SC upholds HC verdict on reinstatement of 10 judges
Tuesday, 3 March 2009
The Supreme Court (SC) Monday affirmed partly the High Court (HC) judgement that had ordered the government to reinstate 10 confirmation-denied additional judges as regular HC judges, sans seniority, from the date of non-confirmation, reports UNB.
Passing a short order with a five-point guideline to consider the cases of the 10 dropout judges, a five-judge Appellate Division headed by Chief Justice (CJ) MM Ruhul Amin disposed of the leave-to-appeal petitions filed by 29 sitting litigant HC judges.
On July 17 last year, the HC ordered the government to reinstate the 10 as regular HC judges ensuring their seniority from the date of non-confirmation.
The HC ruling had also declared unlawful and unconstitutional the President's action of non-confirmation despite recommendation by the CJ.
The SC in its guidelines observed that in the matter of appointment of judges, the convention of consultation having been recognised and acted upon had matured into Constitutional Convention and was now a 'constitutional imperative'.
"Such consultation is inherent in our constitutional scheme and is ingrained in the principle of independence of the judiciary being essentially the basic structure of our Constitution embedded in the principle of Rule of Law," says the SC in its observation.
The Appellate Division viewed that in the matter of selection of the judges, the opinion of the CJ should be dominant in the area of legal acumen and suitability for the appointment and in the area of antecedents the opinion of the executive should be dominant.
Together, the two should function to find out the most suitable candidates available for appointment through a transparent process of consultation, the hierarchy of the judiciary said in their direction.
The apex court's observations also said, 'as the oaths of additional and regular judges are separate and distinct, a dropout judge, after getting regular appointment, has to take oath afresh and then he "shall be deemed to have entered upon the office immediately after he makes the oath".
A three-judge larger HC bench, comprising Justices MA Rashid, SK Sinha and Nazmun Ara Sultana, had delivered the unanimous judgment upon three writ petitions, including a public-interest litigation (PIL), filed in 2003.
The 10 dropouts are Abdus Salam, Momtazuddin Ahmed, M Abdul Hye, Faruque Ahmed, M Marzi-ul Huq, M Shamsul Huda Manik, M Abdur Razzaque, Hassan Faiz Siddiqui and AHM Shamsuddin Chowdhury Manik and Nizamul Huq Nasim.
They came from among practising lawyers and judicial service officers.
As they were appointed during the Awami League rule (1996-2001), the judges were not made regular after the BNP-led four-party alliance government came to power in October 2001 even though they successfully completed their two-year judicial function, a precondition for becoming a regular judge.
Emerging from the court, Barrister AHM Shamsuddin Chowdhury Manik, one of the 10 dropout judges, told the news agency that he was happy with the SC orders.
"I got justice. Not only that, most significant part of the order is that the apex court has recognised the convention of CJ's consultation and termed it constitutional convention," Manik said.
Dr Kamal Hossain, Barrister M Amir-Ul Islam and Barrister Rokanuddin Mahmud appeared for the dropout judges, while TH Khan and Barrister Rafique-ul Huq for the litigant sitting judges.
Attorney-General Mahbubey Alam stood for government as one of the respondents to the case.
Passing a short order with a five-point guideline to consider the cases of the 10 dropout judges, a five-judge Appellate Division headed by Chief Justice (CJ) MM Ruhul Amin disposed of the leave-to-appeal petitions filed by 29 sitting litigant HC judges.
On July 17 last year, the HC ordered the government to reinstate the 10 as regular HC judges ensuring their seniority from the date of non-confirmation.
The HC ruling had also declared unlawful and unconstitutional the President's action of non-confirmation despite recommendation by the CJ.
The SC in its guidelines observed that in the matter of appointment of judges, the convention of consultation having been recognised and acted upon had matured into Constitutional Convention and was now a 'constitutional imperative'.
"Such consultation is inherent in our constitutional scheme and is ingrained in the principle of independence of the judiciary being essentially the basic structure of our Constitution embedded in the principle of Rule of Law," says the SC in its observation.
The Appellate Division viewed that in the matter of selection of the judges, the opinion of the CJ should be dominant in the area of legal acumen and suitability for the appointment and in the area of antecedents the opinion of the executive should be dominant.
Together, the two should function to find out the most suitable candidates available for appointment through a transparent process of consultation, the hierarchy of the judiciary said in their direction.
The apex court's observations also said, 'as the oaths of additional and regular judges are separate and distinct, a dropout judge, after getting regular appointment, has to take oath afresh and then he "shall be deemed to have entered upon the office immediately after he makes the oath".
A three-judge larger HC bench, comprising Justices MA Rashid, SK Sinha and Nazmun Ara Sultana, had delivered the unanimous judgment upon three writ petitions, including a public-interest litigation (PIL), filed in 2003.
The 10 dropouts are Abdus Salam, Momtazuddin Ahmed, M Abdul Hye, Faruque Ahmed, M Marzi-ul Huq, M Shamsul Huda Manik, M Abdur Razzaque, Hassan Faiz Siddiqui and AHM Shamsuddin Chowdhury Manik and Nizamul Huq Nasim.
They came from among practising lawyers and judicial service officers.
As they were appointed during the Awami League rule (1996-2001), the judges were not made regular after the BNP-led four-party alliance government came to power in October 2001 even though they successfully completed their two-year judicial function, a precondition for becoming a regular judge.
Emerging from the court, Barrister AHM Shamsuddin Chowdhury Manik, one of the 10 dropout judges, told the news agency that he was happy with the SC orders.
"I got justice. Not only that, most significant part of the order is that the apex court has recognised the convention of CJ's consultation and termed it constitutional convention," Manik said.
Dr Kamal Hossain, Barrister M Amir-Ul Islam and Barrister Rokanuddin Mahmud appeared for the dropout judges, while TH Khan and Barrister Rafique-ul Huq for the litigant sitting judges.
Attorney-General Mahbubey Alam stood for government as one of the respondents to the case.