SN Goswami Vs. Government of the People’s Republic of Bangladesh

SN Goswami, Advocate and another (Petitioners)

Vs.

Government of the People’s Republic of Bangladesh and others (Respondents)

 

Supreme Court

High Court Division

(Special Original Jurisdiction)

JUSTICE

Syed Amirul Islam J

AKM Shafluddin J

Judgment dated : June 3, 2001.

Cases Referred to-

Anowar Hossain Vs. Bangladesh, the Special Issue of BLD 1989 (Para 53 at page 61; Ahsanullah Vs. Bangladesh, 44 DLR 192 Para 66; Dr Mohiuddin Farooque Vs. Bangladesh and others, 17 BLD (AD) 1997 at page 3-4, Para 6; Kazi Mukhlesur Rahman Vs. Bangladesh, 26 DLR (SC) 44; Bangladesh Sangbadpatra Parishad (BSP) Vs. Bangladesh, 1992 BLD (AD) 153 = 43 DLR (AD) 112; Bangladesh Sangbadpatra Parishad (BSP) Vs. Bangladesh and others 43 DLR 424; Bangladesh Retired Government Employees Welfare Association Vs. Bangladesh 46 DLR 426; Abu Bakar Siddique Vs. Justice Shahabuddin Ahmed and others 1 BLC 483; Dr Mohiuddin Farooque Vs. Bangladesh and others 1997 BLD (AD) 1 = 49 DLR (AD) 1; Schmidt and another Vs. Secretary of State of Home Affairs, (1969) 1 All England Law Reports 904; Attorney-General of Hong Kong Vs. Ng Yuen Shiu, 1983 2 All England Law Reports 346; PI Sakhanpal Vs. AN Roy Chief Justice of India, AIR 1975 Delhi 66 (FB); SP Goptiats, (AIR 1982 SC 149; Abrar Hossain (PLD 1976 SC 315);  SP Gupta (AIR 1994 SC 268); AIR 1975 Delhi 66 at page 74 paragraph No. 20; AIR 1976 (SC)1207; PLD 1976 (SC) 315; 1983 2 All FR 344;

Lawyers Involved:

Akhtar Hamid, Advocate-For the Petitioners.

Mahmudul Islam, Attorney-General-For the Respondents.

Writ Petition No. 145 of 2001.

JUDGEMENT

Syed Amirul Islam J.- 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 President’s 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.

4. During the course of hearing the petitioner No. 1 submitted supplementary affidavit in which the petitioner No. 1 annexed a memorandum on resolution of the situation relating to the appointment of judges in the Appellate Division as Annexure “B” to the supplementary affidavit. The said Memorandum is said to have been signed by Mr. Syed Ishtiaq Ahmed, a senior Advocate and one of the members of Five-Members Committee who tried to resolve the supersession crisis. In the supplementary affidavit it is stated that Mr. Syed Ishtiaq Ahmed confirmed to the petitioner No. 1 that the Memorandum was prepared by him and that the signature appearing on the said Memorandum was his signature. The petitioner No. 1 has quoted some portions from that Memorandum which runs as follows:

“It is known to all concerned at the Bar and outside that we took the initiative on that day to bring about an end to what was going on in the Supreme Court premises and we are thankful to God that we succeeded in creating a situation where the Supreme Court is continuing to function normally in the interregnum between then and now. We, therefore, maintain that there is no basis for suggesting that we have acted for any particular group. Our proposal is that the meaning (sic) two recommendees be also appointed to the Appellate Division of the Supreme Court. The proposal has the support of the Chief Justice, who indicated that he was ready to take initial steps in this regard. The Chief Justice had indicated when sending four names that all were competent and that seniority should be respected. This recommendation was not followed, but no reason was conveyed back. The President too, was pleased to indicate that our proposal be given due consideration by all concerned”.

5. It is our view that in the constitutional scheme mandating the independence of Supreme Court, which is recognised as the basic structure, independence will be a misnomer (sic) if the opinion of the Executive is to prevail over the opinion of the Chief Justice of Bangladesh in the matter of appointment of judges to the Appellate Division of the Supreme Court. It is our considered opinion that the established constitutional practice and convention of prior consultation by the President with the Chief Justice in the appointment of a Judge to the Appellate Division is a logical consequence of an ‘Independent Judiciary’ as a basic structure of the Constitution. The Constitution manifestly envisages and requires that appointment of judges to the High Court Division and the Appellate Division be made after consultation with the Chief Justice. Such appointments are not a matter of any unfettered discretion of the Executive but a constitutional responsibility of the President, which has to be exercised after consultation with the Chief Justice.

6. The Constitutional convention that the opinion and recommendation of the Chief Justice in the matter of appointment of judges is binding on the Executive is so firmly established that it has to be read into the Constitution. Moreso, because, Independence of the Supreme Judiciary is recognised as an unalterable basic feature of our Constitution. Consequently, no appointment can be made by the President to the Appellate Division of the Supreme Court unless it is in conformity with the opinion and recommendation of the Chief Justice.”

7. In this supplementary affidavit the petitioner No. 1 also re-produced a news item published in the Daily Ittefaq of 5th of Magh, 1407 BS corresponding to 18th January 2001, wherein the alleged remark of the Prime Minister was published. These are the averments made by the petitioners in this writ petition and they have annexed only three papers namely, the paper cutting of the newspaper “The New Nation published on 10th January, 2001, the Memorandum of resolution signed by Mr Syed Ishtiaq Ahmed and the paper cutting of “Daily Ittefaq” published on 18th of January, 2001.

