The Supreme Court (SC) yesterday upheld the High Court (HC) judgement directing the government to reappoint 10 HC judges, who were not confirmed during the BNP-Jamaat rule despite the chief justice's positive recommendations.
The judges were appointed as additional HC judges for two years at the fag-end of the previous Awami League government.
The apex court however did not allow the government to give them seniority, although the HC in its verdict directed to that end.
The Appellate Division also said the judges will have to take fresh oath and their appointments will be considered after the oath.
The judges are justices Md Abdus Salam, Md Mamtazuddin Ahmed, Md Shamsul Huda, Faruque Ahmed, Hasan Foez Siddique, Md Abdul Hye, Md Abdur Razzaque, Marzi-ul Huq, Md Nizamul Huq and AHM Shamsuddin Chowdhury.
The lawyers on both sides of the case expressed satisfaction with the SC judgement and said there is no legal bar to reappointing them now.
One of the 10 judges told The Daily Star they would join their offices after the government gives them appointment in light of the latest verdict.
He added four of their contemporary colleagues, who were also not confirmed and did not opt for legal battle, can get the benefit from yesterday's verdict and be reappointed.
The five-member full bench of the Appellate Division headed by Chief Justice MM Ruhul Amin yesterday morning delivered the judgement with a four-point guideline. The bench also disposed of all the four leave to appeals filed by 29 sitting HC judges and the then caretaker government against the HC verdict.
The bench observed: "In the matter of appointment of judges under Article 98 and 95 of the Constitution the convention of consultation having been recognised and acted upon has matured into constitutional convention and is now a constitutional imperative."
Such consultation is inherent in our constitutional scheme and is ingrained in the principle of independence of the judiciary being essentially the basic structure of our Constitution in the principle of rule of law, it added.
According to the observation, "In the matter of selection of judges the opinion of the chief justice should be dominant in the area of legal acumen and suitability for the appointment and in the area of antecedents the opinion of the executive should be dominant. Together, the two should function to find out the most suitable candidates available for appointment through a transparent process of consultation."
Oath under Article 98 and 95 of the Constitution is separate and distinct and is required to be administered and made before one enters upon an office and a judge will be deemed to have entered upon the office immediately after he makes the oath and not before, in both cases, it said.
Dr Kamal Hossain and barrister Rokanuddin Mahmud, counsels for the 10 judges, told newspersons their clients can discharge judicial functions as regular judges of the HC now.
It has been recognised through the apex court judgement that the recommendations of the chief justice in appointing the judges is a constitutional convention and it will have to be followed in the appointments of judges in future, Kamal said.
Advocate TH Khan and barrister Moudud Ahmed, counsels for 29 litigant HC judges, said the SC did not allow seniority to the 10 judges as their clients challenged the HC verdict regarding that.
They also said the present government could have given fresh appointments to them excluding the seniority without moving to the SC.
A three-member special bench of the HC on July 17 last year, upon a writ filed by advocate Idrisur Rahman on behalf of the 10 HC judges, declared illegal and unconstitutional the BNP-led government's not confirming the services of the judges and directed the then caretaker government to reappoint them with seniority.
The caretaker government and 29 HC judges filed four separate leave to appeals with the SC against the HC verdict.
Attorney General Mahbubey Alam has recently prayed to the court to withdraw the government appeals.