A larger bench of the High Court Division yesterday issued a rule on the government asking it to explain why the non-appointment of additional judges should not be declared illegal.

The bench also asked it to clarify within six weeks why it should not be directed to confirm the additional judges "in accordance with

the recommendation, if any, of the chief justice".

The ruling followed the hearing of three writ petitions by as many former additional judges -- Md Shamsul Huda, Faruque Ahmed and Hasan Foyez Siddique. They were not given confirmation of service recently.

Two lawyers -- Idrisur Rahman and Farid Ahmed -- separately filed similar writs.

Last month, the petitions were submitted in quick succession to two Division Benches, each comprising two judges. When both benches felt embarrassed to hear the writs, the petitions were submitted to a third bench.

The bench forwarded the petitions to the chief justice for a decision on April 19.

On April 20, the chief justice constituted a larger bench with three members -- justices Hamidul Haque, Syed Amirul Islam and MM Ruhul Amin. The bench heard the petitions yesterday.

On behalf of a petitioner, Dr Kamal Hossain cited examples of India and Pakistan where judges were appointed on the basis of the chief justice's recommendations as a constitutional convention. He read out verdicts of different cases of the countries relating to appointment and confirmation of judges.

Ignoring the chief justice's recommendations is tantamount to disgracing the Supreme Court, he argued, adding, if it was allowed, the independence of the judiciary would cease to exist.

It also contradicts the eighth amendment to the constitution that says 'independence of the judiciary is the fundamental pillar of the constitution'.

Referring to the Appellate Division verdict on the Masdar Hossain Case of 1999, Dr Kamal argued that the independence could not be compromised by any kind of contrary practice.

An additional judge is to satisfy

the chief justice through performing his functions for becoming a judge. He does not require satisfying some 'invisible forces' outside the judiciary to get his job confirmed, he said.

Defending the government, Attorney General AF Hasan Arif said as per the fourth amendment to the constitution, the government is not bound to consult the chief justice over appointment of judges.

None other than the president and the chief justice really knew about the recommendations of the chief justice for confirmation of service, he argued.

On behalf of other petitioners, advocates Azmalul Hossain and Idrisur Rahman also presented their arguments.

Dr Kamal was assisted by Barrister Tanjibul Alam, while the attorney general was aided by additional attorneys general Mohammad Ali, Fida M Kamal and Abdur Razzak Khan.

Discontent brew in the judiciary over the appointments of judges when the government declined to confirm the service of six additional judges on February 20.

It is alleged that the chief justice recommended for confirmation of their service, but the government ignored the suggestions in a break with constitutional convention.

These judges were appointed for two years at the fag end of the past Awami League government.