8. Dr Kazi Akhtar Hamid, the learned Advocate appearing for the petitioners, submitted that the Proclamation of Independence dated 10th of April 1971 was made when the war of independence began. The essential feature of this document is the supreme will of the people, i.e. people’s sovereignty and to “ensure for the people of Bangladesh equality”, human dignity and social justice. Correspondingly, the Preamble of the Constitution pledges to secure “the Rule of law”, fundamental human rights and freedom, equality and justice, political and economic and social. The Proclamation of Independence and the Constitution including its Preamble as well as the Fundamental Principles of State Policies show the ideals and principles for which our national martyrs sacrificed their lives. Essential features of these documents are the People’s Sovereignty, the Constitution’s Supremacy, the Independent Judiciary, Democracy based on free election, fundamental human rights and freedom and respect for the dignity and worth of the human person. These are the basic structure of our Constitution. Some may argue that this basic structure concept is vague and uncertain but there are many concepts which are not capable of precise definition, nevertheless they exist and play an important part in law. Negligence, reasonableness, natural justice are some of these concepts, which are very much understood but cannot be precisely defined. Dr Hamid then submits that the independence of the judiciary is a basic structure of the Constitution. The purpose of Article 94(4) is that a judge shall be independent all through his service as a judge. Supersession is an exception and repeated supersession or toppling a judge is a matter which destroys the independence of a judge. Therefore, with the recent events of continuous supersession, the basic structure of the Constitution has been destroyed. The principle of separation of powers means that the sovereign authority is equally distributed among the three organs of the state. One organ cannot destroy the other. These are the structural pillars of the Constitution. The learned Advocate referring to Part II of the Constitution dealing with the Fundamental Principles of State Policy submits that Principles of State Policy define a tendency and indicate the principles of a new process of guarantee of social rights, which will be effective in future. It is true that the fundamental principles of State Policy confer no legal rights and create no legal remedies, they are like instructions or general recommendations addressed to all authorities in the Republic reminding them of the basic Principles of the new social and economic order which the Constitution is aiming at building and these principles have always served as useful beacon lights to Courts. These are but an amplification of the preamble of the Bangladesh Constitution. Dr Hamid referring to Article 11 of the Constitution submits that Article 11 of the Constitution is subject to the restriction of clause (2) of Article 8 of the Constitution. The provision of 8(2) shows that the principles laid down in Part II shall not be judicially enforceable meaning that if the Executive or the Legislature does not implement any of the provisions of this part, the Court cannot direct for the enforcement of these principles. The learned Advocate then submits that Article 11 of the Constitution can be invoked for interpretation when any act or policy of the government militates against the dignity and worth of the human person. In support of his contention he also relied on a passage from the judgment of his Lordship Mr. Justice Badrul Haider Chowdhury passed in the case of Anowar Hossain Vs. Bangladesh, reported in the Special Issue of BLD 1989 (Para 53 at page 61 and in this connection he also relied on the case of Ahsanullah Vs. Bangladesh reported in 44 DLR 192 Para 66. Relying on the aforesaid decisions Dr. Hamid further reiterates his point and submitted that although the aforesaid principles are not enforceable by the Court at the instance of any individual but any action by the government in opposition to them and in derogation to them is violative of the mandate of Article 94(4) of the Constitution. The emphasis is that by the word ‘guaranteed’ the state has imposed an obligation upon the government to honour the commitment made in Article 11 and referring to the case of Dr Mohiuddin Farooque Vs. Bangladesh and others reported in 17 BLD (AD) 1997 at page 3-4, Para 6, he submits that fundamental principles of State Policy shall guide the interpretation of the Constitution and of the other laws of Bangladesh. It is constitutionally impermissible to leave out of consideration Part II of our Constitution when an interpretation of Article 102 needs guidance. The learned Advocate emphasises that the Court being a vehicle, a medium or mechanism devised by the Constitution for the exercise of the judicial power of the people on behalf of the people, the people always remain the focal point of concern of the Supreme Court while dispensing Justice or propounding any judicial theory or interpreting any provision of the Constitution. The learned Advocate further submits that from the principles laid down in the aforesaid decisions it is clear that in interpreting the issue of judicial independence, the Court must take notice of Article 11 of the Constitution and this is because as per Article 8(2), the fundamental principles shall be applied which includes the governance of the country. Dr Hamid referring to Part II of the Constitution submits that for proper appreciation of the issue raised in this writ petition Articles 11, 19(1) and 22 of the Constitution must be looked into. Dr Hamid then submits that any supersession or reward for a better or higher place, particularly in the case at the Bar, has directly affected the independence of judiciary as set out in Article 94(4) of the Constitution and is contrary to the principle of respect, dignity and worth of the judges who have been superseded. The learned Advocate further submits that this exercise of power by the Executive is nothing but a colourable exercise which is evident from the statements made by the Honourable Prime Minister in a public meeting which was published in the Daily Ittefaq on January 18, 2001. The learned Advocate further submits that in the interest of judiciary and to maintain the dignity of the judges any attempt in future to supersede the judges of the High Court Division should he stopped because when a judge is toppled, it has three consequences; one is that he feels that he is not worth it. The other is that he is belittled in the eye of others in the society. The most important point is that other judges probably would feel to please the party in power. Thus supersession shall have a serious adverse impact on the independence of judiciary.

