IN THE SUPREME COURT OF BANGLADESH

APPELLATE DIVISION

Present:

                            Mr. Justice Md. Nuruzzaman

                            Mr. Justice Obaidul Hassan

                            Mr. Justice Borhanuddin

                            Mr. Justice M. Enayetur Rahim

                            Mr. Justice Md. Ashfaqul Islam

                                      Mr. Justice Md. Abu Zafor Siddique

  Mr. Justice Jahangir Hossain

CIVIL APPEAL NO.232 OF 2014 WITH CIVIL PETITIONS FOR LEAVE TO APPEAL NO.2680 OF 2014 & 602 OF 2017.

(From  the  judgments  and  orders  dated 24.09.2014 and  12.02.2017  passed by  the  High Court Division in Writ Petitions No.7489 of 2014, 6951 of 2014 & 1948 of 2017)

A.B.M. Altaf Hossain

Mohammad Idrisur Rahman, Advocate Md. Farid Ahmed Shibli

                                                      -Versus- Government of Bangladesh and others

...........Appellant

          (In C.A. No.232 of 2014)                 .................Petitioner

         (In C.P. No.2680 of 2014)                 .................Petitioner

           (In C.P. No.602 of 2017)

          ............Respondents

                (In all the cases)

For the appellant

(In C.A. No.232 of 2014)

For the petitioner

(In C.P. No.2680 of 2014)

For the petitioner

(In C.P. No.602 of 2017)

For the respondents (In all the cases)

:      Mr. Probir Neogi, senior Advocate with Mr. Momtazuddin Fakir, senior Advocate, Mr. Motahar Hossain, senior Advocate, Mr. M. Sayed Ahmed, senior Advocate, Mr. Mahbub Shafique, Advocate, Ms. Anita Ghazi Rahman, Advocate, Ms. Suvra Chakravorty, Mr. Manzur-Al-Matin, Advocate, Mr. Imranul Kabir, Advocate and Mr. Khandaker Reza-E- Raquib, Advocate instructed by Mr. Zainul Abedin, Advocate-on-Record.

:      Mr. Syed Mahbubar Rahman, Advocate-on- Record.

:      Mr. Manzill Murshid, senior Advocate, instructed by Mr. Md. Mahboob Murshed, Advocate-on-Record.

:      Mr. A.M. Amin Uddin, Attorney General with Mr. Mohammad Mehedi Hassan Chowdhury, Additional Attorney General, Mr. Md. Mojibur Rahman, Assistant Attorney General, Mr. Mohammad Saiful Alam, Assistant Attorney General and Ms. Tamanna Ferdous, Assistant Attorney General instructed by Mr. Haridas

Paul, Advocate-on-Record.

Dates of hearing  : 12.01.2023,16.02.2023,23.02.2023,09.03.2023,30.

03.2023 & 25.05.2023.

Date of judgment : 14.06.2023.

JUDGMENT

Since everyone of us has delivered separate judgments those are produced below. However, a common Court’s order has been passed which is stated at the end of the judgments.

Md. Nuruzzaman J. I have had the privilege of going through the Judgment proposed to be delivered by my learned brothers, Obaidul Hassan J., Borhanuddin J., M. Enayetur Rahim J., Md. Ashfaqul Islam J., Md. Abu Zafor Siddique and Jahangir Hossain J.

Concurring with the final decision of the appeal, I would like to express my own views. The facts as has been fully narrated by my learned brothers, I am of the view that further narrating the facts would lead to repeat the same.

The constitutional provisions for appointing the judges of the Supreme Court of Bangladesh at time of the appointment and then non-appointment of the judges concerned as illustrated in the

Constitution of Bangladesh are as follows:

Additional Supreme Court Judges

98.  Notwithstanding the provisions of article 94, if the President is satisfied that the number of the Judges of a division of the Supreme Court should be for the time being increased, the President may appoint one or more duly qualified persons to be Additional Judges of that division for such period not exceeding two years as he may specify,

or, if he thinks fit, may require a Judge of the High Court Division to sit in the Appellate Division for any temporary period :

Provided that nothing in this article shall prevent a person appointed as an Additional Judge from being appointed as a Judge under article 95 or as an Additional Judge for a further period under this article.

Appointment of Judges

95. (1) The Chief Justice shall be appointed by the President and the other Judges shall be appointed by the President after consultation with the Chief Justice.

2.    A person shall not be qualified for appointment as a Judge unless he is a citizen of Bangladesh and – 
   1.   has, for not less than ten years, been an advocate of the Supreme Court ; or
   2. has, for not less than ten years, held judicial office in the territory of Bangladesh ; or
   3.   has such qualifications as may be prescribed by law for appointment as a Judge of the Supreme Court. 
3.    In this article, “Supreme Court” includes a court which at any time before the commencement of this Constitution exercised jurisdiction as a High Court in the territory of Bangladesh.

From the plain reading of the above stated Constitutional framework for appointing judges of the supreme court of Bangladesh the subtle thing that should not be averting gaze is that while appointing Additional Judges under Article 98, there is no constitutional obligation for the President consulting with the Chief Justice of Bangladesh and such consultation is mandatory while

appointing judges under Article 95. Well, there was such a consulting precondition within the purview of Article 98 in the original constitution of 1972 and which was eliminated through 4th amendment of the Constitution. Nevertheless, the Constitution too did not impose that the CJB should not be consulted and as a convention the CJB usually consulted prior to the appointment of such judges. For instance, we can recapitulate the unpleasant incident of 1994 for appointing of some judges without consulting the CJB and after serious repercussions from every corner of the Bench-Bar and citizens, that appointment was finally revoked and till date the same is maintained religiously. Whatever may be the case, the Constitutional scheme is such that the executive organ shall appoint a judge of the Supreme Court after eventual scrutiny of antecedents as well as legal acumen of the person concerned with or without consultation with CJB.

Though it is the President who officially appoints the judges of the Supreme Court, however, in reality it is the advice of the Prime Minister. Because, as per Article 48(3)-

“(3) In the exercise of all his functions, save only that of appointing the Prime Minister pursuant to clause (3) of article 56 and the Chief Justice pursuant to clause (1) of article 95, the President shall act in accordance with the advice of the Prime Minister:

Provided that the question whether any, and if so what, advice has been tendered by the Prime Minister to the President shall not be enquired into in any court.”

The meaning, understanding and effects of this mandatory consultation process was epically identified in the epoch-making judgment of this Division in the case of Secretary, Ministry of Finance, Government of Bangladesh Vs. Md. Masdar Hossain & others reported in 2000 20 BLD (AD) 104 (popularly known as Masdar

Hossain case) as hereunder:

“...we pause here and reflect on the words "in consultation with the Supreme Court" contained in Article 116. We have no doubt in our mind that the President in Article 116, as Syed Ishtiaq Ahmed rightly points out, in effect means the Prime Minister or the Chief Political Executive of the country, in view of Articles 48(3) and 55(2). The President wields control over the Presiding Officers of subordinate courts in a wide variety of fields. The Prime Minister has therefore become in reality the real wielder of power in this regard. The Prime Minister being a political person on whom is vested the executive power of the Republic needed a check on such a sweeping and absolute power. Dr. Kamal Hossain rightly termed the words "in consultation with the Supreme Court" As a pillar which held up the independence of the judiciary as a basic structure of the Constitution. In order that this pillar may not end up as a bamboo pillar, the word "consultation" has to be given some teeth, or else, as Syed Ishtiaq Ahmed rightly pointed out, Articles 116 and 116A will be only mocking birds.”

Though the above observations directly relates to the Articles connected with the judicial officers of the district judiciary, however, the meaning, understanding and effects are absolutely identical with Article 95.

