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Politics of Judicial Appointment

It is imperative to have an objective, neutral and merit-based appointment system for the higher judiciary, stresses AHMED ZAKER CHOWDHURY.

Once known as the 'fountain of justice the Supreme Court of Bangladesh is one of the most important state institutions of our country. It is the ultimate arbiter of fundamental rights of the people in Bangladesh. Moreover, it is also the only institution which can hold the government accountable for use of its powers and conduct with diligence in affairs of the republic. Because of the very nature of its functions and its presumed neutrality, the Supreme Court of Bangladesh has long been a symbol of trust and respect for the mass.

Since its independence in 1971, Bangladesh has preserved its common law traditions. It does not have a separate constitutional court. It maintains a two-tier judicial system, along with special criminal and civil courts. The Supreme Court is at the apex of the judiciary. Below are district and magistrates courts. Traditionally, Bangladesh employed a slightly different appointment system for each of the three levels of courts: Supreme Court Justices, judges of subordinate courts, and the magistrates.

The career path for the subordinate court judges in district courts and the magistrates used to begin with passing an examination held by the Bangladesh Public Service Commission upon the completion of an undergraduate degree in law. Assistant judges were recruited through this process by the Ministry of Law, Justice and Parliamentary Affairs.

Judges of the Supreme Court are appointed by the president upon consultation with the Chief Justice of Bangladesh. Traditionally, the judges of the Supreme Court are appointed from amongst the practitioners and judges of the subordinate judiciary on the basis of their legal acumen, neutrality and professional reputation. The Supreme Court of Bangladesh has known many renowned jurists and judges. The relationship between the lawyers and the judges has always been that of mutual respect and admiration.

It is only in the last few years that appointment of judges in the higher judiciary of Bangladesh became a subject of political debate. Before the inception of caretaker government system, the judiciary largely remained in the background and seldom became a subject of political debates. However, with the introduction of the caretaker government system, which envisages under that the Chief Advisor and head of the caretaker government shall be the last retired Chief Justice of Bangladesh, the apex judiciary became the focal point of all political attention. The political parties suddenly engaged in the competition of appointing judges in the apex judiciary solely on political grounds. The doctrine of political question has evolved in constitutional jurisprudence in many countries which requires the courts from adjudicating on political issues in order to uphold the neutral and apolitical image of the judiciary. However, the impact of such political appointment has been felt very recently, when some judges of the higher judiciary have trespassed into adjudicating on politically disputed issues. This has adversely affected people's confidence in the judiciary and has questioned the long-standing politically neutral character of our judiciary.

Historically, there has hardly been any separation of powers between the executive and the legislative branch of our country. Therefore, the only avenue to challenge an arbitrary or illegal executive action is through judicial review under the writ jurisdiction of the Supreme Court. Inevitably, any government prefers a compliant judiciary over one which shall challenge its actions and powers. This tendency of successive governments, along with the caretaker government system has exacerbated the problem even further.

It is important to appreciate the multiple forces that underlie a functional democracy. One such force is existence of an apolitical and independent judiciary in the country. Independence of judiciary is essential because many of the most significant victories for freedom and justice have been won in law courts and the liberties of citizens are closely bound up with the complete independence of judges. Moreover, no judiciary can expect to obtain the acceptance and obedience to its judgements if certain badges of legitimacy are not present. Some of the most important badges include impartiality and independence of the judiciary, which can only be ensured by appointment of well-qualified judges, selected by a fair and objective criterion.

Since the appointment of judges of the Supreme Court is largely dependant on the whims and fantasies of the executive branch of the government, inevitably, this system of appointment has been abused for the last decade by appointing partisan individuals as high court judges without paying heed to important considerations like that of legal acumen, integrity, and competence. The independent Judicial Service Commission (JSC), created as a result of directions provided by the apex court in the Masdar Hossain case, has no power in appointing judges of the Supreme Court.

There is a growing interest in the way judges are chosen all around the world. Reform of the judicial selection process is on the political agenda in many countries, but the approach taken differs according to the type of system in place -- whether a career in judiciary, elected judiciary, or hybrid system. The issue is now sufficiently important and intellectually coherent to warrant a global review of current developments.

In European civil law systems such as France, Spain, and Italy there has been the increasing judicial activism of examining magistrates, most notable manifestations of which are evident from the investigation of criminal charges against political leaders. In many common law systems, such as Australia, Canada, and England and Wales, the development of human rights adjudication through judicial review has been quite significant. The appointment systems found in a study of the different countries can broadly be categorised into the following: (1) Career Judiciary (2) Elected Judiciary (direct and indirect) (3) Executive appointed judiciary and (4) Hybrid Systems. Overall, a balance is being sought between the independence of judiciary and a democratic legitimacy and accountability of the judges in the higher judiciary.

The countries where the judicial activism has developed within the established liberal democracies (e.g., Canada, Australia) the dilemma is how to increase judicial accountability by strengthening the link to the electoral process while avoiding the creation, strengthening, or revival of partisan political control. On the other hand, for systems in parts of the world such as Southeast Asia including Bangladesh and India, which are moving towards liberal democracy and away from strong state control, the challenge is to enhance the independence of the appointment process and to weaken the link with the executive while retaining the democratic legitimacy of their increasingly powerful judiciaries.

The most popular system for selection of judges around the world seems to be an independent commission for judicial appointments. Throughout common law and civil systems alike the use of commissions is increasingly explored as a solution to the difficult problem of achieving a balance between independence and accountability in judicial selection. Canada, South Africa, Scotland, England and Wales, and many civil law systems in Europe now use some form of commission for selecting judges. Their great strength lies in their adaptability, which allows them to be shaped to meet the particular requirements of each system.

It is humbly suggested that judicial appointment in the higher judiciary can be made by an independent body similar to the ones adopted by the more liberal and functional democracies. Alongside the already existing JSC, which selects judges in the subordinate courts, a separate Judicial Appointment Commission (JAC) can be established having the objective of appointing judges for the higher judiciary. Immediately after its inception the commission would provide strict guidelines as to what constitutes 'merit' for the purposes of appointment in the higher judiciary upon consultation with the existing Supreme Court Judges, eminent lawyers and the civil society.

To conclude, it is imperative to have an objective, neutral and merit-based appointment system for the higher judiciary in Bangladesh for the theoretical concept of separation of judiciary, as professed by the Masdar Hossain case, to yield any benefit in practice.

Ahmed Zaker Chowdhury is Barrister-at-Law, Lincoln's Inn and Associate, Dr.Kamal Hossain & Associates. His website is http://www.martindale.com Ahmed-Zaker-Chowdhury/157189150-lawyer.htm.