Photo: supremecourt.gov

The appointment of the chief justice was in the news throughout last week. This happened because President Zillur Rahman appointed Justice A.B.M. Khairul Haque, a judge of the Appellate Division, as the 19th chief justice of Bangladesh on September 26 by superseding two senior judges of the Appellate Division.
The two judges who have been superseded are Justice Md. Abdul Matin and Justice Shah Abu Nayeem Mominur Rahman, the senior-most and the second senior-most judges, respectively. Sources say that both of them have gone on leave. Justice Md. Abdul Matin, who is scheduled to retire on December 26, has sought leave of absence up to December 25, while Justice Shah Abu Nayeem has sought leave of absence up to January 27.
Article 95 of the Constitution says that the chief justice of Bangladesh shall be appointed by the president. Unlike the Indian Constitution, the Constitution of Bangladesh is silent as to who the president shall consult for appointing chief justice.
The appointment of the chief justice is one of the two cases where the president is empowered by the Constitution to take a decision without the advice of the prime minister, the other case being the appointment of the prime minister. In all other cases, the president has to act in accordance with the advice of the prime minister [Article 48(3)].
Even in these two cases, the president is practically left with little or no choice to act independently. He has to appoint as prime minister the member of Parliament (MP) who is elected as their leader by the MPs of the majority party in Parliament.
In the absence of a judicial commission or board to recommend names for appointment as chief justice, the president has to go by the suggestion made by the law ministry, which processes the case for appointment of chief justice. The law ministry proposes a person for appointment as chief justice only after consultation with the prime minister.
There were mixed reactions to the appointment of Justice Haque as chief justice. As reported in some newspapers, the pro-opposition office bearers, including Supreme Court Bar Association (SCBA) president Khandker Mahbub Hossain and Secretary-General Barrister Badruddoza Badol, in a general meeting on September 28 strongly protested the supersession of the two judges senior to the newly appointed chief justice. They termed the appointment as politically motivated and added that it tarnished the image of the apex court.
Pro-government office bearers of the SCBA held a separate meeting under the chairmanship of A.K.M. Fazlul Haque Khan, vice-president of the SCBA, and thanked the president and the prime minister for appointing Justice A.B.M. Khairul Haque.
Others speculated that the government might have an intention of making the newly appointed chief justice the next chief advisor of the caretaker government after ending its tenure. They also felt that the government might want to administer oath to the two newly appointed additional judges -- Advocate Md. Ruhul Quddus Babu and Advocate Muhammad Khasruzzaman -- through the new chief justice. Earlier, Chief Justice Fazlul Karim had refused to do so.
Let us have a look into the process of appointment of chief justice of the Supreme Court in our neighbouring countries.
Article 124 of the Constitution of India provides that every judge of the Supreme Court shall be appointed by the president after consultation with those judges of the Supreme Court and of the High Courts in the states as the president may deem necessary for the purpose.
There is no specific provision as to the appointment of the chief justice of the Supreme Court. Therefore, the process was followed for the chief justice as well. This, in practice, could mean that the most senior judge in the Supreme Court would be proposed for appointment as chief justice of India and the president would normally approve the proposal.
Sources say that this convention was breached on a number of occasions, including the time when Indira Gandhi was the prime minister. After the emergency declared by the Indira Gandhi government was over, the Supreme Court, in a series of historical decisions, conferred a lot of powers to itself.
One of these was the declaration that the government would be bound to nominate only the senior-most judge of the Supreme Court for the position of chief justice, thereby ruling out any possible abuse by the government or its ability to influence the judiciary. Since then, the convention has been followed without any exceptions.
The president of Pakistan appoints the chief justice of the Supreme Court of Pakistan. But the requirement of the president's approval for appointment of the chief justice has become a mere formality with the passage of the latest amendment of the Constitution. The latest amendment, known as the 18th amendment to the Constitution, has brought substantial change in the process of appointment of chief justice of Pakistan.
The selection of a judge of the Supreme Court for appointment as chief justice is no longer left to the recommendation of a body or the wish of any individual, including the president. It leaves no ambiguity in the appointment of chief justice. The amendment clearly says that the president shall appoint the most senior judge of the Supreme Court as the chief justice of Pakistan.
The post of the chief justice of Bangladesh is the highest and the most dignified post in the country's judicial system. It also commands high respect from the people of all walks of life. Appointment to this post must be kept above controversy.

M. Abdul Latif Mondal is a former Secretary. E-mail: [email protected].