As appointment of judges in the Supreme Court is both a constitutional post and warrant high esteem across the citizens, it is impliedly ordained by the Constitution itself that prior to such appointment all sorts of antecedents of the judge of the Supreme Court on the cards be examined comprehensively. After having such clean chit or certificate of spotless records and fulfilling legal, academic and other mandatory requirements, if a person is appointed as Additional Judge of the Supreme Court, he/she comes within judicial and administrative domain of the Chief Justice for the two (02) years of temporary period.

Now, getting back on the very basic question posted above, my understanding is that the constitution makers included consultation process in the Article 95 and later excluded in the Article 98 to give extraordinary weightage to obligatory consultation procedure while appointing a judge permanently. Because, this time that additional judge effectively served two years on the open Court under oath and within the direct surveillance of the senior judges of the Supreme Court and the Chief Justice himself. He/she had to dispose adequate cases and write judgments and as a convention, the quality and

integrity of those decisions are to be examined by the senior most judges of both the Divisions of the Supreme Court including the CJB.

In other words, while appointing permanently, a person having prior clean chit about his/her antecedents, fulfilling constitutional requirements and other jobs as stated above done successfully, then the CJB recommend his/her name to the President for appointing as a Judge of the Supreme Court of Bangladesh.

Well, albeit the CJB’s recommendation, the Executive could differ, at least for practical purposes. If there are diverged opinions concerning a person’s appointment in the Supreme Court what should the President do? Whose opinion should get preference?

Here comes the idea of primacy of opinion between executive and judiciary in the matters of exclusive judicial arena and presence of a workable mechanism for scientifically rational resolution of difference of opinion. In this context our highest Court in the case of “Bangladesh represented by the Secretary, Ministry of Justice and Parliamentary Affairs and others (In. C. P. Nos. 2221 & 2222 of 2008), Justice Syed Md. Dastagir Hossain and others (In. C. P. Nos. 2046 & 2056 of 2008) vs. MD. IDRISUR RAHMAN, ADVOCATE AND OTHERS (In. C. P. Nos. 2221 of 2008), MD. SHAMSUL HUDA AND OTHERS (In. C. P. Nos. 2222 of 2008), MD. SHAMSUL HUDA, ADDITIONAL JUDGE AND OTHERS (In. C. P. Nos. 2046 of 2008) and MD. IDRISUR RAHMAN, ADVOCATE AND OTHERS (In. C. P. Nos.

2056 of 2008) reported in 29 BLD (AD) 79 popularly known as `10 Judges Case’ observed hereunder:

“It has been asserted by the writ petitioners that there is continuous and unbroken convention of consultation with the Chief Justice of Bangladesh regarding appointment of Judges and that has not been denied by the Government by filing any counter affidavit. It is true that there has been unbroken and continuous convention of consultation excepting a breach in 1994 which was subsequently cured by consulting the Chief Justice and by issuing a fresh letter of appointment of the Judges by cancelling the earlier one which was issued without consulting the Chief Justice of Bangladesh. Therefore, the consultation with the Chief Justice must be effective consultation with its primacy.

In the case of S.P. Gupta and others Vs. President of India and others reported in AIR 1982 (SC) 149, the case of Supreme Court Advocates-on-Record Association Vs. Union of India reported in AIR 1994 page 269 and Special Reference No. 1 of 1998 and the case of Al-Jehad Trust Vs. Federation of Pakistan reported in P.L.D. 1996 Vol-1 page 324 the matter of consultation with the Chief Justice in the matter of appointment of Judges to the higher Judiciary was considered and it was held that consultation with the Chief Justice is a pre-requisite and the opinion of the Chief Justice shall have primacy.”

One point must be mentioned here that at the time of accruing the cause of action and finally disposal of the `10 Judges Case’ there was no incorporation of consultation process neither in Article 98 nor in 95.  Nevertheless,  with  the interpretation  of the Constitution the

Apex court decided that mandatory consultation with the CJB having primacy is a basic structure of the Constitution.

In the `10 Judges Case’ His Lordship Mr Justice Tafazzul Islam observed that:

“As it appears in view of the provisions of Article 94(4) of the Constitution and the interpretation of the words "shall be independent" as contained in Article 116A of the Constitution as given in Masdar Hossain's case, 20 BLD(AD) 104 and also the principles laid down in Sankar Chand's case, : MANU/SC/0065/1977  : AIR 1977 S.C. 2328, wherein the Supreme Court of India interpreting Article 50 of Indian Constitution, which is similar to Article 22 of our Constitution, held that a basic pillar of the Constitution cannot be demolished or curtailed or diminished in any manner except by and under the provision of the Constitution and the Appellate Division applied the above view in Anwar Hossain's case, 41 DLR (AD) 165 and that there is also no bar either in Article 95 or Article 98 or any other provision of the Constitution in respect of consultation with the Chief Justice and further the primacy of the opinion of the Chief Justice is in no way in conflict with Article 48(3) of the Constitution and the advice of the Prime Minister is subject to Articles 22 , 94(4) , 95 , 98 , 116 and 116A of the Constitution and accordingly the Prime Minister, on the basis of Articles 48(3) and 55(2) of the Constitution, cannot advice contrary to the basic feature of the Constitution so as to destroy or demolish the independence of judiciary and as such consultation with the Chief Justice with primacy of his opinion is an integral part of independence of judiciary which is ingrained in the

very concept of the independence of judiciary embedded in the principle of Rule of Law.”

This Division further observed that:

“Therefore it follows that consultation with the Chief Justice with primacy is an essential part of independence of judiciary which is ingrained in the very concept of independence embedded in the principle of Rule of Law and separation of judiciary from the executive and is not in conflict with Article 48(3) of the Constitution.”

In the case of Anwar Hossain Chowdhury and others Vs. Bangladesh reported in 41 DLR (AD) 165, commonly referred as `8th amendment case’ it was held that:

“This point may now be considered. Independence of judiciary is not an abstract conception. Bhagwati, J: said

`if there is one principle which runs through the entire fabric of the Constitution, it is the principle of the Rule of Law and under the Constitution, it is the judiciary which is entrusted with the task of keeping every organ of the State within the limits of the Law and thereby making the Rule of Law meaningful and effective.’

He said that the Judges must uphold the core principle of the Rule of Law which says-`Be you ever so high, the Law is above you.’ This is the principle of independence of the judiciary which is vital for the establishment of real participatory democracy, maintenance of the Rule of Law as a dynamic concept and delivery of social justice to the vulnerable Sections of the Community. It is this principle of independence of the judiciary which must be kept in

mind while interpreting the relevant provisions of the Constitution (S.P. Gupta and others Vs. president of India and others AIR 1982 SC at pate 152)."

Independence of the Judiciary, a basic structure of the Constitution, is also likely to be jeopardised or affected by some of the other provisions in the Constitution. Mode of their appointment and removal, security of tenure particularly, fixed age for retirement and prohibition against employment in the service of the Republic after retirement or removal are matter of great importance in connection with the independence of Judges. Selection of a person for appointment as a Judge in disregard to the question of his competence and his earlier performance as an Advocate or a Judicial Officer may bring in a "Spineless Judges" in the words of President Roosevelt; such a person can hardly be an independent Judge.”

These views of the Apex Court of this land were reiterated in the “Masdar Hosen Case”, “10 Judges case”, “5th Amendment Case”, “7th Amendment Case”, “13th Amendment Case”, “16th Amendment Case” and so on.

Let’s travel through the memory lane of the foundation of the constitution of Bangladesh. What our Constitution makers of the Constituent Assembly of 1972 thought concerning the independence of judiciary and separation of it from the executive?