9. The learned Advocate in order to establish the locus-standi of the petitioner has taken us through the development of the modern concept of public interest litigation and starting from the Berubari Case he has taken us through various decisions of the Supreme Courts of the Subcontinent including those of both the Divisions of this Court and relying on the decisions of the case of Abu Baker Siddique Vs. Shababuddin Ahmed reported in 1 BLC 483, submits that the meaning of aggrieved person has been given a liberal interpretation in that decision. It has been held that person aggrieved as contemplated in Article 102 of the Constitution means that a person who is aggrieved may file an application under Article 102(2) of the Constitution but it does not provide that a person should be personally aggrieved. If the Constitution provides personal aggrievement then the scope of Article 102 would be narrower. Therefore, it was held that a grievance may be personal, constitutional, mental, economic, political or social, Article 102 shelters a person in any kind of aggrievement. Therefore, the learned Advocate submits that in the instant case several constitutional question of great public importance having far-reaching consequence are involved in the present case and therefore the writ petition is maintainable and the petitioner must be treated as an aggrieved person within the meaning of the Article 102 of the Constitution. The learned Advocate further submits that independence of judiciary is the basic structure of our Constitution and there is no dispute about its identity and it stands beyond any change by any organ of the government. The learned Advocate further submits that in the case of Dr Mohiuddin Farooque Vs. Bangladesh and others the Appellate Division extended the scope of public interest litigation by further liberally interpreting the concept of persons aggrieved.

10. The learned Advocate referring to Articles 48(3) and 95(1) of the Constitution submits that the President is empowered to appoint judges of both the Divisions of the Supreme Court and it shall be done in accordance with the advice of the Prime Minister and the pre-condition is set out in Article 48(3) of the Constitution. Therefore, the provisions as set out in Article 95(2) are mandatory. In the absence of any other prescribed law for appointment as a judge, the customs and the usage is that seniority should always be respected and maintained and when such seniority is disturbed because of political considerations, not only the judges are deprived of the equal treatment of law but the whole judicial equilibrium is disturbed and therefore, it brings the whole administration of justice into disrepute. The learned Advocate with much emphasis submits that appointment in order of seniority has become now a binding convention of the Constitution and if seniority is not maintained in their elevation to the higher position or better place, then this creates extreme disappointment among the judges and the people and the question of judicial independence becomes very questionable. The learned Advocate further submits relying on Article 48(2) of the Constitution that the President is required to exercise the powers and perform the duties conferred and imposed on him by the Constitution and by any other law. Therefore, the President of the Republic is duty bound to act subject to the obligations imposed upon him by the Constitution. Therefore, if any person is appointed as a judge of either of the Divisions of this court in violation of the Provisions of Article 95(2) of the Constitution a citizen is at liberty to challenge the same in the appropriate forum. Therefore, the power enjoyed by the President is circumscribed by the provisions of the Constitution and other law, that is, the President in exercise of his function is not above law and is bound by the provisions of law.

11. The learned Advocate then submits that in the instant case by superseding the two judges in appointing the other two judges in the Appellate Division there has been a breach of the doctrine of legitimate expectation inasmuch as the judges of this Division after their appointment, as such, had the legitimate expectation that as and when any vacancy occurs in the Appellate Division the Senior-most Judge of this Division will be elevated to the Appellate Division to fill up the vacancy and in support of his contention he relies on the decisions reported in 1969 1 All ER 904 and the case reported in 1983 2 All FR 344. In the instant case the impugned decisions have affected two senior judges because such decisions have deprived the aforesaid judges of the bona fide or the legitimate expectation unless there has been some legal ground for withdrawal. Dr Hamid then submits that in the instant case the appointment of Mr. Md Gholam Rabbani and Mr. Md. Ruhul Amin as Judges of the Appellate Division is absolutely arbitrary and malafide which has adversely affected the independence of judiciary and everybody of the country irrespective of the Bar, litigant public and the lawyers. He further submitted that in the instant case there is nothing to show about the physical and mental incapacity of the judges or that they ever committed any gross misconduct. Therefore, in the instant case the principle of “De fide et officio judicis recipitur” is applicable. The learned Advocate further submits that under the provisions of the Constitution no doubt the President is obliged to appoint the judges in either Division on the advice of the Prime Minister which is a matter of formality but the real power lies with the Chief Justice and his consultation is must and that consultation must be effective and in the instant case in appointing two judges in question the recommendation made by the Chief Justice has not been followed without referring back the matter to the Chief Justice which is a gross violation of the well established convention in the matter of appointing judges of this Court. The learned Advocate further submits that although Article 51 of the Constitution deals with the President’s immunity, but it does not deprive any person to take step against the Government. Moreso, when appointment/elevation of judges to both the Divisions of this Court are carried out in consultation with the Prime Minister, it cannot be treated as absolute prerogative power of the President. The learned Advocate also submits that the elevation of Mr. Justice Md. Gholam Rabbani and Mr. Justice Md. Ruhul Amin to the Appellate Division can be obliquely looked at when the constitutional scheme of independence of judiciary calls for routine elevation of judges to the Appellate Division. The learned Advocate also contends that seniority has a positive meaning whereby the cause list is printed and the judges of the Supreme Court sit in that order and that cannot be disturbed by arbitrary order or intervention by the Government. It is further contended that supersession is contrary to the concept of natural justice, which is a general principle of law recognised by all constitutions of the civilised countries including Bangladesh. The impact of such deprivation through supersession has violated the fundamental rights of the members of the judiciary, a dignified human existence as set out in Article 11 of the Constitution. Dr Hamid also submits that respect and dignity included not only the perspectives or perceptions of worth by which an individual is characterised by himself or others, but also the translation of these perspectives into operative facts of special process. It is submitted that this is the intrinsic meaning of the terms ‘respect for the dignity of the human person’ as set out in Article 11 of the Constitution. Dr Hamid finally concludes by saying that the Constitution is meant to protect the self and the self is the primary and ultimate value. The Constitution is to protect the individual members of the political community against interference from the Executive authority of the State.

