Bangladesh Represented by The Secretary Ministry OBDAD090182COM94725

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LEX/BDAD/0182/2009

Equivalent/Neutral Citation: 7ADC (2010)721, 2009(17)BLT(AD)231, 7LG(2010)AD137, 7LG(2010)AD17

IN THE SUPREME COURT OF BANGLADESH (APPELLATE DIVISION)


Civil Petition for Leave to Appeal No. 2221 of 2008 with Civil Petition for Leave to
Appeal No. 2046 of 2008
Decided On: 25.02.2009
Bangladesh represented by the Secretary, Ministry of Justice and Parliamentary Affairs
and Others Vs. Md. Idrisur Rahman, Advocate and Others
[Alongwith Civil Petition for Leave to Appeal No. 2222 of 2008]
And
Justice Syed Md. Dastagir Hossain and Others Vs. Md. Shamsul Huda, Additional Judge
and Others
[Alongwith Civil Petition for Leave to Appeal No. 2056 of 2008]
Hon'ble Judges/Coram:
Md. Ruhul Amin, C.J., Mohammad Fazlul Karim, Md. Tafazzul Islam, Md. Joynul Abedin
and Md. Abdul Matin, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: Mahbubey Alam, Attorney General with Enayetur
Rahim, Additional Attorney General, instructed by A.S.M. Khalequzzaman, Advocate-on-
Record in C.P. Nos. 2221 & 2222 of 2008 and T.H. Khan, Senior Advocate with Rafique-
ul Huq, Senior Advocate, A.J. Mohammad Ali, Senior Advocate and Ahsanul Khan,
Advocate instructed by Md. Taufique Hossain, Advocate-on-Record in C.P. Nos. 2046 &
2056 of 2008
For Respondents/Defendant: Dr. Kamal Hossain, Senior Advocate instructed by Syed
Mahbubar Rahman, Advocate-on-Record for Respondent No. 1 in C.P. No. 2221 of 2008,
M. Amir-ul Islam, Senior Advocate instructed by Md. Abu Siddique, Advocate-on-Record
for Respondent Nos. 2-4 in C.P. No. 2221 of 2008 and for Respondent No. 1
Rokonuddin, Senior Advocate
JUDGMENT
Md. Ruhul Amin, C.J.
1. While agreeing with my learned brother M. A. Matin, J., I like to add a few words of
my own. The facts of the cases have been narrated in details in the main judgment. So I
do not like to re-state those.
2 . In these cases non-appointments of some judges of the High Court Division are
challenged and called in question on the ground that they have not been appointed
under Article 95 of the Constitution inspite of consultation with the Chief Justice and
favourable recommendation of the Chief Justice for such appointment as Judges.
3 . 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
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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.
4. 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.
5 . It is pertinent to mention here that in India after the 3 Judges cases, the Law
Commission of India considering all aspects of the matter, submitted its report with
recommendation pointing out the bad aspects of the 3 Judges cases as under:
As already stated this delicate balance has been upset by the second Judges
case (Advocates-on-Record Association Vs. Union of India), 1993 (4) (SCC)
441 and the opinion of the Supreme Court in the Presidential Reference
(Reference No. 1 of 1998). It is time the original balance of power is restored.
6. This recommendation is mainly based on the views expressed by J.S. Verma, J. the
author judge of the main judgment in the case of Advocates-on-Record Association Vs.
Union of India, 1993 (4) (SCC) 441.
7. In the case of Anwar Hussain Chowdhury and others Vs. Bangladesh reported in 41
DLR (AD) 165 the independence of judiciary has been held to be a basic structure of our
Constitution. In the case of Secretary, Ministry of finance Vs. Masder Hussain and others
reported in 20 BLD (AD) 104 it was held that the independence of judiciary is one of the
basic pillars of our Constitution and cannot be demolished or curtailed in any manner
whatsoever except under the existing provisions of the Constitution.
8 . Since in Articles 98 or 95 or other provisions of the Constitution, there is no
prohibition in respect of consultation with the Chief Justice, and such consultation with
the Chief Justice and its primacy being not in contrast with the provisions of Articles
48(3) and 55(2), the Prime Minister cannot advice contrary to the basic feature of the
Constitution. Therefore, it appears that the independence of Judiciary being a basic
structure of our Constitution, consultation with the Chief Justice in the matter of
appointment of Judges with its primacy is an essential part of the independence of
Judiciary.
9 . We did not agree with the learned Judges of the High Court Division that there
should be a collegium of Judges and the Chief Justice of Bangladesh will consult with
them when he recommends the candidates for appointment as Judges. Despite the fact
that we disagreed with the learned Judges of the High Court Division that the Chief
Justice should consult with a collegium of Judges, there is also no bar for the Chief
Justice to discuss with his colleagues who are best persons to adjudge the legal acumen
of the persons reappointment as Judges and in fact the Chief Justice discusses with his
colleagues before he recommends the names of the candidates for appointment as
Judges.

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1 0 . As regard the oath it is to be mentioned here that under Article 98 of the
Constitution a Judge is appointed for a fixed period of 2 years as an additional Judge
and he takes oath as such. So, this oath cannot extend beyond the period of 2 years.
But under Article 95 a judge is appointed without mentioning any period and he takes
oath accordingly. This oath under Article 95 of the Constitution in common parlance is
known as confirmatory oath. So, the two oaths are distinct and separate for all
purposes.
11. Moreover, if a Judge after taking oath under Article 98 of the Constitution resigns
before the expiry of two years or if he is not appointed under Article 95 before expiry of
two years he can practice in the High Court Division. But after his appointment under
Article 95 of the Constitution and taking oath as such if he resigns or otherwise ceases
to hold office as a judge, he is debarred from practicing in the High Court Division.
1 2 . Resultantly, the leave petitions are disposed of in terms and to the extent as
indicated in the main judgment.
1 3 . Mohammad Fazlul Karim, J: I have pursed the judgments of my brothers Md.
Tafazzul Islam, Md. Joynul Abedin and Md. Abdul Matin, J.J.J, expressing their
respective views particularly, relating to the maintainability of the leave petition filed by
29 sitting Judges of the High Court Division being aggrieved by the observations,
affecting their individual rights and position as senior Judges of the Division and as to
their standing to maintain the said petition. I could not persuade myself to agree on the
views expressing lack of their standing to maintain the leave petition passed by my
brother, Matin, J, holding.
This follows that the High Court Division is a unit of this Court with a co-
ordinate jurisdiction and one Judge or a group of Judges can not challenge the
judgment passed by another Judge or a bench of Judges since that will amount
to challenging their own judgment which is not permissible in law.
...........Moreover if this is permitted the practice will destroy the tradition of
high decree of comity among the Judges of the superior Courts which is
essential for the smooth and harmonious working of the Supreme Court.
1 4 . Since a controversy has arisen regarding the issue of the standing of the 29
permanent and confirmed sitting Judge of the High Court Division as stated above and
the maintainability of their leave petition, a decision on the issue is necessary for
proper disposal of the appeal.
15. The issue arose when 29 sitting permanent Judges of the High Court Division filed
leave to appeal being aggrieved by the findings of the High Court Division made against
their respective personal status and positions as the learned Judges of the High Court
Division, in their absence without any notice of the rule to them or even without
impleading them or any relief sought in the writ petition before the High Court Division
to that effect. Because the learned sitting Judges were neither made parties nor any
allegation was levelled against them in the writ petition but abruptly the impugned
judgment of the High Court Division held contrary view regarding their respective status
and seniority i.e. dislodging their existing seniority over the writ-petitioner whereby
their existing constitutional position as to their posts and consequent seniority which
was dislodged by the impugned judgment while appointing the writ petitioners as
permanent Judges placing them over the said 29 permanent Judges breaking the chain
of seniority as preserved pursuant to their position under Article 95 of the Constitution.
16. While summing up the views in the main judgment, Matin, J considered in general
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terms the jurisdiction of each the Judges of the High Court Division exercising
jurisdiction on behalf of the High Court Division which is an unit of the Court having co-
ordinate jurisdiction and one Judge or group of Judges cannot challenge the judgment
passed by another Judge or Bench of the Judges as that will amount to challenging their
own judgment and has also spelt out the correct legal position regarding oath which is
essential for entering of the offices under Articles 98 and 95 of the Constitution and that
the Judges enter the office only after taking oath and accordingly set aside the finding
of the High Court Division that the fresh oath is not necessary for the dropped ad-hoc
Judges and their appointments shall be effective from the date of their respective date
of non-appointment i.e. on the date scheduled to be deemed appointed under Article 95
of the Constitution.
17. Apart from above illegality the said finding of the High Court Division is also not
sustainable for the simple reason of the provision of Article 148(1) of the Constitution
providing that "A person elected or appointed to any office in "Third schedule", shall
before entering upon the office make and subscribe an oath or affirmation (in the article
referred to an oath) in accordance with that schedule. The 3rd schedule of the
Constitution provides that;
Chief Justice or Judges. An oath (or affirmation) in the following forms shall be
administered, in the case of the Chief Justice by the President, and in the case
of a Judge appointed to a division, by the Chief Justice- "I, ............... having
been appointed Chief Justice of Bangladesh (or Judge of the Appellate/High
Court Division of the Supreme Court) do solemnly swear (or affirm) that I will
faithfully discharge the duties of my office according to law; That I will bear
true faith and allegiance to Bangladesh: That I will preserve, protect and defend
the Constitution and the laws of Bangladesh: And that I will do right to all
manner of people according to law, without fear or favour, affection or ill-will.
18. From the above, it is very clear to note that the said provision of taking oath as
provided under Article 148(1) in accordance with the "Third schedule" thereto is not an
idle formality to be ignored or not to be adhered to upon their appointment as a Judge
permanently or otherwise so as to avoid taking of oath. It is to be noted here that the
said provision also appeared in their respective appointment letters issued to the Judges
upon their appointment clearly specifying that the appointment under the Articles 95
and 98 of the Constitutions shall be effective from the date of taking oath. Thus, the
mandatory obligation of taking 'Oath' of office as a Judge under the aforesaid Articles is
sine qua non to be a Judge of either Division. But the High Court Division contrary to
the provision of the Constitution as also reiterated by the respective notifications
appointing each of them a Judge held that no fresh oath is necessary for the dropped
out Judges, not being confirmed under Article 95 of the Constitution or their
appointment shall be effective on and from the respective date of non-appointment.
19. But while considering the constitutionality and consequent obligation to subscribe
to their respective 'oath' before assumption of the office of a Judge, Matin, J has
negated the standing of the said aggrieved 29 Judges whose respective position as
permanent Judge was dislodged by the impugned judgment of the High Court Division
which has necessitated and compelled the aggrieved Judges to file the leave petition
before this Division in order to ventilate their constitutional position assigned personally
to them affected by the impugned judgment of the High Court Division i.e. placing the
writ-petitioners above their position as Judges of the High Court Division on the plea
that no fresh oath on being appointed as permanent Judges is necessary for the
dropped out Judges or that their appointment shall be effective from their respective
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date of non-appointment.
2 0 . The word 'Citizen' has been derived from the Latin word 'civis' is no longer
understood in the narrower sense of earlier times as an inhabitant of a city or a freeman
having a family or a representative of a city in Parliament. In the case of Bangladesh-
Vs-Professor Golam Azam 46 DLR (AD) 199, it has been held that 'By citizen we mean a
person who is a member of an independent political community having rights and
obligations under the Constitution and the law of the Country." Thus, "Citizenship
though not mentioned as a fundamental right in our Constitution is to be considered as
a right of all rights as on it depends on right to fundamental rights expressly provided
for a citizenship in Part III and his right to seek Court's protection of those rights."
21. In the instant case, however, a lis has arisen as detailed in the case of the 29
permanent and confirmed Judges and all actions or decisions, judicial, quasi-judicial or
administrative, affecting the individual right of the Judges are amenable to the judicial
review under Article 102 of the Constitution.
22. Article 102 of the Constitution is primarily a vehicle or mechanism for realizing
individual rights upon individual complaints and the Supreme Court being a forum, a
medium or mechanism devised by the Constitution for the exercise of the judicial power
of the people on behalf of the people, the people will always remain the focal point of
concern of the Supreme Court while disposing of justice or propounding any judicial
theory or interpreting any provision of the Constitution.
23. In the case of Kazi Muklesur Rahman-Vs-Bangladesh 26 DLR (SC) 44 quite early in
our Constitutional journey the question of locus standi was given a liberal contour, in
this manner:
It appears to us that the question of locus standi does not involve the Court's
jurisdiction to hear a person but of the competency of the person to claim a
hearing, so that the question is one of discretion which the Court exercises
upon due consideration of the facts and circumstances of each case
24. In the Case of Dr. Mohiuddin Farooque-Vs-Bangladesh 49 DLR (AD) 1, it has been
held that the words 'any person aggrieved' means only and exclusively individuals and
excluding the consideration of people as a collective and consolidated personality will
be a stand taken against the Constitution. There is no question of enlarging locus standi
or legislation by the Court "the enlargement is writ large on the face of the
Constitution." It has further been held that individual rights carry the only weight and
the judiciary exists primarily to protect the capitalist rights of the
individuals.........Thus, when a person has suffered a legal grievance or injury or
adverse decision or wrongful deprivation or any action wrongful to his right, title to
something is a "person aggrieved."
2 5 . In view of the above, the 29 Judges personal position and seniority to their
respective constitutional position they were holding have been dislodged behind their
back by the judgment of the High Court Division. The seniority over the writ-petitioners
as per constitutional provision who were Judges and were subsequently confirmed and
their right, title and interest having been effected, undoubtedly and surely have locus
standi.
2 6 . The word locus standi, in Black's Law Dictionary of Bryan A. Garner, Seventh
Edition, means "the right to bring an action or to be heard in a given forum."

