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November 8, 2003 

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Citizens' concern over appointment of judge in Supreme Court

Anisur Rahman

Whether Mr. Justice Syed Shahidur Rahman will be proved guilty or not before the Supreme Judicial Council is not our concern. Our question is how he got appointment having an allegation of misappropriation of funds of the Supreme Court Bar Association while he was office bearer of the association. Mr. Rahman was appointed as the judge of the highest court of the country on April 24 despite protest from various quarters including the senior lawyers of the Bar. It is not new here that the opposition protests every decision of the government including the appointment of judges in the Supreme Court. But for the first time corruption charge was raised not only by the opposition lawyers but also by the senior lawyers of the court against a person going to appointed as the judge of the Supreme Court, the last resort to justice. But the government did not pay any head to the allegation and appointed him at the cost of dignity of the court.

Loopholes in appointment procedure
Actually our constitutional provisions for the appointment of justice are not sufficient to spare from the government to appoint a person loyal to it. A person who has been practising law in the Supreme Court for ten years or who has been performing judicial functions in the territory of Bangladesh for ten years may be appointed as judge of the Supreme Court by the president. Here lies some loopholes for the government to manipulate the appointment procedure.

Firstly, it is not mentioned here that such person must have regular practice in the court. One may get enrollment in the Supreme Court by passing an enrollment examination. And after ten years he may get appointment as the judge of the court without having good record of practicing law if he is in the good book of the government.

Secondly, the Constitution does not define the term 'judicial officer'. According to the decision of the Masdar Hossain case (Secretary, Ministry of Finance Vs Md. Masdar Hossain, 20 (2002) BLD, AD) only the person who performs the judicial functions will be treated as the judicial officer. One who is the secretary of the Ministry of Law, Justice and Parliamentary Affairs shall not be treated as the judicial officer. But last time an officer of the law ministry was appointed as the judge of the Supreme Court which is clear violation of the directions of the abovementioned case.

Thirdly, the president is entrusted with the sole power to appoint judges in the Supreme Court. There is no check and balance on it. In our original Constitution of 1972 there was a provision for consultation with Chief Justice in the matter of appointment of judges in the Supreme Court which is out dated by the constitutional fourth amendment. And now the president has the unfettered power to appoint judges in the highest court which may be influenced by the decision of the government. Because, in our country decision of the president merely derails from the decision of the party in power. Although it is said that there is a convention that president should consult Chief Justice before exercising his power in appointment of judges, but it has no binding force.

Legacy of the Masder Hossain case
The decision of the Masdar Hossain case (Secretary, Ministry of Finance Vs Md. Masdar Hossain, 20 (2002) BLD, AD) emphasised on the independence of the lower judiciary as the appointment and other issues of the judicial officers of the lower judiciary are dealt by the executive. The judgement advocated for a Judicial Service Commission instead of the executive authority to deal with matters including appointment. Ok. It is alright that the appointments and other matters of the lower judiciary will be dealt by the Judicial Service Commission. What will be of higher judiciary?

It is already assumed that our higher judiciary i.e. the Supreme Court is independent in exercising its duty. " Judicial independence involves both individual and institutional relationships: the individual independence of a judge as reflected in such matters as security of tenure and the institutional independence of the court as reflected in its institutional or administrative relationships to executive and legislative branches of government"(Walter Valente Vs Her Majesty the Queen, 2 R.C.S. 1984, Masdar Hossain Case). It seems that our Supreme Court has the individual independence as the tenure of its judges is secured by the Constitution. But does it has the institutional independence? Can we say that the Supreme Court is institutionally independent when its judges who are the part and parcel of the court are appointed only by the executive decision i.e. the president and the court or the Chief Justice has no role to play?

May be Mr. Rahman was appointed as the allegation against him was subject to adjudication and Constitution does not prohibit such appointment. But such type of practice must be stopped to keep the highest judiciary beyond question. So the appointment procedure of judges of the Supreme Court should be changed and the sole power of the president should be shared. An Appointment Council represented by members of the opposition, civil society and obviously by the government may be introduced to make appointment in the Supreme Court more transparent. Because it seems that the judge of the Appellate Division who is in the good book of the government is appointed as the Chief Justice. Therefore consultation with Chief Justice is no more acceptable as there is a possibility of government interference in his decision making. Opposition's voice is always ignored in every appointment of the important posts of the country. This habit should give up. Supreme Court had the chance to give direction to the government in this regard in Masdar Hossain case, but ignored.

The Supreme Court had another option at least to direct the legislatures to revive the provision of "consultation with chief justice" in the matter of appointment of judges of the highest court, which was in the original Constitution. Independence of judiciary is the basic structure of the Constitution which is not attainable without participation of the Chief Justice in the appointment procedure. Therefore, re-introduction of the provision of the original Constitution will ensure the participation of the court in appointment procedure of its judges. And the highest court left it in a limbo.

Concluding remarks
The allegation of corruption against Mr. Rahman is to be investigated by the Supreme Judicial Council for the first time in the history of Bangladesh. And for the very reason all of us turn to the matter. But we must not avert from the main weakness of the Constitution, the appointment procedure of the judges of the highest court. It will be a blunder to expect independent and transparent judiciary if the sole power to appoint judges of the Supreme Court lies with the executive.

Anisur Rahman is an Assistant in Charge of the Law Desk.

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