12. For the sake of bravity we may here give the citations of the decisions relied on by Dr. Hamid- Kazi Mukhlesur Rahman Vs. Bangladesh 26 DLR (SC) 44; Bangladesh Sangbadpatra Parishad (BSP) Vs. Bangladesh 1992 BLD (AD) 153 = 43 DLR (AD) 112; Bangladesh Sangbadpatra Parishad (BSP) Vs. Bangladesh and others 43 DLR 424; Bangladesh Retired Government Employees Welfare Association Vs. Bangladesh 46 DLR 426; Abu Bakar Siddique Vs. Justice Shahabuddin Ahmed and others 1 BLC 483; Dr Mohiuddin Farooque Vs. Bangladesh and others 1997 BLD (AD) 1 = 49 DLR (AD) 1; 1969 1 All ER 904; 1983 2 All ER 346; AIR 1975 Del 66 (FB) AIR 1976 (SC) 1207; PLD 1976 (SC) 315.

13. We also took assistance from the learned Attorney-General Mr. Mahmudul Islam. The learned Attorney-General submits that there is distinction between the Constitutional consultation and conventional consultation and the Constitutional consultation cannot be equated with conventional Consultation because the Constitutional consultation is carried out pursuant to the provisions of Article 116 of the Constitution and that authority is vested not in the Chief Justice but in the Supreme Court and the consultation within the meaning of Article 116 must be an effective consultation but that concept has no manner of application in case of conventional consultation. It is nowhere provided in the Constitution that the executive authority of the State is bound to accept any recommendation made by the Chief Justice in any matter. The learned Attorney-General further submits that the petitioners have no locus standi to file this application and principles laid down by the Appellate Division in the case of Dr. Mohiuddin Farooque Vs. Bangladesh and others clearly show that the instant writ petition is not maintainable because the petitioner cannot be termed as an aggrieved person nor it is the public interest litigation. The learned Attorney-General then submits that none of the prominent members of the Bar have ever come forward to challenge the appointment of the newly appointed judges of the Appellate Division and the two persons who have filed this application are the persons being least aware of the appointment and have no personal interest and they are none but busybodies. The learned Attorney-General also submitted that in case of public interest litigation lately the principle has been expanded by the Appellate Division and that is that a person can file an application under Article 102 of the Constitution if he has sufficient interest in the matter and in the instant case the petitioners have failed to disclose any sufficient interest in the matter of appointment of the judges in the Appellate Division. The learned Attorney-General further submits that the petitioners have misconceived the legal aspect of the case in that the appointment of the judges in the Appellate Division of this Court is not a promotion but a fresh appointment and in making any appointment in the Appellate Division the Constitutional provisions requires the President to act upon the advice of the Prime Minister and it is not the case that the President has not acted upon the advice of the Prime Minister rather admittedly the appointments have been made on the advice of the Prime Minister as is required by the Constitution. The learned Attorney-General further submits that originally in the Constitution there was a provision for consultation with the Chief Justice in the matter of appointment of judges of either of the Divisions of this Court but through the 4th Amendment of the Constitution that has been done away and thereafter it is no more a Constitutional requirement that the Chief Justice is to be consulted by the Executive authority in the matter of appointment of judges of both the Divisions of this Court. The learned Attorney-General then submits that, however, there may be a practice of procedure for consulting the Chief Justice in the matter of appointment of judges of the Supreme Court but that is a mere matter of practice without any binding force in it. It does not create any legal obligation upon the Executive organ of the State to accept the recommendation of the Chief Justice in the matter of appointment of judges in either of the Divisions of the Supreme Court and the President can act on his own without the advice of the Prime Minister in the matter of appointment of the Chief Justice of Bangladesh. The learned Attorney General also submitted that the decisions, which have been relied on by the petitioners, are not attracted in the instant case. The learned Attorney-General further submits that the Indian and Pakistani decisions, which have been cited by the petitioners, have also no manner of application in the instant case because in the Constitutions of both India and Pakistan there are provisions for consultation with the Chief Justice in the matter of appointment of judges. Therefore, the Indian and Pakistani decisions on this point cannot be relied upon as in our case it is at best a mere conventional consultation which has no binding force. The learned Attorney-General finally submits that this application cannot serve any other purpose other than embarrassing the judges concerned inasmuch as the judges themselves, have no grievances of their own over the matter nor have they been made parties in this application. Therefore, this application will, in fact, serve no purpose other than putting those two judges in precarious position.