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2 7 . In this regard, another aspect of the case could not be lost sight of as the
appellant-Judges were neither given notice of the Rule nor were given any hearing
before dislodging their constitutional position as a Judge and that because of the want
of notice to a party against whom a cause has been set up and consequent lack of
hearing, they could not agitate their grievance, if any, before the High Court Division
and that they having been deprived of their existing and protected right, undoubtedly
they have the standing to move this Division to get their position set at right and
restored in accordance with the provision of the Constitution and the established norms
attached to the position as a permanent Judges of the High Court Division and in that
view of the facts and circumstances, the 29 permanent Judges were undoubtedly
persons aggrieved and accordingly have resorted to the jurisdiction of this Division
under Article 103 of the Constitution as being persons aggrieved under the Constitution
and under the provision of the General Clause Act. It has been held in the case of
University of Dhaka through its Vice-Chancellor and the Registrar of University of
Dhaka-Vs-Zakir Ahmed : LEX/SCPK/0055/1964 : 16 DLR SC 722, pre-pounding the
principle of natural justice "audi alteram partem" that before a person is punished an
opportunity to show cause against the proposed punishment shall be afforded to him.
The word audi alteram partem has been defined in the Judicial Dictionary, 13th Edition
by K.J. Aiyar that "The doctrine of audi alteram partem" holds that natural justice has
acquired legalistic and artistic connotation by the passage of time and is invoked in
proceedings before judicial and quasi-judicial tribunals. As the principle of natural
justice revolves around fairplay in action, justice should not only be done but must
seem to be done.
2 8 . Thus, it boils down that the principle of natural justice is to be observed in a
proceeding affecting a person or property or other rights of parties concerned.
Accordingly, the Court, thus, always adds rider to the observance of the principle of
natural justice in the exercise of power under the Constitution and other concerned laws
of the land and invariably interferes in case of absence of any prior notice and a failure
to provide any chance of hearing and thus always interferes with such order passed
there under for any such violation of principle of natural justice.
29. It is true that upon being appointed as a Judge under Articles 95 and 98 of the
Constitution each of them exercises jurisdiction for and on behalf of the Judges of the
High Court Division and accordingly acts as an unit of the said Court having a co-
ordinate jurisdiction and one Judge or a group of Judges cannot challenge the judgment
passed by another Judge or Bench of Judges as that would amount to challenge their
own judgment in the matter of dispensation of justice sitting as a Judge of the Division.
But in the instant case the aggrieved 29 Judges who were confirmed during the
pendency of writ petition and under the Constitutional set up as detailed above, a Judge
holds the position of a permanent Judge from the date of his taking oath, as such, they
could not be dislodged by a person, earlier appointed as an additional Judge but was
not confirmed. Such a person upon declaration by the High Court Division is eligible for
appointment as a permanent Judge i.e. superseding 29 permanent Judges who earlier
took oath upon being confirmed while the writ-petitioners were not confirmed.
Accordingly, the said sitting 29 confirmed Judges who are holding the constitutional
post, had reason to be aggrieved to secure their individual position as a Judge and are
entitled to maintain an appeal in order to avoid infliction of any constitutional wrong
affecting their individual legal entity, though unit of the entire body of Judges of the
said Division and accordingly have standing to maintain the leave petition under Article
103 of the Constitution.
30. In view of the above, I am in agreement with the views expressed in this regard by
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my learned brothers Md. Tafazzul Islam and Md. Joynul Abedin, J.J only while agreeing
with the rest of the views expressed by my learned brother, Md. Abdul Matin, J in his
illuminating judgment.
31. Md. Tafazzul Islam, J: I have gone through the judgments and orders dictated by
my learned brother Md. Abdul Matin J and Md. Joynul Abedin J.
32. 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
can not 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, can not
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.
33. Further in terms of the views expressed by Dicey in "The Law of Constitution", AW
Bradely and K.D. Ewing in "Constitutional and Administrative Law" 14th Edition, O.
Hood Phillips and Jackson in "Constitutional law and Administrative Law" Fifth Edition
and also the principles laid down by the Supreme Court of Canada in the case of
Reference re-amendment of Constitution of Canada, 123 DLR (3rd) 1,84, Supreme Court
of Pakistan in Al. Jehad Trust Case PLD SC 324, Supreme Court of India in the Second
Judges Case AIR 1964 SC 268 and also the admission on the part of the Executive about
the long and unbroken convention of our Consultation as is evident from the
Notification dated 9th February 1994 issued by the Ministry of Justice, Law and
Parliamentary Affairs and also in view of the assertions of Dr. Kamal Hossain, Senior
Advocate, and the Chairman of the Draft Committee of the Constitution, Mr. M. Amirul
Islam Senior Advocate and a member of the Draft Committee of the Constitution and Mr.
Mahabuby Alam, the Attorney General, to the effect that consultation with the Chief
Justice had been there althrough and even during Martial Law, and further, in terms of
the constitutional mechanism the Supreme Court is designed to function independently
as a guardian of the Constitution and as such the convention that the Chief Justice
should be consulted and his opinion will have primacy is as good as any other
provisions of the Constitution and is binding upon the Executive.
34. However, as held by Joynul Abedin J, since a judge is properly identified with the
Court in relation to something done in exercise of the jurisdiction of the Court and his
personality remains distinct and separate from the Court and as an individual, he can
maintain action if he suffers legal wrong or legal injury and on the plain language of
Article 103 of the Constitution there is no difficulty in holding that the petitioners of
Civil Petitions for Leave to Appeal Nos. 2056 and 2046 of 2008 as sitting judges have
standing to maintain the leave petitions filed by them in challenging the impugned
judgment of the Special bench of the High Court Division.
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35. Accordingly I agree with the view expressed by Matin J in his judgment except the
view regarding the maintainability of the leave petitions.
36. The petitions are disposed of.
37. Md. Joynul Abedin, J: I have had the advantage of perusing the judgment of my
learned brother, Md. Abdul Matin, J. Though I am in respectful agreement with most of
the conclusions arrived at by him, yet having regard to the important constitutional
points involved in the case, I would like to give my own reasons for those conclusions
and would also add some of my views on a few other points.
3 8 . In the background of the failure of the Government to appoint some Additional
Judges of the High Court Division of the Supreme Court previously appointed under
Article 98 of the Constitution as permanent Judges of the High Court Division under
Article 95 of the Constitution, 3 (three) writ petitions being Writ Petition Nos. 1543,
2975 and 3217 of 2003 were filed challenging such non-appointment. Writ Petition No.
1543 of 2003 was filed by Md. Idrisur Rahman, an Advocate of the Supreme Court, Writ
Petition No. 2975 of 2003 was filed by three aggrieved Additional Judges Md. Shamsul
Huda, Faruque Ahmed and Hasan Foez Siddique and Writ Petition No. 3217 of 2003 was
filed by Mr. Farhad Ahmed, another Advocate of the Supreme Court.
39. The learned Chief Justice subsequently in deference to the views expressed by the
Writ Bench of two learned Judges of the High Court Division that the writ petitions
involved constitutional questions of great public importance constituted a Special Bench
of three learned Judges for disposal of the aforesaid three writ petitions.
40. Rule Nisi was separately issued in all the 3 (three) writ petitions on 4.5.2003 by the
Special Bench making them (rules) returnable within 6 (six) weeks calling upon the
Secretary, Ministry of Law and Justice, to show cause as to why non-appointment of the
Additional Judges named in the writ petitions as permanent Judges in the High Court
Division should not be declared illegal and without jurisdiction and why the respondent
Government in the Ministry of Law and Justice should not be directed to appoint them
as permanent Judges of the High Court Division in accordance with the recommendation
of the Chief Justice of Bangladesh and also as to why the part of the Rules of Business,
1996 which purport to regulate matters relating to the appointments of the Additional
Judges and Judges of the Supreme Court by the executive Government shall not be
declared unconstitutional.
41. Before the date fixed for service return of the rules an application was filed by the
writ petitioners in Writ Petition No. 2975 of 2003 for a direction upon the Secretary,
Ministry of Law and Justice and the Registrar of the Supreme Court to produce papers
relating to recommendation of the Chief Justice in connection with the appointment of
six Additional Judges, namely, Abdul Hye, Md. Faruque Ahmed, Mohammad Marzi-ul-
Huq, Md. Shamsul Huda, Abdur Razzak and Hasan Foez Siddique. The learned Attorney
General opposed the prayer for production of papers on the ground that they were
privileged documents. The Special Bench nonetheless by its order dated 27.5.2003
directed the Secretary, Ministry of Law, Justice and Parliamentary Affairs to produce the
papers called for through the learned Attorney General.
42. The respondent Government thereupon acting through the Secretary, Ministry of
Law, Justice and Parliamentary Affairs challenged the aforesaid order dated 27.5.2003
by filing Civil Appeal No. 50 of 2004, whereupon this court by judgment dated
18.3.2008 allowed the appeal by setting aside the aforesaid order dated 27.5.2003 with
a direction to dispose of the said application for calling for the papers in the light of the
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guidelines given as under:
The High Court Division shall hold a preliminary enquiry and determine the
validity of the objections raised by the Attorney-General to the production of
the paper containing opinion or recommendation of the Chief Justice and to
hold enquiry into the questions as to whether the papers related to an affair of
the State under section 123 (of the Evidence Act) or not. The High Court
Division may require the appellants who are respondents in the writ petition to
file affidavit-in-opposition pinpointing whether any such opinion or
recommendation of the Chief Justice in writing is available and, if so, on which
grounds the appellants are seeking for the privilege.
The High Court Division is further directed to ascertain whether the papers in
question are relevant on the basis of which the Prime Minister advised the
President and to ascertain whether such advice was relevant for the
appointment. The High Court Division is further directed to ascertain whether
the papers are necessary for the proper adjudication of the issues involved in
the writ petition.
The High Court Division is to ascertain whether it can hold an enquiry into the
possible injury to the public interest which may result from disclosure of the
document in question of which privilege has been claimed and if it decides in
the affirmative, then to decide the question of possible injury to the public
interest which may result from the disclosure and lastly, the High Court Division
is to decide what papers and relating to whom are to be called for and then to
limit the enquiry as to the opinion of the Chief Justice only so far as it relates to
the persons who are really seeking relief before the Court.
In all cases whenever a privilege is sought on the ground of immunity under
law, the objection must be enquired into and if the Court decides that there is
no immunity available then only may call for the documents, but in so calling
the Court must decide whether it is calling for inspection of the Court or for
disclosure to the public and if it is called for inspection only, it shall ensure
adequate safe-guard against disclosure.
4 3 . Although initially Writ Petition No. 1543 of 2003 was filed by Advocate Idrisur
Rahman alone, two aggrieved Additional Judges, Abdus Salam and Momtazuddin
Ahmed, subsequently applied for and were added as co-writ petitioner Nos. 2 and 3 by
order dated 6.6.2008. Similarly, although Writ Petition No. 2975 of 2003 was initially
filed by 3 (three) aggrieved Additional Judges, Md. Shamsul Huda, Faruque Ahmed and
Hasan Foez Siddique, 5 (five) more aggrieved Additional Judges, namely Md. Abdul Hai,
Md. Abdur Razzaque, Marzi-ul Huq, A.H.M. Shamsuddin Chowdhury and Md. Nizamul
Huq also had themselves added as co-writ petitioner Nos. 4, 5, 6, 7 and 8 in the
aforesaid writ petition by the order of the same date.
4 4 . In all the aforesaid three writ petitions the common fact alleged was that the
aforesaid 10 (ten) writ petitioners, who were appointed as Additional Judges, were
dropped from being appointed as permanent Judges of the High Court Division under
Article 95 of Constitution despite recommendations for such appointment by the Chief
Justice and such non-appointment was unconstitutional.
45. The above writ petitions were heard during the emergency period of the caretaker
Government, emergency having commenced since 1.11.2006. Although an Assistant
Attorney General participated in the hearing opposing the rules but no affidavit-in-
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opposition was filed by the Government. The Special Bench thereafter by the impugned
judgment dated 17.8.2008 discharged the rule in Writ Petition No. 3217 of 2003 as not
pressed and made the other two rules in Writ Petition Nos. 1543 and 2975 of 2003
absolute directing the respondent Government to appoint the following 10 (ten)
Additional Judges as permanent Judges to the High Court Division with effect from the
date as follows: Md. Abdus Salam and Md. Momtazuddin Ahmed with effect from 24th
October, 2002; Md. Shamsul Huda, Faruque Ahmed, Hasan Foez Siddique, Md. Abdul
Hye, Md. Abdur Razzaque and Md. Marzi-ul-Huq from 22nd February, 2003 and A.H.M.
Shamsuddin Chowdhury and Md. Nizamul Huq from 3rd July, 2003 that is the date on
which they were due to be confirmed treating the intervening idle period as special
leave without pay on the following conclusions:
(i) the proposal and process for appointment of Judges to the Supreme Court in
both the High Court Division and the Appellate Division should emanate from
the Chief Justice of Bangladesh;
(ii) the opinion of the Chief Justice of Bangladesh in the matter of appointment
of Judges to the Supreme Court is entitled to have the primacy;
(iii) in case of appointment to the High Court Division, the Chief Justice shall
consult with two senior most Judges of the Appellate Division and equal
number of Judges of the High Court Division to form his opinion and he shall
also consult senior members of the Supreme Court Bar and the Attorney
General; and in the case of appointment of Judges to the Appellate Division, he
shall consult with three senior most Judges of the Appellate Division to form his
opinion;
(iv) the President or the Government shall have no right to directly initiate the
process for appointment of Judges to the Supreme Court by passing the Chief
Justice of Bangladesh but the President/Government shall have the right of
suggesting the names of suitable candidates for consideration of the Chief
Justice for appointment to the Supreme Court;
(v) non-appointment of anyone recommended, on the ground of unsuitability,
must be for good reasons, disclosed and conveyed to the Chief Justice with the
reasons, materials and information to enable him to reconsider and withdraw
his recommendation. If the Chief Justice after consultation with the above
Judges in respect of particular appointments in the Division concerned, does
not find it necessary to withdraw and again recommended, then the President
must adhere to such recommendation;
(vi) the President as a Rule shall accept the recommendation of the Chief
Justice for appointment of Judges. If the recommendation of the Chief Justice
for appointment or non-appointment of any person as a Judge either to the
High Court or the Appellate Division could not be accepted by the Government,
it cannot outright reject such recommendation and go ahead with appointment
of persons of its own choice. The Government in such case shall send the
recommendation back to the Chief Justice for reconsideration on the reasons
supported by materials and information conveyed by the Government;
(vii) after consideration of the reasons of the Government along with the
materials and the information conveyed, the Chief Justice may withdraw his
recommendation. But if he again recommends the same recommendation after
consultation with the aforesaid senior most Judges of the Appellate Division for
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appointment, the Government shall be obliged to complete the process of
appointment;
(viii) appointment or non-appointment of an Additional Judge as Judge under
Article 95 of the Constitution by the executive disregarding the recommendation
of the Chief Justice violates the Constitution;
(ix) when the executive may not accept such recommendation of the Chief
Justice for reasons to be recorded, it may request the Chief Justice for
reconsideration on the materials and information conveyed;
(x) the Chief Justice shall then reconsider the case on the materials and
information furnished, and if after such reconsideration, he again recommends
for appointment or non-appointment, the executive would be left with no choice
but to complete the process of appointment of such an Additional Judge on the
basis of such recommendation;
(xi) after successful conclusion of the period under Article 98, a Additional
Judge acquires legitimate expectation and he becomes entitled to be considered
for appointment under Article 95 of the Constitution in the absence of positive
valid reason(s) to be recorded by the executive; and
(xii) non-appointment of the petitioners, in the circumstances, as Judge of the
High Court Division under Article 95 of the Constitution therefore violates the
constitutional scheme and conventions and is accordingly, declared to be
arbitrary, mala-fide, without any lawful authority and as such, of no legal
effect.
46. 29 (twenty nine) sitting judges, who at the relevant time were appointed under
Article 95 of the Constitution as permanent Judges of the High Court Division after
completion of their tenure of two years as Additional Judges, felt aggrieved by the
impugned judgment of the Special Bench and filed two civil petitions for leave to appeal
being Civil Petition for Leave to Appeal Nos. 2046 and 2056 of 2008 for the reason that
if the said 10 (ten) Additional Judges were appointed as permanent Judges with ante-
dated seniority their seniority will be affected. The Government on the other hand also
filed Civil Petition for Leave to Appeal Nos. 2221 and 2222 of 2008.
47. Senior Advocates Mr. T.H. Khan with Mr. Rafiqe-ul-Huq and Mr. A.J. Mohammad Ali
appears for the petitioners (29 sitting Judges) in Civil Petition for Leave to Appeal Nos.
2046 and 2056 of 2008. Mr. Mahbubey Alam, the learned Attorney General with Mr.
Enayetur Rahim, the learned Additional Attorney General appears for the Government in
Civil Petition for Leave to Appeal Nos. 2221 and 2222 of 2008. Dr. Kamal Hossain, Mr.
M. Amirul Islam and Mr. Rokonuddin Mahmood appear for the ten writ petitioner
respondents Additional Judges.
48. Dr. Kamal Hossain at the outset took the floor out of turn and makes an emotional
and passionate appeal that the leave petitions taken up for consideration be disposed of
without granting leave with minor modification in the impugned judgment by rejecting
the appointment of ten Additional Judges with effect from the due date of their
confirmation pointing out that detailed argument and examination of various points
involved would give rise to rancourous situation which would likely create bad blood
and bitterness between the leave petitioner Judges and the respondent Additional
Judges affecting the required congenial atmosphere in the Supreme Court for dispensing
proper justice.
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49. Mr. T.H. Khan the leading Counsel for the petitioners in Civil Petitions for Leave to
Appeal Nos. 2056 and 2064 of 2008 on the other hand emphasising the need for close
and careful scrutiny of the constitutional points involved contends that since the words
'after consultation with the Chief Justice' were omitted from Articles 95 and 98 of the
Constitution by the Constitution (Fourth Amendment) Act, 1975 and the same were
never restored till date by any subsequent amendment of the Constitution, it should be
taken to be an important pointer that the constitutional scheme of consultation with the
Chief Justice by the President in the matter of appointment of the Supreme Court Judges
has been purposely abandoned and dispensed with. Consequently the question of giving
'primacy' to the opinion of the Chief Justice does not arise. In the same strain Mr. Khan
submits that the scheme of the Constitution concerning the process of selection for
appointment of Judges of the superior judiciary does not create any legal obligation
upon the executive government to appoint the Additional Judges as permanent Judges
on the expiry of their tenure as such Judges. Consequently the Additional Judges, in the
event of their non-appointment as permanent Judges, have neither acquired any legal
right for appointment nor created any legal obligation on the executive Government to
appoint the Additional Judges as permanent Judges to the High Court Division.
5 0 . Dr. Kamal Hossain, Mr. Amirul Islam and Mr. Rokonuddin Mahmood for the
respondent Additional Judges while dismissing the contentions advanced by Mr. T.H.
Khan argue with behemence that the omission of the consultation process from Articles
95 and 98 of the Constitution would not make any difference inasmuch as the practice
and precedent of consultation with the Chief Justice in matters of appointment of Judges
to the superior courts since the British Rule has become a constitutional convention
enforceable as a constitutional law. Hence the consultation with the Chief Justice has
become a constitutional imperative and since the Chief Justice is the head of the
judiciary his expert opinion as to the selection of qualified persons for appointment as
Additional or permanent Judges has a primacy.
51. Besides, Mr. Amirul Islam has also seriously contended against the maintainability
of Civil Petition for Leave to Appeal Nos. 2046 and 2056 of 2008 filed by the 29 sitting
Judges of the ground of their locus standi to challenge the impugned judgment referring
to Article 111 of the Constitution submitting that the impugned judgment is birding on
them.
52. The core points that are now raised for consideration are as under:
(i) Whether the constitutional mechanism for appointment of Additional Judge
and permanent Judge to the High Court Division and the Appellate Division of
the Supreme Court by the President in consultation with the Chief Justice of
Bangladesh is a constitutional imperative, (ii) Whether the opinion or
recommendation of the Chief Justice has primacy in the matter of appointment
of such Judges, (iii). Whether an Additional Judge has a right to a writ of
mandamus to secure his appointment as a permanent Judge of the High Court
Division when the Chief Justice recommends his case for appointment and (iv)
Whether the leave petitions filed by the 29 (twenty nine) sitting Judges are
maintainable.
5 3 . The People of Bangladesh through a historic war for national independence
established the independent sovereign People's Republic of Bangladesh and due to their
love for democracy and their aspiration for establishing Bangladesh as a democratic
polity with a parliamentary system of Government the Constitution of Bangladesh was
adopted with effect from 16th December, 1972.

