All the five Appellate Division judges did not attend the oath administration ceremony of the 15 out of the 17 newly appointed judges of the High Court on Sunday apparently boycotting the programme in protest at the chief justice's unilateral decision on the appointment of the judges.
The chief justice, Mohammad Fazlul Karim, administered oath of office to the 15 additional High Court judges in the judges' lounge where the five front-row chairs reserved for the Appellate Division judges remained vacant.
Sources in the Supreme Court hinted that the Appellate Division judges had boycotted the programme challenging the whole process of the appointment of the 17 additional judges and dropping two of them for taking oath of office as the chief justice reportedly made the decisions unilaterally without consulting senior Supreme Court judges.Supreme Court lawyers said such a situation was unprecedented.
Senior Supreme Court lawyer Rafique-ul Huq on Sunday told New Age, 'I have heard the Appellate Division judges have not attended the programme in protest as they were not consulted... I would not say anything more in this regard.'
Supreme Court lawyer Shahdeen Malik said, 'The unprecedented incident makes it evident that the Appellate Division judges clearly disapproved the chief justice's action.'
The president, Zillur Rahman, on April 11 made the appointments of 17 additional judges for two years in accordance with Article 98 of the constitution.The chief justice on Saturday decided to administer oath of office to 15 out of the 17 newly appointed additional judge of the High Court on Sunday apparently giving in to the Supreme Court Bar Association's demand for dropping the remaining two.
The chief justice made the decision 'because of unavoidable circumstances,' a Supreme Court release said on Saturday without elaboration.No decision has yet been made on the remaining two additional High Court judges, Ruhul Quddus and M Khasruzzaman, a Supreme Court official told New Age on Saturday.
The Supreme Court Bar Association president, Khandker Mahbub Hossain, elected from pro-BNP-Jamaat lawyers' panel, at a briefing in his office on April 12 urged the chief justice not to administer oath to Ruhul Quddus and Khasruzzaman terming them 'controversial.'
The bar association objected to the appointment of Ruhul Quddus as he was the principal accused in a murder case and the incumbent government recently withdrew the case against him.
As for Khasruzzaman, the association president said he was involved in the vandalism that took place on the Supreme Court premises on November 30, 2006.The attorney general, Mahbubey Alam, however, told reporters on Sunday, 'We hope the chief justice would administer oath of office to the remaining two additional judges.'
He said the case, filed in the late 1980s after a clash between the Islami Chhatra Shibir and the All-Party Students' Unity at Rajshahi University was a politically motivated case and the national committee on the withdrawal of politically motivated cases recommended withdrawal of the case against Ruhul Quddus and others at its meeting on January 19 when the process for the appointment of the additional judges was not even initiated.
Asked about the abstention of the Appellate Division Judges from the oath administration ceremony, the attorney general told the United News of Bangladesh that they might have boycotted the programme as probably they had not liked the stand of the chief justice regarding the two lawyers who were appointed additional judges, according to the news agency.
A number of lawyers and sources in the Supreme Court, however, said the Appellate Division judges had boycotted the programme challenging the whole process of the appointment of the 17 additional judges and dropping two of them for taking oath of office as the chief justice reportedly made the decisions unilaterally without consulting senior Supreme Court judges.
A special High Court bench, in the verdict delivered on August 7, 2008 in a writ petition regarding the dropping out of 10 additional High Court judges, detailed a 12-point guideline for the appointment of judges at the Supreme Court.Number III of the guidelines said, 'In case of appointment to the High Court Division, the chief justice shall consult with two senior most judges of the Appellate Division and equal number of judges of the High Court Division to form his opinion and he shall also consult senior members of the Supreme Court Bar and the attorney general.'
In the verdict delivered on February 25, 2009 in the appeal against the High Court judgement, the Appellate Division, however, detailed a fresh 12-point guideline for the appointment of Supreme Court judges disapproving the guideline Number III given by the High Court.'Norm I, III to XI are not approved,' the Appellate Division said in its verdict.In the verdict, the Appellate Division, however, said the government must go by the consultation of the chief justice in appointing Supreme Court judges.
Although the High Court's guideline for consulting senior Supreme Court judges in judge's appointment has been disapproved by the Appellate Division, the chief justice should consult senior judges to form his opinion regarding recommendations for the appointment of judges, said senior Supreme Court lawyers.
They also cited a verdict delivered by the Appellate Division in the case regarding the appointment of former law secretary Kazi Habibul Awal in which the court held that 'consultation with the chief justice' meant consultation with the Supreme Court, meaning that the senior judges must be consulted.
They also said the Appellate Division verdict of February 25, 2009 now deserved to be reviewed as the Appellate Division judges evidently challenged the chief justice's unilateral authority in appointment of judges.
As the chief justice is not only a person but also an institution, his opinion means the opinion of the Supreme Court and senior judges should be consulted by the chief justice in making his opinion, Shahdeen Malik said.
'Now it is the time for the Appellate Division to review its February 25, 2009 verdict to make mandatory for the chief justice to consult senior judges in making his opinion on the appointment of judges,' he said.
Of the five judges, who did not attend Sunday's programme, only Justice Fazlul Karim and Justice Md Abdul Matin were in the five-judge Appellate Division bench that delivered the verdict.
The other three — Justice Shah Abu Nayeem Mominur Rahman, Justice ABM Khairul Haque and Justice Surendra Kumar Sinha — were elevated to the Appellate Division after the pronouncement of the verdict.
The 15 additional judges sworn in on Sunday are Justice M Faruque, Justice Md Shawkat Hossain, Justice FRM Nazmul Ahsan, Justice Krishna Devnath, Justice ANM Bashirulla, Justice AKM Zahirul Haq, Justice Abdur Rab, Justice Kazi Reza-Ul-Haque, Justice Jahangir Hossain Selim, Justice Sheikh Md Zakir Hossain, Justice Md Habibul Gani, Justice Abu Zafar Siddiqui, Justice Gobinda Chandra Thakur, Justice Sheikh Hasan Arif and Justice JBM Hasan.
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