Controversy to appoint Judge & Chief Justice in our apex court

MD. RAISUL ISLAM SURA!

The farewell ceremony of the former Chief Justice Fazlul Karim created a controversy in
our legal arena at that time. Because we, the mass people of this republic witnessed an
entirely unusual sendoff ceremony! different from the preceding seventeen and that was
the core reason of that storm. "ttorney #eneral $ahbube "lam alleged that CJ Fazlul
Karim violating the constitution relentlessly by not administering oath to two additional
%igh Court &udges '(uhul )uddus Babu and $ Khasruzzaman* appointed by the
president during his tenure. +n "pril ,,, -.,. Justice Fazlul Karim refused to administer
the oath to (uhul )uddus Babu and $ Khasruzzaman. "ttorney general furthermore
said, /The government could have ta0en appropriate constitutional steps against you, but
it refrained from that considering the dignity and importance of the chief &ustice1s office2.
+n the opposite side, the then president of the 3upreme Court bar association Khand0er
$ahbub %ossain praised such initiative of the Chief Justice. %e added CJ upholding the
dignity of the 3upreme Court by refraining from administering oath to the two alleged
&udges. The bar president on a former time re4uested to the Chief Justice not to
administering the oath.
5e saw two diverse positions of two top most persons of our ape6 court. Both of them
were delivering their speech from their political views. 7n addition, they want to use the
incident for their own benefit. 7t is true that as a nation of an egalitarian country, every
citizen has the right to e6press his opinion and this right is also guaranteed by our
3upreme law with some reservations. "s well as every one has the right to posses a
political believes but the 4uestion is, can any one have the right to snub chief &ustice8
+ne thing must be borne in mind that the Chief Justice is not only the chief of the highest
court rather Chief Justice of Bangladesh '3ee "rt. 9:'-**.
The approach by which $r. "lam uttered his angriness to the CJ is not beyond 4uestion.
%e also added he had made the comments on Justice Fazlul Karim so that no one
disregards the constitution in future. 5ho imposed the said duty upon him8 5here
president never too0 any steps against the act, there who appoint the highest law
personnel of the country to alert upcoming CJs to uphold the dignity of the constitution8
;very chief &ustice is obligated to do that by his or her sworn.
;very citizen of this state has the right to criticize the court proceedings in a fare way, as
the money of those people runs the courts. But it should follow a standard manner and
authority to articulate the opinion.
<ow, the 4uestion would have automatically been arisen that, whether the chief &ustice
was right in his position or not8 First of all, &udiciary is an independent institution
'5hether it is actually independent or not is not beyond 4uestion*. 7f we see the common
practice of appointing additional &udges to the %igh Court =ivision, we find president
appoint them in consulting with the chief &ustice. 7n this case, whether such consultation
had ever been done or not is not flashed out. $oreover, we don>t 0now when the
outgoing Chief Justice decided not to administering oath of them. 7f from the very
beginning of that appointment he too0 his decision then he could recommend strongly to
the president against them. 5e are at dar0 that whether he submitted any of such
recommendation or not8 7f he too0 his decision after the appointment then he had a
chance to re4uest the president to amend the gazette notification. The provision of
consultation with Chief Justice to appoint &udge's* to the 3upreme Court was present in
first constitution of ,9?-, which was amended latter and the provision is no more, now it
is essential to insert again such provision into the constitution to resolve this type of
hullabaloo.
"ppointment of "B$ Khairul %a4ue as ,9
th
chief &ustice of Bangladesh by superseding
two senior &udges got another dimension of controversy in our ape6 court arena. "ctually
maintaining seniority is nothing but a custom. <ow superseding the senior is turn as a
custom in Bangladesh. <evertheless, almost in every case, it is not practicable to
maintain the rule of seniority. %owever, this appointment got a new aspect since
somebody and main opposition party relates it with the appointment of Chief "dvisor of
the upcoming <onparty careta0er government to conduct ,. parliament election.
"ppointing Chief Justice is a discretionary as well as an e6clusive power of the president
vested by "rt. :@'A* of our constitution. 7 personally believe that Justice Kharul %a4ue is
such a person who can bring changes in our court administration. 3ometimes the
leadership of a single person is enough to change the scheme and he possessed such
4uality within himself, which is more evident from his enlightening and landmar0
&udgments. 7>m more hopeful from his landmar0 B history brea0ing verdicts 'though his
&udgment on fifteen amendment created huge controversy among the scholars*. <ow it is
the time to witnessing implementation of those &udgments by the government.
Judiciary is the highest organ to ensure natural &ustice for the mass people of this soil.
Further, it is the last resort for them to protect their legal rights. ;rgo, it should be
detached from these types of controversy.
MD. RAISUL ISLAM SURA!
(ights "ctivist B Cegal (esearcher
;mailD sourav.mollic0Egmail.com
Cell .,9,- -9@ ,-F!
.G +ctober -.,.! =ha0a.