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54. Under the Constitution the power of appointment of the Chief Justice and other
Judges of both the divisions of the Supreme Court is conferred under Articles 95 and 98
of the Constitution on the President that is the executive. In the matter of appointment
of the Judges of both the divisions of the Supreme Court the President is required to act
on the advice of the Prime Minister under Article 48(3) of the Constitution. The
Constitution, as originally framed, contained provisions requiring the President to
consult the Chief Justice in the matter of appointment of the Additional, ad hoc and
Permanent Judges. Article 95 deals with the appointment of regular or Permanent
Judges to the High Court Division and Appellate Division and Article 98 deals with the
appointment of the Additional Judges to the High Court Division and ad hoc Judges to
the Appellate Division of the Supreme Court.
55. But this provision for consultation was omitted in January, 1975 by the Constitution
(Fourth Amendment) Act, 1975 popularly known as fourth amendment. In other words,
the constitutional requirement of consultation by the President i.e., the executive with
the Chief Justice was done away with by the forth amendment of the Constitution.
56. The object and the purpose for consultation is to select the best known for their
high character and unquestionable integrity from amongst the large number of qualified
persons. The power or act of appointment of a Judge to both the divisions of the
Supreme Court is an executive power or act vesting in the President that is the
executive. Such consultation is absolutely necessary for the independence of the
judiciary which is one of the basic features of the Constitution. The fact that the
provision of consultation was omitted by the fourth amendment of the Constitution is
not of great significance inasmuch as notwithstanding the fourth amendment the
process of consultation was continued.
57. S. Ratna Vel Pandian, J in the case of S.C. Advocates-on-Record Association VS.
Union of India, : MANU/SC/0073/1994 : AIR 1994 SC 268 observed that "it falls upon
the superior courts in large measure the responsibility of exploring the ability and
potential capacity of the Constitution on a proper diagnostic insight of a new legal
concept and making this flexible instrument serve the needs of the people of this great
nation without sacrificing its essential futures and basic principles which lie at the root
of Indian democracy."
58. A careful examination of the constitutional provisions will show that the principle of
rule of law has run across the entire fabric of the Bangladesh Constitution. The core
concept of the rule of law is "be you ever so high, the law is above you". This reflects
on the indispensable necessity that the edifice of judiciary has to be built on the
foundation of the principle of independence of judiciary. Reference to some provisions
in the Constitution such as Articles 94(4) and 116A reinforces and strengthens the view
that the independence of judiciary and the Judges is a basic structure of our
Constitution and this has been so recognized in the celebrated judicial pronouncements
of the Appellate Division in two landmark judgments in the case of Anwar Hossain
Chowdhury and others Vs. Bangladesh, 1989 BLD (SP1) 1 and Ministry of Finance Vs.
Masdar Hossain, 2000 BLD (AD) 104. In the case of Anwar Hossain Chowdhury this
court held "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 matters 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
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Judicial Officer may bring in a "Spineless Judges" in the words of President Roosevelt;
such a person can hardly be an independent Judge". In the case of Masdar Hossain it is
held-
The independence of the judiciary, as affirmed and declared by Articles 94(4)
and 116A, is one of the basic pillars of the Constitution and can not be
demolished, whittled down, curtailed or diminished in any manner whatsoever
except under the existing provisions of the Constitution.
59. In this background, it became a constitutional imperative that the President i.e. the
executive was to appoint the Additional and permanent Judges in prior consultation with
the Chief Justice of Bangladesh. This was precisely the reason that in the original
Constitution there was a provision for consultation in the process of appointment of
both the additional and permanent Judges of the Supreme Court in Articles 95 and 98
till this was discontinued by the fourth amendment of the Constitution with effect from
15th August, 1975. Since the fourth amendment of the Constitution, amongst others,
affected one of the basic structures of the Constitution by destroying the independence
of judiciary by eliminating the process of consultation in the matter of appointment of
Judges in the superior Judiciary it is considered as invalid but for some unavoidable
reason it could not have been set aside.
6 0 . Since the process of prior consultation is essential for maintaining the judicial
independence and integrity it becomes a constitutional necessity either to construe the
provisions of Articles 95 and 98 to include the words "after consultation with the Chief
Justice" or to read the provision of prior consultation in to these two Articles 95 and 98
for selection of Judges for appointment in the Supreme Court. Otherwise the very object
for selection of the best and suitable candidate of high character and unquestionable
integrity shall be defeated.
61. In the absence of the words "after consultation with the Chief Justice" in Articles 95
and 98 of the Constitution, as it stands now, we can avail of the process of prior
consultation as a constitutional convention requiring the President to make appointment
of Additional as well as permanent Judges to the Supreme Court. In other words, there
is yet another way to achieve this constitutional objective by pleading constitutional
conventions.
62. With the passage of time, in working a Constitution and running State affairs, many
precedents occur and practices develop. When such precedents and practices are found
to have been consistently followed, they are treated as constitutional conventions.
Constitutional conventions are "rules of political practice which are regarded as binding
by those to whom they apply, but which are not laws as they are not enforced by the
Courts or by the House of Parliament". - Constitutional and Administrative Law, Fourth
Edition, Page 77 by O'Hood Phillips.
63. Constitutional conventions are not only practiced and highly regarded and followed
as enforceable law in matters of unwritten constitution but such conventions are equally
followed as part of the constitutional law even where there is a written Constitution. In
many countries conventions are treated as constitutional law and departure from this
convention invokes serous criticism and creates political difficulties in running the
government. According to K.C. Wheare "convention can become law also by judicial
recognition" vide Modern Constitution Second Edition, Page 135. Kuldip Singh, J has
observed in the case of S.C. Advocates-on-Record Association Vs. India, :
MANU/SC/0073/1994 : AIR 1994 SC 268, relevant page 404 as under:

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Once it is established in the court of law that a particular convention exists and
the constitutional functionaries are following the same as a binding precedent
then there is no justification to deny such a convention the status of law.
64. The Constitutional history of the Indian Sub-Continent unfolds that even during the
British Rule the appointment of Judges to the superior Judiciary was an executive act.
Both under the Government of India Act 1919 and 1935 the Crown used to appoint the
Judges and there was no provision under the said Acts requiring the Crown to make
such appointment in consultation with the Chief Justice. But nevertheless contemporary
constitutional history shows that the Crown used to make the appointment of the Judges
of the superior Judiciary with the concurrence of the Chief Justice of India. Under the
Government of India Act, 1935, although the matter of appointment of Judges to the
superior Courts remained as a matter of pleasure of the Crown but the Judges were
given security of tenure up to the age of superannuation. The procedure for
appointment that was followed was that the Governor of a Province used to consult the
Chief Justice of the concerned High Court and then used to advise the Crown through
the Secretary of the State of India with the recommendation of the Chief Justice. Then
on the basis of above advice the appointments were made by the Crown and this
procedure followed till 4th November, 1947. Even thereafter till the adoption of the
Indian Constitution in 1950 the appointments of the Judges to the superior Courts were
invariably made with the concurrence of the Chief Justice of India.
65. It can also be profitably stated that after the Pakistan was created by the historic
division of India, in the Constitution adopted by Pakistan in 1956 and 1962 there was
provision for the President of the Republic to make appointment of a Judge of the High
Court in consultation with the Chief Justice of the Supreme Court as well as the
Governor of the Province.
66. It can therefore be unerringly concluded that the convention for appointment of
Judges in the superior Judiciary has been crystallized as a part of the constitutional law.
In this view of the matter it can be concluded without any hesitation that the process of
consultation has been fairly engrained in Articles 95 and 98 of the Bangladesh
Constitution. Hence any departure or disobedience of this constitutional process of
appointment shall be a subject matter judicial review.
67. The consultation would not only mean, full, effective, meaningful and purposive
consultation but would also mean a conference between two most illuminative and
informative persons connected with the appointment of Additional, ad hoc and
permanent Judges to the Supreme Court on the basis of full and identical material
before them. This would mean that both the President that is the executive and the
Chief Justice of Bangladesh shall have full and conclusive deliberation as to the
qualification of a candidate for judgeship to the superior Judiciary. The consultation
should be taken to be constitutional imperative and it should be a transparent one and
the process must precede the appointment of a Judge under Articles 95 and 98 of the
Constitution.
68. The word 'consult' as understood in ordinary parlance means to ask or seek advice
or the views of a person on any given subject i.e. to take counsel from another, but it
does not convey that the consultant is bound by the advice of the consultee. In certain
situations an expert in the field may be consulted but it is only to help the consultant to
take a final decision.
69. The President would consult the Chief Justice and they may consult each other by

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correspondence or by sitting across the table but this should be put on the record to
make the consultation process more transparent, so that dispute or disagreement may
be resolved without ambiguity. As per the scheme of our Constitution the proposal for
appointment should emanate from the President and not from the Chief Justice.
70. The Chief Justice is the most competent person to evaluate the merit and efficiency
of a person recommended for the judgeship. The President namely the executive is the
proper authority who through the executive agency available to him may be able to
report about the local position of the person proposed for judgeship, his character and
integrity, his affiliations and the like which have a considerable bearing on the working
of a person proposed for appointment as a Judge. It can not be said that the Chief
Justice has been given any position of primacy or supremacy between him and the
President. Though the opinion of the Chief Justice as pater familias, head of the
Judiciary, is entitled to great respect and weight the President is not bound by the
opinion of the Chief Justice. It is pointed that in the case of State Vs. Chief Editor,
Manabjamin, : LEX/BDHC/0113/2002 : 57 DLR 359, a Division Bench of the High Court
Division has held that in the matter of appointment of Judges to the superior Judiciary
the opinion of the Judiciary expressed through the Chief Justice of Bangladesh has
primacy. But this is not considered as a sound proposition of law and is accordingly set
aside.
71. The power or the act of an appointment of a Judge to the Supreme Court under
Articles 95 and 98 of the Constitution is an executive power or act vesting in the
President. The President is bound to act in this regard on the aid and advice of the
Prime Minister or for that matter the Council of Ministers. In other words, the President
shall exercise this power of appointment under Articles 95 and 98 subject to Article
48(3) of the Constitution. The appointment of Judges to the Supreme Court is made by
the President in consultation with the Chief Justice subject to the aid and advice of the
Prime Minister making the appointment as one with the sanction of the people inasmuch
as the Council of Ministers represent the people in a Parliamentary form of Government.
To hold otherwise would amount to rewriting the Constitution and is therefore not
acceptable. Absolute discretion or the power of veto to the Chief Justice as an individual
in the matter of appointments is not considered desirable so that there would remain
some power with the executive to be exercised as a check whenever necessary. In the
case of a candidate suitable for appointment as a Judge, the opinion of the Chief Justice
of Bangladesh should have the greatest weight; the selection should be made as a
result of a participatory consultative process in which the executive should have power
to act as a mere check on the exercise of power by the Chief Justice of Bangladesh to
achieve the constitutional purpose. The consultation with the Chief Justice of
Bangladesh is made imperative to eliminate political influence even at the stage of the
initial appointment of a Judge.
72. The President is required to make appointment of Judges to the superior judiciary
on the advice of the Prime Minister having due regard to the opinion expressed by the
Chief Justice after a full and effective consultation with him, but he is not bound by his
opinion. But the President is not expected to do so unless there is imperative
overwhelming reasons. In the democratic parliamentary form of Government the
President is required to make appointment of Judges on the advice of the Prime Minister
in order to have sanction of the people inasmuch as it is the people in which lies the
sovereign power of a State. There should not be any apprehension that merely because
the power of appointment is with the President meaning the executive, the
independence of judiciary would become impaired. The true principle is that after such
appointment the executive should have no scope for interference with the work of the
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Judge or for that matter judiciary.
73. Though the President is not bound by the opinion of the Chief Justice save for a
compelling and formidable reasons, there is no scope for the independence of judiciary
to be impaired. The Constitution of Bangladesh attached so much importance to the
independence of the judiciary the framer of the Constitution thought it necessary to
place them beyond any controversy. In order to maintain independence of the Judges of
the Supreme Court, the framers of the Constitution not only provided under Article 147
that the remuneration, privileges and other terms and conditions of their service shall
not be varied to their disadvantage during their term of office, but also expressly
declared in Article 94(4) that the Chief Justice and the other Justices of the Supreme
Court shall be independent in the exercise of their judicial functions. It therefore
naturally follows that the conduct of the Judges of the Supreme Court can not be
discussed by the executive government or by the members of Parliament. The Rules of
Procedure vide Rules 53, 63 and 133 provide that no question, motion or resolution,
which contain reflection on the conduct of any Judge of the Supreme Court shall be
admissible. The immunity under Article 78 of the members of Parliament in respect of
what they say in parliament can not be construed as allowing them to make any
statement or comment which may directly or indirectly undermine the independence of
the Judges of the Supreme Court. Article 94(4) is an implied limitation on the freedom
of speech of the members in Parliament.
74. It is canvassed at the Bar for the respondents that the appointment of an Additional
Judge under Article 98 is a get way to the cadre of a permanent Judge under Article 95
of the Constitution and in that view of the matter an Additional Judge acquires a rig it or
in the minimum has a legitimate expectation to be appointed as a permanent Judge to
the High Court Division. Such contention apparently carries some weight for two
reasons, (i) that such Judge acquires some experience for a initial tenure for two years
and (ii) secondly fair play demands that he should not be asked to go back to the Bar.
But in view of our constitutional scheme, which is different from that of India, the
President appoints an Additional Judge for a period not exceeding two years and such
appointment is not dependent on any purpose, such as to cope with any increased
number of pending cases. In other words, an Additional Judges appointed without any
kind of assurance or promise that on initial expiry of two years he will be reappointment
for a further term or he will be afresh appointed as a permanent Judge. As in the case
of initial appointment as Additional Judge under Article 98, so in the case of a fresh
appointment after the initial tenure of two years expires, there is no legal right to be
appointed nor does non-appointment give rise to any legal or constitutional infirmity so
as to be the subject of judicial review.
75. If appointment of an Additional Judge is considered afresh, his experience as a
Judge would be a point in his favour. At the same time any new fact, in favour or
against, which has been discovered meanwhile cannot be ignored. The position is that
even if an Additional Judge is not appointed afresh such non-appointment should not be
taken to have cast any reflection or aspersion on the reputation or character of an
Additional Judge inasmuch as he was appointed only for a particular period and not for
a particular purpose. The Additional Judge can never be regarded as a professional. On
the expiry of the initial tenure of the Additional Judge when he is to be considered for
reappointment the whole gamut of consultation has to be gone over again. It should be
born in mind that in no case the court should regard the appointment of Additional
Judges as an appointment of permanent Judge nor can issue a direction to the
government that the Additional Judges should be appointed now as permanent Judges.

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76. Ordinarily, the presumption may arise that a person found suitable for appointment
as an Additional Judge continues to be suitable for appointment as a permanent Judge.
But circumstances may arise and events may take place meanwhile which bear
adversely on the mental and physical capacity, character and integrity or other matters
rendering it unwise to appoint him as a permanent Judge. It is reiterated that the
Constitution does not confer any right upon an Additional Judge to claim, as of right,
that he should be appointed again either as a permanent Judge or as an Additional
Judge for a further period. A court of law has no power to give effect to any right not
recognised by law. It is not the function of a court of justice to enforce or give effect to
moral obligations which do not carry with them the legal or equitable rights. However,
in case the Chief Justice makes a recommendation on the basis of the informations
gathered by using all possible reliable sources and the President declines to appoint an
Additional Judge as a permanent Judge for any irrelevant reasons and considerations he
can approach the court for judicial review and in that event the court can not issue any
direction upon the government under Article 102(2)(1) of the Constitution for his
appointment inasmuch as the executive government is not required by any law to
appoint him as a permanent Judge as envisaged under Articles 95 and 98 of the
Constitution. But the court can ask the government to consider his case for appointment
if there is any recommendation by the Chief Justice. The Indian Supreme Court has also
expressed the same view in the case of S.P. Gupta and this position continues unaltered
even after the cases of Supreme Court Advocates-on-Record Association Vs. Union of
India : MANU/SC/0073/1994 : 1993 (4) SCC 441 and Special Reference 1 of 1998.
7 7 . In this view of the legal position, the Full Bench has committed illegality in
directing the Government for appointment of the 10 (ten) Additional Judges as
permanent Judges of the High Court Division on the ground that the recommendation of
the Chief Justice has primacy and the illegality has further been compounded due to the
fact that the gap of 5-6 years between the act of non-appointment by the executive
government and the direction of the Special Bench of the High Court Division by the
impugned judgment has been treated as special leave without pay inasmuch as it is in
utter violation of the provisions of the Supreme Court Judges (Leave, Pension and
Privileges) Ordinance, 1982.
78. The principle of primacy of the recommendation or opinion of the Chief Justice has
presently been seriously criticised in India itself which being its birth place. The
representatives of the people, majority lawyers and Judges in India have taken a strong
position against this principle which led the government of India to appoint Law
Commission to examine and report. The Law Commission thereafter having carefully
examined the cases of S.P. Gupta. Supreme Court Advocates-on-Record Association and
Special Reference No. 1 of 1998 popularly called three Judges cases of the Indian
Supreme Court submitted its report dated 21.11.2008 recommending reconsideration of
the said three Judges cases to do away with the principle of primacy of the
recommendations of the Chief Justice of India in matters of selection of Judges to the
higher Judiciary.
79. It is pertinent to note that in the instant case the Special Bench of the High Court
Division without further directing the Government to produce necessary papers
evidencing recommendations of the Chief Justice for appointment or rejection by the
government to appoint the said Additional Judges as permanent Judges directed the
government by the impugned judgment to appoint them as permanent Judges of the
High Court Division without being satisfied by reference to any record maintained in the
office of the Ministry of Law or the office of the Chief Justice that there was in fact any
recommendation by the Chief Justice for any or all the 10 Additional Judges. The
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learned Judges of the Special Bench without exhausting all the means to inspect the
documents as directed by this court in its judgment dated 18.3.2008 in connection with
the instant case (vide Bangladesh Vs. Shamsul Huda, 60 DLR (AD) 124) decided the
rule in favour of the 10 (ten) Additional Judges merely relying on the assertion made by
the 10 (ten) Judges writ petitioners in their writ petitions without satisfying itself by
calling for the necessary papers from the custody of the Registrar of the Supreme Court.
This is a glaring instance of a perfunctory exercise of judicial power of review and is
highly disapproved and deprecated. The learned Judges of the Special Bench ought at
least to have directed the Registrar of the Supreme Court to produce the relevant papers
allegedly containing the views and recommendations of the Chief Justice for their
inspection just in case the Government maintained its refusal to produce any documents
in this connection in order to find out the truth in the interest of proper justice.
80. Mr. T.H. Khan and Mr. Rafique-ul-Huq contend with some force that the impugned
judgment in so far as it directs the Government to appointment the 10 (ten) Additional
Judges as permanent Judges with effect from the date or dates they were allegedly due
to be confirmed without oath is unconstitutional. Mr. Mahbubey Alam, the learned
Attorney General and Mr. Amirul Islam however dismiss this argument submitting that
no fresh oath is necessary when they are appointed as permanent Judges meaning that
the oath taken by them as Additional Judges is good enough to perform as permanent
Judge.
8 1 . When a person upon selection through participatory consultative process is
appointed by the President as a permanent Judge or an Additional Judge to the High
Court Division or as an ad-hoc Judge or permanent Judge to the Appellate Division of
the Supreme Court under Articles 95 and 98 of the Constitution he shall before entering
upon his office as such Judge shall make and subscribe an oath or affirmation in form 6
(six) set out in Third Schedule as required under Article 148 of the Constitution. The
appointment of a person as Additional, ad hoc or permanent Judge to the Supreme
Court will not be consummated in the absence of any oath or affirmation in terms of
form 6 (six) of the Third Schedule. It is stated that the word 'judge' mentioned in form
6 (six) of the Third Schedule shall mean and include not only permanent Judge but also
Additional Judge as well as ad-hoc Judge. The observation made by the learned Judges
of the Special Bench of the High Court Division in the impugned judgment that the
respondent ten (10) Additional Judges will not require to make or subscribe any oath or
affirmation in the event they are appointed as permanent Judges with effect from the
date on which their tenure for two years as Additional Judge was to expire is contrary to
and in violation of Article 148 of the Constitution and is struck-down as
unconstitutional.
82. It is already seen that rule was prayed for and issued challenging part of the Rules
of Business, 1996 in so far they relate to appointments of Additional and permanent
Judges by the government. The rule having been made absolute without qualification
the aforementioned Rules of Business should be taken to have been declared
unconstitutional although no argument as well as discussion is seen to have been made
in the impugned judgment. In this view of the matter it is considered necessary to
address this aspect of the rule. It is stated that Chapter-II, Rule 7, schedule IV, Serial
50 and 54 of the said Rules of Business deal with appointment and resignation of
permanent and Additional Judges requiring submission of concise and objective
summary to the President and the Prime Minister stating the relevant facts and points
for decision. Rule 7 is necessary in view of Articles 48(3), 95 and 98 of the
Constitution. Hence to declare this Rule as unconstitutional would mean rewriting the
Constitution and is therefore set aside.
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8 3 . It is contended by Mr. Amirul Islam that since in view of Article 111 of the
Constitution the impugned judgment of the Special Bench is binding on the High Court
Division and its Judges, Civil Petition for Leave to Appeal Nos. 2056 and 2064 of 2008
filed by the 29 sitting Judges of the High Court Division challenging the impugned
judgment in so far as it affects their seniority are not maintainable. Learned brother Md.
Abdul Matin, J has endorsed this view in the following terms:
This follows that the High Court Division is an unit of this Court with a co-
ordinate jurisdiction and one Judge or a group of Judges can not challenge the
judgment passed by another Judge or a bench of Judges since that will amount
to challenging their own judgment which is not permissible in law. .....
Moreover if this is permitted the practice will destroy the tradition of high
decree of comity among the Judges of the Superior Courts which is essential for
the smooth and harmonious working of the Supreme Court.
84. I however respectfully disagree with this view, 29 sitting Judges of the High Court
Division preferred the said two leave petitions as aggrieved Judges in their personal
capacity with a view to securing their seniority and they did it not as Judges sitting as a
court for deciding a list between two or more parties. A Judge becomes synonymous
with the court only when he acts in exercise of the jurisdiction of the court. The
synonimity does not go beyond that. It would be unreasonable to extend it to the
person of a Judge completely and for all purposes. It is true that there can not exist a
court without a Judge and indeed Judges are structural components of courts. They are
often used interchangeably as synonymous. But this is not to say that the distinction
between a Judge as an individual and the court as scat of Justice as an institution is
completely obliterated. The two remain distinct entities. A Judge is properly identified
with the court in relation to something done in exercise of the jurisdiction of the court.
His personality remains distinct and separate from the court. As individual, he can
maintain action if he suffers legal wrong or legal injury. On the plain language of Article
103 of the Constitution there is no difficulty in, holding that the petitioners as sitting
Judges have standing to maintain the leave petitions filed by them as stated above in
challenging the impugned judgment of the Special Bench of the High Court Division.
85. In the event of a sitting Judge of either divisions of the Supreme Court suffers any
legal wrong or injury in respect of his privileges and other terms and conditions of his
service including his seniority he has a right to defend the same. This right is secured
and protected under Article 147(2) of the Constitution which reads as under:
The remuneration, privileges and other terms and conditions of service of a
person holding or acting in any office to which this article applies shall not be
varied to the disadvantage of any such persons during his term of office.
86. Further if a right or privilege of a sitting Judge is sought to be denied citing the
provision of Article 111 of the Constitution that will not only be contrary to rule of law
but would also be contrary to constitutionalism being in violation of his fundamental
rights guaranteed under Articles 27 and 31 of the Constitution. Further this would also
amount to a denial of his right of access to justice which is an inviolable right secured
and ensured in the Constitution and equally founded in the doctrine of due process of
law.
87. The learned Judges of the Special Bench have laid down as many as 12 norms or
guidelines describing them as conclusions for appointment and non-appointment of
Judges to the Supreme Court. These are guidelines in the guise of norms intended to be

