SN GOSWAMI Vs. GOVERNMENT OF BANGLADESH

JUDGEMENT

(1.) Let the supplementary affidavit dated 14-5-2001 on behalf of the petitioner No. 1 be formed part of the main application.

(2.) In this petition there are two petitioners namely, Mr. SN Goswami, an Advocate of this Court and the other one is Mr. Saidul Islam Dilder who is the Secretary General of Bangladesh Human Rights Commission. They have filed this petition under Article 102(2)(a)(ii) of the Constitution of the People's Republic of Bangladesh (hereinafter called 'the Constitution") challenging the appointment of Mr. Justice Md. Gholam Rabbani and Mr. Justice Md. Ruhul Amin as Judges of the Appellate Division of this Court by the President of the Republic pursuant to the authority vested in him by Article 95(1) of the Constitution.

(3.) The petitioner No. 1 is engaged in the legal profession as a practicing lawyer since 1995. The petitioner No. 2 claims to be a social worker and a serious human rights activist. They claim to be conscious citizens of the society and so, they say, they are seriously aggrieved when matters affecting the independence of the judiciary, dignity and prestige of the judges of the Court are involved. Such allegations are in the nature of public injury affecting not only the litigants and the lawyers but also the entire people and the society. These are the people whose hearts bleed for a wrong done by the Government affecting the social and national interest. It is stated that on January 10, 2001 by a declaration published in the daily New Nation, the Government of Bangladesh appointed/elevated Mr. Justice Md Gholam Rabbani and Mr. Justice Md Ruhul Amin as judges of the Appellate Division of the Supreme Court of Bangladesh superseding two of their colleagues, who were senior to them in the High Court Division, namely, Mr. Justice KM Hasan and Mr. Justice Syed JR Mudassir Hossain. To substantiate the statement a copy of the newspaper has been annexed with the petition as Annexure "A". It is further stated that in order of seniority Mr. Justice Hasan was due for elevation before Mr. Justice Gholam Rabbani. Mr. Justice Hossain was third in line for elevation and after him was Mr. Justice Md Ruhul Amin. It is stated that when the office of two judges of the Appellate Division fell vacant the Government did not take immediate steps to fill up the same. It waited for some time and subsequently, decided to supersede Mr. Justice KM Hasan and Mr. Justice Syed JR Mudassir Hossain. This supersession of Mr. Justice KM Hasan and Mr. Justice Syed Mudassir Hossain and the elevation of Mr. Justice Gholam Rabbani and Mr. Justice Md Ruhul Amin have been arbitrary and malafide which has adversely affected the independence of the Judiciary, the Bar, the litigants, the lawyers and the feelings of the community and this threat is real. It is asserted that the right to equal justice, equal protection of law and the due process is dependent primarily on the delicate balance between the principles of separation of power and the independence of judiciary and the aforesaid supersession has disturbed this balance and this has caused extreme pain, injury and injustice not only to the members of the judiciary but to the entire community. It is further stated that there was no allegation of any "physical or mental incapacity" or 'gross misconduct' against Mr. Justice KM Hasan or Mr. Justice Syed JR Mudassir Hossain. It is claimed by the petitioners that both of the aforesaid judges enjoy the highest respect from the Bar. There was never any direction on the part of the President/Government to hold an inquiry by the Judicial Council constituted under Article 96(2) for any allegation against the aforesaid judges. Therefore, the principle of "'De fide et officio judicis recipiture" is applicable, that is, the honesty and integrity of these judges cannot be questioned. Then it is asserted that as per Article 48(3) of the Constitution save only that of appointing the Prime Minister pursuant to clause (3) of Article 56 and the Chief Justice pursuant to clause (1) of Article 95, the President shall act in accordance with the advice of the Prime Minister, that is, in other words, it is absolutely within the jurisdiction of the Prime Minister to advise the President regarding the elevation of the judges to the Appellate Division. Therefore, the non-elevation of Mr. Justice KM Hasan and Mr. Justice Syed JR Mudassir Hossain is highly motivated and malafide which has hurt the independence of judiciary. It is further stated that the petitioners are not concerned as to the contents of the advice given by the Prime Minister to the President as contained in the proviso of Article 48(3) of the Constitution. The act of supersession itself demonstrates the malafide conduct on the part of the Chief Executive of the State. This is because a judge's appointment is now an exclusive privilege of the Chief Executive. It is contended that even though Article 51 of the Constitution deals with the Presidents immunity, but it does not deprive any person to take step against the Government and when appointment/elevation of judges to the High Court Division and the Appellate Division are carried out in consultation with the Prime Minister by the President it cannot be treated as an absolute prerogative power of the President. It is stated that the seniority has a positive meaning whereby the cause list is printed and the judges of the Supreme Court sit in that order. This cannot be disturbed by arbitrary order or intervention by the Government and the aforesaid supersession is contrary to the concept of natural justice which is a general principle of law recognised by all constitutions the civilised countries, including the Constitution of Bangladesh. It is stated that the supersession in question has seriously shaken the legitimate expectation of the members of the judiciary and administration of justice and, as such, these appointments have posed a serious threat to the independence of the judiciary. It is further contended that the aforesaid supersession has also seriously undermined the social values of a free and democratic society based upon which Fundamental Principles of State Policies rest and it has put the whole administration of justice into disrepute. It is stated that the Court shall intervene in matter which are 'contra honos mores' or immoral. It is further alleged that the supersession in question has violated the fundamental rights of the members of the judiciary and has denied them a dignified human existence as contemplated by Article 11 of the Constitution. It has denied the members of the judiciary effective choice and has rendered their aspirations toward equality a mockery.