Gulam Rabbani :
This week is very important for the country’s judiciary as a new Chief Justice will be appointed by this time. Now there is no end to the speculations about who is going to hold the helm of the judiciary, one of the three organs of the state.
A surprising decision may come over the appointment of CJ at the eleventh hour. It has also been learnt that judges will be appointed in the Appellate Division and High Court Division to resolve the huge case backlog. Judge appointment in the Appellate Division will take place first. Then judges will be appointed in HC division.
Incumbent CJ Syed Mahmud Hossain will retire on December 30 completing his 67 years age limit of a Supreme Court judge. Before that, a new Chief Justice will be appointed, sources said.
SC lawyers hope that the new CJ will be appointed on the basis of seniority, though the reality is different, as this does not always happen.
There are instances of appointing CJ bypassing seniority, although there is no clear instruction in the Constitution to follow seniority in appointing CJ. The President can appoint whomever he wants as CJ.
According to Article 95(1) of the Constitution, “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.” However, no more detail is there in the Constitution over the issue.
Legal experts say the CJ should be appointed on the basis of seniority in order to maintain the discipline of the judiciary.
According to seniority, Justice Muhammad Imman Ali is at the top of the list for appointment as Chief Justice. Justice Hasan Foez Siddique, Justice Md Nuruzzaman and Justice Obaidul Hassan are in the next positions consecutively as per seniority.
One of them will be the 23rd CJ of Bangladesh.
According to the Article 96(1) of the Constitution, “Subject to the other provisions of this article, a Judge shall hold office until he attains the age of sixty-seven years.”
Former Law Minister Barrister Shafiq Ahmed said seniority is usually maintained in case of appointment of the Chief Justice. However, if it is not possible for any reason, then seniority is violated, he added.
Attorney General AM Amin Uddin earlier said, “The Constitution empowers the President to appoint the CJ. The President usually appoints any one of the Appellate Division judges as CJ. And there is no bar to practice this.”
Barrister Ruhul Quddus Kazal, Secretary of the Supreme Court Bar Association (SCBA), said, “My clear stance is that appointment of CJ should be made on the basis of seniority. A crisis of people’s confidence in the judiciary will be created if seniority is violated in appointing CJ.”
The President appointed Justice Md Abdul Wahhab Miah as the Acting Chief Justice after the resignation of former CJ Surendra Kumar Sinha.
Later the President finalized the appointment of Justice Syed Mahmud Hossain as the CJ when Justice Abdul Wahhab Miah was holding the post of Acting Chief Justice. In the evening of that appointing date, February 2 in 2018, Justice Wahhab Miah resigned, though he had 10 months more to fulfil his tenure.