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followed as legal principles by the Government for making appointment. But these
norms or guidelines can not partake the character of law as they are not discernible
within the parameter of the Constitution. It would therefore be hazardous to lay down
any such guidelines in this behalf as they are hit by Article 65 of the Constitution
inasmuch as these guidelines are not deduced on construction of the relevant provisions
of the Constitution, namely Articles 95 and 98. It would also not be wise to attempt
laying down guidelines on one's impressions about the working of the selection and
appointment process. These norms are therefore disapproved and struck-down as
erratic and illegal being contrary to the scheme of the Constitution.
88. Before I conclude there is yet another last but important point to look into. As
already stated above, out of the 4 (four) leave petitions under consideration two of
them being Civil Petition for Leave to Appeal Nos. 2221 and 2222 of 2008 are filed by
the Government. On the date of commencement of hearing of the leave petitions the
learned Attorney General made verbal prayer to allow the Government to withdraw from
the case as according to him the Government would not like to press the leave
petitions. It is reiterated that the impugned judgment has given rise to some
constitutional points of public importance. Now the question is - does it lie in the power
of the Government to withdraw from a case involving constitutional points of public
importance. When a political party is voted to power and forms the government in a
democratic system, in the famous saying of the former President of the United States of
America Abraham Lincoln, it becomes the Government by the people, of the people and
for the people. The Government becomes the Government of the people irrespective of
cast and creed, allegiance and affiliations. Hence it will not be compatible with the
government for the mandate given to it by the people either to become partisan or
adversary to the people or any section or group thereof. Government is thus debarred
from taking any partisan or adversary roll in any civil or criminal proceeding against any
individual or section of people. It is to be recalled that the concerned 3 (three) writ
petitions were in effect filed against Bangladesh as a State represented by the
government in the Ministry of Law, Justice and Parliamentary Affairs. In other words,
Bangladesh was the respondent in the writ petitions and after the impugned judgment
was given by the High Court Division it was Bangladesh and not the government of
Bangladesh which filed the said two leave petitions. The learned Attorney General of
Bangladesh being the principal law officer of the Republic is also regarded as the
Attorney of the people. It is as per the practice and Rules of the Supreme Court that the
Judges of both the divisions have the privilege to call upon the Attorney General to
address them on any important legal or constitutional issues involved in any case
pending before them. The some total of the principle is that the government through its
principal law officer shall always be available to squarely present the case in law and
fact to assist the court to arrive at a just finding and to do an even-handed justice.
There is yet another important aspect in the case which deserves profound
consideration. If the prayer for withdrawal is conceded, the consequence would be to
leave the constitutional issues of public importance unresolved and unsettled and this
would not only deprive the highest court to resolve the constitutional issues by
interpreting the relevant constitutional provisions which is its sole domain but this
would also deprive one party or the other of real justice and help another to obtain
illegal gain. In this view of the matter the prayer for withdrawal of the government from
the case in hand is unacceptable and is rejected.
89. This court by a short-order dated 2.3.2009, which forms part the judgment in the
case, stated in item 3 thereof that in the matter of selection of the Judges the opinion of
the Chief Justice would be dominant in the area of legal acumen and suitability for the
appointment and in the area of antecedents the opinion of the executive would be
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dominant and these two together should function to find out the most suitable
candidates for appointment of Judges through transparent process of consultation. This
court in item 5 of the short order stated that the government could consider the case of
appointment of the said 10 Additional Judges in the light of what is stated in item 3
above. In other words, it is intended that in case the government deems it expedient to
appoint the said 10 (ten) Additional Judges as permanent Judges to the High Court
Division it would apply its mind to the question whether such Additional Judges
currently possesses the requisite fitness and suitability for being appointed as
permanent Judges. It should be again seen whether they are physically, intellectually
and morally fit and suitable to be appointed as Judges and it would be contrary to
public weal to appoint them if they do not possess the requisite fitness and suitability.
The Chief Justice shall also consider whether the said Additional Judges, whose terms
expired 5-6 years ago, are fit and suitable to be appointed as permanent Judges now.
90. In the light of the discussions made herein above the leave petitions are disposed
of.
Md. Abdul Matin, J.
91. These four petitions for leave to appeal are directed against the judgment and order
dated 17.07.2008 passed by the Special Bench of the High Court Division in Writ
Petition No. 1543 of 2003 heard analogously with Writ Petition Nos. 2975 and 3217 of
2003.
9 2 . Leave Petition No. 2221 of 2008 was filed by Bangladesh against Md. Idrisur
Rahman, Advocate and others, Leave Petition No. 2222 of 2008 was also filed by
Bangladesh against Md. Shamsul Huda and others, Leave Petition No. 2046 of 2008 was
filed by Justice Syed Mohammad Dastagir Husain and others against Md. Shamsul Huda
and others and Leave Petition No. 2056 of 2008 was filed by Justice Syed Mohammad
Dastagir Husain and others against Md. Idrisur Rahman, Advocate and others. All the
leave petitions have been heard together and are being disposed of under this
judgment.
93. One Md. Idrisur Rahman, an Advocate of the Supreme Court filed Writ Petition No.
1543 of 2004, three former additional Judges, who were not confirmed filed Writ
Petition No. 2975 of 2003 and one Mr. Farhad Ahmed, an Advocate of the Supreme
Court, also filed Writ Petition No. 3217 of 2003 before the High Court Division and Rule
was obtained in the following terms:
Let a Rule nisi issue calling upon the respondent, Bangladesh to show cause
why non-appointment of ten additional Judges in the High Court Division shall
not be declared to have been done illegally and without legal authority and to
be of no legal effect and why the respondent should not be directed to appoint
them as Judges of the High Court Division in accordance with the
recommendation of the Chief Justice of Bangladesh and/or such other or further
order or orders as to this court may seem fit and proper and also as to why the
portion of the Rules of Business 1996 which purports to regulate matters
relating to the appointment of additional Judges and Judges of the Supreme
Court by the executive organs of the State shall not be declared repugnant to
the Constitution, ultra-vires and unconstitutional.
94. In view of the Constitutional questions raised in the matters a Special Bench was
constituted by the Hon'ble Chief Justice of Bangladesh by order dated 20.04.2003 and in
Writ Petition No. 2975 of 2003 an application was filed for a direction upon Secretary,
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Ministry Law and Justice and Parliamentary Affairs and the Registrar of the Supreme
Court to produce the papers relating to recommendation of the Hon'ble Chief Justice in
connection with appointment of six Judges.
95. The Special Bench directed Secretary, Ministry of Law, Justice and Parliamentary
Affairs to produce the relevant papers containing the opinion of the Hon'ble Chief
Justice by its order dated 27.05.2003. The said direction was challenged before this
Division in Civil Petition for Leave to Appeal No. 635 of 2003. This Court by order dated
18.03.2008 allowed Civil Appeal No. 50 of 2004, set aside the order dated 27.05.2003
of the High Court Division and directed the High Court Division to dispose of the
application in the light of the judgment of this Court in the said appeal.
96. It does not appear that the application for direction to produce the papers has been
disposed of by the High Court Division in the light of the observations of this Court.
97. It does not also appear that the matter was at all an issue before the High Court
Division since no affidavit was filed by the Government as directed by this Court and
the High Court Division presumed rightly that the recommendation of the Hon'ble Chief
Justice is not challenged by the Government and the papers sought for were not at all
necessary for disposal of the writ petitions.
9 8 . It appears that there was no argument on the question before the High Court
Division. The presiding Judge has not touched this point in his lengthy judgment. But
curiously enough the other Judge (Justice S. K. Sinha) made out a point on "privileged
documents" in his separate judgment and dealt with the matter although he concluded
as under:
Since the Government did not file affidavit-in-opposition, we presumed that
there was proper recommendation of the CJB relating to the petitioners'
appointment and therefore, we refrained from calling for the papers for
avoiding the delay in the disposal of the matters.
9 9 . In the lengthy discussion Articles 102, 95, 48, 55 and other articles of the
Constitution have been considered in addition to Sections 123 and 162 of the Evidence
Act.
100. It may be mentioned here that this Court is repeatedly holding that in deciding a
case the Court should not enter into academic discussion. This Court has further held
that if a case can be disposed of without interpreting the Constitutional provisions such
interpretation should be avoided. Interpretation of the Constitution is called for only
when it is essentially necessary for adjudication of the case.
101. Thomas M. Cooley in his classic Treatise on "Constitutional Limitations" at page
163 wrote as under:
Neither will a court, as a general rule, pass upon a constitutional question, and
decide a statute to be invalid, unless a decision upon that very point becomes
necessary to the determination of the cause. "While the courts cannot shun the
discussion of constitutional questions when fairly presented, they will not go
out of their way to find such topics. They will not seek to draw in such weighty
matters collaterally, nor on trivial occasions. It is both more proper and more
respectable to a coordinate department to discuss constitutional questions only
when that is the very lis mota. Thus presented and determined, the decision
carries a weight with it to which no extra-judicial disquisition is entitled." In
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any case, therefore, where a constitutional question is raised, though it may be
legitimately presented by the record, yet if the record also presents some other
and clear ground upon which the court may rest its judgment, and thereby
render the constitutional question immaterial to the case, the court will take
that course, and leave the question of constitutional power to be passed upon
when a case arises which cannot be otherwise disposed of, and which
consequently renders a decision upon such question necessary.
102. In the case of The State Vs. Moyez Uddin Sikder and others in Criminal Appeal No.
65 of 2007 this court considered the case of Basheshar Nath Vs. Commissioner of
Income Tax, Delhi and Rajasthan and another reported in AIR 1959 (SC) 149 where it
was held that the Supreme Court should not give decision on any law which is not
strictly necessary for disposal of the case before it.
103. This Court in the said case reiterated what was held in the case of Kudrat-E-Elahi
Panir Vs. Bangladesh reported in 44 DLR (AD) 319 where it was held:
Therefore the broad decision that a law can be declared void in case of a
conflict with any provision of Part II of the Constitution was uncalled for and
made on hypothetical facts. This, as a rule, the Courts always abhor. The Court
does not answer merely academic question but confines itself only to the
point/points which are strictly necessary to be decided for the disposal of the
matter before it. This should be more so when Constitutional questions are
involved and the Court should be ever discreet in such matters. Unlike a civil
suit, the practice in Constitutional cases has always been that if the matter can
be decided by deciding one issue only no other point need be decided.
104. But it appears that the High Court Division did not pay any attention to such
direction of this Court which is highly deprecated.
105. In the present case no affidavit was filed claiming the privilege and the High Court
Division itself held that there was no necessity for calling for the papers and therefore
the whole exercise in the separate judgment was uncalled for and purely academic in
absence of any issue and therefore the discussion and findings on "privileged
documents" are hereby expunged.
106. On the point of justiciability the Indian Supreme Court in the 2nd Judges case
held as under:
This is also in accord with the public interest of excluding these appointments
and transfers from litigative debate, to avoid any erosion in the credibility of
the decisions, and to ensure a free and frank expression of honest opinion by
all the constitutional functionaries, which is essential for effective consultation
and for taking the right decision. The growing tendency of needless intrusion by
strangers and busy-bodies in the functioning of the judiciary under the garb of
public interest litigation, inspite of the caution in S.P. Gupta ( :
MANU/SC/0080/1981 : AIR 1982 SC 149) while expanding the concept of locus
standi, was adverted to recently by a Constitution Bench in Raj Kanwar,
Advocates V. Union of India, : MANU/SC/0222/1993 : (1992) 4 SCC 605. It is,
therefore, necessary to spell out clearly the limited scope of judicial review in
such matter, to avoid similar situations in future. Except on the ground of want
of consultation with the named constitutional functionaries or lack of any
condition of eligibility in the case of an appointment, or of a transfer being
made without the recommendation of the Chief Justice of India, these matters
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are not justiciable on any other ground, including that of bias, which in any
case is excluded by the element of plurality in the process of decision making.
107. In the same case in the summery of conclusions in No. 11 the Indian Supreme
Court held:
Only limited judicial review on the grounds specified earlier is available in
matters of appointments and transfers.
108. We are in respectful agreement with the above views of the Indian Supreme Court
and on this reason all the observation and findings in the High Court judgment on bias
and malafide are hereby expunged.
1 0 9 . In Leave Petition Nos. 2221 and 2222 of 2003 filed by the Government of
Bangladesh the learned Attorney General submitted that he will not press the petitions.
110. Dr. Kamal Hossain and Mr. M. Amir-ul Islam, learned Counsel appearing for the
respondents in the aforesaid leave petitions submitted that the leave petitions can be
disposed of with modification and observations if required and this Court should do
complete justice in accordance with Article 104 of the Constitution.
111. Mr. T. H. Khan, learned Counsel appearing for the petitioners in Civil Petition for
Leave to Appeal No. 2046 of 2008 and Mr. Rafique-ul Huq, learned Counsel appearing
the petitioners in Civil Petition for Leave to Appeal No. 2056 of 2008 submitted that the
leave should be granted since important questions of the interpretation in respect of
Constitutional provisions are involved. They also referred to the observation of the
Other Judge in a separate judgment (Justice S. K. Sinha) to the effect:
Yet I would like to give my reason since the points involved in these petitions
are on the Constitutional question of special importance in relation of the
powers of the Executive to appoint Judges of the highest judiciary of the
country.
and submitted that in this case certificate ought to have been granted suomoto by the
High Court Division and in view of the seriousness of the matter leave should be
granted.
112. Mr. M. Amir-ul Islam, learned Counsel appearing for the respondents submits that
the Civil Petition for Leave to Appeal Nos. 2046 and 2056 of 2003 at the instance of
some sitting Judges of the High Court Division are not at all maintainable in view of
Article 111 of the Constitution. Article 111 runs as under:
The law declared by the Appellate Division shall be binding on the High Court
Division and the law declared by either division of the Supreme Court shall be
binding on all courts subordinate to it.
113. He further submits that in view of Rule 7 of the High Court Division Rules the
leave petitions are not maintainable. Rule 7 provides:
Every decision of a Full Bench shall be treated as binding on all Division Courts,
and Judges sitting singly, upon the point of law or usage having the force of
law determined by the Full Bench, unless it be subsequently reversed by a
larger Bench, specially constituted, consisting of such number of Judges as in
each case shall have been fixed by the Chief Justice, or unless a contrary rule
be laid down by the Supreme Court.
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114. Mr. Amir-ul Islam submits that the High Court Division is one and single unit of
the Supreme Court and even a judgment by a Single Judge is deemed to be a judgment
of the High Court Division as a whole and therefore, the respondents cannot file a leave
petition against their own judgment.
115. He submits that Rules 6 and 7 of chapter VII if read together the judgment of the
High Court Division is a judgment of the Full Court specially appointed as the bench
was constituted of three Judges and therefore it is binding upon the leave petitioners in
the aforesaid two leave petitions.
116. Mr. Rafique-ul Huq, learned Counsel appearing for the petitioner Judges submits
that since the judges are affected by the judgment they are entitled to file the leave
petitions.
117. Article 94 of the Constitution provides:
1. There shall be a Supreme Court of Bangladesh (to be known as the Supreme
Court of Bangladesh) comprising the Appellate Division and the High Court
Division.
2 . The Supreme Court shall consist of the Chief Justice, to be known as the
Chief Justice of Bangladesh, and such number of other Judges as the President
may deem it necessary to appoint to each division.
118. It appears that this article speaks of totality of the jurisdiction conferred on the
High Court Division by the Constitution and law and is exercised by the individual group
of Judges sitting singly or in Benches. In this context each Judge is the High Court
Division. That explains why orders, judgments and decrees passed and summons and
warrants issued under the direction of a Judge are expressed in the name of the High
Court Division and not in the name of the individual Judge. Moreover Article 111
specifically provides that the law declared by the Appellate Division shall be binding
upon the whole nation including the High Court Division and subordinate Courts and the
law declared by the High court Division shall be binding upon the subordinate courts
and for that matter binding upon the whole nation unless set aside by the Appellate
Division. Therefore, a decision given by a Judge of the High Court Division carries the
authority conferred by Constitution and law on the High Court Division and not the
authority of an individual Judge.
119. This follows that the High Court Division is an unit of this Court with a co-ordinate
jurisdiction and one Judge or a group of Judges cannot challenge the judgment passed
by another Judge or a bench of Judges since that will amount to challenging their own
judgment which is not permissible in law. Reference may be made of the case of Abrar
Hassan Vs. Govt. of Sind reported in P.L.D 1976 S.C page 315.
120. Moreover if this is permitted the practice will destroy the tradition of high decree
of comity among the Judges of the Superior Courts which is essential for the smooth
and harmonious working of the Supreme Court. This reason was considered to be the
main ground for Justice Shahabuddin Ahmed for declaring the amendment of Article 100
of the Constitution ultra vires in 8th amendment case as his Lordship held:
"The impugned Amendment of Article 100 has broken the "oneness" of the High
Court Division and thereby damaged a basic structure of the Constitution; as
such, it is void" (Anwar Hossain Chowdhury and others Vs. Bangladesh 41 DLR
(AD) Page 165).
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1 2 1 . As per Article 104 of the Constitution this Division has power to issue such
directions, orders, decrees or writs as may be necessary for doing complete justice in
any cause or matter pending before it, including orders for the purpose of securing the
attendance of any person or the discovery or production of any document
122. Moreover Order XXXIV Rule 5 of the Supreme Court of Bangladesh (Appellate
Division) Rules, 1988 runs as under:
The Court shall have power to pass any decree and make any order which ought
to have been passed or made and to pass or make such further or other decree
or order as the case may require, and this power may be exercised by the Court
not withstanding that the appeal is as to part only of the decree and may be
exercised in favour of all or any of the respondents or parties, although such
respondents or parties may not have filed any appeal or objection.
and Rule 8 provides:-
Nothing in these Rules shall be deemed to limit or otherwise affect the inherent
powers of the Court to make such orders as may be necessary for the ends of
justice or to prevent abuse of the process of the Court.
1 2 3 . Besides Order 31 of the said Rubs authorises this Court to hear the learned
Attorney General if this Court is of the opinion that for the justice of the case his
assistance is so required. In fact this Court had the privilege of hearing the learned
Attorney General at length. Besides this Court also heard Dr. Kamal Hossain, Mr. M.
Amir-ul Islam, Mr. T. H. Khan, Mr. Rafique-ul Huq and Mr. Rokonuddin Mahmud, all
Senior Counsels of the Court for six days and important Constitutional questions having
been fairly presented before us, we cannot shun the discussions of the Constitutional
questions and decisions thereon and therefore we have decided to dispose of the matter
on merit.
124. The short facts giving rise to the present petitions are as under:
125. In writ Petition No. 1543 of 2003 it was stated that the President of the Republic
by its order dated 24.10.1999 appointed Mr. Md. Abdus Salam and Md. Momtazuddin
Ahmed along with six others as Additional Judges of the High Court Division. After
completion of two years, the Chief Justice, Mr. Mahmudul Amin Chowdhury having been
satisfied with their performance, conduct and integrity recommended five Additional
Judges, namely, Mr. Justice Md. Abdur Rashid, Mr. Justice Md. Khademul Islam
Chowdhury. Mr. Justice Sikder Mokbul Hoque. Mr. Justice Surendra Kumar Sinha and
Mr. Justice Md. Abdul Wahab Mia for appointment of Judges of the High Court Division
and the President accordingly appointed them as Judges on the basis of such
recommendation. The Chief Justice however recommended other three Additional
Judges for appointment as such for a further period of one year. Accordingly, the
President was pleased to extend the service of Mr. Justice Md. Abdus Salam, Mr. Justice
Arayesuddin and Mr. Justice Momtazuddin Ahmed for one year with effect from
24.10.2001.
126. After completion of said extended period of one year as additional Judges, the
Chief Justice recommended them for appointment as Judges of the High Court Division
on being satisfied on their performance, conduct and integrity. The President however
appointed Mr. Justice Arayesuddin as Judge of the High Court Division under Article 95
of the Constitution with effect from 24.10.2002 but did not appoint Mr. Justice Md.
Abdus Salam and Mr. Justice Md. Momtazuddin Ahmed despite the recommendation of
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the Chief Justice.
1 2 7 . Non-appointment of said petitioners was published in the daily Bangladesh
Observer dated 24.10.2002. On 26.10.2002 a number of Senior Advocates abstained
from attending the Court to register their protest and grievance at the fact that the
President did not confirm Mr. Md. Abdus Salam and Mr. Momtazuddin Ahmed as Judges
of High Court Division in spite of recommendation of the Chief Justice. Senior advocates
then met the Chief Justice to communicate their concern about the disregard of his
recommendation for confirmation of said two Additional Judges. On 27 October 2002,
news reports appeared in the daily Bangladesh Observer that Chief Justice had indicated
that he had recommended said Additional Judges for appointment as Judges as their
performance was satisfactory.
128. It was stated that said two Additional Judges dispensed justice for three years and
the Chief Justice had expressly recommended them to be fit for appointment as Judges
of the High Court Division but notwithstanding this fact and disregarding the
recommendation, the President did not appoint them without communicating any reason
either to Chief Justice or to said Additional Judges.
129. On the advice of the Prime Minister, the President having consulted with the then
Chief Justice, Mr. Md. Latifur Rahman, on 27.05.2000 appointed Mr. Justice N.K.
Chakraborty, Mr. Justice A. K. M. Shafiuddin, Mr. Justice A.F.M. Mesbahuddin, Ms.
Justice Nazmun Ara Sultana and Mr. Md. Monsurul Hoque Chowdhury as Judges of the
High Court Division. On 28.05.2000 the Chief Justice gave them oath. After successful
completion of two years Additional Judges, Mr. Justice Mahmudul Amin Chowdhury as
Chief Justice on being satisfied with the performance, conduct and integrity
recommended Mr. A.K.M. Shafiuddin, Mr. A.F.M. Mesbahuddin, Ms Nazmun Ara Sultana
and Mr. Md. Munsorul Hoque Chowdhury for appointing them as regular Judges under
Article 95 of the Constitution. In spite of the recommendation of the Chief Justice, the
President appointed Madam Justice Nazmun Ara Sultana only as Judge of the High Court
Division under Article 95 of the Constitution and did not appoint others.
1 3 0 . In writ Petition No. 2975 of 2003, it is stated that President appointed nine
Additional Judges, namely, Mr. Abdul Hye, Mr. Md. Faruque Ahmed, Mr. Md. Marzi-ul
Huq, Mr. Md. Shamsul Huda, Mr. Altaf Hossain Khan, Mr. Md. Abdur Razzaque, Mr. Syed
Mahmud Hossain, J, Mr. Md. Iman Ali, J and Mr. Hasan Foez Siddique. The Chief Justice
gave them oath on 22.02.2001. Mr. Justice Altaf Hossain Khan died on 10.07.2002.
After completion of two years, the Chief Justice satisfied with the performance, conduct,
integrity and suitability recommended all of them for appointment of as Judges in the
High Court Division. The President however appointed Mr. Justice Syed Mahmud
Hossain and Mr. Justice Md. Iman Ali only as Judges of the High Court Division under
Article 95 of the Constitution but did not appoint Mr. Md. Abdul Hye, Mr. Md. Faruque
Ahmed, Mr. Md. Marzi-ul Hoq, Mr. Md. Shamsul Huda, Mr. Md. Abdur Razzak and Mr.
Hasan Foez Sidique despite the recommendation of the Chief Justice. On 21.02.2003
senior members of the Bar including the President Mr. Ozair Farook and Mr. Abdul Matin
Khasru, former Law Minister, the Ministry of Law, Justice and Parliamentary Affairs met
the Chief Justice.
131. In the course of discussion, Chief Justice disclosed that he had recommended
them for appointment as Judges. Petitioner Mr. Md. Shamsul Huda and Md. Faruque
Ahmed also met the Chief Justice on 21.02.2003 who told them that he recommended
them for appointment as Judges of the High Court Division. He also disclosed that
before such recommendation he had discussed with other Judges of the Appellate

