The next Chief Justice: Who is in discussion, what does constitution say

The current Chief Justice Dr. Syed Refaat Ahmed is retiring on December 27. He was the 25th Chief Justice of Bangladesh. Discussions are underway on who will be appointed as the 26th Chief Justice after his retirement.

According to a long-standing tradition, the President has been appointing any one of the judges of the Appellate Division as the Chief Justice. In this case, seniority is considered. The first or second person in terms of seniority has been appointed as the Chief Justice in the past. Apart from Chief Justice Dr. Syed Refaat Ahmed, there are currently six judges in the Appellate Division of the Supreme Court. The names of Justice Md. Ashfaqul Islam and Justice Zubair Rahman Chowdhury of the Appellate Division are being discussed the most as the 26th Chief Justice of the country. They are the first and second in terms of seniority although there was an exception in the appointment of the 25th Chief Justice.

After the then Prime Minister Sheikh Hasina left the country in the July uprising, six judges of the Appellate Division, including the Chief Justice, were forced to resign. At that time, in response to the demands of the protesters, the interim government appointed Dr. Syed Refaat Ahmed, the senior judge of the High Court Division, as the 25th Chief Justice of the country. This was the first time in the country's history that a judge was directly appointed as Chief Justice from the High Court Division rather than from the Appellate Division. However, the recommendation of the Judicial Reform Commission formed by the current interim government has said that the most senior judge of the Appellate Division will be the Chief Justice. And the July Charter has said that one of the two senior judges will be the Chief Justice. Although the Constitution gives the power to appoint the Chief Justice to the President, he can appoint any judge of the Appellate Division as Chief Justice. In this case, the Constitution does not provide for appointment based on seniority.
Article 97 of the Constitution states, ‘If the office of Chief Justice becomes vacant or if the Chief Justice is found to the satisfaction of the President to be incapable of discharging his duties due to absence, illness or any other reason, the senior-most judge of the Appellate Division shall perform such duties until another person joins the same office or until the Chief Justice resumes his duties, as the case may be.’

According to Article 95 of the Constitution regarding the appointment of the Chief Justice, the President shall appoint the Chief Justice and the President shall appoint other judges in consultation with the Chief Justice. Article 95(1) of the Constitution states, ‘The Chief Justice shall be appointed by the President and the President shall appoint other judges in consultation with the Chief Justice.’

Both Justice Md. Ashfaqul Islam and Justice Zubair Rahman Chowdhury of the Appellate Division, who are under discussion for the appointment of the Chief Justice, were appointed as judges in the High Court Division during the previous BNP government. Among them, Justice Md. Ashfaqul Islam was born on July 15, 1959. His ancestral home is in Harirampur, Manikganj. Justice Md. Ashfaqul Islam's father, Justice AKM Nurul Islam, was the Vice President during the tenure of former President Ershad. And his mother, Jahanara Arju, was a poet and writer who received the Ekushey Padak. He completed his graduation and post-graduation in law from Dhaka University. Md. Ashfaqul Islam became a lawyer of the District Court in 1983. In 1985, he became a lawyer of the High Court Division of the Supreme Court of Bangladesh. On August 27, 2003, he was appointed an additional judge of the High Court Division. Then on August 27, 2005, he was made a permanent judge of the High Court Division. He was elevated to the position of judge of the Appellate Division from the High Court in December 2022.
Justice Zubair Rahman Chowdhury was born on May 18, 1961. His father, the late AFM Abdur Rahman Chowdhury, was also a judge of the Supreme Court. After completing his LLB Honors and LLM degrees from Dhaka University, he did another Masters in International Law in the UK. Zubair Rahman Chowdhury was enrolled as a lawyer in the Judges' Court in 1985 and in the High Court Division of the Supreme Court in 1987. On August 27, 2003, Zubair Rahman Chowdhury was appointed as an additional judge in the High Court Division. Two years later, his appointment in the High Court Division became permanent. On August 12, 2024, President Mohammad Shahabuddin appointed him as a judge of the Appellate Division. He was then sworn in on August 13, 2024.

In this regard, Barrister Omar Farooq, a senior lawyer of the Supreme Court, told Views Bangladesh: "The President has the power to appoint the Chief Justice under the Constitution. He can appoint any judge of the Appellate Division as the Chief Justice. In this case, the Constitution does not provide for appointment based on seniority. However, according to tradition, the first or second person may be appointed based on seniority."

Senior lawyer of the Supreme Court, Manzil Murshid told Views Bangladesh: "The current Chief Justice Dr. Syed Refaat Ahmed is retiring on December 27, the President will appoint the 26th Chief Justice of the country immediately after that. The current Chief Justice, despite not being working in the Appellate Division, became the Chief Justice directly from the High Court under a special situation. However, this time the Chief Justice may be appointed based on seniority from the Appellate Division."

Attorney General Md. Asaduzzaman told Views Bangladesh: "The 25th Chief Justice of the country, Dr. Syed Refaat Ahmed, will retire on December 27. Then the President will appoint the 26th Chief Justice. This is what is said in the Constitution. Although there is no mention of seniority, there is a tradition in this regard. Now let's see who the President appoints as the 26th Chief Justice."