JEBA MOBASHWIRA

After the final hearing of the writ petition of Mohammad Saddam Hossen v Bangladesh (2025) case, the High Court Division (HCD) of the Supreme Court of Bangladesh (SCOB) directed the establishment of a separate secretariat for the Supreme Court within three months. Consequently, the Supreme Court Secretariat was subsequently inaugurated by the interim government under the ‘Supreme Court Secretariat Ordinance, 2025’ in December of the same year. However, the elected government later enacted the ‘Supreme Court Secretariat (Repeal) Act’ in the National Parliament on 10 April 2026. Consequently, the Supreme Court Secretariat stands dissolved as of now. However, a writ petition was filed before the HCD on 19 April 2026, challenging the legality of the ‘Supreme Court Secretariat (Repeal) Act. On the other hand, the state has also filed an appeal to the Appellate Division, being aggrieved by the decision in the Saddam Hossen case.

To begin with the background of this case, the Constitution of the People’s Republic of Bangladesh conferred on the Supreme Court control over the subordinate judiciary, including posting, promotion, leave, and discipline. In 1975, through the Constitution (Fourth Amendment) Act, however, this authority was transferred to the President, and thereby, the power shifted to the executive organ of the state. Subsequently, the effect of the Fifth Amendment (brought in 1979) was that the President would exercise this power ‘ in consultation with the Supreme Court .’ The Fifteenth Amendment (brought in 2011) also supported this position. Thereafter, a writ petition was filed challenging Article 116 and the Bangladesh Judicial Service (Disciplinary) Rules, 2017, and seeking direction for a separate judicial secretariat.

Moving forward with the petitioner’s argument, firstly, it was contended that this executive control (Article 116) undermined judicial independence and violated the separation of powers and accordingly, that these amendments (both Fifteenth Amendment and Fourth Amendment) are unconstitutional. Secondly, it was argued that executive influence was reinforced by the 2017 Rules, which officially conferred authority over judicial matters on the Executive.

Petitioners further asserted that India (Article 235), Singapore (Article 111F), Nepal (Article 154) and Sri Lanka (Article 111H) have constitutionally vested the control over subordinate courts in the High Court regarding posting, promotion, leave decisions and overall service matters of lower court judges. Moreover, the petitioner substantiated the argument by stating that the separation of powers and independence of the judiciary are the basic structure of the Constitution, and Article 116 is its central framework. The petitioners, in support of their arguments, primarily referred to the Idrisur Rahman case and the 16th Amendment cases.

The respondent lawyers, in contrast, submitted that Article 116 deals only with certain matters (such as posting, promotion, and leave) rather than complete control, and that these powers are exercised in concurrence with the Supreme Court and thus ensures checks and balances among the state organs. Additionally, Article 116A explicitly states that judicial officers can exercise their powers within their functions, which eventually ensures the independence of the judiciary. They drew their conclusions based on the rulings of the Idrisur Rahman and Md Abu Bakar judgments, which clarified that actions taken under this provision without consultation with the Supreme Court are invalid. Regarding the 2017’s Disciplinary Rules, they further argued it was made under Article 133, which allows regulation of service conditions. Since Article 133 was not challenged, the Rules cannot be declared unconstitutional.

Moreover, the respondents argued that courts cannot legislate or amend the Constitution; they can only interpret it. The respondent also negated the basic structure argument, stating that although some constitutional principles were recognised as basic structures of the Constitution, Article 116 was never unequivocally held as one.. Furthermore, the respondents argued that the 4th Amendment cannot be challenged as it is no longer in effect, and only the15th Amendment can be challenged. As such, if the Court finds the changes brought by the 15th Amendment unconstitutional, we have to inevitably go back to the language of the 4th Amendment, not the original text of 1972.

Coming to the decision of the court, the Court ruled that the amendments to Article 116 introduced by the 4th and the 15th Amendments were unconstitutional, as they violated the Constitution’s basic structure (particularly the principles of judicial independence and separation of powers between the Executive and the Judiciary). The amendments were also found procedurally defective because the relevant amendment Bills lacked the constitutionally required proper ‘long title’.

Rejecting the Attorney General’s contention that the 4th Amendment was beyond judicial scrutiny due to its repeal, the Court observed that the amendment had not truly repealed Article 116; rather, it merely substituted the term ‘ Supreme Court ’ with ‘President’. The judgment further clarified that constitutional amendments cannot be equated with ordinary legislation. Referring to the Doctrine of Eclipse and Revival, the Court also held that if the 15th Amendment to Article 116 is struck down, the 4th Amendment version automatically revives, and if that too is found unconstitutional, then the original 1972 version of Article 116 revives without the need for any new legislation.

Moreover, the Court rejected the argument that the present framework under Article 116 ensures ‘checks and balances.’ It noted that genuine checks and balances presuppose an effective separation of powers, which is very unlikely to exist where the executive exercises control over the judiciary through the president acting on the advice of the Prime Minister. Thus, such authority, the Court opined, must be vested in the Supreme Court itself. Similarly, the Disciplinary Rules 2017 were declared unconstitutional as they conferred authority over the supervision of judicial officers upon the executive. And finally, the Court directed the formation of an independent and separate Supreme Court Secretariat.

In light of the Court’s observations, I believe the separation of the judiciary through a separate judicial secretariat is not just a luxury; indeed, it is a necessity for realising a desired culture of constitutionalism and it is hoped that the government will not impede the dream of a separate judicial secretariat of the people.

The writer is intern at Law Desk, The Daily Star.

Genuine checks and balances presuppose an effective separation of powers, which is very unlikely to exist where the executive exercises control over the judiciary through the president acting on the advice of the Prime Minister.