Law Alter views
Article 95(2) of the Constitution revisited
Mohammad Rayhan Uddin
JUDICIARY is considered to be the least dangerous organ of a society. It is vested with the task of dispensation of justice according to law. People resort to the judiciary to get legal and equitable remedy to redress their grievances. But a doubt is cast upon the efficacy of this least dangerous organ of the state if appointment procedure of the judges is saddled with extraneous considerations rather than qualification.
We know that in case of appointment of judges in the higher judiciary, the requirements envisaged in Article 95(2) of our Constitution have to be fulfilled. Article 95(2) of our Constitution stipulates that “A person shall not be qualified for appointment as a judge unless he is a citizen of Bangladesh and (a) has, for not less than ten years , been an advocate of the supreme court; or, (b) has, for not less than ten years, held judicial office in the territory of Bangladesh; or (c) has such other qualifications as may be prescribed by law for appointment as a judge of the supreme court.”
Moreover, if the President is satisfied that the number of the judges of a Division of the Supreme Court should be increased for the time being, the president may appoint one or more duly qualified persons to be additional judges of that Division for such a period not exceeding two years as he may specify.
Recently, the Government has appointed seventeen more additional judges in the High Court Division. It is alleged that out of these seventeen additional judges, two are not competent to become the additional judges under Article 98 of Our Constitution. Though we know that there are no specific requirements prescribed for the appointment of additional judges in the higher judiciary, nevertheless the provisions mentioned in Article 95(2) of our Constitution is applied in case of appointment of additional judges. To become a judge in the higher judiciary, one has to practice for at least ten years as an advocate of the Supreme Court; but it's a matter of regret that the recent recruitment has not done justice to this requirement in every cases.
Our constitution was adopted on 4th November, 1972 & came into force on 16th December, 1972 and there are almost two thousand legislations in our country since then, but there is no specific law relating to the appointment of judges and their qualification.
Most of the time, it is noticed that 'appointment of judges' receives political overtones. Because of this reason, the most talented lawyers and judges in the sub-ordinate court hardly get chance to become judge in the Supreme Court of Bangladesh. In this backdrop, the following points are to be seriously taken into consideration by the policy makers:
-To enact a separate law relating to the appointment of judges and their qualification as indicated in Article 95 (2) (c).
-To ensure the selection of at least 50% judges from the sub-ordinate court in case of appointment of judges in the higher judiciary.
-To amend the provisions mentioned in Article 95(2) of our Constitution. The tenure of an advocate of the Supreme Court & a judge held judicial office in the territory of Bangladesh may be increased with an additional focus on the submission record in their practice life and their contribution to the life of law.
Article 95(2) of our Constitution only provides that 'to become a judge of the Supreme Court, a person has, for not less than ten years, to be an advocate of the Supreme Court.' Though there is a long-constitutional practice that the President shall consult with the Chief Justice, but in fact it doesn't work. It apparently seems that once one becomes an advocate of the higher court, and he doesn't necessarily have to engage in actual practice. After ten years even a non-practicing lawyer may assume the sit of the bench as a judge in the Supreme Court! Precisely for this reason, the provision of Article 95(2) (a) of our Constitution has to be amended slightly by adding a word “practicing” before the word 'advocate' (i.e. practicing advocate).
As the practice goes, a judge of the sub-ordinate court becomes competent to become a judge of the Supreme Court whenever he holds the post of District Judge (DJ) or Additional District Judge (ADJ). In reality, it takes approximately fifteen to twenty years to become a DJ or ADJ in the sub-ordinate court. So, it appears that the provision of Article 95(2) (b) of our Constitution should be changed a little by adding a word 'at least fifteen to eighteen years' in place of 'ten years'. The other points in matter of judges' appointment may be:
-To sketch out a constitutional mechanism for ensuring effective consultation in the event of appointment of justice in the higher judiciary.
-At least forty-five years has to be completed to become a judge of the Supreme Court.
-Hold a good academic record/result in his/her educational level (i.e. from S.S.C. to Masters).
There is no better test of excellence of a state than to examine its administration of justice system. Good judges can make the law sing and can even interpret a bad law for the greater interest of the people. Being the watchdog of people's right we should take care that the court remains an arbiter of justice and excellence.
The writer is a student of Law, Premier University, Chittagong.