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Download PDF The High Court (HC) yesterday declared void the provision of the Supreme Judicial Commission Ordinance 2008 that empowers the president to disregard recommendations of the Supreme Judicial Commission (SJC) in appointing judges to the higher judiciary.
A three-member special bench of the HC comprising justices Mohammad Abdur Rashid, Nazmun Ara Sultana and Md Ashfaqul Islam delivered the judgment upon a writ petition filed by Supreme Court (SC) lawyer advocate Idrisur Rahman.
Justice Rashid said in the judgment that he found the ordinance unconstitutional, so he made absolute the HC rule dated April 28 that asked the government to explain why the SJC ordinance should not be declared unconstitutional.
The two other judges of the bench found section 9(4) of the ordinance inconsistent with the very object of the ordinance, rendering it meaningless and futile.
The court also certified the writ petitioner to file an appeal with the SC against the HC judgment, saying the case involves substantial questions of law, for example, the interpretations of the constitution, which may be decided by the Appellate Division.
Advocate Idrisur Rahman told The Daily Star yesterday afternoon that he would file an appeal with the SC.
“There is no specific law for the appointment of judges in the higher judiciary in Bangladesh, even in the countries of the subcontinent. I will file an appeal with the SC seeking a guideline for appointing judges in the higher judiciary,” he said.
President Iajuddin Ahmed promulgated the Supreme Judicial Commission Ordinance 2008 on March 16 this year to set up the SJC as part of government measures to put an end to the practices of political manoeuvrings in appointing SC and HC judges.
The ordinance prescribed setting up of a nine-member commission headed by the chief justice to recommend names for appointing additional judges to the HC. The commission will also recommend names of eligible candidates from the HC Division for appointing a judge to the Appellate Division.
The other members of the commission are the law minister, two senior most judges of the Appellate Division, the attorney general, two lawmakers–one nominated by the leader of parliament and the other by the leader of opposition, the president of the SC Bar Association and the law secretary.
Idrisur Rahman filed the writ petition with the HC on April 28, challenging the legality of the ordinance stating that the composition of the commission is unconstitutional as six of the members come from the executive and legislature. Besides, five are below the rank and status of the SC judges.
He said a number of provisions in the ordinance counter the independence of the judiciary as those allow the president to reject names recommended by the commission and give the executive “complete control” over selection of prospective judges.
An HC bench comprising justices Syed Mahmud Hossain and Farid Ahmed stayed functioning of the commission on the same day for three months.
It also issued a rule on the government and the SC registrar, asking them to explain within three weeks why the ordinance shall not be declared unconstitutional.
When the government appealed the apex court to stay the HC order on May 12 SC Chamber Judge Justice MA Matin referred the matter to the full bench of the SC.
Following a government petition, the Appellate Division on May 20 stayed the HC order for halting operation of the SJC.
The apex court also asked both sides in the case to wait for the HC to dispose of the rule it issued upon the writ petition challenging the validity of the ordinance.
On June 16, the government amended the ordinance to constitute the SJC with four judges of the Appellate Division including the chief justice, two senior most judges of the HC division, the law adviser or law minister, the attorney general and the SC Bar Association president. The amended ordinance deleted the rules for keeping two lawmakers and the law secretary in the commission.
The chief justice recently constituted the three-member HC bench for hearing and disposing of the writ petition.
The bench appointed six senior lawyers–advocate TH Khan, advocate Mahmudul Islam, advocate Khandker Mahbub Uddin Ahmed, barrister Rafique-ul Huq, barrister Shafique Ahmed and barrister Ajmalul Hossain as amicus curiae (friend of the court) for legal interpretations in this case.
Barrister Amir-Ul Islam and Dr Shahdeen Malik assisted by advocate Protikar Chakma appeared for the petitioner while Attorney General Salauddin Ahmed and Assistant Attorney General Zafar Imam argued for the government.
After hearing their arguments for six days the HC delivered the judgment.
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