14. Dr Hamid at the very outset extensively argued on the point of locus standi of the petitioners. According to him, the appointments made by the President violated the provisions of the Constitution namely, the recommendation of the learned Chief Justice has been ignored illegally and this also offends the principle of Independence of Judiciary as enshrined in Article 116 of the Constitution. On the other hand, the learned Attorney-General submitted that the petitioners have no locus standi to file this application and he also relied on the case of Dr. Mohiuddin Forooque Vs. Bangladesh and others which is also relied on by the petitioners and submitted that the principles laid down by the Appellate Division in that case clearly show that the instant writ petition is not maintainable.

15. Let us first examine this aspect of the case. Who are the petitioners? The petitioner No. 1 is a junior member of the Supreme Court Bar and the petitioner No. 2 is the Secretary General of a NGO. The petitioner No. 1 is not a prominent member of the Bar. He is an unknown junior member of the Bar with little or no legal practice. Similarly, the petitioner No. 2 is said to be the Secretary General of a NGO whose name we did not know earlier. He is said to be a human rights activist and both of them claim to be conscious citizens of Bangladesh and are therefore, seriously aggrieved when matters affecting the independence of judiciary, dignity and prestige of the Judges of this court are involved.

16. The concept of public interest litigation is a recent one, which is still in the development stage and is an exception to the General Rule. The settled position in law is that one cannot resort to Article 102 of the Constitution unless he is “an aggrieved” person within the meaning of the term of that Article. This concept of aggrievedness is somehow relaxed in certain special circumstances when it comes to public interest litigation. But even in case of public interest litigation the petitioner must have sufficient interest in the matter. In Dr. Mohiuddin’s case it has been observed by his Lordship Mr. Justice ATM Afzal, CJ that:

“….Any person other than an officious intervener or a wayfarer without any interest or concern beyond what belongs to any of the 120 million people of the country or a person with an oblique motive, having sufficient interest in the matter in dispute is qualified to be a person aggrieved and can maintain an action for judicial redress of public injury arising from breach of public duty or for Violation of some provision of the Constitution or the law and seek enforcement of such public duty and observance of such constitutional or legal provision.”

17. Similarly, Mr. Justice Latifur Rahman as his Lordship then was observed:

“Thus I hold that a person approaching the court for redress of a public wrong or public injury has sufficient interest (not personal interest) in the proceedings and is acting bona fide and not for his personal gain or private profits, without any political motivations or other oblique consideration has locus standi to move the High Court Division under Article 102 of the Constitution of Bangladesh.”

In the said case Mr. Justice BB Roy Chowdhury observed as follows:

“…….the expression “person aggrieved” means not only any person who is personally aggrieved but also one whose heart bleeds for his less fortunate fellow beings for a wrong done by the Government or a local authority in not fulfilling its constitutional or statutory obligations. It does not, however, extend to a person who is an interloper and interferes with things, which do not concern him. This approach is in keeping with the Constitutional principles that are being involved in recent times in different countries.”

18. Mr. Justice Mustafa Kamal as his Lordship then was, explained the concept in the following words:

“This is not to say that Article 102 has nationalised each person’s cause as every other person’s cause. The traditional view remains true, valid and effective till to-day insofar as individual infraction there are concerned. But when a public injury public wrong or infraction of a fundamental right affecting an indeterminate number of people is involved it is not necessary, in the scheme of our Constitution, that the multitude of individuals who have been collectively wronged or injured or whose collective fundamental right have been invaded are to invoke the jurisdiction under Article 102 in a multitude of individual writ petitions, each representing his own portion of concern. Insofar as it concerns public wrong or public injury or invasion of fundamental rights of an indeterminate number of people, any member of the public, being a citizen, suffering the common injury or common invasion in common with others or any citizen or an indigenous association as distinguished from a local component of a foreign organisation, espousing that particular cause is a person aggrieved and has the right to invoke the jurisdiction under Article 102.”

A definite jurisprudential basis was laid down in Indian jurisdiction in SP Goptiats case (AIR 1982 SC 149) where several Advocates of different Bars challenged the action of the Government in transferring some judges of the High Court. Bhagwati, J observed:

“Where a legal wrong or a legal injury is caused to a person or to a determinate class of persons by reason of violation of any constitutional or legal right or any burden is imposed in contravention of any constitutional or legal provision or without authority of law or any such legal wrong or legal injury or illegal burden is threatened and such person or determinate class of persons is by reason of poverty, helplessness or disability or socially or economically disadvantaged position, unable to approach the court for relief, any member of the public can maintain an application….seeking judicial redress for the legal wrong or injury caused to such person or determinate class of persons”.

19. In the light of the aforesaid principles it can be said without any hesitation that the petitioners have failed to disclose any sufficient interest in the matter of appointment of the Judges in the Appellate Division. The petitioners are persons having least knowledge about the appointment and also have no personal interest and thus they are none but busybodies. The fact remains that none of the prominent members of the Bar have ever come forward to challenge the appointment of the newly appointed Judges of the Appellate Division which clearly indicates that the citizens at large and the members of the Bar in particular are not aggrieved. Admittedly, two unknown and insignificant citizens have filed this petition and thus it is apparent and obvious that they have seized the opportunity and filed this petition to catch the public eye and to come to prominence. The petition has been filed for their personal gain or private profits coupled with political motivation and other oblique considerations. By appointing the aforesaid judges in the Appellate Division no public injury nor public wrong has been committed by the Government, as the appointment does not offend any provision of the Constitution or any other law. In the instant case the affected parties are not coming forward for no visible reason. We therefore find and hold that the petitioners have no locus standi to file the instant application.