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Division.
132. On 23.02.2003 fact of recommendation and protest of the lawyers against non-
appointment were widely circulated in the national media. Reaction of Mr. Abdul Matin
Khasru, former Law Minister was published. Mr. Moudud Ahmed, the then Law Minister
was reported to have said that the provision for consultation was omitted by
amendment of the Constitution during the period of Awami Legue Government in 1975.
Recommendation of the Chief Justice was however seriously considered but
Constitutional power for appointment vests in the President. In an interview to a private
television channel, he also said that there were Constitutional convention of taking
recommendation from the Chief Justice. Over the non-appointment of such large
number of Additional Judges there were agitation in the Bar which was widely reported
in the national media, both print and electronic.
133. It was stated that the petitioners dispensed justice for two years and the Chief
Justice recommended them to be fit for appointment as Judges of the High Court
Division. But notwithstanding this fact and disregarding the recommendation, the
President did not appoint them without giving or communicating any reason to the Chief
Justice or to any of Additional Judges.
134. It does not appear from the judgment of the presiding Judge Mr. Justice M.A.
Rashid as to what was the case of the petitioners of leave Petition Nos. 2221 and 2222
of 2008 before the High Court Division. There is no reference of affidavit. We however
find from the judgment of Mr. Justice S.K. Sinha, second judgment, a short discussion
which runs as under:
Learned Assistant Attorney General frankly concedes that he has no objection in
allowing the petitions and in the appointment of the petitioners. He admits that
the petitioners have illegally not been appointed by the past government as
Judges. He, however, faintly argues that in view of the deletion by the
constitution (Fourth Amendment) Act, 1975, the requirement of consultation
with the CJB in matters of appointment of Judges has become a mere routine
work, inasmuch as, under the present constitutional provisions the President
has prerogative under Article 95(1) of the Constitution in the matter of
appointments and he is not bound to follow the convention. According to the
learned Assistant Attorney General a constitutional convention will not prevail
over the constitutional provisions. Learned Assistant Attorney General has
referred a decision in the case of S.N. Goswami, Advocate and another Vs.
Government of Bangladesh, : LEX/BDHC/0060/2001 : 55 DLR 332 in support of
his contention.
135. From the Leave Petition in Petition No. 2222 of 2008 the case of the petitioner is
reflected in ground No. 1 which runs as under:
The High Court Division has failed to consider the Constitutional scheme in
respect of appointment of Judges in the Supreme Court as after the fourth
amendment of the constitution, the requirement of consultation with the
Hon'ble Chief Justice in the matter of appointment of Judges has become a
mere routine work as under the present Constitutional Provisions the president
has prerogative under Article 95(1) of the Constitution in the matter of
appointments and he is not bound to follow the convention and as such the
impugned judgment and order of the High Court Division is bad in law and the
same is liable to be set aside.

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136. In Leave Petition No. 2221 of 2008 there are additional two grounds which run as
under:
The High Court Division erred in law in not considering that a Constitutional
convention will not prevail over the Constitutional Provisions under a written
Constitutional Scheme and as such the impugned judgment and order of the
High Court Division is bad in law and the same is liable to be set aside.
The High Court Division erred in law in directing appellant to complete the
process of appointment of the respondents from their said due date of
confirmation seriously violating seniority of the other Judges since 24 October,
2002 though they were not made parties to the writ petition and as such the
impugned judgment and order of the High Court Division is bad in law and the
same is liable to be set aside.
137. It appears that in the High Court Division the learned Assistant Attorney General
conceded that the writ petitioner Judges were illegality dropped and the executive had
no objection if they were appointed. In this Court also the learned Attorney General
himself appeared and submitted papers to show that he had been in the vanguard of the
struggle for establishment of the Rule of Law as a leader of the Bar Association and he
has definite instruction not to contest this matter any further. The learned Attorney
General being imbued with a sense of affirmative constitutional duty to establish
independence of judiciary and being true to his commitment and philosophy is ready to
accept on behalf the executive that consultation with the Chief Justice is an integral part
of such independence and the respondent Judges should not have been dropped from
being appointed in utter disregard of the recommendation of the Chief Justice. The
learned Attorney General also admits that consultation with the Chief Justice is a
binding convention which was never breached except in 1994 when in the face of
national protest the notification issued in violation of recommendation of the CJB was
subsequently cancelled and a revised notification was issued after due and effective
consultation with CJB.
138. Mr. Amir-ul Islam appearing for the writ petitioner Judges has taken us through
the Judges case I, II, III, namely, the case of S.P. Gupta and others Vs. President of
India and others reported in AIR 1982 S.C. Page-149, the case of S.C. Advocates-on-
Record Assoen. Vs. Union of India reported in AIR 1994 Page-268, Special Reference
No. 1 of 1998 and the case of Al-Jehad Trust Vs. Federation of Pakistan reported in PLD
1996 Vol-1 Page-324.
1 3 9 . He submits that in the matter of appointment of the Judges consultation is
mandatory and consultation with Chief Justice imply consultation with a plurality of
Judges i.e. a collegium of Judges comprising of Chief Justice and two other Senior
Judges of the Appellate Division, two other Senior Judges of the High Court Division
and others and opinion of the Chief Justice so given must have primacy in the matter of
all appointments and non-appointments.
1 4 0 . He further submits that such consultation must be effective, meaningful,
purposive, consensus-oriented, leaving no room for complaint of arbitrariness or unfair
play.
141. He further submits that convention once recognized and acted upon has a binding
force as good as any provision of constitution and there is no difference between such
convention and a provision of the constitution.

