 116 was amended during the military regime of Ziaur Rahman in 1978 to vest powers of control over the judiciary in the hands of the President.
In 2011, the Awami League-led coalition government had restored the four fundamental principles of the Constitution through the Fifteenth Amendment, but did not bring back the old Section 116.
The Chief Justice 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 Justices 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 (Section 96 of the 1972 Constitution) was a historical mistake. On the other hand, there is a proposal to restore Section 116. Its self-contradictory, Huq said.
On November 3, 2016, Akond had filed the petition with the HC challenging the legality of Articles 95 (1) and 116 of the Constitutionthe two provisions that empower the President to appoint SC judges and control the lower court judges. The petition sought an HC order to declare Articles 95 (1) and 116 of the Constitution as illegal. The petition said that Section 95 (2) has empowered the President to appoint SC judges in consultation with the Chief Justice, while Section 116 has allowed the President to appoint lower court judges to promote them and grant their leave.
However, under Section 48 (3) of the Constitution, the President acts on advice from the PM and therefore he is not independent, Akond noted.
The authority to appoint SC judges and to control lower court judges should be vested in the SC under the Constitution and in line with the SC judgment in Masdar Hossain case, he added.