Deputy Leader of the Constituent Assembly and the Acting President of Bangladesh during the liberation war of Bangladesh Syed Nazrul Islam on 19.10.1972 said that:

"মাননীয়   ীকার সােহব, গণতে  র সবেচেয় বড় কথা হে  separation of judiciary from the executive, অথাৎ  আইেনর শাসন এমনভােব   বতন করেত হেব,  যন আইনিবভাগ পিরপূভণােব িনরেপ  থােক এবং মযাদ  া এবং  াধীনতার সে   তার কতব   পালন করেত পাের। এই শাসনতে  আমােদর আইনিবভাগেক   ধু আলাদা করাই নয়, তােক পিরপূ ণ মযাদ  া দওয়ার জন    য ব ব  া   হণ করা হেয়েছ, তােত আইেনর শাসন স ে  আমােদর মেন  কান সংশয় থাকা বা  নীয় নয়।"

Sirajul Haque, Advocate, Member of the Constituent Assembly on 30.10.1972:

" য ‘জিুডিসয়াল িসে  ম' আমরা িদেয়িছ, আিম গেবর  সে  বলেত পাির, ব ুরা   ভারতবষও   এখন পয     তা িদেত পােরিন।  কননা, ভারতবেষ  এখনও ‘জিুডিসয়ািরেক স  ূ ণপথৃক করা স  ব হয়িন। আর , আমরা  চ া কেরিছ, আলাদা করার।   ধু হাইেকাট নয়, সু  ীম  কাট নয়- আমােদর িন  তম ‘জিুডিসয়াির’ কও ‘এ   িকউ টভ’  থেক আলাদা করবার জন  আমােদর সংিবধােন ব ব  া কেরিছ। সুতর াঅংিভেযাগ সত  নয় ৷"

Chairman of the Draft Constitution Committee and Law Minister Dr Kamal Hossain said on 12.10.1972:

"আইেনর শাসন িন    ত করার উে  েশ    াধীন িবচারিবভাগ   িত ার ব ব  া করা হেয়েছ। িবচারিবভােগর শীষে দেশ রেয়েছ সুীম  কাট। সুীম কােটর দু ইট িবভাগ থাকেব। হাইেকাট িবভাগ এবং আপীল িবভাগ। এই আপীল িবভাগ হেব  দেশর চূড় া আপীেলর       । িনবাহ  ী িবভাগ  থেক িবচারিবভাগেক পথৃক করারও ব ব  া করা হেয়েছ।"

And on 30.10.1972:

"িবচারিবভাগ স ে   আর একটা কথা বলেত হয়। িনবাহ  ী িবভাগ  থেক িবচারিবভাগেক পথৃক করার কাজটা সরাসিরভােব আমরা কের িদেয়িছ।       তালা হেয়েছ  য, আমরা তা কিরিন। িক   আমরা   থম িদেক মূলনীিত রমেধ  তা কের িদেয়িছ। তারপর, আবার যিদ একট ক  কের ১১৪ এবং ১১৫ অনু েদ তারঁা  দেখন, তাহেল বুঝে তপারেবন  য, এটার িবধান করা হেয়েছ। দু' জায়গায় করলাম  কন, এ     উঠেত পাের। ভিবষ েত  য আইন করা হেব, তা  যন এই িবধান অনুসাে রকরা হয়,  সজন  এই ব ব  া। অধ  ন আদালত এবং  ফৗজদারী আদালেতর ম া জে  টেদরেক আমরা সুীম  কােটর আওতায় িনেয় এেসিছ।

িনবাহ  ী িবভাগ  থেক িবচারিবভাগেক পথৃক করার দাবী আমােদর ব িদন আেগর পুরেন াদাবী। আমরা অতীেত  দেখিছ, িনবাহ  ী িবভােগর অধীেন িবচারিবভাগ থাকার ফেল কীভােব তােঁদর   ভািবত করা হেয়েছ, কীভােব ভয়  দখােনা হেয়েছ।

আইয়ুেব রআমেল আমার মেন আেছ, একজন  জলা-জজ সরকােরর

িব  ে  একটা “ইনজাংশন' িনেয়িছেলন।  সজন  তােঁক স  ীেপ বদলী করা

হয়। কােজই এ  দেশর জা  ত জনতা িনবাহ  ী িবভাগ  থেক িবচারিবভােগর পথৃকীকরেণর দাবী ত েলেছন।

কীভােব অতীেত িবচারিবভােগর  াধীনতা খব  করা হেয়েছ, তার ব  নজীর আেছ।  সজন  আইনজীবী ছাড়াও এ  দেশর জনসাধারণ িদেনর পর িদন িবচারিবভাগেক িনবাহ  ী িবভাগ  থেক পথৃক করার দাবী জািনেয় এেসেছন। আমরাই  স দাবী কেরিছ এবং এখন  যেহত সুেযা গ পেয়িছ, তাই  স দাবী আমরা  মেন িনেয়িছ। দাবী-দাওয়া আমরাই। করতাম। তখন আমরা দাবী- দাওয়া  মেন  নওয়ার সেুযাগ পাইিন। এতিদন পের আমরা এ সব দাবী- দাওয়া পূর ণকরার সুেযা গ পেয়িছ। আমার মেন হয়,  কান-না- কান সদস  

এর উপর একটা-না-একটা     াব পাস কেরেছন। তাই আজেক আমরা

মেন িনলাম  য, িনবাহ  ী িবভাগ  থেক িবচারিবভাগেক পথৃক করা  হাক ।"

From these speeches of our Constitutional maker it is unmistakably evident that ensuring the independence of judiciary and making it separate from the executive were two primordial intentions of our Constitution framers. In the aforementioned case laws of our Apex Court such as “Masdar Hosen Case”, “10 Judges case”, “5th Amendment Case”, “7th Amendment Case”, “13th Amendment Case”, “16th Amendment Case” these primal intentions of our Constitution Makers were pronounced recurrently.

Not only that, through the 15th Amendment of the Constitution in the year of 2011, a separate Article was inserted regarding `Basic Structure’ of the Constitution of Bangladesh. It is as follows:

“Basic provisions of the Constitution are not amendable

7B. Notwithstanding anything contained in article 142 of the Constitution, the preamble, all articles of Part I, all articles of Part II, subject to the provisions of Part IXA all articles of Part III, and the provisions of articles relating to the basic structures of the Constitution including article 150 of Part XI shall not be amendable by way of insertion, modification, substitution, repeal or by any other means.”

These firm notions of the legislature was further reinforced through inserting another Article which is as follows:

“Offence of abrogation, suspension, etc. of the Constitution

7A. (1) If any person, by show of force or use of force or by any other un-constitutional means-

1.   abrogates, repeals or suspends or attempts or conspires to abrogate, repeal or suspend this Constitution or any of its article ; or
2. subverts or attempts or conspires to subvert the confidence, belief or reliance of the citizens to this Constitution or any of its article,

his  such act  shall  be  sedition  and  such  person shall  be guilty of sedition.

2.   If any person-

1.   abets or instigates any act mentioned in clause (1) ; or
2. approves, condones, supports or ratifies such act,

his such act shall also be the same offence.

3.      Any person alleged to have committed the offence mentioned in this article shall be sentenced with the highest punishment prescribed for other offences by the existing laws.”

These two Articles read with the Article 7 give us this certain impression  that  `basic  structures’  of  the  Constitution  are  not  only unbendable but also any attempt for deviating from such provisions is

a seditious offence.

As consultation with the CJB with primacy is basic structure as

per  decision  of  the  Apex  Court,  that  automatically  made  an  entry within the purview of Article 7A read with Article 7B and 7, as laws

declared by the Appellate Division is binding under Article 111 of the Constitution.

One thing that agitated our judicial mind is that the State did not even  challenge  the  decision  of  the  Apex  Court  relating  to  the mandatory  consultation  process  with  primacy  rather  executed  the same by taking both legislative actions by making necessary rules viz.