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142. He submits that once it is found that the Judge writ petitioners were illegally
dropped they should be restored to their previous position when they were dropped and
since they took oath after appointment under Article 98 of the Constitution they do not
need oath afresh when appointed under Article 95 of the Constitution.
143. He lastly submits that the principle of distributive and corrective justice must be
considered in the case of Judges and submitted that a distributive justice is based on
the principle that there has to be equal distribution among equals and corrective justice
seeks to restore equality when this has been disturbed, eg by wrongdoing.
144. He has referred Dias on jurisprudence 5th Edition Page-65.
145. Mr. T.H. Khan, learned Counsel submits that convention cannot be equated with
constitutional provision. He admits that there had been consultation always. There has
been consultation with Chief Justice in the matter of appointment but such consultation
was ex-gratia and cannot be equated with the consultation as available in the very
Constitutions in Pakistan and India and therefore the Judges cases I, II, III and Al-Jehad
Trust Vs. Federation of Pakistan case are not applicable in our jurisdiction inasmuch as
after 1975 i.e. 4th amendment there is no provision in the Constitution for consultation
with the Chief Justice at the time of appointment of the Judges.
146. He further submits that taking oath is mandatory both after appointment under
Articles 98 and 95 of the Constitution and a Judge will be deemed to have entered into
office only after taking such oath and not before.
147. He lastly submits that in the name of interpretation Articles 95 and 98 cannot be
rewritten by Supreme Court by insertion of the provision of consultation and primacy
which are not there in the Constitution and this can be done only by the parliament, not
by this court.
148. Mr. Rafique-ul Huq criticized the High Court judgment attacking the norms and
direction and submitted that these are in direct conflict with the Constitution and one
cannot enter into office even if appointed under Article 95 without taking fresh oath as
mandated by Article 148(3) read with 3rd schedule of the Constitution.
149. In order to appreciate the arguments so advanced it is apposite to consider the
Constitutional provisions in respect of consultation.
150. Article 95(1) of the Constitution before 4th amendment was as under:
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.
151. Article 95(1) after the amendment of 1975 runs as under:
95.(1) The Chief Justice and other Judges shall be appointed by the President.
152. Thus it appears that at the moment the expression 'after consultation with the
Chief Justice is' not there in Article 95(1) of the Constitution.
153. Article 98 of the Constitution before 4th amendment was as under:
Notwithstanding the provisions of Article 94, if the President is satisfied, after
consultation with the Chief Justice, that the number of the judges of a division
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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.
154. Article 98 after the amendment of 1975 runs as under:
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 the 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 as an ad hoc
Judge and such Judge while so sitting, shall exercise the same jurisdiction,
powers and functions as a Judge of the Appellate Division:
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.
155. However the word 'consultation' is still there in Article 116 of the Constitution.
Article 116 runs as under:
116. The control (including the power of positing, promotion and grant of
leave) and discipline of persons employed in the judicial service and
magistrates exercising judicial functions shall vest in the [President] [and shall
be exercised by him in consultation with the Supreme Court].
156. The expression 'consultation' came up for consideration in the case of Secretary,
Ministry of Finance Vs. Mr. Md. Masdar Hossain reported in 20 BLD (AD) 2000 Page-104
and this Court held as under:
Having dealt with 5 reasons for not holding that Article 116 contains rule-
making power, 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. What is
that teeth? Are mere meaningful and substantive consultations and full
disclosure of all connected facts during consultations enough? These are no
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doubt essential and necessary requirements in the process of consultation, but
the end-result shall be the primacy of the views and opinion of the Supreme
Court which the Executive shall not disregard, for it is the Supreme Court, not
the political executive, which is the best judge of judicial matters and judicial
officers. Mr. Amir-Ul Islam has forcefully argued on the primacy of the views
and opinion of the Supreme Court under Article 116 and we fully uphold his
submission. We hold that under Article 116 the views and opinion of the
Supreme Court on any matter covered by that Article shall get primacy over the
views and opinion of the Executive.
157. It is true that "consultation" was considered 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 can not be
any independence of the subordinate courts and minus the consultation and primacy the
separation of judiciary from the executive will be empty words.
158. The principle of consultation with primacy of opinion of the Chief Justice is no
longer res-integra and being an integral part of independence of judiciary is inherent in
the very scheme of the Constitution.
159. Article 94(4) runs as under:
Subject to the provisions of this Constitution the Chief Justice and other Judges
shall be independent in the exercise of their judicial functions.
160. This word "independent" also occurs in Article 116 A of the Constitution which
runs as under:
116A. Subject to the provisions of the Constitution, all persons employed in the
judicial service and all magistrates shall be independent in the exercise of their
judicial functions.
1 6 1 . The expression "shall be independent" came up for consideration in the
aforementioned case of Secretary, Ministry of Finance Vs. Mr. Md. Masdar Hossain and
this Court considered both Article 94(4) as well as 116A of the Constitution quoted
above and held as under:
The independence of the judiciary, as affirmed and declared by Articles 94(4)
and 116A, is one of the basic pillars of the Constitution and cannot be
demolished, whittled down, curtailed or diminished in any manner whatsoever,
except under the existing provisions of the Constitution. It is true that this
independence, as emphasized by the learned Attorney General, is subject to the
provisions of the Constitution, but we find no provision in the Constitution
which curtails, diminishes or otherwise abridges this independence. Article 115,
Article 133 or Article 136 does not give either the Parliament or the President
the authority to curtail or diminish the independence of the subordinate
judiciary by recourse to subordinate legislation or rules. What cannot be done
directly, cannot be done indirectly.
162. 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
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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. Therefor
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) can not
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.
163. The independence of judiciary has also been held to be a basic structure of our
Constitution in the case of Anwar Hossain Chowdhury and others Vs. Bangladesh
reported in 41 DLR (AD) 165 wherein it was held as under:
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.
1 6 4 . Thus it appears that independence of judiciary is a basic structure of our
Constitution and in order to ensure the independence, separation of power as
contemplated under Article 22 of the Constitution which is a sine quo non for such
independence, must be fully implemented. Article 22 runs as under:
The State shall ensure the separation of the judiciary from the executive organs
of the State.
165. In this connection it is profitable to quote Justice Bhagwati, J. (as the learned
Chief Justice of India then was) in Sankal Chand ( : MANU/SC/0065/1977 : AIR 1977
SC 2328) while dealing with concept of independence of judiciary and describing the
role of Article 50 of Indian constitution which is similar to our Article 22 quoted above)
when he said:
And hovering over all these provision like a brooding omnipresence is Article 50
which lays down, as a Directive Principle of State Policy, that the State shall
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take steps to separate the judiciary from the executive in the public services of
the State. This provision, occurring in a chapter which has been described by
Granvile Austin as "the conscience of the Constitution" and which embodies the
social philosophy of the Constitution and its basic underpinnings and values,
plainly reveals, without any scope for doubt or debate, the intent of the
constitution-makers to immunise the judiciary from any form of executive
control or interference.
166. We agree, with approval, with Justice Bhagwati and add further that although
Article 22 has been implemented to a great extent through the judgment of this Court
through Masdar Hossain's case but until and unless the unamended Article 115 and 116
of the 1972 Constitution are restored vesting the control of the subordinate judiciary in
the Supreme Court, the separation of judiciary will remain a distant cry and a music of
the distant drum.
167. 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.
168. The judiciary is a cornerstone of our Constitution, playing a vital role in upholding
the rule of law. Government must be conducted in accordance with the law and, for
there to be confidence that this happens in practice, the law must be administered by a
judiciary that is independent of Government. The process by which Judges are
appointed is therefore key to both the reality and the perception of independence. The
whole scheme is to shut the doors of interference against executive under lock and key
and therefore prudence demands that such key should not be left in possession of the
executive.
169. Let us now consider the question of convention of consultation, vis-a-vis the
Constitutional consultation and how far the conventional consultation can be enforced.
170. Dicey in his 'The Law of Constitution' (1885) Page-23 and 24 wrote as under:
The rules which make up constitutional law, as the term is used in England,
include two sets of principles or maxims of a totally distinct character.
The one set of rules are in the strictest sense 'laws', since they are rules which
(whether written or unwritten, whether enacted by statute or derived from the
mass of custom, tradition, or judge-made maxims known as the common law)
are enforced by the Courts; these rules constitute 'constitutional law' in the
proper sense of that term, and may for the sake of distinction be called
collectively 'the law of the constitution'.
171. The other set of rules consist of conventions, understandings, habits or practices
which, though they may regulate the conduct of the several members of the sovereign
power, of the Ministry of the other officials, are not in reality laws at all since they are
not enforced by the courts. This portion of constitutional law may, for the sake of
distinction, be termed the 'conventions of the constitution', or constitutional morality."
1 7 2 . A W Bradley and K D Ewing in their 14th edition of "Constitutional and
Administrative Law" observed that. The role of the monarch in the conduct of
government has almost disappeared since the 18th century without a series of statutes
removing one royal power after another. In the same way, many powers have been
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acquired by the Prime Minister by the operation of convention rather than as the result
of legislation. Conventional rules may be used for discreetly managing the internal
relationships of government while the outward legal form is left intact. At any given
time, it may be difficult to tell whether practice on a certain matter has hardened into a
rule, particularly when the practice is negative in character. A recent instance has
concerned whether the Lord Chancellor, as a member of the government, may properly
sit as a judge to decide appeals in the House of Lords. When Lord Irvine was Lord
Chancellor, he insisted on retaining his right to sit as a judge, but when Lord Falconer
was appointed to the office in June 2003, he declared that he would not do so. This
statement could have been sufficient to establish a new convention binding on future
Lord Chancellors. In fact, it was precursor of the Constitutional Reform Act 2005, which
took away the judicial role of the Lord Chancellor."
173. The authors further observes, "The Supreme Court of Canada stated that the main
purpose of conventions is to ensure that the legal framework of the constitution is
operated in accordance with the prevailing constitutional values of the period." The
Reference was made of "Reference re Amendment of the Constitution of Canada 125
DLR (3d) 1, 84, which case we shall shortly discuss hereinafter.
174. The same authors while dealing with the attitude of the courts in the matter of
convention gave the example of The Crossman diaries case, and observed:
"The Corssman diaries case, in which the Attorney-General tried to prevent a
newspaper publishing the diaries of a former Cabinet minister, is an
outstanding illustration of the inter-relation of legal and non-legal rules. In this
case, an attempt was made by the Attorney-General to prevent the breach of a
conventional rule and to establish the existence of a legal obligation. The court
held that former Cabinet ministers could be restrained by injunction from
publishing confidential information which came to them as ministers, since
there was a legal obligation to respect that confidentiality." They referred A-G
v. Jonthan Cape Ltd. {1976} QB 752; ch 13 B.
175. O. Hood Philips and Jackson in their Constitutional Law and Administrative Law,
Eighth edition 2001 referred to the case Re Amendment of the Constitution of Canada,
which we shall discuss hereinafter, as under:
The case Re Amendment of the Constitution of Canada that came before the
Supreme Court of Canada in 1981 is of great interest as being a unique
discussion of constitutional convention by a Commonwealth court of the highest
standing, especially since a case of this kind could never come before British
courts who have no jurisdiction to determine such matters.
Sir W. Ivor Jennings, in his book "Law and the Constitution" Fifth Edition, in
explaining the role of conventions, says,
Thus within the frame work of the law there is room for the development of
rules of practice, rules which may be followed as consistently as the rules of
law, and which determine the procedure which the men concerned with the
Government must follow.
176. He also said for establishment of a constitutional convention:
A single precedent with a good reason may be enough to establish the rule. A
whole string of precedents without such a reason will be of no avail, unless it is
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perfectly certain that the persons concerned regarded them as bound by it.
177. Thus it appears that the distinction made by Dicey has been rejected by Sir W.
Ivor Jennings who argued that enforceability by the courts was not a valid basis for a
distinction between laws and conventions and that both rested essentially on the
acquiescence of those to whom they applied (The Law and the Constitution (5th edn
1959), p-103-36.
178. This view of Sir W. Ivor Jennings is now holding the field in Canada, India and
Pakistan. In Al-Jehad Trust Case Justice Ajmal Mian, J. of Pakistan Supreme Court
observed as under:
I am inclined to hold that the distinction which was brought out by A.V. Dicey
in 1885 between laws and conventions as to the enforceability and non-
enforceability by the Courts is no longer holding the filed. With the passage of
time, the other eminent Jurists have not adhered to the above distinction. They
have emphasised the importance of the Constitutional conventions for proper
operating/functioning of the Constitutions. Jennings has put it very beautifully
by explaining that the Constitutional conventions provide "flesh which clothes
the dry bones of the law; they make the legal Constitution work; they keep in
touch with the growth of ideas." The above view has been reiterated by the
other Professors/Jurists of international repute.
179. In Indian jurisdiction, in the second Judges case, AIR 1994 page-268 Justice
Kuldip Singh considered large number of decisions on convention and quoted K.C.
Wheare in modern constitution 1966 edition when he said,
Conventions can become law also by judicial recognition.
180. His Lordship considered in para-367 and 368 as under:
There is abundant authority to show that the Courts have recognized the
existence of the conventions and have relied upon them as an aid to statutory
interpretation. In Reyder V. Foley (1906) 4 CLR 422, the High Court of Australia
held that as conventional practice it was the minister who was acting on behalf
of the government. Similarly, in commercial Cable Company V. Government of
New-foundland, (1916) 2 AC 610, the Judicial Committee of Privy Council
interpreted the word "government" to mean as minister in charge on the basis
of an established convention. In British Coal Corporation Vs. The King (1935)
AC 500, the Judicial Committee of Privy Council notice the convention that His
Majesty in council was bound to give effect to the report of the Judicial
Committee. In this respect we may also refer to Robinson Vs. Minister of Town
and Country Planning, (1947) KB 702. Liversidge Vs. Anderson, (1942) AC 206,
Copyright Owners Reproduction Society Limited Vs. E.M.I. (Australia) Pvt.
Limited, (1958) 100 CLR 597, Adgbenro Vs. Akintola, (1963) AC 614, Attorney
General Vs. Jonathan Cape Limited (Crossman Diaries case) (1976) QB 752, R
V. Secretary of State for Home Department, Ex p. Hosenball, (1977) 1 WLR 766
and Re-amendment of the Constitution of Canada (1981) 123 DLR (3rd) 1.
181. We are of the view that there is no distinction between the "constitutional Law"
and an established "constitutional convention" and both are binding in the field of their
operation. Once it is established to the satisfaction of the Court that a particular
convention exists and is operating then the convention becomes a part of the
"Constitutional law" of the land and can be enforced in the like manner."
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182. In the instant case the writ petitioner asserted and filed affidavits in support of
continuous and unbroken convention of consultation. There is no affidavit by the
executive to deny such assertions and therefore there is an admission on the part of the
executive about the long and unbroken convention of consultation. This convention was
however breached by the executive in 1994 when 9 Additional Judges were appointed to
the High Court Division without consultation with the Chief Justice. Following the
protest, the notification was rescinded and fresh appointments were made, recognizing
in the fresh notification itself that the appointments were made in consultation with the
Chief Justice.
183. The notification dated 09.02.1994 is quoted bellow:

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184. The notification indicates two things, that there are a precedence that consultation
was made invariably at all time without any breach. The single breach was resisted and
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corrected by aforesaid notification. Secondly the 'actors' in the language of Sir W. Ivor
Jennings, believed that they were bound by the convention and thirdly there is good
reason for the convention.
185. The views of Sir W. Ivor Jennings was followed by the Supreme Court of Canada.
The Canada Government sought patriation of the Constitution in the early 1980s, but
agreement on the new settlement could not be reached with the provinces. When the
Government decided to proceed without it some of the provinces challenged the legality
of the Government's actions in the Courts. The Supreme Court held that, although no
rule of law existed which established provincial consent as a prerequisite to any
Constitutional amendment, there was a convention that such consent would be
obtained. The Government thereupon delayed its plans and held further negotiations in
which nine of the ten provinces agreed to revise Federal proposals which formed the
basis of Canada's 1983 Constitution.
186. The Supreme Court of Canada in the case of Re-amendment of the Constitution of
Canada 123 DLR (3rd) 1 accepted the definition of convention in both reference Nos. 1
and 2 given by Freedman C.J.M. who defines convention as under:
What is a constitutional convention? There is a fairly lengthy literature on the
subject. Although there may be shades of difference among the constitutional
lawyers, political scientists, and Judges who have contributed to that literature,
the essential features of a convention may be set forth with some degree of
confidence. Thus there is general agreement that a convention occupies a
position somewhere in between a usage or custom on the one hand and a
constitutional law on the other. There is general agreement that if one sought
to fix that position with greater precision he would place convention nearer to
law than to usage or custom. There is also general agreement that "a
convention is a rule which is regarded as obligatory by the officials to whom it
applies" Hogg, Constitutional Law of Canada (1977), p.9.
187. At page 888 of the First Reference, the majority opinion adopted the following
passage of Sir W. Ivor Jennings, The Law and the Constitution (5th ed., 1959) at
p.136):
We have to ask ourselves three questions: first, what are the precedents;
secondly, did the actors in the precedents believe that they were bound by a
rule; and thirdly, is there a reason for the rule? A single precedent with a good
reason may be enough to establish the rule. A whole string of precedents
without such a reason will be of no avail, unless it is perfectly certain that the
persons concerned regarded them as bound by it.
In the 1st reference the Supreme Court of Canada recognized a convention of a
"substantial degree of provincial consent" but in the 2nd reference refused to
declare a convention of unanimity of consent of all the ten provinces of Canada
relying on the Jennings' test.
The Supreme Court also considered Jennings opinion in his book at page 81,
"convention" implies some form of agreement, whether expressed or implied
At page 117 Jenning writes "conventions are like most fundamental rules of any
constitution in that they rest essentially upon general acquiescence."
188. At page 135 of the book Jenning writes:
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if the authority itself and those connected with it believe that they ought to do
so, then the convention does exist. This is the ordinary rule applied to
customary law. Practice alone is not enough. It must be normative.
189. Following Hogg, (Constitution Law of Canada (1997), at p.9: the Supreme Court
of Canada endorsed the view "a convention is a rule which is regarded as obligatory by
the officials to whom it applies."
190. Considering this test the 2nd reference was rejected holding that:
Quebec has no conventional power of veto over constitutional amendments
affecting the legislative competence of the Province.
191. Following the above decision of the Supreme Court of Canada we can also apply
the Jennings test in this case.
1 9 2 . First what are the precedents? The precedents are the impregnable mass of
evidence given by respondents including the statements made by no less persons than
Dr. Kamal Hossain, one of the founding father's of the constitution being chairman of
the draft committee, Mr. M. Amirul Islam a member of the draft committee and Mr.
Mahbubey-Alam the present Attorney General. These leaders of the Bar, also former
Presidents of the Supreme Court Bar, had been in the vanguard of the struggle for
establishment of independence of judiciary and rule of Law. They asserted that
consultation had been there all through. Dr. Kamal Hossain further asserted that they
quoted the statement of Justice Kemal Uddin Hossain, former Chief Justice of
Bangladesh to the Prime Minister to the effect that even during the Marshal Law this
convention of consultation was never breached and it is only then that the notification,
dated 9 the of February 1974 as evidenced by annexure No. 4 page 8 of additional
paper book submitted by Attorney General, was issued cancelling the earlier notification
issued without the consultation with the Chief Justice. It is therefore admitted position
that convention of consultation was never breached before 1994 or after 1994 and once
breached it was corrected admitting and recognizing the convention.
193. This testimony of Dr. Kamal Hossain has been supported by the learned Attorney
General, Mr. Mahbubey Alam. It is pertinent to mention that learned Attorney General is
the holder of a constitutional office as the highest law officer of the republic and he is
the leader of the entire Bar of the country in view of the fact that he is the ex-officio
Chairman of the Bar Council and he is the link between the executive and judiciary and
is a proper person to be considered in the list of the 'actors' in the matter.
194. This shows that the executive, the judiciary and the Bar who are the main 'actors'
believed that they were bound by the convention.
1 9 5 . The 3rd question is as to the reason of such convention. The answer needs
elaboration.
196. Ours is a written constitution. Article 1 provides that Bangladesh is a sovereign
Republic and Article 7 says that constitution is the solemn expression of the will of the
people and it is the Supreme Law of the land and if any law is inconsistent with the
constitution that law will be void. This article starts with "Supremacy of the
Constitution".
197. Part-III of the constitution incorporated the fundamental rights of the citizens
which is our bill of rights similar to charter of rights. Article 44 gives every citizen a

