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July 20, 2003 

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Ghost of supersession haunts the Supreme Court

M.Moazzam Husain

On the 12th instant Mr. Justice M.M.Ruhul Amin is appointed Judge of the Appellate Division of the Supreme Court of Bangladesh superceding Mr. Justice Syed Amirul Islam, the most senior Judge of the High Court Division. The appointment sparked off popular discontent at the bar and beyond. Supreme Court Bar Association abstained from giving traditional felicitations to the new appointee and boycotted the Appellate Division. Later, on the 14th instant Supreme Court Bar Association sat in an emergency meeting massively attended by lawyers regardless of their political affiliations.

This unity of lawyers is a new development in many years prompted by their shared concern and continuous struggle for independence of judiciary, rule of law and democracy and their firm stand against executive interference in the judiciary. In the past there were supersessions and non-confirmations amid protests and althrough lawyers viewed upon it as an interference into judicial independence. The present Chief Justice himself is a victim of supersession during Awami League Government and no one knows better than him the impact of unbridled executive power in selection, appointment and confirmation of judges of the supreme court in the independence of judiciary.
There is no specific guideline or criteria provided by any law governing this area so crucial for the judicial independence. Article 95 of the Constitution says, inter alia-(a) A person shall not be qualified for appointment as a judge unless he is a citizen of Bangladesh and-(b) has, for less than ten years, been an advocate of the Supreme Court; or(c) has for not less than ten years , held judicial office in the territory of Bangladesh; or (d)has such other qualifications as may be prescribed by law for appointment as a judge of the Supreme Court. No such law as is contemplated by the Constitution has as yet been enacted. The constitutional binding for the Government to consult with the Chief Justice in matters of appointment of judges of the Supreme Court is deleted by the 4th Amendment of the Constitution. Virtually selection, appointment and confirmation of judges remains by and large to be an Executive discretion.
Any person who has been an advocate of the Supreme Court for 10 years may be appointed as a judge irrespective of his eligibility for the post, or any person whose name continues in the Bar Association Register as an advocate for ten years having no standing practice as contemplated by the Constitution may be appointed as a Judge. So is the case with the persons coming from subordinate judiciary as there is no guidelines for selection. Separation of judiciary, if could be effected, would have gone a long way in resolving the issue.
Directives given by the Supreme Court in Masdar Hossain's case for effecting separation of judiciary followed by the Government's pledges to take necessary steps accordingly kindled some hope in the mind of the legal community and the conscious section of citizens. No one possibly doubted the intention of the Government so far in effecting the separation of judiciary notwithstanding that over and over again it took time from the Supreme Court for the purpose. More than thirty one years have elapsed since our independence but no effective steps towards fulfillment of this basic constitutional mandate was seen to have been taken by any of the governments.
Skepticism began to lurk into the mind of the people about the commitment of the Governments. The situation is further worsened by a recent comment of the Law Minister which essentially meant that separation of judiciary is exigent upon so many factors and more 6/7 years time will be required for it to take shape. In the background came the supersession in a gesture of defiance to the growing concern of the lawyers and of the people struggling for independence of judiciary.
Lawyers in their meeting emphasised on the crucial role of the Chief Justice in this critical juncture and called upon him to rise to the occasion for ensuring judicial independence. They also urged upon him not to send more names of the High Court Judges than is required for filling the vacancy in the Appellate Division. The practice of sending two names against one vacant post of the Appellate Division or four names against two vacant posts therein gives the Government a handle for arbitrary choice.
It is understandable that the absence of Constitutional authority of the Chief Justice to be consulted and laws providing specific criteria and guidelines in matters of appointment of the judges has made his position precarious and vulnerable and consultation with him by the Government has turned into an empty formality. Government may or may not go by the recommendations made by the Chief Justice in matters of appointment and confirmation of judges nor is there any transparency in the process. It is the Constitutional convention that leads the Governments to revert to the Chief Justice for consultation. But question of its effectiveness remains always questionable. Nevertheless the Chief Justice remains to be repository of our hope and confidence in matters of defending judicial independence. To say otherwise is to allow the Government to go escort-free to the detriment of the independence of judiciary.
The ongoing movement of the lawyers for separation of judiciary ignited by the recent incident of supersession is a sequel of their long struggle for judicial independence short of which rule of law, democracy and for that matter our national development will lapse into misnomer. Both Mr. Justice MM Ruhul Amin and Mr Justice Syed Amirul Islam are most eminent judges, exceedingly competent to be appointed as judges of the Appellate Division. Not that appointment of Mr. justice MM Ruhul Amin as judge of the Appellate Division has diminished the otherwise sublime position of the apex court but that supersession of Mr. Justice Syed Amirul Islam, the senior most judge tends to disturb the even tempo of the judges' mind and undermines the institutional sovereignty of judiciary. Over and above the embarrassment of the superseding judges in the peculiar circumstances can not be overlooked.
We all are sailing in the same boat. Neither the politicians who are running the Government nor anyone else outside the Government can afford to see the democratic institutions being destroyed. Therefore, the sooner the impasse is resolved the better. As I understand for independence of judiciary to be ensured, there is no alternative of restoration of the consultation clause of the Constitution, enactment of law providing specific criteria and guidelines for appointment of judges of the Supreme Court and implementation of separation of judiciary and if those are done upon a consensus of the judges of the Supreme Court, senior members of the Bar and the Government, would be the best.

M.Moazzam Husain is an Advocate of Supreme Court.

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