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Ghost of supersession haunts the
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
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.
Husain is an Advocate of Supreme Court.