 | | The High Court in a split decision has seized the president's special power to discount the recommendations of the Supreme Judicial Commission in appointing judges to the higher court. | HC seizes presidential power on judges' appointments | | | | Thu, Aug 7th, 2008 7:18 pm BdST | | | Dhaka, Aug 7 (bdnew24.com) – The High Court in a split decision has seized the president's special power to discount the recommendations of the Supreme Judicial Commission in appointing judges to the higher court.
A three-strong special bench of justices MA Rashid, Nazmun Ara Sultana and Md Ashfaqul Islam on Thursday scrapped Section 9 (4) of the Supreme Judicial Commission Ordinance that gave the president the special power—by 2 to 1 votes.
Senior judge Rashid termed the entire Supreme Judicial Commission ordinance unconstitutional and ruled it cancelled after a writ petition had been filed.
The other two judges commented that the president's special power happened to be against the spirit of the ordinance and that it rendered the ordinance pointless—on which consideration they scrap Section 9 (4) of the ordinance that vested the special power on the head of the state.
It means the High Court has partially scrapped the Supreme Judicial Council Ordinance.
However, since the issue involved legal issues and constitutional explanation, the court observed that the petitioner might appeal against the verdict.
Writ petitioner Idrisur Rahman, a lawyer himself, and his counsel Dr Shahdin Malik said they had won "90 percent in the verdict".
"The High Court in its verdict also scrapped the president's special power to ignore the recommendation of the Supreme Judicial Commission in appointing judges," the lawyer said.
The government dropped two lawmakers and the law secretary from the nine-member Supreme Judicial Council and amended the ordinance to include three more judges, after the writ petition was filed.
"In the subcontinent there is no clear-cut law on the appointment of judges. Besides, constitutional question and explanation is involved with the matter. So we will appeal in the Supreme Court against the High Court verdict. It will take the matter to a final disposal."
Section 9 (4) of the Supreme Judicial Council ordinance that the High Court has scrapped says, "If the president wants to finally ignore the recommendation of the Commission he can do so by writing a proper cause."
The High Court on April 28 stayed for three months the proceedings of the Supreme Judicial Council formed to appoint judges to the higher court, and asked the government to explain why the ordinance would not be declared unconstitutional and void.
The Supreme Court on May 20, however, stayed the High Court freeze on the activities of the commission and ordered a final hearing on the writ petition.
President Iajuddin Ahmed on March 16 promulgated the ordinance that paved they way for the formation of a nine-strong commission headed by the chief justice.
In line with the law, other members of the commission are law minister, senior-most and second senior-most judges of the Appellate Division, attorney general, two lawmakers from the government and opposition sides, president of the Supreme Court Bar Association and the law secretary.
The writ petition forced an amendment to the ordinance on June 16 and the two lawmakers and the law secretary were dropped. Another judge of the Appellate Division and two senior judges of the High Court Division were drafted into the commission.
Dr Malik and barrister Amir-Ul Islam represented the writ petitioner while attorney general Salahuddin Ahmed and assistant attorney general Jafar Imam appeared for the government in the hearing.
Supreme Court Bar Association president barrister Shafique Ahmed, senior advocate TH Khan, barrister Rafique-ul-Huq and barrister Ajmalul Hossain QC gave their expert opinions to the court as the amicus curie , or 'friends of the court' .
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