The New Nation - Internet Edition

Staff Reporter

Nineteen judges of the Supreme Court yesterday filed an appeal against a High Court judgement ordering the government to reappoint 10 additional judges with seniority within one month.

On behalf of the judges, Advocate TH Khan, a senior lawyer of the Supreme Court submitted the appeal to the Chamber Judge's court of the Appellate Division. In their appeal the judges pleaded to stay the High Court order.

Later, Justice MA Matin of the Chamber Judge's Court sent the appeal to a full bench for hearing it. The hearing on the appeal will take place at a full bench of the Appellate Division headed by the Chief Justice on July 29 next.

Those who filed the petition were: Justices Syed Mohammad Dastagir Hossain, Meer Hashmat Ali, Abdul Awal, Sharifuddin Chaklader, M Mizanur Rahman Bhuiyan, Syed AB Mahmudul Huq, Salma Masud Chowdhury, AFM Abdur Rahman, Farid Ahmed, M Abu Tariq, Mohammad Abdul Hafiz, Syed Refat Ahmed, Zubayer Rahman Chowdhury, Mohammad Miftahuddin Chowdhury, Mohammad Emdadul Huq, Mohammad Raisuddin, Mohammad Imdadul Huq Azad, Mohammad Ataur Rahman Khan and SM Imdadul Huq.

In the appeal petition, three judges-Justices M Shamsul Huda, Faruque Ahmed and Hasan Faiz Siddique ( who served as temporary judges earlier), the Law Secretary and Advocate Idrisur Rahman have been made defendants.

Advocate TH Khan, counsel of the judges who filed the appeal, told reporters yesterday that the High Court had directed the government to reappoint 10 temporary judges of the Supreme Court.

"It is learnt that these judges will be given seniority. If it is done, as many as 46 judges working at the High Court Division including 19 judges will become the victims of violating the seniority," he said.

Advocate TH Khan further said that an appeal was submitted against the High Court judgement seeking to stay the order. "A hearing will take place on the appeal at a full bench on Tuesday," he said.

On July 17 last the High Court directed the government to reappoint the 10 judges who were not confirmed by the BNP-led four-party alliance despite the chief justice's positive recommendations.

The High Court also declared illegal and unconstitutional the BNP-led government's not confirming the services of 10 additional HC judges appointed during the rule of Awami League.

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

The judges were Justices Abdus Salam, Momtaz Uddin Ahmed, Abdul Hye, Md Shamsul Huda, Faruque Ahmed, Marzi-ul Huq, Abdur Razzak, Hasan Faiz Siddique, AHM Shamsuddin Chowdhury and Nizamul Huq Nasim.

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

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

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

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

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

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

Later, Advocate M Ashrafuzzaman of the Supreme Court submitted an appeal to the Appellate Division pleading to stay the High Court order on behalf of the government.

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

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

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

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

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

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

The seven other judges later filed the other writ petition.

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

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

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