Rule 8A of the “বাংলােদশ জিুডিসয়াল সািভস (সািভস গঠন, সািভস পেদ িনেয়াগ এবং  সামিয়ক  বরখা  করণ  ও  অপসারণ)  িবিধমালা,  ২০০৭”; Rule 11 of the  “বাংলােদশ জিুডিসয়াল সািভস (কম   ল িনধার  ণ, পেদা িত, ছ   টম রী, িনয়  ণ, শ ৃ লা-িবধান এবং চাকু রী  র অন ান   শতা বলী) িবিধমালা,  ২০০৭” and Rule 29 of the “বাংলােদশ জিুডিসয়াল সািভস

(শ ৃ লা)  িবিধমালা,  ২০১৭” and took executive steps in accordance through

passing orders. In the said rules of the Judicial Service, the effect of consultation with primacy of the Supreme Court has accommodated in  unambiguous  terms  and  identical  languages.  For  proper appreciation of the matters of consultation and primacy exact version of “বাংলােদশ  জিুডিসয়াল  সািভস  (শ ৃ লা)  িবিধমালা,  ২০১৭  এর  িবিধ-২৯” is  shown hereunder-

“২৯. সু  ীম  কােটর পরামেশর  কাযকরতা

(১) উপযু   কতৃপ   সু  ীমেকােটর পরামশ  অনুসাে রএই িবিধমালায় িনধাি  রত সমেয়র মেধ     েয়াজনীয় সকল পদে  প   হন কিরেব।

(২) উপ-িবিধ (১) এ বিণত উপযু  কতৃপে  র     াব ও সু  ীম  কােটর পরামশ  অিভ  না হইেল  সইে  ে  সু  ীম  কােটর পরামশ   াধান  পাইেব।”

Well, subsequent to such clear-cut and patent verdict and accomplishment by the Government i.e. the executive making necessary rules on "consultation with primacy" and after the enactment of the Fifteenth Amendment of the Constitution in 2011, is there any scope at all to leave the matter of antecedent or conduct of a Judge of the High Court Division in the hands of the executives or to make their (executives) opinion dominant over the opinion of the CJB? The answer is a big no.

Now, let’s recapitulate the Apex Court’s ruling on mandatory consultation with the CJB with primacy in the `10 Judges Case’. After examining the provisions of the Constitution along with a virtual travel through the mind of best legal faculties of the subcontinent this Division reached in a decision that consultation with the CJB coupled with primacy over the opinion of the executive while appointing a judge in the Supreme Court, is a basic structure of the Constitution. However, the very next moment they invented a strange device that is a dichotomized consultation process. The nature of this bifurcated consultation process is such that it was divided in twofold stages:

1. Judicial acumen and
2. Antecedents.

Concerning judicial acumen of a potential Judge of the Supreme Court, CJB’s opinion shall get primacy and the matters of antecedents of such person executive shall say the final words. Well, if that is the theory, then let’s visualize a scenario where CJB recommends a person for appointment, but executive denied, then how it will be resolved? There is no answer to this question in the said bifurcated consultation process as formulated by the Division. It’s a supreme judicial impasse and obvious result of such stand-off is that it is the executive that have the final words and getting primacy over the opinion of the CJB, in harsh reality.

It is absolutely undisputed that the CJB recommended both of the appellant and the petitioner for being appointed as judge of the Supreme Court after completion of two years tenure as Additional Judge. What we have seen in the two matters in question is that the executive disagreed with the CJB’s recommendation and finally both of them were dropped from the list of appointments concerned without knowing their faults. As there were no explanation of such non-appointments, the persons were not able to defend themselves, in addition, there were no such grievance mitigating mechanisms they could resort. Even the CJB were in darkness regarding the causes of the negation of his recommendations. These are absolute embarrassments for the post of CJB too. These are the outcome of the bifurcated consultation process.

In the logical fields Hegelian Dialectics is commonly accepted as a best practice in resolving theoretical arguments. “Hegel’s dialectics” refers to the special dialectical method of argument employed by the 19th Century German philosopher, G.W.F. Hegel. In a few words it is an interpretive method in which the contradiction between a proposition (thesis) and its opposition (antithesis) is resolved at a higher level of truth (synthesis).

Like other “dialectical” methods, relies on a contradictory process between opposing sides. Whereas Plato’s “opposing sides” were people (Socrates and his interlocutors), however, what the “opposing sides” are in Hegel’s work depends on the subject matter he discusses. In his work on logic, for instance, the “opposing sides” are different definitions of logical concepts that are opposed to one another. In the Phenomenology of Spirit, which presents Hegel’s epistemology or philosophy of knowledge, the “opposing sides” are different definitions of consciousness and of the object that consciousness is aware of or claims to know. As in Plato’s dialogues, a contradictory process between “opposing sides” in Hegel’s dialectics leads to a linear evolution or development from less sophisticated definitions or views to more sophisticated ones later. The dialectical process thus constitutes Hegel’s method for arguing against the earlier, less sophisticated definitions or views and for the more sophisticated ones later. Hegel regarded this dialectical method or “speculative mode of cognition” as the hallmark of his philosophy.

If we take the CJB’s affirmative opinion as `Thesis’ and the executive’s negative wish as `Anti-thesis’, then there must be a `Synthesis’ for resolving such a supreme dilemma. Otherwise, that won’t be a logical as well as scientific resolution of dispute. And such a framework for these types of scientifically rational resolution of difference of opinion is a sine qua non for a democratic, civilized and modern welfare state.

As the subdivided consultation process lacks a ‘Synthesis’, it became a half-baked one and anything half-baked is not good for health, for taste as well.

Well, apart from epistemological aspect, ‘Synthesis’ is necessary for some practical purposes too. For example, some objectionable or unethical information regarding a potential judge could be received to the end of the executive that were unnoticed by the head of the judiciary during his/her tenure as an additional judge.

For better understanding we can study such a ‘Synthesis’ mechanism devised by one of our neighboring country India’s Supreme Court. When there arise such type of divergence of opinion between judiciary and executive regarding the appointment of a judge in the High Courts and Supreme Court of India, then the executive send back the recommendation with written explanation along with other materials including various intelligence wings reports. Then the matter is reconsidered by the judiciary. After such consideration, if the judiciary reiterate the recommendation, then it is mandatory for the

executive. In this way, not only the imperative of having a ‘Synthesis’ is being fulfilled but also the primacy of the judiciary is upheld. We can run through some of such “Reiterated Resolutions” uploaded in the official web site of the Supreme Court of India in this web address: https://main.sci.gov.in/collegium-resolutions.

It is to be noticed from the collegiums regulations found in the above mentioned wed address that the `Classified Intel Reports’ were provide to the judiciary in writing and excerpts from thereto were disclosed publicly by the Apex Court Body for clarifications. The Apex Court Body duly reconsidered the executive’s view based on Intel Reports, re-discussed with the concerned body or person and then reiterated its recommendation to the executive.

A logical and befitting ‘Synthesis’ could be as such:

If there is a disagreement between the judiciary and executive, the reasons of such incongruity along with all the connected papers or audio-visual substances be referred to the CJB immediately. After getting such intimations from the executive, the CJB along with two senior most judge of this Division shall enquire into the matters giving parties concerned an opportunity for self defence and form an opinion which shall be mandatory for the executive.

One thing must be borne in mind and act of functionaries of the country is that in a state of written constitution, neither the Government nor the Legislature or the Judiciary are Sovereign, it is only the Constitution that is Sovereign and Supreme. Because,

constitution is the highest formal expression of the people. Article 7 of the Constitution ordains as follows:

“Supremacy of the Constitution

7. (1) All powers in the Republic belong to the people, and their exercise on behalf of the people shall be effected only under, and by the authority of, this Constitution.

2.    This Constitution is, as the solemn expression of the will of the people, the supreme law of the Republic, and if any other law is inconsistent with this Constitution that other law shall, to the extent of the inconsistency, be void.”

We too have a written Constitution. Our Legislature cannot legislate in contravention of the provisions of the Constitution. Government too cannot act violating the Constitution.

Now consider another aspect of these cases which is related with Article 48(3). As we pointed earlier that though the President officially appoints the Judges of the Supreme Court, as per constitutional binding regarding the appointment of Judges of Supreme Court, the President acts only in accordance with the advice of the Prime Minister. We already graphically illustrated that in our Constitutional framework Constitution only is sovereign entity not the executive or legislature or judiciary; independence of judiciary and separation of judiciary from executive and concerning the appointment of Supreme Court Judges mandatory consultation with the CJB with primacy are basic structures of our Constitution and the basic structures shall not

be amendable by way of insertion, modification, substitution, repeal or by any other means.

