INSTITUTIONAL BRIEF ON THE RECENT JUDGMENT "MOHAMMAD SADDAM HOSSEN AND OTHERS V. BANGLADESH"

A Constitution Returned to Its People

There are judgments that settle disputes, and there are judgments that settle history. This is the latter. The High Court Division, constituted as a Special Bench by the Hon'ble Chief Justice himself, has in a single ruling dismantled fifty years of executive encroachment over the subordinate judiciary and restored a provision that the framers of Bangladesh's Constitution had conceived as a foundational guarantee of liberty. The matter arrived before the Court by way of Public Interest Litigation under Articles 102 and 44, filed by lawyers who rightly described themselves as officers of the Court with a solemn duty toward the constitutional order. The Court, without hesitation, upheld their locus standi.

The constitutional question at the core was this: could Parliament, acting as a constituted body, strip the Supreme Court of its exclusive control over the subordinate judiciary and vest it instead in the President, who under Article 48(3) is constitutionally bound to act in all matters except two on the sole advice of the Prime Minister? The Court answered that it could not, and should not have.

The Weight of the Original Intent

The records of the Constituent Assembly in 1972 are unambiguous. Not one member of that Assembly opposed the original Article 116. Members from across constituencies, including the Deputy Leader of the Assembly Syed Nazrul Islam and Dr. Kamal Hossain himself, who presided over the Constitution Committee, spoke with unmistakable conviction that the separation of the judiciary from the executive was the very soul of the constitutional enterprise. The original Article 116 vested the control of posting, promotion, leave, and discipline of judicial officers entirely in the Supreme Court. It was not an administrative preference. It was a structural covenant with the people.

The Constitution (Fourth Amendment) Act of 1975 replaced "Supreme Court" with "President" in Article 116. The Second Proclamation (Fifteenth Amendment) Order of 1978 added the phrase "in consultation with the Supreme Court." The Fifteenth Amendment Act of 2011 retained this formulation. The Court rightly found that this so-called consultation was, in the words of the Appellate Division in the Sixteenth Amendment Case, "practically meaningless." Since Article 48(3) obligates the President to act on the Prime Minister's advice, presidential control over the judiciary is simply executive control with ceremonial dressing. That arrangement, however it is dressed, cannot be called judicial independence.

The Jurisprudential Lineage

What makes this judgment particularly powerful is that it did not arrive in a vacuum. The Appellate Division had, across decades and across multiple amendment cases, consistently expressed the view that Article 116 must be restored. In Anwar Hossain v. Bangladesh, the Appellate Division held that independence of the judiciary is a basic structure of the Constitution. In Masdar Hossain, it held that the judicial service is functionally and structurally distinct from the civil executive service and cannot be tied to it. In the Fifth Amendment Case, it expressed the earnest hope that Parliament would act. In the Judges' Case, the metaphor of "a music of the distant drum" was used to describe how distant genuine separation remained. In the Sixteenth Amendment Case, the Court found the consultation provision in Article 116 to be in direct conflict with Article 109, which vests superintendence over all subordinate courts in the High Court Division. The present Court brought that entire lineage to its logical and necessary terminus. What the Appellate Division could not do, because the constitutionality of Article 116 was never squarely before it, this Bench was finally positioned to decide, and it decided correctly.

The declaration that both the Fourth Amendment and the Fifteenth Amendment are ultra vires, combined with the automatic revival doctrine confirmed through Indian and Bangladeshi precedent alike, means that the original Article 116 of 1972 now stands restored without the need for any further legislative act. The Bangladesh Judicial Service (Disciplinary) Rules, 2017, which vested final disciplinary authority over judicial officers in the executive, have also been struck down as irreconcilable with the restored provision.

The direction to establish an Independent Supreme Court Secretariat within three months, to which the Government offered no objection, gives the judgment institutional permanence. Without it, as the Court itself observed, even a restored Article 116 could remain theoretical rather than operational.

A Striking Internal Contradiction

One aspect of the case deserves particular attention because it reveals how thoroughly the executive had become inconsistent with itself. The Attorney General appeared to defend the existing Article 116 and describe it as a provision that enriches the judiciary. Yet the Government's own Constitution Reform Commission, its Judicial Reform Commission, and the National Consensus Commission, whose report dated 8 August 2025 recorded the agreement of thirty-one political parties on this very point, had all recommended that control over the subordinate judiciary vest exclusively in the Supreme Court. The Court noted this contradiction with exactness. A government cannot simultaneously defend a constitutional arrangement before the Court and commission reports calling for its abolition.

An Honest Assessment

The judgment is structurally sound and its ratio is unassailable. The one legitimate concern going forward is not doctrinal but operational. The restoration of Article 116 places enormous administrative authority in the Supreme Court. That authority must now be exercised through transparent, rule-based mechanisms that are themselves insulated from internal patronage. The independence of the judiciary has reclaimed from the executive must not become an occasion for creating a new concentration of unaccountable power. Judicial reform and judicial accountability are not opposites; in fact, the legitimacy of this ruling depends on the Court demonstrating through its own conduct that it governs the subordinate judiciary more justly than the executive ever did.

The Larger Significance

What this judgment ultimately affirms is something that constitutional democracies periodically need to relearn: that the judiciary is the last institution a nation can afford to compromise. When judges of the subordinate courts know that their posting, their promotion, and their future depend on the pleasure of a ministry, the independence they are meant to uphold becomes performance rather than reality. Every litigant who appears before a district judge in this country has a stake in this ruling. The Court has honoured that stake. In doing so, it has also honoured the constitutional promise made in 1972 to a people who had paid in blood for the right to govern themselves under law.