Controversy to appoint Judge & Chief Justice in our apex court

The farewell ceremony of the former Chief Justice Fazlul Karim created a controversy in our legal arena at that time. Because we, the mass people of this republic witnessed an entirely unusual send-off ceremony; different from the preceding seventeen and that was the core reason of that storm. Attorney General Mahbube Alam alleged that CJ Fazlul Karim violating the constitution relentlessly by not administering oath to two additional  High Court judges (Ruhul Quddus Babu and M Khasruzzaman) appointed by the president during his tenure. On April 11, 2010 Justice Fazlul Karim refused to administer the oath to Ruhul Quddus Babu and M Khasruzzaman. Attorney general furthermore said, “The government could have taken appropriate constitutional steps against you, but it refrained from that considering the dignity and importance of the chief justice's office”.

On the opposite side, the then president of the Supreme Court bar association Khandker Mahbub Hossain praised such initiative of the Chief Justice. He added CJ upholding the dignity of the Supreme Court by refraining from administering oath to the two alleged judges. The bar president on a former time requested to the Chief Justice not to administering the oath.

We saw two diverse positions of two top most persons of our apex court. Both of them were delivering their speech from their political views. In addition, they want to use the incident for their own benefit. It is true that as a nation of an egalitarian country, every citizen has the right to express his opinion and this right is also guaranteed by our Supreme law with some reservations. As well as every one has the right to posses a political believes but the question is, can any one have the right to snub chief justice? One thing must be borne in mind that the Chief Justice is not only the chief of the highest court rather Chief Justice of Bangladesh (See Art. 94(2)).

The approach by which Mr. Alam uttered his angriness to the CJ is not beyond question. He also added he had made the comments on Justice Fazlul Karim so that no one disregards the constitution in future. Who imposed the said duty upon him? Where president never took any steps against the act, there who appoint the highest law personnel of the country to alert upcoming CJs to uphold the dignity of the constitution? Every chief justice is obligated to do that by his or her sworn.

Every citizen of this state has the right to criticize the court proceedings in a fare way, as the money of those people runs the courts. But it should follow a standard manner and authority to articulate the opinion.

Now, the question would have automatically been arisen that, whether the chief justice was right in his position or not? First of all, judiciary is an independent institution (Whether it is actually independent or not is not beyond question). If we see the common practice of appointing additional judges to the High Court Division, we find president appoint them in consulting with the chief justice. In this case, whether such consultation had ever been done or not is not flashed out. Moreover, we don’t know when the outgoing Chief Justice decided not to administering oath of them. If from the very beginning of that appointment he took his decision then he could recommend strongly to the president against them. We are at dark that whether he submitted any of such recommendation or not? If he took his decision after the appointment then he had a chance to request the president to amend the gazette notification. The provision of consultation with Chief Justice to appoint judge(s) to the Supreme Court was present in first constitution of 1972, which was amended latter and the provision is no more, now it is essential to insert again such provision into the constitution to resolve this type of hullabaloo.

Appointment of ABM Khairul Haque as 19^th chief justice of Bangladesh by superseding two senior judges got another dimension of controversy in our apex court arena. Actually maintaining seniority is nothing but a custom. Now superseding the senior is turn as a custom in Bangladesh. Nevertheless, almost in every case, it is not practicable to maintain the rule of seniority. However, this appointment got a new aspect since somebody and main opposition party relates it with the appointment of Chief Advisor of the upcoming Non-party caretaker government to conduct 10 parliament election. Appointing Chief Justice is a discretionary as well as an exclusive power of the president vested by Art. 48(3) of our constitution.  I personally believe that Justice Kharul Haque is such a person who can bring changes in our court administration. Sometimes the leadership of a single person is enough to change the scheme and he possessed such quality within himself, which is more evident from his enlightening and landmark judgments.  I’m more hopeful from his landmark & history breaking verdicts (though his judgment on fifteen amendment created huge controversy among the scholars). Now it is the time to witnessing implementation of those judgments by the government.

Judiciary is the highest organ to ensure natural justice for the mass people of this soil. Further, it is the last resort for them to protect their legal rights. Ergo, it should be detached from these types of controversy.