In the `10 Judges case’ this Division firmly decided that:

“Therefore the expression "independence of judiciary" is also no longer res-integra rather has been authoritatively interpreted by this Court when it held that it is a basic pillar of the Constitution and cannot be demolished or curtailed or diminished in any manner accept by and under the provision of the Constitution. We find no existing provision of the Constitution either in Articles 98 or Article 95 of the Constitution or any other provision which prohibits consultation with the Chief Justice. Therefore, consultation with the Chief Justice and primacy is in no way in conflict with Article 48(3) of the constitution. The Prime minister in view of Article 48(3) and 55(2) cannot advice contrary to the basic feature of the constitution so as to destroy or demolish the independence

of judiciary. Therefore the advice of the Prime minister is subject to the other provision of the Constitution that is Articles 95, 98, 116 of the constitution.”

And in the operative part of the judgment of “10 Judges Case” it was held that:

“3. Independence of judiciary affirmed and declared by the Constitution is a basic structure of the Constitution and cannot be demolished or diminished in any manner. There

is no provision in the Constitution either authorising the President or for that matter the Prime Minister in view of Article 48(3) of the Constitution to curtail or diminish such independence. 4. Consultation with the Chief Justice with primacy of his opinion in the matter of appointment of Judges and the administration of judiciary is an essential part of independence of judiciary ingrained in the very concept of independence embedded in the principle of rule of law and separation of judiciary from the executive and is in no way in conflict with Article 48(3).”

There raised a question regarding Mr A.B.M. Altaf Hossain by the learned Attorney General as to that before elevation to the Supreme Court his aggregated tenure as a practicing Advocate in the Supreme Court was less than 10 years in actual fact, though his date of enrolment as an Advocate of the Supreme Court was beyond that period. This question visualizes that before elevating him the executive did not bother to probe his antecedents though the related documents concerning his tenure as a practicing Advocate in the Supreme Court were in the public domain. It indicates that he was appointed at the whim of the executive without prior verifying his credentials.

Appointment as a Judge in the Supreme Court is not a `hire and fire’ type of job. It is one of the topmost appointments of the Country from the normative view point as well as from public confidence and requires citizen’s esteem. Therefore, vast legal experiences with

appropriate academic requirements are sine qua non for this post. This should not be taken as an entry post in the Supreme Court. The entry post in our judicial system is the post of Assistant Judge and membership in District Bar Association. As per service Rules a person can apply for such posts up to 30 years of age and in some instance that could be 32 years and on an average 1 - 1.5+ years needed for such a person to be appointed as a judicial officer by the Bangladesh Judicial Service Commission. After overcoming many service related barriers for usually 15-20 years (with some exceptional cases with less service tenure) that person could become a District and Sessions Judge. High Court Division of the Supreme Court usually hears appeal, revision etc from the judgments and orders of the District and Sessions Judges, that is, Judges of the High Court Division not only judges the District and Sessions Judges but also have superintendence and control over all courts and tribunals subordinate to it as per Article 109 of the Constitution. And while Judges from the Bangladesh Judicial Service are elevated to the Supreme Court they are to be District Judges invariably, at least in practice, though as per Article 95(2)(b) Members of District Judiciary shall not be qualified for appointment as a Judge unless he/she has, for not less than ten years, held judicial office in the territory of Bangladesh.

On the other hand, in our legal system a person can be enrolled as an Advocate of the High Court Division of the Supreme Court well before aged 30 years. The appellant herein was enrolled in the High

Court Division at the age of almost 26. There are lots of instances where advocates were enrolled at the High Court Division even earlier ages than the appellant.

In such circumstances, I’m quite unable to understand how  the requirement of 10 years' practice under Article 95(2)(a) of the Constitution suffice with simplicities the period of enrolment for 10

years instead of actual continuous or aggregate experience at the Bar. It mandatorily be continuous or aggregate experience without fail.

Moreover, our Constitution did not ordain that it should be 10 years rather qualified with `not less than ten years’. Thus, our Constitution makers bestowed a higher degree of discretion upon the ‘Judge Makers’ of our legal system and that responsibility have to be discharged with utmost sincerity and responding the call of the conscience.

The works of the judges are the art of judging a case impartially, writing judgments and orders thereon and presiding over the court. After 25-30 years of investing in these arts, at the fag end of their career a judicial officer could become a Judge of the Supreme Court. Therefore, while appointing judges having direct lack of the above mentioned arts of judging, there age of actual experience in legal arena, coupled with merit and other extraordinary qualities must be borne in mind of the appointing authorities.

Now, let’s consider the case of Mr Md Farid Ahmed Shibly. Being appointed as a Munsif, the name of the then entry post in the

judicial service, in the year of 1983 he got promotions as Sub-Judge (now Joint District Judge), Additional District Judge and District Judge in the year of 1994, 1999 and 2004 respectively. After serving as District and Sessions Judge, Gazipur; Secretary, Bangladesh Judicial Service Commission and Registrar, Supreme Court (now Registrar General) he was elevated as an Additional Judge of the Supreme Court.

His portfolio suggests that prior to elevation his service record was clean and excellent on both counts of on the Bench and administrative affairs.

In our country while a labourer are to be dismissed he has to be served a show cause notice to explain his/her defences under the Labour Laws. However, an Additional judge of the Supreme Court can lost his job without knowing the reasons.

Non-confirmation of an Additional judge of the Supreme Court as permanent Judge is of course stigmatic. Because, such a news of non-confirmation become a national daily newspaper, TV, radio and electronic media headlines. Everyone who read, watch and hear this news want to know why that person was not confirmed, there must be some problem with him etc.

Our Apex Court in many cases decided that when someone striped with jobs he/she must get an opportunity to explain his views before being sacked. Principle of natural justice too requires that if any

decision taken against anyone he/she must know the reasons thereto and have the opportunity in presenting his/her defenses, if any.

The non-confirmation of Mr Md. Farid Ahmed Shibli and Mr. A.B.M. Altaf Hossain as permanent Judge of the Supreme Court is thus a clear violation of Principle of natural justice as well as settled case laws concerned of the Apex Court.

I am greeeing with the opinion of the learned brothers Borhanuddin J., M. Enayetur Rahim J., Md. Ashfaqul Islam J., Md. Abu Zafor Siddique J. and Jahangir Hossain J., to consider the case of the appellant by the appropriate authority.

However, I am of the view that the leave petitioner’s case may also be considered by the appropriate authority.

                                                                                                          J.

Obaidul Hassan, J. The Civil Appeal and both the Civil Petitions for Leave to Appeal involving similar question of laws and almost identical facts having been heard together are now being disposed of by this common judgment.

Civil Appeal No. 232 OF 2014:

The instant Appeal by leave granting order dated 06.11.2014 passed by this Division in Civil Petition for Leave to Appeal No.2626 of 2014 filed against the judgment and order dated 24.09.2014 passed

by the High Court Division in Writ Petition No.7489 of 2014 summarily rejecting the Writ Petition.

The appellant as petitioner filed the Writ Petition No. 7489 of 2014 challenging non-appointment of the petitioner as Judge of the High Court Division of the Supreme Court of Bangladesh in violation of Article 95 of the Constitution and the principle settled by the Appellate Division of the Supreme Court of Bangladesh in the case of Bangladesh & Ors. vs.  Md. Idrisur Rahman,  Advocate & Ors. reported in 29 BLD(AD)79 despite of the recommendation of the Hon’ble Chief Justice of Bangladesh without any reason.

