The New Nation - Internet Edition

Staff Reporter

The Supreme Court yesterday stayed a High Court (HC) order to reinstate ten judges, who were appointed during Awami League regime and dropped out later during the previous BNP-Jamaat led four-party alliance rule.

After a brief hearing, a five-member bench of the Appellate Division, led by chief justice MM Ruhul Amin, passed the three-week interim stay order.

The appellants were asked to file regular appeal within the time. TH Khan, lawyer for the 19 judges, told reporters yesterday that they would file a regular appeal after they received a copy of the HC order.

Earlier, the court granted Ashrafuzzaman, a lawyer, permission to file application for leave to appeal against the HC judgment in favour of the ten dropped out additional judges.

On July 17, a 3-member larger bench of the HC declared illegal and unconstitutional the immediate-past BNP-led coalition government's decision of non-confirmation of the services of the 10 additional judges of the HC despite positive recommendations by the then Chief Justice.

Some 19 HC judges filed an appeal with the Appellate Division chamber judge MA Matin on July 27, pointing out that the HC order would affect the seniority of the incumbent judges. The Government also filed an appeal against the HC order on July 24.

According to the HC order, the period from when the ten judges left jobs to the dates of joining would be considered as 'special leave without pay' and they would enjoy seniority.

Dr Kamal Hossain, who stood for the 10 judges seeking permanent appointment, submitted that the hassle put them in conflict between the bench and the bar and a fratricidal judges-versus-judges discord.

"We don't want the institution suffers from a grave damage over the dispute," said the eminent jurist, also a politician.

Terming it an exceptional case and exceptional judgment, Dr Kamal said, "We want to see how difficult to hold the balance by the apex court in the present issue, keeping the institutional image high."

Dr Kamal was critical of a ground mentioned in the petition filed by the aggrieved 19 incumbent judges, saying: "I have never heard that the President's consultation with the Chief Justice before making appointment of higher-court judges is a courtesy."

He opined that it was a 100-year old custom to appoint judges in consultation with the chief justice. "It should be obeyed," he said.

Another counsel for the respondents, Barrister M Amir-Ul Islam, submitted that the question of the concept of the constitution has been challenged by the sitting 19 HC judges. "Their function is dispensation of justice, but they have become litigants," he told the court.

"They have violated the code of conduct of judges by filing the application as the HC judgment is binding upon all," argued Amir.

In his further submission on the divisions in the rank of judges, he said, "Their presence as litigants has divided the judges of the entire HC Division, which is a matter of great concern."

Pointing fingers at the 19 incumbent judges seeking justice, Barrister Amir, also ex-president of the Supreme Court Bar Association, said, "They have not come before the court with clean hands."

He contended that the act of the litigant judges erodes the image and dignity of the Supreme Court. "And it would be a permanent phenomenon if we do not keep on upholding the image of the highest judiciary."

Moving the government plea, Attorney-General (AG) Salahuddin Ahmed submitted that the apex court should consider the practical consequences of the HC ruling that had asked the government to appoint them within a month.

"If the stay is not granted, there will be a mess in the judiciary after the reinstatement of the ten judges," he told the SC hierarchy.

The AG raised a legal point as to whether the HC has the jurisdiction to ask the government to appoint them.

Terming the issue as a new one and important as well, the chief government law officer told the court that it has to be looked into in the light of the constitution.

Senior advocate TH Khan, the counsel for the group of 19 incumbent judges, pleading for stay on operation of the HC judgment, said otherwise the rights of his clients would be jeopardized.

The 19 judges who filed the appeal against the HC order said the order interfered with the seniority of serving judges, and the 10 judges could not file a writ petition in favour of their own appointment.

Abdus Salam, Mamtaz Uddin Ahmed, Shamsul Huda, Faruque Ahmed, Marji Ul Haque, Abdur Razzak, Hasan Faiz Siddiqui, AHM Shamsuddin Chowdhury Manik, Abdul Hye and Nizamul Haque Nasim were appointed to the HC as additional judges during the Awami League regime.

But their jobs were not confirmed due to what they claimed were political reasons during the BNP-led government.