20. Since we heard Dr Hamid on merits as well, we would like to enter into the merits of the case. On a perusal of the petition and on consideration of the submissions of Dr Hamid it appears that the main grievance of the petitioner is supersession of the senior judges. Here lies the fallacy. It is not a case of supersession. Question of supersession can only arise in a case of promotion to a higher post. In the present case we are not concerned with the promotion of the judges of the High Court Division, to the Appellate Division. It is rather the appointment of two new judges in the Appellate Division which is in dispute. An appointment of a judge to the Appellate Division from amongst the judges of the High Court Division is not a promotion it is a fresh appointment made by the President under Article 95(1) of the Constitution from amongst the qualified persons as contained in Sub Article (2) of Article 95 of the Constitution. Although initially, in the course of his argument Dr. Hamid repeatedly submitted that it is a case of supersession but ultimately, he conceded that an appointment of a judge in the Appellate Division is a fresh appointment and it is not a case of promotion. There is no grey area in his field. If any authority is required we can refer to the case of Abrar Hossain (PLD 1976 SC 315). The President in the exercise of his duties is required to act in accordance with the advice of the Prime Minister [Art. 48(3)] and the President shall exercise powers and perform the duties conferred and imposed on him by the Constitution and by any other law [Art. 48(2)]. In other words the President shall act subject to the obligations imposed upon him by the Constitution.

21. The actions of the President in the matter of appointment of judges of either Division of this Court are not unfettered in that in appointing a person in the judgeship of either Division the precedent condition as laid down in Article 95(2) has to be complied with. Once the requirements as laid down in Article 95(2) are fulfilled and the President acts on the advice of the Prime Minister, this Court cannot cause an inquiry as to the reason of appointing that person as a Judge. It is the absolute prerogative of the Executive under the existing provisions of the Constitution though prior to the 4th Amendment the position was otherwise. Under the Indian Constitution it is a Constitutional convention and inheres in Article124(2) of the Constitution that the senior most puisne Judge of the Supreme Court has to appointed as the Chief Justice of India when the office of the Chief Justice falls vacant. The validity of an appointment of a junior puisne Judge as the Chief Justice of India came up for consideration in the case of PI Sakhanpal Vs. AN Roy Chief Justice of India reported in AIR 1975 Delhi 66 (FB). Before 1973, the convention in India was that on the retirement of the Chief Justice of India the next senior-most Judge of the Supreme Court was appointed the Chief Justice. In 1973 the President of India broke that convention by appointing Mr. Justice Roy, a junior Judge of the Supreme Court, as the new Chief Justice of India bypassing three senior most judges. It was maintained that it was the prerogative of the Government to take into account the social and political outlook of a man before appointing him the Chief Justice.

22. The appointment of Mr. Justice Roy was, upheld as the senior judges had resigned and he became the senior most. The Court citing from the argument of the Attorney-General observed:

“13 ……..Relying upon the petitioner’s own case that the convention of appointing the senior-most puisne Judge of the Supreme Court as the Chief Justice of India since the establishment of the Supreme Court is a Rule of law and inheres in Article 12(2) of the Constitution, he contends that the issue of a writ of quo warranto by this Court will be futile because as a result of the resignations of Justices Shelat, Hegde and Grover, who were senior to him, Justice AN Roy became the senior-most puisne Judge and not only could be re-appointed but would be entitled to be re-appointed as Chief Justice of India. This contention would not have been available to the respondents if the three who were senior to Justice AN Roy had not vacated their office by resignation but now it is.”

23. The Supreme Court Bar Association of India condemned the action of the Government in superseding three Judges in the appointment of the Chief Justice of India. Six eminent jurists of India declared in a public statement that the decision of the Government to supersede the senior-most Judges of the Supreme Court was “manifest to undermine the Courts” independence. The appointment of Shree AN Roy as the Chief Justice of India was challenged in the Delhi High Court but the writ petition was dismissed.

24. In Abrar Hossain’s case, the Pakistan Supreme Court held that Writ did not lie under Article 199 of their Constitution. The question of locus standi was not there as it was a writ of quo warranto. The appointment of Mr. Justice Abdul Kader Sheikh, a Judge of the Supreme Court, as the Chief Justice of the High Court of Sind and Baluchistan was upheld as valid although the appointment was made without any consultation with the Chief Justice of Pakistan.

25. In India long standing convention was that the senior-most Judge of the Supreme Court used to be appointed as the Chief Justice after the Office of the Chief Justice falls vacant. In India by bypassing the senior most Judge Justice Khanna, Mr. Justice MH Beg was also appointed as the Chief Justice, but that appointment was never challenged before any Court.

26. There is another aspect to the case. The crux of the grievance is that to fill up the vacancy of two Judges in the Appellate Division four names were recommended by the learned Chief Justice.

27. Dr Hamid relying on the statements made in the “memorandum on the resolution of the situation relating to the appointment of judges in the Appellate Division” submitted that it is apparent from the memorandum that the Chief Justice had indicated when sending four names that all were competent and that seniority should be respected. But no such averments were made in the petition nor the sources of such information were disclosed. It is a question of fact and no attempt was made by the petitioners to substantiate the same by producing any authentic document nor the necessary record was called for. Therefore, it cannot be said with certainty if the learned Chief Justice, while recommending four names had indicated so. It remains a doubtful proposition. We could ascertain the true state of affairs if the learned Chief Justice had been made a party or if the relevant documents had been called for. Be that as it may, if all the judges were equally competent, the Executive did not commit any illegality in choosing any two from the equal four inasmuch as there is no law or constitutional provision or convention, requiring the seniors to be appointed. So, it was the prerogative of the Executive and that position has been admitted by the petitioners when they say that a Judge’s appointment is now an exclusive privilege of the Chief Executive. Here it may further be mentioned that after the 4th Amendment came into force consultation with the Chief Justice was neither the requirement of the Constitution, nor of any law.