The petitioner filed the aforesaid Writ Petition stating, inter alia, that he was a practicing Advocate of this Court and was holding requisite qualifications to be appointed as a Judge of the High Court Division of the Supreme Court of Bangladesh. He did his graduation and post-graduation on Law from the University of Rajshahi securing 1st Class in LL.M. He also acquired graduation and post-graduation diploma on Law from the UK. He was called to the Bar as a Barrister by the prestigious Society of Lincoln’s Inn, London, U.K. He was enrolled with the Bangladesh Bar Council as an Advocate on 06.12.1998 and was permitted to practice in the High Court Division on 18.06.2000 and the Appellate Division on 18.05.2011. He acted as the Deputy Attorney General for Bangladesh and as Member of the Board of Governors of Bangladesh Open University. Considering his

such qualifications and good antecedents, the President of Bangladesh appointed him as the Additional Judge of the Supreme Court of Bangladesh, High Court Division along with five other Additional Judges under Article 98 of the Constitution, vide notification No.10.00.0000.128.011.010.2012-816 dated 13.06.2012. Accordingly, he took oath of office on 14.06.2012 and had been functioning as Judge since then until his name was dropped by the impugned action. During this period, he delivered numerous judgments which have been highly acclaimed by the Bar and the Bench. Before expiry of two years’ tenure of Additional Judge, the petitioner along with five other Additional Judges, submitted ten judgments authored by each of them as required by the Honourable Chief Justice of Bangladesh and the said judgments were distributed among the senior most Judges of the Appellate Division for their opinion. On being satisfied with the performance and integrity and all other aspects of all the six Additional Judges including the petitioner the Honourable Chief Justice recommended all of them for appointment as permanent Judges of the High Court Division under Article 95 of the Constitution and such fact of recommendation by the Chief Justice had been widely published in the daily newspapers. However, the name of the petitioner was dropped from the list of permanent Judges, although other five Additional Judges were duly appointed by the President, vide Gazette Notification No.10.00.0000.128.011.010.2012-472 dated 09.06.2014. Thereafter, the petitioner tried his best to know the reasons,

but could not know anything, though, pursuant to the said appointment notification, his colleague Additional Judges had been sworn in as permanent Judges by the Honourable Chief Justice and have been functioning as such in the High Court Division. The executive most arbitrarily dropped the name of the petitioner from the list of six Additional Judges even after recommendation by the Honourable Chief Justice and the said impugned order affected the very independence of the Judiciary, which is one of the basic structures of the Constitution as well as the same has labelled a stigma with the integrity and quality of the petitioner. In such a situation, the writ petitioner moved before the High Court Division.

Upon hearing the Writ Petition, the High Court Division rejected the same summarily by judgment and order dated 24.9.2014.

Against the judgment and order dated 24.09.2014 passed by the High  Court  Division  the writ  petitioner filed the Civil Petition  for Leave to Appeal No.2626 of 2014 and after hearing the parties this Division granted leave by an order dated 06.11.2014 and hence the instant Civil Appeal.

Civil Petition for Leave to Appeal No. 602 OF 2017:

The Civil Petition for Leave to Appeal is directed against the judgment and order dated 12.02.2017 passed by the High Court Division in Writ Petition No. 1948 of 2017.

The case of the petitioner in Civil Petition for Leave to Appeal No. 602 of 2017 is that the petitioner is a law abiding citizen and permanent resident of Bangladesh. He had obtained B.S.C. Degree from Sunamgonj College under the University of Chittagong in the year 1977.  He had obtained LL.B. Degree from the University of Dhaka in 1981. Subsequently, he was appointed as Munsif by the Government of Bangladesh vide Memo dated 5th July, 1983 and his service was confirmed as of his joining date on 17.07.1983. Thereafter, he was promoted to the post of Sub-Judge from the post of Assistant Judge on 31.05.1994 and then he was appointed as the Assistant Sessions Judge. Later on, he was promoted to the post of Additional District & Sessions Judge and subsequently he was appointed as the Additional Registrar, Appellate Division, Supreme Court of Bangladesh vide Memo dated 15.01.2002. Thereafter he was promoted to the post of District Judge and posted in situ. On 15th May, 2008, the petitioner was appointed as the District & Sessions Judge, Gazipur. Subsequently, the petitioner was transferred to and posted on deputation as the Secretary, Bangladesh Judicial Service Commission Secretariat vide Memo dated 05.07.09. Thereafter the petitioner was appointed as the Registrar, Supreme Court of Bangladesh and served there until his elevation as an Additional Judge of the Supreme Court. The petitioner has performed many important responsibilities at different positions throughout his long career. Having been satisfied with his academic and professional performance, the Honourable

President of the People’s Republic of Bangladesh after consultation with the Honorable Chief Justice of Bangladesh appointed him as an Additional Judge of the High Court Division of Supreme Court of Bangladesh along with 9 (nine) other Additional Judges under Article 98 of the Constitution of the People’s Republic of Bangladesh for a period of two years vide notification dated 9th February, 2015 and he was sworn in by the Honourable Chief Justice of Bangladesh on 12.02.2015 as an Additional Judge of the Supreme Court of Bangladesh. After appointment as Additional Judge, he rendered his service most honestly, sincerely and diligently to the full satisfaction of the Chief Justice of Bangladesh and others. The petitioner delivered many substantial judgments in previous two years, which was appreciated by many. During his tenure as an Additional Judge none raised any objection to his integrity and merit whatsoever. As an Additional Judge the petitioner performed his function as a second judge in the Division Benches of High Court Division. He, as a second judge, contributed in different jurisdictions and also to the legal arena in the Country. He had never compromised justice and always upheld unimpeachable integrity. Having been satisfied on the performance and all other requisite qualifications, the Chief Justice of Bangladesh recommended the name of the petitioner as well as those of the eight others to the Honourable President for appointment as the Judges of the High Court Division after forming opinion on their suitability, integrity and merit. The Hon’ble President, however, appointed eight

others under Article 95 of the Constitution except the petitioner without communicating any reason to the Chief Justice. The appointment of the eight Judges had been published vide Notification dated 7th February, 2017. A news item was published on 9th February, 2017 in the daily newspaper titled ‘Jugantor’ in respect of confirmation of appointment of eight Additional Judges in the High Court Division. The said news item also reported that the Honourable Chief Justice of Bangladesh recommended the name of the petitioner along with eight others Additional Judge to the Honourable President for appointment

as a Judge of the High Court Division of the Supreme Court of Bangladesh under Article 95 of the Constitution. Despite such recommendation of the Chief Justice, the Government has not the petitioner as Judge of the High Court Division. Finding no other efficacious remedy the petitioner filed the Writ Petition No. 1948 of 2017. The petitioner by filing the Writ Petition No. 1948 of 2017 before the High Court Division has called in question the legality and constitutionality of dropping him from the list of the Additional Judges to be appointed permanently as Judges of the High Court Division of the Supreme Court of Bangladesh under Article 95 of the Constitution and the principle settled by this Division in the case of Bangladesh Vs. Idrisur Rahman 29 BLD (AD) 79 despite the recommendation of the Honourable Chief Justice of Bangladesh without any reason.

Upon hearing the High Court Division disposed of the Writ Petition No. 1948 of 2017 with some observations by judgment and order dated 12.02.2017 and hence the Civil Petition for Leave to Appeal No. 602 of 2017.

