SC stays reinstatement of 10 dropout HC judges

FE Team | Published: July 30, 2008 00:00:00 | Updated: February 01, 2018 00:00:00

The Supreme Court (SC) Tuesday stayed for three weeks operation of the High Court (HC) judgment directing the government to appoint the ten dropouts as regular HC judges, report UNB and bdnews24.com.

After a brief hearing of arguments put up by heavyweights on both sides, a five-member bench of the Appellate Division of the Supreme Court, headed by Chief Justice MM Ruhul Amin, passed the order, backing the government and a group of 19 sitting HC judges' pleas.

Passing the interim order of stay, the apex court directed the applicants to file a regular leave petition within the time.

Earlier, the court granted Ashrafuzzaman, a lawyer, permission to file application for leave to appeal against the High Court judgment in favour of the ten confirmation-denied additional judges.

On July 17, a 3-member larger bench of the High Court declared illegal and unconstitutional the immediate-past BNP-led coalition government's decision of non-confirmation of the services of the 10 HC additional judges despite positive recommendations by the then Chief Justice.

The ten litigant additional judges who got the HC ruling were appointed during the Awami League rule under Sheikh Hasina's premiership (1996-2001).

In its ruling the bench had also asked the government to appoint them within a month ensuing their seniority with retrospective effect since their non-confirmation.

The High Court ruling had come following three writ petitions filed in 2003 by the 10 litigants.

Moving the government plea, Attorney-General (AG) Salahuddin Ahmed submitted that the apex court should consider the practical consequences of the HC ruling that had asked the government to appoint them within a month.

"If the stay is not granted, there will be a mess in the Judiciary after the reinstatement of the ten judges," he told the SC hierarchy.

The AG raised a legal point as to whether the High Court has the jurisdiction to ask the government to appoint them.

Terming the issue as a new one and important as well, the chief government law officer told the court that it has to be looked into in the light of the Constitution.

Senior advocate TH Khan, the counsel for the group of 19 incumbent judges, crying for stay on operation of the HC judgment, said otherwise the rights of his clients would be jeopardised.

Opposing the stay petitions, Dr Kamal Hossain, a counsel for the respondents, submitted that the hassle put them in conflict between the bench and the bar as well as a fratricidal judges-versus-judges discord.

"We don't want the institution suffers from a grave damage over the dispute," said the eminent jurist.

Terming it an exceptional case and exceptional judgment, Dr Kamal said, "We want to see how difficult to hold the balance by the apex court in the present issue, keeping the institutional image high."

Dr Kamal was critical of a ground mentioned in the petition filed by the aggrieved 19 incumbent judges, saying: "I have never heard that the President's consultation with the Chief Justice before making appointment of higher-court judges is a courtesy."

Another counsel for the respondents, Barrister M Amir-Ul Islam, submitted that the question of the concept of the Constitution has been challenged by the sitting 19 HC judges.

"Their function is dispensation of justice, but they have become litigants," he told the court.

"They have violated the code of conduct of judges by filing the application as the High Court judgment is binding upon all," argued Amir, one of the framers of the Constitution and ex-president of the Supreme Court Bar Association.

In his further submission on the divisions in the rank of judges, he said, "Their presence as litigants has divided the judges of the entire High Court Division, which is a matter of great concern."

Pointing fingers at the 19 incumbent judges seeking justice, Barrister Amir also said, "They have not come before the court with clean hands."

He contended that the act of the litigant judges erodes the image and dignity of the Supreme Court. "And it would be a permanent phenomenon if we do not keep on upholding the image of the highest Judiciary."