Former judges, lawyers, law experts and politicians, including a former judge of the Supreme Court Justice Naimuddin Ahmed, chairman of the Bar Council Rokonuddin Mahmud, former presidents of the Supreme Court Bar Association (SCBA) T H Khan and Shafiq Ahmed, former attorney general AF Hassan Arif, and AL presidium member Suranjit Sengupta, thanked CJ Ruhul Amin for his candid remarks, and called for immediate steps to redress the wrongs done to the higher judiciary.

Former CJ and chairman of the Law Commission, Justice Mustafa Kamal, has suggested formation of a council of elders, with former CJs and retired judges of the Supreme Court, to look into the allegations against, and conduct of, the judges. Others have laid emphasis on development of an effective mechanism to appoint judges to the higher judiciary.

Article 152 of the constitution says that "judge" means a judge of a division High Court Division or Appellate Division of the Supreme Court. The judiciary is one of the three basic pillars of the state, the other two being executive and legislature.

The CJs remarks speak of the dismal state of affairs in the appointment of judges to the higher judiciary. Now the question that may arise is: What led to the irregularities in the appointment of judges?

First, the framers of the constitution that was adopted on November 4, 1972, and came into force on December 16 of the same year, incorporated a provision in the constitution requiring the president to consult the CJ in appointing judges.

This was in consonance with the constitutional provisions in India and Pakistan regarding appointment of judges to the Supreme Court and High Court. But the provision was omitted by the Constitution (Fourth Amendment) Act, 1975, by the then AL government.

During the past three decades or so, successive governments have found the deletion of that provision to their advantage and, therefore, did not take any initiative for its revival. Consequently, in the past thirty plus years, there have been continuous allegations of politicization of appointments to the higher judiciary. Not that the allegations are totally baseless. The recent remarks made by the CJ bear testimony to this.

Second, for appointment of judges to the higher judiciary, the Constitution of Bangladesh does not contain any provision for seeking advice and consent of parliament. President of the United States appoints the justices of the Supreme Court with the advice and consent of the senate or for obtaining recommendation of the Judicial Service Commission (JSC).

The president of South Africa, after consulting the JSC and the leaders of parties represented in National Assembly, appoints the CJ and DCJ of the constitutional courts, and after consulting the JSC, appoints the president and deputy president of the Supreme Court of Appeal, and appoints judges of all other courts on the advice of the JSC or for obtaining the CJ's recommendation and acting on it. This has given a walkover to the executive in the appointment of judges.

Third, appointment as an additional judge is, in fact, the entry level in the higher judicature. In the absence of constitutional obligation for receiving consent of parliament, or for obtaining recommendation of the JSC and/or Judicial Council, or for consulting the CJ for recommendation, appointment of additional judges to the High Court Division has been highly politicized.

Available sources, however, seem to suggest that politicization of appointment of additional judges reached a new height during the term of the immediate past BNP-led alliance government.

Out of the 68 confirmed judges in the High Court Division, the appointments of 41 were confirmed during the regime of the immediate past BNP-led alliance government. They had also appointed 45 additional judges in the High Court Division.

Fourth, Article 95 of the Constitution empowers the president to appoint the CJ and other judges. But, according to Article 48 (3), the president in the exercise of all his functions, save only that of appointing the prime minister and the CJ, shall act in accordance with the advice of the prime minister. The president, therefore, cannot exercise his authority in the matter of appointment of judges. He has to depend on the advice of the law ministry in the appointment of the CJ.

Last but not the least, in our neighbouring countries India and Pakistan, a High Court judge cannot be appointed a judge in the Supreme Court unless he has served for at least five years as a judge in one or more High Courts. The absence of such a provision in our constitution has given room for appointing a high court judge as an appellate judge on political consideration.

Under these circumstances, it is high time for enacting a law for appointing competent, experienced and non-partisan persons as judges in the higher judiciary. Several quarters have already made suggestions on the issue, and these, inter alia, include:

• Constitution of an independent Appointment Board to help the CJ to recommend persons to be appointed additional judges;
• Constitution of the Judicial Council with the CJ as ex-officio chairman, the law minister, two senior-most judges of the Appellate Division as ex-officio-members, and one distinguished jurist appointed by the president;
• Reintroduction of the constitutional provision requiring the president to consult the CJ for appointment of judges, as well as for acting upon the recommendation of the CJ.

In view of the remarks recently made by the CJ regarding irregularities in the appointment of judges in the higher judiciary in the past, the caretaker government owes a responsibility towards correcting the anomaly and framing a law for recruitment of competent and non-partisan persons in the higher judiciary. A presidential ordinance may do the needful.

M. Abdul Latif Mondal is a former Secretary to the Government.