Mr. Probir Neogi along with Mr. Momtazuddin Fakir, Mr. Motahar Hossain, Mr. M. Sayed Ahmed all senior Advocates and Mr. Mahbub Shafique, Ms. Anita Ghazi Rahman, Ms. Suvra Chakravorty, Mr. Manzur-Al-Matin, Mr. Imranul Kabir and Mr. Khandaker Reza-E- Raquib, all Advocates appearing for the appellant in Civil Appeal No. 232 of 2014 contended that the appellant had been denied confirmation in clear and flagrant violation of the provisions of the Constitution and law declared by the Appellate Division inasmuch as there is an expressed provision in Article 95(1) of the Constitution that the Judges of the Supreme Court of Bangladesh shall be appointed by the Hon’ble President of the People's Republic of Bangladesh after consultation with the Hon’ble Chief Justice and the Chief Justice having recommended the appellant as Judge of the High Court Division for confirmation and appointment under Article 95, the dropping of the name of the appellant without any cogent reason is totally unconstitutional. The learned Counsels for the appellant contended next that by the illegal action of the executive the independence of the judiciary has been diminished and since the independence of the Judiciary is a basic structure of our Constitution and under Article 7B of the Constitution it cannot be amended by the

parliament and there being no provision in the Constitution authorizing the President under Article 48(3) to curtail or diminish the independence of judiciary, non-appointment of the appellant ignoring the recommendation/opinion of the Chief Justice was an act of flagrant violation of the basic structure of the Constitution. The learned Counsels for the appellant argued next that no question has ever been raised against the antecedents of the appellant rather having found the performance of appellant satisfactory as an Additional Judge, the Chief Justice has recommended the appellant for confirmation/appointment under Article 95 of the Constitution inasmuch as the consultation process being initiated by the executive whose opinion in the matter of antecedents being already there and the Chief Justice in the process of consultation had the benefit of examining the opinion of the executive and since the Chief Justice recommended the appellant for appointment disregarding/overruling such opinion, there is no scope on the part of the executive to drop the name of the appellant from the list of the Judges to be appointed under Article 95. Thus, the action of the executive denying confirmation/appointment of the appellant is wholly unconstitutional, arbitrary and naked interference in the affairs of the judiciary inasmuch as an act done without any lawful authority. The learned Counsels for the appellant submitted further that under Article 95(1) of the Constitution since the judges of the Supreme Court shall be appointed by the President after consultation with the Chief Justice,

the recommendation of the Chief Justice shall get primacy over the opinion of the executive in the matter of appointment of Judges, therefore, the executive was under serious constitutional obligation not to drop the name of the appellant but to confirm him pursuant to the recommendation of the Chief Justice who is the best person to judge and assess the ability and competence of the appellant and the appellant has maintained highest professional standard as an Additional Judge and delivered some brilliant judgments as an author Judge, therefore, the Appeal is liable to be allowed. The learned Counsels submitted next that the executive by not appointing the appellant after recommendation of the Chief Justice has reduced and diminished the power, position and role of the Chief Justice inasmuch

as it was an act of undermining the authority of the head of the judiciary as well since in the impugned judgment of the High Court Division there is an observation that no way out was given in the Ten Judges’ case when the question of difference of opinion between the Chief Justice and the executive would arise, therefore to resolve the said issue and also to find a way out in such situation it is essential to allow the instant Appeal by reviewing the Judgment of the Ten Judges’ case. The learned counsels for the appellant fortified their arguments by putting reliance on some case laws decided in the Secretary, Ministry of Finance Vs. Md. Masdar Hossain and others, 52 DLR (AD) 82; S.P. Gupta Vs. Union of India (UOI) and ors, AIR 1982 SC 149; Raghib Rauf Chowdhury Vs. Government of Bangladesh, 69

DLR 317; Bangladesh and others Vs. Idrisur Rahman, Advocate and others, 29 BLD (AD) 97 etc.

Mr. Manzill Murshid, learned senior Advocate appearing for the petitioner in Civil Petition for Leave to Appeal No. 602 of 2017 submitted that the petitioner being a member of Bangladesh Judicial Service served from 17.7.1983 to 10.2.2015 holding different posts and at the fag-end of the service he had been the Registrar of Bangladesh Supreme Court wherefrom he was appointed as an Additional Judge

of the High Court Division under Article 98 of the Constitution and took oath on 12th February, 2015. Although all Additional Judges who had been appointed along with the petitioner were confirmed and appointed as Judge of the High Court Division the petitioner was dropped from the list vide notification dated 07.02.2017 of the Ministry of Law, Justice and Parliamentary Affairs. The learned senior Counsel contended next that after issuance of the impugned notification dated 07.02.2017 the petitioner came to know from a news caption of ‘The Daily Jugantor’ published on 09.02.2017 that the then Chief Justice recommended all Additional Judges including the petitioner for appointment under Article 95 of the Constitution but in violation of the constitutional provisions the executive dropped the petitioner without showing any cogent reason. The learned senior Counsel contended next that according to Article 95(1) of the Constitution, a Judge shall be appointed by the President after consultation with the Chief Justice and in the instant case the Honourable Chief Justice

recommended the name of the petitioner along with eight others but disregarding that recommendation of the Chief Justice, the petitioner alone was dropped out which is a clear violation of the constitutional provision of Article 95. Therefore, the petitioner is entitled to be appointed as a Judge of the High Court Division. The learned senior Counsel submitted next that the process by which the Judges of the Supreme Court are appointed, is the key to both reality and perception of the independence of judiciary and the whole constitutional scheme is to shut the doors of interference against the executive under lock and key and therefore the prudence demands that after shutting the door of interference the key should not be left in possession of the executives. Disregarding the recommendation of the Chief Justice by the executive means snatching the very key of the door of interference by the executive away from the control of the judiciary which is tantamount to a denial of the very concept and basic principle of the independence of judiciary. The learned senior Counsel for the petitioner argued next that according to Article 48(3) of the Constitution in exercise of all functions, save only that of appointing the Prime Minister and the Chief Justice, the President shall act in accordance with the advice of the Prime Minister. Under Article 95 of the Constitution in appointing Judges of both Division of the Supreme Court, the President shall consult the chief Justice and act in accordance with the advice of the Prime minister. In the Ten Judges’ case it is held that consultation with the Chief justice and primacy of

the opinion of the Chief Justice is in no way in conflict with Article 48(3) of the Constitution. In view of Articles 48(3) and 55(2) the Prime Minister cannot advice the President anything contrary to the basic principle and structure of the Constitution. The independence of judiciary being the basic principle and structure of our Constitution, consultation with the Chief Justice in the matter of appointment of Judges with its primacy should be considered as an essential part thereof. After the decision of Ten Judges’ case Article 95 was amended by way of 15th Amendment in 2011 and it becomes imperative for the executive to consult the Chief Justice in appointing Judge of the High Court Division and in this regard the opinion of the Chief Justice will get primacy. The learned senior Counsel contended next that it is held in the landmark Masder Hossain’s case ( 52 DLR(AD) 82) that in exercising control and discipline of persons employed in the judicial service and magistrates exercising judicial functions under article 116 the views and opinion of the Supreme Court shall have primacy over those of the executive. The Government did not even challenge the above decision concerning the consultation with primacy. The learned senior Counsel contended further that in the Ten Judges’ case (17 BLT(AD) 231) it has been observed that the term ‘consultation’ was considered in Masdar Hossain’s case in the light of Article 116 of the Constitution but nevertheless the same principle all the more applies in the matter of appointment of Judges of the Supreme Court under Articles 98 and 95 of the Constitution because without the

independence of the Supreme Court there cannot be any independence of the subordinate Courts and minus the consultation and primacy the separation of judiciary from the executive will be empty words. The learned senior Counsel contended next that the petitioner came across 32 years holding different posts in the subordinate judiciary during which all matters including antecedents had been subject to scrutiny and supervision of the Supreme Court under Articles 109, 116, 116A of the Constitution. During the petitioner’s such long career in the judiciary he did never ever face any proceeding or complaint on matter of discipline or antecedent. There is no statement from the executive that the government ever consulted the Chief Justice on any matter of antecedent of the petitioner. Thus, on any vague plea of antecedent, it would be unjust to deprive the petitioner of his legitimate right or expectation of being appointed under Article 95 of the Constitution. The learned senior Counsel contended further that the petitioner was initially appointed as an Additional Judge under Article 98 of the Constitution and at that time the President on all areas including antecedents and judicial performance consulted the Chief Justice. At that time no adverse report or allegation revealed from the petitioner’s service record or conduct as a result he was appointed as an Additional Judge under Article 98 of the Constitution. In such a situation, in the process of appointment under Article 95 of the Constitution the petitioner was not supposed to be subjected again to any further scrutiny what so

ever. The learned senior Counsel further submitted that the petitioner as an Additional Judge under Article 98 had performed all judicial works satisfactorily and since the Honourable Chief Justice had recommended his name along with eight others for appointment under Article 95, he has, therefore, not only a legitimate expectation rather acquired a constitutional right for being confirmed and appointed under Article 95 of the Constitution with effect from 07.02.2017 or 11.02.2017 because of the fact that such convention being followed in this country for more than over last 60 years. The learned senior Counsel, in fine, submitted that for doing complete justice under Article 104 of the Constitution the executive is required to be directed to appoint the petitioner as a Judge of the High Court Division within a specific deadline giving all arrear remunerations, benefits and privileges with service-continuity with effect from 11.02.2017.

