Article 116 restored: The judiciary’s long road back to itself
Recently, the High Court did what generations of lawyers, scholars and, frankly, frustrated litigants wanted the constitution to do for itself: it restored the Supreme Court's authority over postings, promotions, and discipline of the subordinate judiciary, and directed the creation of a separate judicial secretariat within three months. Delivered on September 2, the ruling resolved a previously issued ruling on the matter. This is more than an administrative rejig, however. It's a structural reset that aims to take the lower benches out of the shadow of the executive and put them back where the 1972 constitution intended—under the guardianship of the Supreme Court.
To understand its significance, follow the text. Article 116, as it stood until recently, vested "control" of the judicial service in the president, exercised "in consultation with the Supreme Court." That soothing phrase—"consultation"—enabled decades of executive leverage over careers and discipline in the lower courts. By declaring parts of Article 116 unconstitutional and void, the High Court has hollowed out that leverage and returned the locus of control to the Supreme Court. It is not radical restoration; it is restitution of the original constitutional design.
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The ruling also completes a narrative arc many of us were taught but rarely saw honoured in practice. The original constitution placed the control of the subordinate judiciary with the Supreme Court. The Fourth Amendment in the mid‑1970s diverted that control to the president, and the familiar "in consultation with the Supreme Court" compromise locked in a long stalemate. The recent landmark judgment breaks that stalemate in favour of judicial independence.
The court's order to set up a separate secretariat is the operational hinge on which this decision will swing. Without an autonomous administrative backbone—with its own HR, budgeting, and postings pipeline—"control" is performative. With a secretariat, the Supreme Court can align articles 109 (superintendence of the High Court Division), 115 (appointment framework), 116 (control and discipline), and 116A (independence of judicial officers) into a single chain of accountability. That is how separation of powers becomes separation of payrolls and postings, which is how independence is actually lived.
This moment also converses with the Masdar Hossain line of cases—the jurisprudence that dragged the separation of the judiciary from PowerPoint aspiration to policy reality in 2007. That "formal" separation was a watershed, but it was never complete so long as Article 116 kept a handbrake in the law ministry. This historic ruling picks up where Masdar Hossain left off and gives institutional muscle to the principle announced then.
Politically, its implications have yet to be tested. For so long, executive "consultation" with the Supreme Court—too often a one‑way memo—has been the quiet mechanism for signalling who should rise and who should stall in the lower judiciary. That mechanism is now constitutionally suspect. Expect resistance dressed up as "efficiency concerns," but also expect a more credible judiciary if the Supreme Court uses its restored power with transparent criteria and published reasons in place of back‑channel choreography.
Constitutionally, the decision harmonises with Bangladesh's basic‑structure story. The independence of the judiciary is not a slogan; it is a load‑bearing pillar the Supreme Court has guarded since the Eighth Amendment case. When the court clipped parliament's attempt to control the removal of Supreme Court judges in the 16th Amendment saga, it spoke for separation of powers at the apex. The recent move speaks for separation at the base, where most citizens actually meet the state. The doctrine is consistent: keep political hands off the scales of justice.
None of this erases the hard implementation questions, however. Article 115 still makes the president the appointing authority "in accordance with rules." Those rules now need urgent alignment with a Supreme Court‑led control regime so that appointments, postings, promotions, and discipline form one coherent pipeline. If the law ministry still writes the rules while the Supreme Court tries to run the shop, we'll get institutional whiplash and, worse, forum‑shopping for influence. The High Court's three‑month notice for a separate secretariat is a deadline that should discipline the bureaucracy and the bench alike.
There is also a blind spot we should call out. For years, "mobile courts" and executive magistracy have blurred the line between administration and adjudication. Even after the 2007 separation, those arrangements handed slices of judicial power back to the executive in the name of expediency. The present ruling will not fix that by itself. But it gives the Supreme Court a stronger footing to police those edges and insist that judicial functions—where liberty and property are on the line—remain within the judiciary. If we are serious about independence, we cannot keep exceptions that eat the rule.
The other lesson is institutional humility. This verdict curtails executive overreach, but it equally demands that the Supreme Court earn the trust it now holds. That means building a meritocratic postings and promotion matrix, publishing disciplinary outcomes with reasons, and insulating case assignments from factional pull. It also means confronting performance bottlenecks in the lower courts with data, not folklore—budgeting for more judges and staff, digitising cause lists, and standardising case management. A separate secretariat is only as good as the governance culture it embeds.
Let's be candid: Bangladesh has oscillated between constitutional text and political expediency for half a century. This judgment marks a much‑needed return to the framers' architecture: the High Court's superintendence is not decorative; the Supreme Court's control of the judicial service is not optional; and independence is not a poetry word to be recited on anniversaries. If implemented with urgency and transparency, this ruling can finally stitch together the doctrinal wins of Masdar Hossain with the practical machinery the lower judiciary deserves. The executive will still wield enormous power, as it should in a functioning state. It just won't be able to reach, quite so easily, into the careers of the judges who must sometimes tell it "no."
Barrister Khan Khalid Adnan is advocate at the Supreme Court of Bangladesh, fellow at the Chartered Institute of Arbitrators, and head of the chamber at Khan Saifur Rahman and Associates in Dhaka.
Views expressed in this article are the author's own.
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