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right for the enforcement of the fundamental rights in accordance with Article 102 of the
Constitution which empowered the High Court Division of the Supreme Court the
authority of judicial review to oversee the exercise of executive and legislative power of
the state to ensure that the two other organs of the State do not transgress their
respective limits in such exercise and Article 94 provides for a judiciary and has
established a Supreme Court having two Divisions to ensure and protect the Supremacy
of the Constitution. Besides Article 35(3) provides that every person accused of a
criminal offence shall have a right to speedy and public trial by an independent and
impartial court or tribunal established by law and Article 94(4)provides that the Chief
Justice and other Judges shall be independent in the exercise of their judicial functions.
198. Thus it appears that the Supreme Court is designed to function independently as
the guardian of the constitution. This is because whenever a constitution is justiciable,
i.e., enforceable in a Court of law, the judiciary becomes the guardian of the
constitution. Dicey, (10th Ed. P-137) writes:
This system (referring to the American), which makes the Judges the guardians
of the Constitution provides the only adequate safeguard which has hitherto
been invented against unconstitutional legislation.
199. Our constitution has not only taken care to empower the Supreme Court to limit
the power of the legislature in law making but has also authorized the Court to function
as the bulwarks of the constitution against executive encroachment on the life and
property of the citizen and against any breach of their fundamental rights.
200. Since ours is a limited Government the limitations imposed by the constitution can
only be "preserved in practice, in the words of Hamilton, in "no other way than through
the medium of courts of justice, whose duty it must be to declare all acts contrary to
the manifest tenor of the Constitution void. Without this, all the reservations of
particular rights or privileges would amount to nothing."
201. Hamilton went on to say, "Some perplexity respecting the right of the courts to
pronounce legislative acts void, because contrary to the Constitution, has arisen from an
imagination that the doctrine would imply a superiority of the judiciary to the legislative
power. It is urged that the authority which can declare the acts of another void must
necessarily be superior to the one whose acts may be declared void."
202. Alexander Hamilton further writes, "there is no position which depends on clearer
principles than that every act of a delegated authority, contrary to the tenor of the
commission under which it is exercised, is void. No legislative act, therefore, contrary
to the Constitution, can be valid. To deny this would be to affirm that the deputy is a
grater than his principal; that the servant is above his master, that the representatives;
of the people are superior to the people themselves; that men acting by virtue of
powers may do not only what their powers do not authorize, but what they forbid.
............It is far more rational to suppose that the courts were designed to be an
intermediate body between the people and the legislature in order, among other things,
to keep the later within the limits assigned to their authority.............the constitution
not to be preferred to the statue, the intention of the people to the intention of their
agents." (The Federalist Papers No. 78 by Alexander Hamilton, pages-465 and 466)
203. The position of our Supreme Court and the judiciary can be stated in the language
of the celebrated Montesquieu when he said, "of the three powers above mentioned
judiciary is next to nothing" and "there is no liberty if the power of judging be not
separated from the legislative and executive powers." (Spirit of Laws, Vol-I, pages-186
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and 181)
204. In this connection it is pertinent to refer to the eloquent statement of Chief Justice
John Marshall who said, "The judicial department comes home in its effects to every
man's fireside. It passes on his property, his reputation, his life, his all. Is it not, to the
last degree important, that the judge should be rendered perfectly and completely
independent, with nothing to influence or control him but God and his conscience."
(Proceedings and Debates of the Virginia State Convention of 1829-30 (1830), page-
616)
205. It is therefore evident that the Supreme Court occupies a unique position of the
"balance wheel" and its independence is the capstone of our constitutional-democratic
state under the rule of law.
206. The expression of rule of law has number of different meanings and corollaries.
Its primary meaning is that everything must be done in accordance to law, in other
words, it speaks of rule of law and not of men and everybody is under the law and
nobody is above the law. The other meaning of the rule of law is that Government
should be conducted within a frame work of recognized rules and principles which
restrict discretionary power and our constitution is the embodiment of the supreme will
of the people setting forth the rules and principles. But the most important meaning of
rule of law is that the disputes as to the legality of acts of the Government are to be
decided by Judges who are independent of the executive.
2 0 7 . Therefore, the appointment of Judges is of crucial importance. The common
sociopsychological experience is that "the incumbent in an office remains indebted to
those responsible for his designation holds specific dangers in the case of judicial
function. In particular, if the designation has been influenced by political
considerations, the beneficiary is exposed to the human temptation to repay his debt by
a pliable conduct of his office." (political power and the Governmental process by Karl
Loewenstein)
208. Harold J. Laski in his "Grammar of Politics" at page-541 quoted with admiration
the famous saying of Henry Sidgwick from Elements of Politics, Page-481 as under:
The importance of the judiciary in political construction is rather profound than
prominent. On the one hand, in popular discussion of forms and changes of
Government, the judicial organ often drops out of sight; on the other hand, in
determining a nation's rank in political civilization, no test is more decisive than
the degree in which justice, as defined by the law, is actually realised in its
judicial administration both as between one private citizen and another, and as
between private citizens and member of the Government.
209. This is why appointment of Judges is the key to the independence of judiciary and
the convention of consultation with the Chief Justice with primacy of his opinion is
essentially ingrained in the very concept of independence of judiciary, rule of law and
supremacy of the constitution. These are the reasons of the convention of consultation.
210. This follows that consultation with the Chief Justice with primacy of his opinion as
convention is as good as any other provision of the constitution and is binding upon the
executive.
2 1 1 . Apart from Article 22 of the Constitution which is a cornerstone of the
independence of judiciary by separating it from the executive we may locate the
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presence of this 'consultation' in the very preamble of the Constitution which speaks of
"absolute trust and faith in the Almighty Allah" and Articles 8(1) and 8(1A) of the
Constitution which provide:
The principles of absolute trust and faith in the Almighty Allah, nationalism,
democracy and socialism meaning economic and social justice, together with
the principles derived from them as set out in this Part, shall constitute the
fundamental principles of state policy.
212. It appears that Articles 8(1) and 8(1A) were noticed by this Court in the case of
Haffzur Rahman Vs. Shamsun Nahar Begum reported in 51 DLR (AD) 172. In para 93
this Court noted:
We have also been rightly reminded of Article 8(1) of the Constitution which
says that "The Principles of absolute trust and faith in the Almighty Allah.....
shall constitute fundamental principles of state policy" and of Article 8(1A) of
Constitution which says that "absolute trust and faith in the Almighty Allah shall
be the basis of all actions."
213. But it appears that the expression "absolute trust and faith in Allah" was not
discussed or interpreted nor the expression "the principles of absolute trust and faith"
were illustrated. It is here in the above articles that we can safely locate the principle of
"consultation" in all actions which is the necessary implication of these articles.
214. The expression "principles of trust and belief in Allah" is traceable in Sura XLII
verse 36 which has been translated by Allama Abdullah Yusuf Ali as under:
Whatever ye are given (here)
Is (but) a convenience
Of this Life: but that
Which is with Allah
Is better and more lasting:
(It is) for those who believe
And put their trust
In their Lord;
(The underlings are ours)
215. The English version of verse 38 runs as under:
Those who hearken
To their Lord, and establish
Regular prayer; who (conduct)
Their affairs by mutual
Consultation;

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Who spend out of what
We bestow on them
For sustenance;
(The underlings are ours)
216. While explaining consultation in note 4579 Allahma Abdullah Yusuf Ali writes:
4579. "Consultation." This is the key word of the Sura, and suggests the ideal
way in which a good man should conduct his affairs, so that, on the one hand,
he may not become too egotistical, and, on the other, he may not lightly
abandon the responsibilities which devolve on him as a Personality whose
development counts in the sight of God. This principle was applied to its fullest
extent by the holy Prophet in his private and public life, and was fully acted
upon by the early rulers of Islam. Modern representative government is an
attempt-by no means perfect-to apply this principle in State affairs.
(The underlings are ours)
217. Let us see how far the holy Prophet (peace be upon him) applied this principle of
consultation in his public life.
218. After the defeat in the battle of Badr the Maccans under the leadership of Abu
Sufian decided to take revenge and marched against Madina-the newly born republic
created under the Madina charter-the first written constitution of the world. The news
alarmed the Prophet(s). He summoned his followers both Ansar and Muhazirin, even
Abdullah Ibne Obai-the hypocrite. Most of the elders decided to fight from within
Madina. Prophet(s) agreed with them. But the new converts seriously objected. They
proposed to go out of Madina and fight the enemy at Ohud. The matter was put to
votes. The new coverts won. The Prophet(s) agreed with the majority decision and laid
the foundation of democracy based on mutual consultation.
2 1 9 . Apart from this constitutional provision providing for mutual consultation the
"consultation" can be traced in our constitutional history. Mention may be made of the
proclamation of our independence dated 10th of April, 1971 which is comparable only
to American Declaration of Independence, "provided that we.......having held mutual
consultations.......declared and constituted Bangladesh to be a sovereign peoples
republic."
2 2 0 . Therefore even the proclamation of independence was the result of mutual
'consultations' and not exercise of one individual.
221. Benjamin N. Cardozo in his "The Nature of the Judicial Process" speaks of three
methods of judicial process. One is the method of philosophy, the other methods are of
history tradition and sociology. The philosophy of consultation thus appears ingrained
in the preamble of Constitution and in articles 8(1) and 8(1A) of the Constitution. It is
also available in history as has been discussed above with reference to our proclamation
of independence and the incidents of 1994 which is testified by the revised notification
quoted herein before.
2 2 2 . So far the oath is concerned it will suffice to quote Article 148(3) of the
Constitution which runs as under:

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Where under this Constitution a person is required to make an oath before he
enters upon an office he shall be deemed to have entered upon the office
immediately after he makes the oath.
223. Third schedule serial 6 runs as under:
6. Chief Justice or Judges.- An oath (or affirmation) in the following forms shall
be administered, in the case of the Chief Justice by the President, and in the
case of Judge appointed to a division, by the Chief Justice-
I,......................., having been appointed Chief Justice of Bangladesh
(or Judge of the Appellate/High Court Division of the Supreme Court)
do solemnly swear (or affirm) that I will faithfully discharge the duties
of my office according to law:
That I will bear true faith and allegiance to Bangladesh.
224. Article 148 read with the third schedule, 6 makes it clear that Judges will enter
into office only after taking oath and not before. Moreover articles 95, 98, 99 read
together will show that the Judges appointed under Article 98 take oath as Additional
Judges not as permanent Judges as under articles 95 and 99 provides that the
Additional Judges do not suffer any disabilities in practicing or acting before any court if
they are not appointed under Article 95(1) but the other Judges who are appointed
under Article 95 must suffer the disabilities mentioned in Article 99 of the Constitution.
Judges appointed under Article 98 enter into the office with full knowledge of two years
tenure whereas there is no mention of any limit of tenure in case of those taking oath
under Article 95 and their oath expires after the two years. It is true that there is no
distinction between Additional Judges and the permanent Judges in respect of status but
then they take two different type of oath. In case of Additional Judges they take oath as
Additional Judges whereas in case of permanent Judges there is no mention of the word
"Additional" in the oath. Besides Additional Judges once appointed perform all sorts of
judicial work sitting in the Constitutional Benches and therefore they must take oath and
therefore oath is essential both in the case of appointment under articles 98 and 95 of
the Constitution.
2 2 5 . Mr. M. Amir-ul Islam, the learned Counsel submitted that the principle of
distributive and corrective justice demand that the Judges illegally dropped should be
restored to their previous position.
226. It appears that the idea of corrective justice comes down to us from Aristotle. Its
principle is applicable in common law fields as torts and contracts. Distributive justice
is justice in the distribution by state of money, honors and other things of value-
requires distribution according to merit. Corrective justice applies not to awards but to
transactions.
227. All that the law is concerned with is that, of two party before it, one has got an
unfair advantage and the other has suffered an unfair disadvantage. There is, therefore,
a wrong which needs redress-an inequality which has to be equalized. (H. H. Joachim,
Assistotle: The Nicomachcan Ethics: A Commentary 144 and also "The Problems of
Jurisprudence" by Richard A. Posner, Harvard, paper book edition 1993 page-313).
228. In the instant case there is no such case of taking advantage by one party or the
other. The other group of sitting Judges have not taken any advantage over the dropped
Judges. The illegality was done by the executive. That illegality cannot be corrected at
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the cost of sitting Judges who have not done any wrong to anybody. Therefore the
question of corrective justice does not apply in this case.
229. As to the norms I-XII set out by the High Court Division it appears that No. I-XI
relate to the procedure of appointment of Judges. It may be pointed of out that legal
norms are not legal principles, one cannot be confused with the other-
Entscheidungsnormen with Rechtssatze [The Nature of the Judicial Process by Benjamin
n. Cardozo] page 104, and norms do not bind any body unless declared Law by the
court and direction is given to obey them. It appears that the High Court Division was
conscious of this position and no declaration or direction has been given in respect of
norms I-XI. Number XII is the declaration with regard to non-appointment.
230. However our view as to norm No. 1 is that under our constitutional scheme CJB is
the consultee and not consultor and therefore the process of consultation is supposed to
emanate from the consultor unless the Law is changed. There is no convention or any
law on this point.
231. As to norm No. 2 there is no cavil. However it can not negate the role of the
executive altogether in case of antecedent of a nominee.
232. Norm No. III specks of collegium. There is no law or convention on this point. If
this is to be introduced it needs constitutional reform. Moreover this system is not
working in India which is evident from the report of the Law Commission of India which
we shall discuss herein after (Report No. 214 dated 21.11.2008).
233. Norms no. IV-X are only expansion of norm no. I-III.
234. As to legitimate expectation of additional Judges as in no. XI it appears that in the
case of S. P. Gopta Indian Supreme Court held as under:
There can, therefore, be no doubt that an additional judge is not entitled as a
matter of right to be appointed as additional judge for a further term after the
expiration of his original term or as a permanent judge. The only right he has
(is) to be considered for such appointment and this right also belongs to him
not because clause (1) of Article 224 confers such right upon him, but because
of the peculiar manner in which clause (1) of Article 224 has been operated all
these years.
235. It does not appear that this view of the Indian Supreme Court has been overruled
in the other two Judges cases and therefore still holds the field in India. We are of the
view that the right is only to be considered for appointment under Article 95(1) of the
constitution and not beyond.
236. As to norm No. XII which is a declaration, we accept it in substance, not in this
form. A negative declaration can not be given. It can be declared that the respondents
were illegally dropped from being appointed under Article 95(1) of the Constitution
since the recommendation of the CJB was ignored without any reason and with out any
further meaningful consultation.
2 3 7 . The historical method as advocated by Cardozo demands us to compare the
system of appointments in other countries.
238. The position in United States of America is as under:
239. Federal Judges are nominated by the President of the United State. However,
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although Article 111 of the United States constitution allows the President to nominate
any individual, regardless of their qualifications, all federal appointments must be
confirmed by the legislature. This involves a simple majority vote in the upper house of
Congress (the Senate).
2 4 0 . The judiciary and legal professions play no part in nominating or appointing
federal judiciary.
241. Prior to the Senate vote, judicial nominations are put before the United States
Senate Committee on the judiciary where a decision is made on whether to provide a
positive, neutral or negative report to the Senate. In practice, nominations for judicial
office are rarely rejected by the house.
242. This selection process applies to Supreme Court Judges, Circuit Court judges and
District judges.
Membership
The United States Senate Committee on the judiciary is a standing committee in
the Senate. The committee consists of 18 members, with equal membership
from the majority and minority parties, and a chair from the majority party. The
chair primarily controls the business of the committee, but has the casting vote
in the event of a tie.
243. The Committee is responsible for holding public hearings where judicial nominees
are questioned by committee members regarding their suitability for appointment. There
recommendation to be made to the Senate is agreed at the close of the hearing by
majority vote."
244. The position in South Africa is as under:
Following democratic elections in 1994, and the ensuing constitutional reforms,
the independence and power of the judiciary was increased. Prior to 1994
judicial selection was controlled entirely by the executive. Judges were
appointed directly by the Minister of Justice and magistrates were civil servants,
answerable to senior officials, who controlled salaries and promotion.
245. The Bill of Rights 1994 established, along with a Constitutional Court that has the
power to invalidate legislation, a Judicial Service Commission to govern the higher
judiciary. (A separate Magistrates Commission was established to govern the lower
judiciary). It is prescribed within the constitution that Judges cannot be appointed
without the participation of the Judicial Service Commission. The degree to which the
JSC participates in appointment and the extent to which it can prescribe appointments
varies by the type of judicial office.
Membership
The Judicial Service Commission (JSC) consists of 23 members, and includes
representatives from the executive, the judiciary and the legal professions:
* The Chief Justice (Chairperson)
* The President of the Supreme Court of Appeal
* A judge president (head of a High Court and 'designated by' all
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judges as president)
* Five members of the legal profession (appointed by the President
upon nomination by their constituencies-two advocates, two attorneys
and one legal academic)
* The Minister of Justice
* Six members of the National Assembly ('designated by' the National
Assembly, three of whom must be members of the opposition party)
* Four members of the National Council of Provinces
* Four individuals chosen by the President after consulting with the
leaders of all parties in the National Assembly.
246. The JSC is obliged by Section 174 of the constitution to consider the need for the
judiciary to reflect the racial and gender composition of South Africa when making
judicial appointments.
247. The degree to which the JSC has determinative control the appointment of judges
increases according to the extent of a judge's powers. For example, the President can
only make appointments to the High Court on advice from the JSC. However,
appointments to the Constitutional Court, the President of the Supreme Court of Appeal
and the office of Chief Justice are the prerogative of the President as the head of the
National Assembly. In respect of the appointment of Constitutional Court judges the JSC
provides the President with a list of nominees. The President appoints an individual
from this list after consulting with the Chief Justice (who is head of the Constitutional
Court)."
248. The position in India is as under:
The Indian Constitution, established following independence from British
colonial rule in 1950, sets out the process for the appointment of Supreme
Court and the High Court (state level) judges. Judges are appointed by the
President on advice from the Chief Justice and other senior judges.
249. In India there is no independent advisory board or judicial selection committee.
The legislature plays no role in the appointment of judges.
Supreme Court Judges
The Judges of the Supreme Court are appointed after consultation with the
Supreme Court. The Chief Justice is always consulted in the case of a judge
other than the Chief Justice. Supreme Court judges cannot he removed from
office unless by order of the president and sanctioned by a majority vote in
both Houses of Parliament.
250. In order to be appointed as a judge of the Supreme Court an individual must be a
citizen of India and must have been a Judge of the High Court for at least five years or
an Advocate of a High Court for at least 10 years.
High Court Judges
High Court judges are appointed after consultation with the Chief Justice, the
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Governor of the state and the Chief Justice of the state High Court.
Provisions exist for the appointment of a Judge of a High Court as an ad-hoc
Judge of the Supreme Court and for retired Judges of the Supreme Court or
High Courts to sit and act as Judges of that Court.
251. The position in Prance is as under:
Judges in Prance are civil servant, but enjoy special statutory protection from
the executive. There are special procedures for naming, promoting and
removing them, depending on the status of the courts in which they sit.
Specifically, the appointments of most judges have to be approved by the
Conscil Superieur de la Magistrature (High Council of the Judiciary), in which
representatives of the judges sit, and they may not be removed from office
without specific disciplinary proceedings conducted before the Council, with
due process.
252. The Ministry of Justice has responsibility for the administration of the judicial
system, such as the payments of salaries or the construction of new court buildings. It
also funds and administers the prison system.
Membership
The Higher Council of the Judiciary is made up of 12 members as follows:
* five elected by judges
* one public prosecutor
* one councillor of state chosen by his/her peers
* three individuals nominated one each by President of the Republic,
the Senate and national Assembly; and
* two ex-officio members-the President of Republic and the Minister of
Justice.
A table showing analyses of judicial appointments is given below:

