Supersession in highest judiciary, yet again
Courtesy New Age 17/5/11
EVEN before dying down of the hue and cry over the appointment of Justice Muzammel Hussain as the chief justice, superseding the senior-most judge of the Appellate Division of the Supreme Court, and the subsequent resignation of the superseded judge, Justice Shah Abu Nayeem Mominur Rahman, the highest judiciary has again been rocked by controversy—this time over the elevation of two High Court Division judges to the Appellate Division. According to a report front-paged in New Age on Monday, Justice Mamtaz Uddin Ahmed and Justice Md Shamsul Huda were elevated to the Appellate Division, superseding 46 and 49 judges respectively of the High Court Division. The two judges and five of their High Court colleagues are reported to have protested against the elevation of four senior-most judges to the Appellate Division in February. The seven judges and two of their colleagues even went to the law minister with the demand that Justice Ahmed and Justice Huda should be elevated instead as they were senior to the elevated judges if their seniority was counted from the date of their appointments as additional judges. They reportedly claimed that their seniority had been ignored because of an illegal decision of the previous elected government of the Bangladesh Nationalist Party-led alliance, which was later revoked by the Supreme Court, and threatened that they go on leave for an indefinite period or even resign if their demands were not met.
Whether or not the elevation of these two judges to the Appellate Division is a result of the demand remains open to speculation; however, what is beyond any debate is that the controversy over the latest appointments to the apex court, including that of the chief justice, is likely to rage on for the days to come, and that such controversy is likely to give rise, again, to the question how far the highest judiciary is really independent. The question has become all the more significant in view of the comment that the outgoing chief justice made on Saturday, in the presence of the law minister. According to a report front-paged in New Age on Sunday, the chief justice said the prevailing situation of the judiciary was like asking someone to swim with hands and legs tied.
As we have commented in these columns before, supersession of senior judges in the highest judiciary—be it in the appointment of the chief justice or elevation of High Court judges to the Appellate Division—seems to have become the norm rather than an exception in recent years through the tenures of successive governments—elected or unelected, civilian or military. Needless to say, not only such practice is dispiriting and even humiliating for the judges superseded during one government or the other but it also affects the credibility of the judiciary as a whole. After all, on more occasions than one in the past, supersession in the appointment of the chief justice has been construed as part of `electoral engineering' by the government of the day. The ruling class, irrespective of party affiliation, needs to realise that the highest judiciary, despite many controversies that it has been embroiled in over the years, remains one of the very institutions that still enjoy the public faith and thus must stop tinkering with it. The judges, on the other hand, realise that they also have a role to play to protect the credibility and dignity of the highest judiciary.
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