Per contra, Mr. A.M. Amin Uddin, Attorney General with Mr. Mohammad Mehedi Hassan Chowdhury, Additional Attorney General, Mr. Md. Mojibur Rahman, Assistant Attorney General, Mr. Mohammad Saiful Alam, Assistant Attorney General and Ms. Tamanna Ferdous, Assistant Attorney General appearing for the respondents in all the cases strenuously opposed the submissions made on behalf of the appellant and the petitioner. They submitted that in the case of Bangladesh and others Vs. Md. Idrisur Rahman and others reported in 29 BLD (AD) 79 this Court having held that the

opinion of the executive will have dominance in the matter of antecedent of a Judge of the High Court Division and in the instant case considering the antecedent of the appellant the Honourable President of Bangladesh has not appointed him as a permanent Judge of the High Court Division and the same does not require any interference by this Court as well. The learned Attorney General along with Deputy Attorney General and Assistant Attorney General for the respondents contended next that the Honourable President appointed the appellant in the year 2012, the Honourable President having not appointed him as permanent Judge in the year 2014, and in the meantime there has been no change of Government, it cannot be said that the appellant was victim of political reasons and there is nothing to show that for an ulterior reason the appellant has not been appointed as a permanent Judge and as such there is no merit of this Appeal. The learned Attorney General argued next that Article 95(2)(a) of the Constitution requires that to be elevated in the Bench an advocate must have 10 years’ practicing experience in the Supreme Court of Bangladesh. By referring Al- Jehad Trust case reported in PLD 1996 SC 324 the learned Attorney General submitted that the requirement of 10 years’ practice under Article 193(2)(a) of the Constitution of Pakistan relates to the experience/ practice at the Bar and not simpliciter the period of enrolment. By referring the Mahesh Chandra Gupta’s case reported in (2009) 8 SCC 273 the learned Attorney General submitted next that the decision of Indian Supreme

Court passed in the aforesaid case is not applicable in the case in hand. The facts of the instant case is totally distinguishable from the Mahesh Chandra Gupta’s case. In the case of Mahesh Chandra Gupta, the petitioner prayed for issuance of Quo waranto directing an Additional Judge of Allahabad High Court (Respondent No. 3 of Mahesh Chandra Gupta’s case) for showing cause upon what authority the respondent No. 3 was holding his office and to justify the constitutionality of his appointment as a judge of the Allahabad High Court. In the said case the issue was that, if a person after having remained an advocate for some time, ceases to practice and employs himself for earning, and thereafter holds an office of a Member of the Tribunal, the period of his holding the office as a Member of Tribunal cannot be computed or taken into account with the aid of Explanation (aa) to Article 217(2)(b) of the Constitution of India. Applying the principles with regard to entitlement to practice and computability of

the period during which respondent No. 3 has worked in ITAT (Income Tax Appellate Tribunal), the Supreme Court of India held that he stood qualified for appointment as a Judge of the Allahabad High Court. Therefore, the decision of Mahesh Chandra Gupta’s Case is not applicable in the instant Civil Appeal. The learned Attorney General contended next that from the Annexures- A, A-1 & A-2, it appears that after being enrolled in the High Court Division of the Supreme Court of Bangladesh on 18.06.2000, the appellant stayed in the United Kingdom (UK) at least till 13.10.2005 on which date he was called to

the Bar of England and Wales. Therefore, it is apparent that after the date of enrolment in the High Court Division on 18.06.2000 the appellant stayed in UK for a period of minimum 5(five) years till 13.10.2005. Accordingly, the appellant was elevated in the Bench as an Additional Judge of the Supreme Court of Bangladesh on 13.06.2012 having only 7 (seven) years’ of practice in the High Court Division instead of 10 years’ practicing experience. Apart from this the appellant did not mention anywhere in the Writ Petition when he returned back in Bangladesh and started practice as an advocate in the Supreme Court of Bangladesh. Last but not least, the learned learned Attorney General argued that according to Article 48(3) of the Constitution the Honourable President is required to act as per advice of the Honourable Prime Minister regarding the appointment of Judges in the High Court Division and the communication between the Honourable Prime Minister and the Honourable President regarding appointment of Judge is privileged one and it cannot be inquired into before any court of law and hence, after consultation with the Honourable Chief Justice as per Article 95 of the Constitution when the Honourable President takes advice from the Honourable Prime Minister and takes decision as per the direction of the Honourable Prime Minister then as per Article 48(3) the whole process of appointing/confirming Judges becomes a privileged one and the same cannot be inquired into before any court of law and as such the

Civil Appeal and other Civil Petitions for leave to Appeal are liable to be dismissed.

At this juncture, let us have a brief overview of the constitutional scheme of our country as regards appointment of Judges of the Supreme Court.

Article 98 of the Constitution empowers the President to appoint Additional Judges to the Supreme Court for a period not exceeding two years. Article 98 provides that-

“98.  Notwithstanding  the  provisions of article 94, if the President is satisfied that the number of the Judges of a division of the Supreme Court should be for the time being increased, the President may appoint one or more duly qualified persons to be Additional Judges of that division for such period not exceeding two years as he may specify, or, if he thinks fit, may require a Judge of the High Court Division to sit in the Appellate Division for any temporary period:   

Provided that nothing in this article shall prevent a person appointed as an Additional Judge from being appointed as

a Judge under article 95 or as an Additional Judge for a further period under this article.”

Article 95(1) of our original Constitution enshrines that- “95(1) The Chief Justice shall be appointed by the President, and the other Judges shall be appointed by the President after consultation with the Chief Justice.”

Thus, Article 95(1) of our original Constitution had the provision requiring the President to consult with the Chief Justice in case of

appointment of Judges of the Supreme Court. Later, through the 4th Amendment Article 95(1) was amended omitting the provision of requirement of consultation with the Chief Justice while appointing the Judges of the Supreme Court. Even though through judicial pronouncement in various cases including the case of Bangladesh and others vs. Md. Idrisur Rahman, Advocate & others, reported in 29 BLD(AD) 79 (popularly known as Ten Judges’ Case) in view of the longstanding and consistent constitutional convention and practice the requirement of consultation with the Chief Justice was established. Again, with the enactment of 15th Amendment to the Constitution, the provision of Article 95(1) contained in the original Constitution had been restored requiring the President to appoint the Judges of the Supreme Court in consultation with the Chief Justice. It is apparent from the record that the cause of action in the case in hand arose on 09.06.2014 while 15th Amendment was enacted in the year 2011. Therefore, it is settled position of law that in case of appointment of Judges of the Supreme Court by the President the requirement of consultation with the Chief Justice is essential and in the case in hand the provision of consultation with the Chief Justice being essential there is no controversy as regards doing the same. In the above backdrop we do not dilate our discussion on the issue whether the consultation with the Chief Justice is imperative or not.

Under the constitutional scheme of our country the President is the Constitutional head of the State and of the executive government. Article 48 of the Constitution lays down that-

“48.(2) The President shall, as Head of State, take precedence over all other persons in the State, and shall exercise the powers and perform the duties conferred and imposed on him by this Constitution and by any other law.