The High Court has issued a ‘standover’ on a writ petition challenging the constitutional provisions over appointment, promotions and transfer of judges.
On Nov 3, Supreme Court lawyer Yunus Ali Akhand had filed a petition challenging the 1975 Fourth Amendment and the 2011 Fifteenth Amendment, by which Sections-95 (1), 95 (2b) and Section-116 of the Constitution had been amended. On Tuesday, the High Court bench of Justices Quazi Reza-Ul Hoque and Mohamed Ullah, while hearing the petition, observed that ‘serious constitutional issues’ were involved and that the situation called for ‘more detailed consideration’.
The Bench desisted from passing an order and instead issued a ‘standover’, after conducting hearings on the petition on Sunday and Monday. Petitioner Akhand said that many ‘constitutional issues’ were involved in the petition. “So the court is keen to go in for a more detailed examination of the issues . That is why they have not passed an order , but if the court wants, it can pass an order any time now,” Akhand said on Tuesday.
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.”
Akhand’s petition has challenged the 1975 Fourth Amendment (enacted during the Bangabandhu regime) and the 2011 Fifteenth Amendment (enacted during Sheikh Hasina’s regime), when the Constitution’s Sections-95 (1), 95 (2b) and 116 were amended.
The petition listed the law secretary, the cabinet secretary, the Speaker and the Registrar-General of the Supreme Court as respondents.
In his petition, Akhand sought a rule asking why the provisions would not be declared illegal as it contradicts the Constitution.
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.
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 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.