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Quoted from "The Governance of Britain-Judicial appointment-presented to British
parliament by lord chancellor and secretary of state for Justice by command of Her
Majesty the Queen-October 2007.
253. The position in England has been explained by Colin Turpin and Adam Tomkins in
"British Government and the Constitution" Sixth Edition as under:
The Constitutional Reform Act 2005 placed the system of judicial appointments
on a modern footing. The role of the Lord Chancellor remains important, in
advising the Queen on appointments to high judicial offices and in himself
appointing many judicial office-holders, for instance Assistant Recorders,
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deputy District Judges, justice of the peace, and chairmen and members of a
great number of tribunals. His role is, however, complemented by sections 63-
107 of the Act, which established a new Judicial Appointments Commission of
fifteen members: a lay person as chairman; five judicial members; two
members from the legal professions; five lay members; a tribunal chairman,
tribunal member or arbitrator; and a justice of the peace. Commissioners are
appointed by the Queen on the recommendation of the Lord Chancellor who
acts in accordance with procedures, set out in Schedule 12 to the Act, which are
designed, through the involvement of the judges' Council or an independent
panel, to exclude partisan considerations from appointments.
254. The Judicial Appointments Commission has a critical role in the appointment of
the lord Chief Justice, other Heads of Division, Lords Justices of Appeal, High Court
Judges and other judicial office-holders. When an appointment is to be made, the
Commission (in the case of High Court Judge or listed office-holder) or a selection
panel appointed by it (in the case of the Lord Chief Justice, Head of Division or Lord
Justice of Appeal) decides upon the selection process to be applied and proceeds to
apply it. Its selection of one person is presented in a report to the Lord Chancellor.
(What follows is described herein summary form: for the full details see Sections 67-96
of the Constitutional Reform Act.)
255. On receiving the report (stage 1) the Lord Chancellor has three options: (a) to
accept the selection; (b) to reject it; (c) to require the Commission or panel to
reconsider the selection. Following a rejection or requirement to reconsider, the
Commission or panel must again make a selection. The Lord Chancellor has then (stage
2) the same three options: to accept, reject or require reconsideration; but he may
reject the selection only if it was made following a reconsideration at state 1, and may
require reconsideration of the selection only if it was made following a rejection at
stage 1. Following a further selection after rejection or reconsideration at stage 2, the
Lord Chancellor must, at stage 3, accept the selection. If the Lord Chancellor rejects or
requires reconsideration of a selection stages 1 or 2, the Commission or panel in
proceeding to a further selection may not select the person rejected, but following a
reconsideration may select the person reconsidered. Selection by the Commission or a
selection panel 'must be solely on merit'; subject to this the Commission must in
performing its functions 'have regard to the need to encourage diversity in the range of
persons available for selection for appointments' (sections 63-64 of the Act)."
256. So far India is concerned after the three Judges cases the Law Commission of
India considered the outcome of the three judges cases I, II, and III by the Indian
Supreme Court and submitted its report No. 214 of dated 21.11.2008 mentioned
hereinbefore with a proposal of reconsideration of the Judges cases I, II and III,
namely-S.P. Gupta Vs. UOI reported in : MANU/SC/0080/1981 : AIR 1982 SC 149,
Supreme Court Advocates-on-Record Association Vs. UOI reported in:
MANU/SC/0073/1994 : 1993 (4) SCC 441 and Special Reference 1 of 1998 reported in:
MANU/SC/1146/1998 : 1998 (7) SCC 739.
257. In the report it discussed the evil affects of the three judgments-judges cases I-
III. The relevant portion of the report runs as under:
As already stated this delicate balance has been upset by the 2nd Judges case
(Advocate on Record Association Vs. Union of India 1993(4) SCC 4412 and the
opinion of the Supreme Court in the Presidential Reference (Special Reference
No. 1 of 1998). It is time the original balance of power is restored.

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258. The above recommendation for the need for an urgent and immediate review of
the present procedure for appointment of judges is further fortified by the views
expressed by Justice J.S. Verma, who wrote the lead judgment in Advocates on Record
Vs. Union of India : MANU/SC/0073/1994 : 1993 (4) SCC 441, by his forthright views
expressed in an interview in the Front Line Magazine dated 10.10.1998. The relevant
portion is reproduced below:
When asked "you said in one of your speeches that judicial appointments have
become judicial disappointments. Do you now regret your 1993 judgment?
Justice Verma stated "My 1993 judgment, which holds the filed, was very much
misunderstood and misused. It was in that context I said the working of the
judgment now for sometime is raising serious questions, which cannot be
called unreasonable. Therefore, some kind of rethink is required. My judgment
says the appointment process of High Court and Supreme Court Judges is
basically a joint or participatory exercise between the executive and the
judiciary, both taking part in it.
259. Broadly, there are two distinct areas. One is the area of legal acumen of the
candidates to adjudge their suitability and the other is their antecedents. It is the
judiciary, that is, the Chief Justice of India and his colleagues or, in the case of the High
Courts, the Chief Justice of the High Court and his colleagues (who) are the best
persons to adjudge the legal acumen. Their voice should be predominant. So far as the
antecedents are concerned, the executive is better placed than the judiciary to know the
antecedents of candidates. Therefore, my judgment said that in the area of legal
acumen the judiciary's opinion should be dominant and in the area of antecedents the
executive's opinion should be dominant. Together, the two should function to find out
the most suitable (candidates) available for appointment."
2 6 0 . The views of the Parliamentary Standing Committee on Law & Justice
recommended the scrapping of the present procedure for appointments and transfers by
Supreme Court and High Court Judges are of great relevance in this context. As reported
in the Hindustan Times of 20.10.2008 "the Law Ministry has agreed to review the 15
years old system after the Parliamentary Standing Committee on Law & Justice
recommended doing away with the committee of judges (Collegium). Presently, the
collegium decides the appointments and transfer of judges. Interestingly, the
recommendations come close on the heels of recent cases of corruption against Judges
of the courts in the country. Law Minister H.R. Bhardwaj told Hindustan Times that the
House Committee's recommendation had been accepted, and an action-taken report
prepared by the Ministry would now be placed before Parliament. "Collegium system has
failed. Its decisions on appointments and transfers lack transparency and we fell courts
are not getting judges on merit. (...) The government cannot be a silent spectator on
such a serious issue", Bhardwaj said. The House Committee had said:
Through a Supreme Court judgment in 1993, the judiciary wrested the control
of judges appointments and transfers. The collegium system has been a
disaster and needs to be done away with". H.R. Bhardwaj, Minister of Law &
Justice, said "it is the right time to review this important matter.
261. There was no problem till 1993 when the judiciary tried to re-write the Article of
the Constitution dealing with appointments. They created a new law of collegium which
was wrong. In a democracy, the primacy of Parliament cannot be challenged", he said.
2 6 2 . The Chairman of the Departmental Related Parliament Standing Committee of

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Personnel, Public Grievances Law and Justice in its 28th Report presented to the Hon'ble
Chairman of Rajya Sabha on August 2008 has stated thus:
I would like to conclude by saying that the Government should expeditiously
see to it that appointment of Judges in High Courts and Supreme Court are
done in a transparent way. We have recommended in two ways: One is, we
have to see to it that the collegium system has to be done away with, since
appointments will be delayed, we have said that from the very beginning of
identifying the eligible persons, the various places of recommendations, be it at
the level of the High Courts, or, at the Governor's level or at the level of the
Departments, and finally be the Supreme Court, should be transparent, and this
should be put up in the web site then and there so that the person, who is
going to occupy the Constitutional place, is known to the public, and their
background should be allowed to be discussed by the public and, finally, it has
to go through the process of issuing warrant by the President of India. But,
what is happening presently is that from the day one of identifying the person
till the issuance of the warrant, nothing is known to anybody except to the
persons who are involved in it. Even the persons, who are identified and who
are going to be made as judges of the High Court or the Supreme Court, may
not know about it. This type of secrecy is not good for democracy.
263. It may be noted in this context that in every High Court the Chief Justice is from
outside the State as per the policy of the Government. The senior most Judges who
form the collegium are also from outside the State. The resultant position is that the
judges constituting the collegium are not conversant with the names and antecedents of
the candidates and more often than not, appointments suffer from lack of adequate
information.
264. Two alternatives are available to the Government of the day. One is to seek a
reconsideration of the three judgments aforesaid before the Hon'ble Supreme Court.
Otherwise a law may be passed restoring the primacy of the Chief Justice of India and
the power of the executive to make the appointments."
265. It further appears that Justice V.R. Krishna Iyer also criticized the present system
of appointment of Judges in India in one article published in the Hindu dated August 7,
2001.
266. From the above it appears that the balance of independence and accountability of
system of appointment was sought to be provided in Constitution of USA but none of
the parliamentary democracies have adopted that system. The parliamentary world
shows a tendency to give an independent nominating commission or council the
function of selecting the best candidates for judicial office and the President and Prime
Minister who is accountable to the parliament the power to appoint Judges on the basis
of recommendations from the nominating body. There are many variations on the
nominating commission model. South Africa is the only example of nominating
commission using public interviews in developing its short list of candidates for
vacancies on SAs Constitutional Court.
267. There is an old saying that let the fools fight for the forms of Government, that
form of the Government is best that administers best. This is equally true in case of
legal system. It is not the form of the system which is important. It is the result that the
system produces which is important. Therefore it is the end result which is important.
However, there are some universal principles and one of such principles is that in the

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matter of appointment of Judges judiciary must have the last say and that say can be
articulated most efficiently only by the Chief Justice who is most competent and well
equipped and well posted with facts to give his considered opinion. While giving such
opinion it is implied that he will discuss with his senior colleagues and other important
members of the Bar but the concept of collegium is neither in our Constitution nor it has
developed as a convention. If there is really any wisdom in the concept of collegium,
that can be provided for only by Constitutional reform and not otherwise. Foreign
system can advise but can not command.
268. In the short order on 2nd March, 2009 we referred to a transparent process of
consultation. The word transparent needs some explanation. The dictionary meaning as
per Black's Law Dictionary 8th Edition Page-1537 of the word is openness, clarity, lack
of guile and attempts to hide damaging information, the word is used of financial
disclosures, organizational policies, law making and other activities where organizations
interaction with the public. By the expression we mean that the process of consultation
and appointment of the Judges must be transparent, fair and robust enough to ensure
that only those candidates with the highest professional qualifications and standards of
personal integrity are allowed to sit on the bench. Fair, independent and transparent
appointment processes will not only provide independence but also accountability to the
system. A clear, objective criteria aiming at ascertaining the professional qualifications
and integrity of the candidates and high standards based on the values and the sprit of
the constitution will be the prerequisite in the assessment of the candidates. Therefore
the entire process of consultation leading to appointment should be put into writing
containing the materials considered against each candidate in support of their
suitability.
2 6 9 . Mr. T. H. Khan has paused a serious question-Can the Judges legislate? Our
answer is that the great body of the common law or unwritten law is entirely the
product of decided cases accumulated in series of reports extending backwards to the
reign of Edward the 1st at the close of 13th century and are all judge made laws. It is
profitable here to quote Justice Oliver Wendell Holmes, JR. when he said:
I recognize without hesitation that Judges must and do legislate, but they do so
only interstitially; they are confined from molar to molecular motions. A
common-law judge could not say. I think the doctrine of consideration a bit of
historical nonsense and shall not enforce it in my court.
270. The question of Mr. T.H. Khan can be answered in the language of Justice Cardozo
in the following terms:
I think the tone and temper in which the modern judge should set about his
task are well expressed in the first article of the Swiss Civil Code of 1907, an
article around which there has grown up a large body of juristic commentary.
"The statute," says the Swiss Code, "governs all matters within the letter or the
spirit of any of its mandates. In default of an applicable statute, the judge is to
pronounce judgment according to the customary law, and in default of a custom
according to the rules which he would establish if he were to assume the part
of a legislator. He is to draw his inspiration, however, from the solutions
consecrated by the doctrine of the learned and the jurisprudence of the courts-
par la doctrine et la jurisprudence.
271. The judge, even when he is free, is still not wholly free. He is not to innovate at
pleasure. He is not a knight-errant roaming at will in pursuit of his own ideal of beauty

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or of goodness. He is to draw his inspiration from consecrated principles. He is not to
yield to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise
a discretion informed by tradition, methodized by analogy, disciplined by system, and
subordinated to "the primordial necessity of order in the social life. Wide enough in all
conscience is the field of discretion that remains."
(The underlings are ours)
272. We therefore sum up as under:
1. The High Court Division while exercising its jurisdiction under Article 102 or
under any other article like Article 108 of the Constitution should not enter into
academic discussion and will not pass upon a constitutional question unless a
decision upon that very point becomes necessary to the determination of the
cause and will not go out of their way to find such topics. Where a
constitutional question is raised and if the record presents some other and clear
ground upon which the court may rest its judgment the court will take that
course and leave the question of constitutional interpretation to be decided in
an appropriate case which cannot be decided without such interpretation.
2. Each Judge in the High Court Division exercises jurisdiction on behalf of the
High Court Division which is an unit of this Court having co-ordinate
jurisdiction and one-Judge or group of Judges cannot challenge the judgment
passed by another Judge or Bench of the Judges as that will amount to
challenging their own judgment.
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).
5. Convention when recognized and acted upon is as good as constitutional law
and the provisions of the constitution and is binding like any other principle of
law.
6 . The convention of consultation with the Chief Justice in the matter of
appointment of Judges under Articles 95 and 98 of the Constitution has
hardened and matured into a rule of law having been recognized and acted
upon by all the 'actors' in the matter and therefore is binding upon the
executive.
7 . All the remarks and findings on "privileged documents" in the judgment of
the High Court Division are expunged.
8. All the remarks and findings about malafide and bias in the judgment of the
High Court Division are expunged.
9 . Except on the ground of want of consultation with the CJB or lack of any
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condition of eligibility the cases of appointment of Judges shall not be
justiciable on any other grounds including bias and malafide.
10. Oath is essential both before entering into office of the Judges appointed
under articles 98 and 95 of the Constitution and the Judges shall be deemed to
have entered into office only after taking oath. The finding of the High Court
Division that fresh oath is not necessary for the dropped Judges or that their
appointment shall be effective from the respective date of non-appointment that
is the date they were scheduled to be appointed are set aside.
11. As to the legitimate expectation of the Additional Judges it is held that they
only have the right to be considered for appointment under Article 95(1) of the
Constitution.
12. As to the norms set forth by the High Court Division it is held that the
norms should not be confused with legal principles. Norms I, III to XI are not
approved. Norm No. II to the effect that opinion of the CJB in the matter of
appointment of Judges to the Supreme Court is entitled to have primacy, is
approved with modification that the opinion of the executive will have
dominance in the matter of antecedent of the candidate only. Norm No. XII is
modified to the effect that the writ petitioner Judges were illegally dropped
from being appointed as Judges of the Supreme Court of Bangladesh under
Article 95(1) of the Constitution as the opinion of the CJB was totally ignored
without any cogent reason.
273. On 2nd March, 2009 we passed the following short order:
For reasons to be recorded later on in details we hereby pass the following
short order:
1. In the matter of appointment of Judges under Articles 98 and 95 of
the Constitution the Convention of consultation having been recognized
and acted upon has matured into Constitutional Convention and is now
a Constitutional imperative.
2 . Such consultation is inherent in our Constitutional scheme and is
ingrained in the principle of independence of judiciary being essentially
the basic structure of our Constitution embedded in the principle of
Rule of Law.
3 . In the matter of selection of the Judges the opinion of the Chief
Justice should be dominant in the area of legal acumen and suitability
for the appointment and in the area of antecedents the opinion of the
executive should be dominant. Together, the two should function to
find out the most suitable candidates available for appointment through
a transparent process of consultation.
4 . Oath under Articles 98 and 95 of the Constitution are separate and
distinct and are required to be administered and made before one
enters upon an office and a Judge will be deemed to have entered upon
the office immediately after he makes the Oath and not before, in both
cases.
5 . The cases of Md. Abdus Salam, Md. Mamtazuddin Ahmed, Md.

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Shamsul Huda, Faruque Ahmed, Hasan Foez Siddique, Md. Abdul Hye,
Md. Abdur Razzaque, Md. Marzi-ul Huq. Md. Nizamul Huq and A. H. M.
Shamsuddin Chowdhury be considered in terms of the aforesaid
guidelines.
274. The short order shall form part of the judgment. These petitions are accordingly
disposed of.
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