The government on Thursday filed an appeal seeking to overturn the High Court verdict that restored the Supreme Court’s authority over the control and discipline of the subordinate judges.
The government argued that the judgement contained ‘fundamental constitutional and legal errors’ and disturbed the constitutional balance among the organs of the state.
Appellate Division chamber judge Justice Farah Mahbub fixed June 9 for hearing the matter before the AD full bench after attorney general Md Ruhul Quddus sought a stay on the High Court verdict delivered on September 2, 2025.
The High Court had directed the government to establish a separate Supreme Court Secretariat within three months after receiving the verdict.
Lawyer Mohammad Shishir Manir, appearing for Mohammad Saddam Hossen, his junior in the court and nine other writ petitioners seeking judicial independence, opposed the government plea for stay.
The appeal came after the BNP government abolished the Supreme Court Secretariat.
On Tuesday, the law justice and parliamentary affairs ministry attached the former secretary of the abolished SC secretariat and 14 judicial officers to the ministry, effectively shutting down the secretariat office.
The transfers were made through a notification issued under the Supreme Court Secretariat (Abolition) Act, 2026, passed on April 9.
The secretariat had become functioning since its inauguration on December 11, 2025 after the interim government on November 30, 2025 issued a gazette promulgating the Supreme Court Secretariat Ordinance, fulfilling one of the core commitments made in then chief justice Syed Refaat Ahmed’s judicial reform road map announced on September 21, 2024.
The BNP government did not ratify the ordinance as the law ministry raised concerns in the special committee meeting over the concentration of judicial power.
It warned that providing extensive control to the chief justice under the secretariat could weaken ‘checks and balances’.
Currently, the decisions on transfer, promotion, leave, and discipline of the subordinate court judges involve both the executive and the Supreme Court, resulting in dual administrative control over the subordinate court judges.
This shared system helps prevent absolute control, the ministry said.
The appeal petition filed by the Legislative and Parliamentary Affairs Division on Thursday challenged the High Court directive to create an independent Supreme Court secretariat within three months, describing the order as judicial overreach into executive and budgetary functions.
The government warned that unless the Appellate Division interferes, the High Court judgement could create ‘serious constitutional conflicts and uncertainties’ in the administration of the subordinate judiciary.
It argued that the High Court wrongly held that invalidating the Fourth and Fifteenth Amendments automatically revived the original 1972 version of article 116 of the constitution restoring the SC authority to control the subordinate court judges.
According to the appeal, once a constitutional provision is substituted by an act of parliament, the earlier text ceases to exist in law and cannot be revived by judicial interpretation.
Restoring the earlier provision, it said, amounts to encroachment into parliament’s exclusive legislative domain and violates the doctrine of separation of powers.
The government further said that the High Court committed an error by declaring unconstitutional article 116 over the subordinate judges’ control provision introduced through the Fourth Amendment though that amendment itself had long lost legal effect after being repealed by the Fifth Amendment.
According to the appeal, a repealed law cannot be subjected to judicial review because the doctrine of ultra vires applies only to laws that are currently in force.
The petition also questioned the maintainability of the original writ petition filed by the 10 lawyers, saying that they did not challenge the Constitution (Fifteenth Amendment) Act, 2011, which presently governs article 116.
Without challenging the parent amending law, it argued, the High Court cannot legally restore the pre-amendment position of the article.
The High Court went beyond the scope of the rule by entering into broader questions of judicial independence although article 116 deals only with posting, promotion, leave, and discipline of the subordinate judges and magistrates exercising judicial functions, further alleged the government.
According to the appeal, the judgment has failed to harmonise articles 115, 116, and 116A of the constitution and has created a constitutional conflict by granting administrative control to the Supreme Court while leaving the president’s appointment powers intact.
The judges of the subordinate judiciary, the appeal stated, are constitutionally appointed by the president under article 115 and therefore matters relating to posting, promotion and discipline are logically connected to the appointing authority.
It also argued that article 116 already contained a constitutional safeguard by requiring the president to act ‘in consultation with the Supreme Court’, which ensures judicial participation and prevents arbitrary executive interference.
Referring to earlier constitutional cases, including the Eighth Amendment and Fifth Amendment cases, the government argued that the Appellate Division never recognised article 116 as part of the constitution’s basic structure.
The appeal claimed that previous judicial observations regarding article 116 were merely obiter dicta and not binding precedents under article 111.
The government also defended the Bangladesh Judicial Service (Disciplinary) Rules, 2017, saying that the rules were framed lawfully under article 133 of the constitution and the High Court exceeded its jurisdiction by declaring them ultra vires.
It further argued that rule-making and administrative reforms fell within the authority of the executive and legislature, adding that the judiciary could not compel the state to enact particular rules or establish institutions.
