Why Article 116 of the Constitution Should Not Be Declared Unconstitutional 
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Why Article 116 of the Constitution Should Not Be Declared Unconstitutional 

High Court issues rule on Article 116 of constitution
Why Article 116 of the Constitution Should Not Be Declared Unconstitutional 


The High Court has issued a rule questioning why Article 116 of the Constitution, which grants the President the authority to control magistrates of subordinate courts, including matters of posting, promotion, and leave approval, should not be declared unconstitutional.

The bench, comprising Justice Farah Mahbub and Justice Debashish Roy Chowdhury, issued the rule on Sunday following the initial hearing of a writ petition filed by seven Supreme Court lawyers.

Lawyer Mohammad Shishir Monir represented the petitioners, while Deputy Attorney General Tanim Khan and Assistant Attorney General Mujahidul Islam Shaheen appeared for the state.

The writ, filed on August 25, seeks to transfer the authority of controlling magistrates of subordinate courts (posting, promotion, and leave approval) from the President to the Supreme Court.

Article 116 of the Constitution currently assigns this authority to the President. However, the petition challenges its validity, arguing that the responsibility should lie with the Supreme Court to ensure judicial independence.

The writ named the Legislative and Parliamentary Affairs Division, the Secretary of the Law and Justice Division, and the Registrar of the Supreme Court as respondents.

According to the petition, the 1972 Constitution originally vested the control of magistrates in subordinate courts with the Supreme Court. However, the Fourth Amendment in 1974 shifted this authority to the President. Later, the Fifth Amendment inserted the clause "in consultation with the Supreme Court." When the Appellate Division of the Supreme Court declared the Fifth Amendment unconstitutional, the Fifteenth Amendment Act of 2011 reinstated the current provision in Article 116.

The petitioners argue that giving the President control over magistrates compromises judicial independence. They believe the Supreme Court should retain full control over magistrates for a truly independent judiciary.

Shishir Monir also pointed out that the judiciary has become stagnant due to the lack of a separate secretariat, and the control of the Law Ministry over subordinate courts has hindered the independence of judicial officials in conducting their duties.

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