HC declares BNP-led govt decision illegal

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The High Court (HC) yesterday declared illegal and unconstitutional the BNP-led government’s not confirming the services of 10 additional HC judges appointed during the rule of Awami League despite the chief justice’s positive recommendations.

The HC directed the government to reappoint the 10 judges with seniority within one month.

The court, however, said the time between the dates of non-confirmation and reappointment of the judges would be treated as leaves without pay.

The judges are justices Abdus Salam, Momtaj Uddin Ahmed, Abdul Hye, Md Shamsul Huda, Faruque Ahmed, Marzi-ul Huq, Abdur Razzak, Hasan Foiz Siddique, AHM Shamsuddin Chowdhury and Nizamul Huq Nasim.

A three-member special bench comprised of justices Mohammad Abdur Rashid, SK Sinha and Nazmun Ara Sultana delivered the judgment observing that the government’s action of not confirming the services of the 10 judges was malafide and of no legal effect.

The court observed that as per articles 95 and 98 of the constitution the government has to give priority to the recommendations of the chief justice in appointing judges or confirming their services.

If the executive authorities do not agree with the opinions of the chief justice in this regard, they can send back the recommendations with reasoning to the chief justice for reconsidering those. Non-compliance with the chief justice’s recommendations in this regard will be violation of the constitution, the court said.

The HC bench delivered the judgment after hearing for a long time two separate writ petitions filed by the 10 deprived judges.

The petitioners’ counsel, eminent jurist Dr Kamal Hossain, termed the judgment a memorable one in the history of the judiciary.

“The judiciary is the main pillar for protecting the constitution. The judges of the Supreme Court play the role of vigilant guard for preserving the constitution. The High Court has protected the constitution by delivering this memorable verdict today,” he said.

While talking to newsmen, Dr Kamal said the then government ignored the chief justice’s recommendations by not confirming the services of the 10 judges and thus exercised powers arbitrarily. “This action was a violation of the constitution. The judgment has proved that the judiciary is the guardian of the constitution and will play an important role in protecting the constitution,” he said.

Barrister M Amir-Ul Islam, another counsel for the petitioners, said the judgment would play an important role in appointing competent, honest, skilled and brilliant judges in the High Court.

“The desire and expectation of the people for an independent judiciary have earned a victory through this judgment,” he said.

Sources said after assuming power on June 23, 1996, the Awami League government in six phases appointed 40 judicial officials and lawyers as additional judges of the HC for two years.

Three judges were appointed on February 24, 1997, six on April 27, 1998, eight on October 28, 1999, five on May 28, 2000, and nine each on February 22, 2001 and July 27, 2001. One judge died after nine months of appointment while another resigned from the office.

The services of 23 additional HC judges were confirmed during the rules of the Awami League and the BNP-led four-party alliance government.

The four-party alliance government did not confirm the services of the rest 15 additional judges.

Ten of the 15 unconfirmed judges filed the two writ petitions with the HC on February 4, 2003, challenging the legality of the government’s not confirming their jobs in spite of the chief justice’s recommendations.

Supreme Court lawyers advocate Idrisur Rahman and Farid Ahmed filed one writ petition on behalf of Md Shamsul Huda, Faruque Ahmed and Hasan Foiz Siddique.

The seven other judges later filed the other writ petition.

Following filing of the writ petitions, the HC issued a rule upon the government to show cause as to why its action of not confirming the jobs of the 10 HC judges should not be declared illegal and why it should not be directed to confirm their services.

The chief justice recently constituted a larger bench of the HC with justices Mohammad Abdur Rashid, SK Sinha and Nazmun Ara Sultana for hearing the rule.

Dr Kamal Hossain, barrister M Amir-Ul Islam and barrister Azmalul Hossain appeared for the petitioners while Assistant Attorney General Zafar Imam argued for the government.

Zafar Imam told The Daily Star that as of yesterday he did not receive any instructions from the government to file any appeal with the Supreme Court against the HC verdict.

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