28. We have already indicated that no credence can be put on the statement that “The Chief Justice had indicated when sending four names that all were competent and that seniority should be respected” because an assertion was made in the said memorandum that “the Prime Minister having been informed of the consistent practice and convention regarding consultation with the Chief Justice agreed to cancel the appointments…..” This is not true that there is consistent practice and convention regarding consultation with the Chief Justice in the matter of appointment of Judges of both the Division. It is untrue and a misstatement of fact. It was true up to 1974 and since 1975 when the 4th Amendment came into force the process of consultation was done away and since then until February 1994 no consultation was made with the Chief Justice while making appointment of Judges in both the Divisions and it was re-introduced in February 1994. There are some other confusing statements in the memorandum. Taken these things together it created a doubt in our minds if the learned Chief Justice had at all indicated that the seniority should be respected. We have already noted that there is no legal bar in appointing anyone in the judgeship of the Appellate Division from outsider other than the Judges of the High Court Division. In Pakistan days Manzur Quader Chowdhury was directly appointed as the Chief Justice of West Pakistan High Court and his appointment was never challenged. So Judging from the constitutional view there is no illegality in the appointments in question. Here we have not emphasised on the doctrine of consultation as we propose to take up that issue separately.

29. Now let us advert to the question of consultation. It has been urged that when the appointment of the Judges of the High Court Division and the Appellate Division are carried out in consultation with the Chief Justice, it cannot be treated as unquestioned prerogative of the President as consultation has a binding force. The Constitution manifestly envisages and requires that appointment of Judges to the High Court Division and those to the Appellate Division be made after consultation with the Chief Justice and such appointments are not a matter of any unfettered discretion of the Executive but a constitutional responsibility of the President which has to be exercised after consultation with the Chief Justice. The constitutional convention that the opinion and recommendation of the Chief Justice in the matter of appointment of Judges is binding on the Executive is so firmly established that it must be read into the Constitution. Consequently no appointment can be made by the President to the Appellate Division unless it is in conformity with the opinion and recommendation of the Chief Justice.

30. Let us now examine the sustainability of the aforesaid contentions.

31. In every country in working a Constitution and running the State affairs many precedents occur and practices develop. When such precedents and practices are found to be consistently followed they are treated as Constitutional conventions. Constitutional conventions are “Rules of political practice, which are regarded as binding by those to whom they apply, but which are not laws as they are not enforced by the courts or by the House of Parliament.” (See O hood Philips-Constitutional and Administrative Law, 4th Ed P 77)

32. Therefore, conventions are generally to be distinguished from law and are treated as non-legal Rules and cannot be enforced in the court of law but nevertheless deviations from conventions may evoke serious criticism and create political difficulties in running the Government. Generally speaking, convention plays a significant role in unwritten Consultation and its role in written Constitution is comparatively little. The Attorney General has submitted that there are two types of Consultation- Constitutional Consultation and Conventional Consultation. Consultation, which is made pursuant to the provision of the Constitution, is called Constitutional consultation and consultation made as a matter of practice is conventional consultation. The former has a binding force whereas the latter lacks legal sanction. Our Original Constitution in Article 95(1) contained a provision for consultation with the Chief Justice before making any appointment of Judges in either of the Divisions. That position continued until 4th amendment came into force. The provision for consultation with the Chief Justice was deleted by the 4th Amendment of the Constitution. Thus until the 4th Amendment came into force the Executive was under a constitutional obligation to appoint a judge of the Supreme Court in consultation with the Chief Justice and that consultation was a must and binding upon the Executive. But the provision has been abolished by the 4th amendment of the Constitution. Now, therefore, in making appointment of a Judge of the Supreme Court the President is under no obligation, legal or constitutional, to consult the Chief Justice, and as a matter of fact, after the 4th Amendment of the Constitution the President never consulted the Chief Justice. The Executive on their own appointed the Judges. It becomes clear from respective notifications published from time to time stretching over a period of eighteen years from 1975 to 1993. However, in 1994 when nine Judges were appointed by the President without consultation with the Chief Justice, the Chief Justice took up the matter and expressed his anger by saying in his address to the lawyers that the Chief Justice is “Mr. Nobody” in the matter of appointment of Judges. The undivided and united Bar seized the opportunity and launched movement and after negotiation, the Government cancelled the earlier notification and after consultation with the Chief Justice the names of the two of the Judges earlier appointed were dropped and the remaining Judges with two new persons were appointed, in accordance with the recommendation of the Chief Justice and in the notification it was so indicated. Prior to that the President by virtue of the authority vested in him by Article 95(1) or Article 98 of the Constitution appointed the Judges as and when required. So, from 1975 to 1993 the President appointed the Judges pursuant to the power conferred upon him by Articles 95(1) and 98 of the Constitution without consultation with the Chief Justice. It further appears that when the Provisional Constitution of Bangladesh Order, 1972 was in force on 20-1-1972 five judges of this Division (then High Court) were appointed by the President on the advice of the Prime Minister. Since 10th February 1994 consultation with the President was re-introduced and it continued till today as a matter of practice in the absence of Constitutional provision. This consultation is conventional consultation, which has no binding force, for it is not a rule of law. This sort of consultation cannot have the primacy and the case of SP Gupta (AIR 1994 SC 268) has no manner of application to the present case because the Indian Constitution itself contains a provision for consultation with the Chief Justice. So, consultation in India is Constitutional consultation, which is binding on the Executive. We, therefore, find force and substance in the submission of the learned Attorney-General that Constitutional consultation cannot be equated with conventional consultation because the Constitutional consultation is carried out pursuant to the provisions of Article 116 of the Constitution and that authority is vested not in the Chief Justice but in the Supreme Court and the consultation within the meaning of Article 116 must be an effective consultation but that concept has no manner of application in case of conventional consultation. The view taken by us also gets support from the judgment of 8th Amendment case wherein Justice Shahabuddin Ahmed as his Lordship then was observed:

“…………Under the original Constitution, appointment of Judges was made by the President in consultation with the Chief Justice, but under the existing provision no such consultation is necessary ……”

33. Dr Hamid, in the course of his argument, relied on the 8th Amendment case for some other purpose but his eyes missed the said observation, which is most unfortunate.

34. One of the other contentions raised by the petitioners is that the supersession in question has seriously shaken the legitimate expectation of the judiciary and the administration of justice and therefore, by the aforesaid supersession there has been a breach of legitimate expectation of the incumbent judges. The “doctrine of legitimate expectation” is also a recent phenomena in the field of Judicial Review and this concept has for the first time been introduced by Lord Denning in the case of Schmidt and another Vs. Secretary of State of Home Affairs reported in (1969) 1 All England Law Reports 904 which concept was reiterated by the English Court in the case of Attorney-General of Hong Kong Vs. Ng Yuen Shiu reported in 1983 2 All England Law Reports 346 and these cases were relied upon by the petitioners in the course of their argument. The doctrine of the legitimate expectation centres round the principles of natural justice inasmuch as no order, adversely affecting a person can be passed without giving him any pre-hearing or it postulates that if any action/step is taken by the Executive organ against a person in derogation of legitimate expectation can also be reviewed by the court. In the instant case in our opinion the doctrine of legitimate expectation has no manner of application. We have already indicated earlier that it is not a case of supersession. Even if it is assumed for argument’s sake that the appointment of Justice Gholam Rabbani and Justice Md. Ruhul Amin to the Appellate Division has been made by superseding the other senior judges of the High Court Division then also there has been no breach of legitimate expectation of the senior most judges because there is no Constitutional provision which entities the senior most judge of the High Court Division to be elevated to the Appellate Division as and when vacancy occurs nor is there any law which confers such right upon the senior most judge of this Division. Furthermore, after the emergence of Bangladesh on a number of occasions junior judges of this Division had been elevated to the Appellate Division by superseding/bypassing senior most judges of this Division which started on 13-8-76 and continued till today. We have consulted the office record of this Court and found that Justice Debesh Chandra Bhattacharya was elevated to the Appellate Division on 13-8-76 superseding the then senior most judge of this Division Justice Ruhul Islam. Similarly, on 21-4-92 Justice ATM Masud was appointed a judge of the Appellate Division by superseding his senior, Justice Mohsin Ali. Justice MH Rahman and Justice ATM Afzal were appointed as judges of the Appellate Division on 26-12-85 by superseding Justice ARM Amirul Islam Chowdhury, Justice Md. Habibur Rahman (CSP) and Justice Abdul Matin Khan Chowdhury. Similarly, on 1-12-89 Justice Mustafa Kamal was also elevated to the Appellate Division by superseding Justice ARM Amirul Islam Chowdhury and Justice Sultan Hossain Khan. Thereafter, Justice Abdur Rouf was appointed to the Appellate Division by superseding aforesaid Justice ARM Amirul Islam Chowdhury. On 8-6-95 Justice Ismailuddin Sarker in similar manner was appointed a judge of the Appellate Division by superseding aforesaid Justice ARM Amirul Islam Chowdhury. On 28-6-99 Justice Mahmudul Amin Chowdhury was appointed as a Judge of the Appellate Division by superseding Justice MM Haque and Justice Kazi Shafiuddin and on 19-1-2000 Justice Kazi Ebadul Haque was also elevated to the Appellate Division superseding the aforesaid two senior most Judges. Then on 28-11-2000 Justice Mainur Reza Chowdhury was also appointed as a judge in the Appellate Division superseding the aforesaid Justice, who were senior to him. Thereafter, on 13-5-2001 Justice Md. Fazlul, Karim was elevated to the Appellate Division by superseding Justice KM Hasan and Justice Syed JR Mudassir Hussain. It appears that at no point of time in the past such appointments were called in question. It is only at the elevation of Justice Rabbani and Justice Md Ruhul Amin to the Appellate Division that challenge has been thrown for the first time as supersession by the present petitioners. Even after the appointments of these two judges the same pattern continued till today. Therefore, it is apparent and obvious that then Justice Hasan and Justice Hossain were appointed as judges of this Division they knew it well that if any vacancy occurs in the Appellate Division in the future the senior most judge of this court would have no right legal claim to be appointed as a judge of the Appellate Division because besides seniority s

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