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“All Citizens are Equal before Law and are Entitled to Equal Protection of Law”-Article 27 of the Constitution of the People’s Republic of Bangladesh

Issue No: 43
November 10, 2007

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Law Analysis

Appointment of SC judges : Needed a fresh approach

Barrister Moyeen Firozee

Integrity and dignity of a judge are the most important qualities of sanctity in earning respect from the people. If appointment of a judge is shrouded in contention, however excellent s/he may be in deliberation, s/he can never earn the admiration that s/he deserves as a judge. Although Masdar Hossain judgement lays the stepping stone in aligning the constitutional position regarding, inter alia, appointment of judges of the subordinate judiciary through a Judicial Service Commission, unfortunately, the very process of appointment of the judges of the Supreme Court remains in the hands of the Executive and thereby political manipulation in appoint their can seriously damage the image and efficacy of the judiciary.

When the Constitution talks about independence of judiciary, it emphasises on the independence of the individual judge rather than the institution. Article 94(4) reads “…the Chief Justice and the other Judges shall be independent in the exercise of their judicial functions.” Likewise, Article 116A reads “…all persons employed of the judicial service and all magistrates shall be independent in the exercise in their judicial functions.” Institutional independence of Judiciary can be found by way of necessary implication from Article 22 as well as from the spirit of Part VI of the Constitution coupled with judicial pronouncements. In Eight Amendment Case independence of Judiciary has been accepted as one of the basic structures of the Constitution. In Masdar Hossain case, the Appellate Division held, endorsing a Canadian Supreme Court judgment, “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 the executive and legislative branches of government".

Judiciary is probably the only organ among all the State functionaries where a person plays the most crucial role from his/her individual perspective and s/he is personally featured most in discharging duties. Once a judge is appointed in the Supreme Court with manipulation, political or otherwise, s/he can cause enormous harm to the institution as well as the nation, specially when the Constitution guarantees security of his/her tenure and due to lack of transparent system of ensuring accountability of a judge.

Under Articles 95 and 98 of the Constitution the President is empowered to appoint judges in the Supreme Court. But such power of the President ultimately falls in the hands of the Prime Minister during the political government as the President is required, under Article 48(3) of the Constitution, to act in accordance with the advice of the Prime Minister in appointing judges, except Chief Justice. Although, conventionally, chief Justice is consulted before appointing High Court Judges, such requirement is neither mandatory, nor was often followed in recent decade.

While Judicial Service Commission is constituted to remove executive's influence in appointing judges in the subordinate judiciary; and while the control of their conditions of service shall be exercised by the President in consultation with the Supreme Court under Article 115 of the Constitution, it is utterly undesirable that judges of the Supreme Court are appointed by the executive specially when they have the primary responsibility to ensure independence of Judiciary.

In India power to appoint Supreme Court Judges passed into the hands of judiciary and role of the executive becomes merely formal. Article 124(2), inter alia, says, “every Judge of the Supreme Court shall be appointed by the President … after consultation with such of the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary for the purpose …”

In 1993, in Supreme Court Advocates-on-Record Association's case and later in 1998 in another case, Indian Supreme Court decided that 'consultation' refers to in Art.124(2) means 'concurrence'. After confirming that the concept of the primacy of the Chief Justice of India is essential, the Supreme Court of India devised a specific procedure for appointment of Judges in the interest of “protecting the integrity and guarding the independence of the judiciary.” Now the Chief Justice of India and his four senior-most colleagues, generally referred to as the 'Collegiums' for the purpose of appointment of Judges to the Supreme Court, make recommendation to the President. Apart from appointment of Chief Justice, the President is bound to follow the recommendation made by the Collegiums.

Although in Articles 95 and 98 of the 1972 un-amended Constitution of Bangladesh contained provision of consultation with Chief Justice for appointment of other Supreme Court judges, such provision was removed by the Second Proclamation (Tenth Amendment) Order 1977. However, by convention such consultation was made even after 1977, but without having any meaningful or binding effect.

Enormous and arbitrary power of the judiciary without any accountability prompted significant criticism in India as recent events have shown that there is considerable corruption in the judiciary, even at the top. In the Times of India editorial, it has been written on October 12, 2007 that many of the senior most judges of the Supreme Court of India have their own protégés to promote and usually the best people do not get selected. They are also often at loggerheads with each other which also greatly delays the selection. The whole process is also totally ad hoc and arbitrary and no system for comparative evaluation of the suitability of the candidates is followed.

In the UK, for last 900 years, the Lord Chancellor had the sole power to select which judge to be appointed by the Crown. In 2005, by Constitutional Reform Act, an independent Judicial Appointments Commission (JAC) has been set up to select judicial office holders including High Court judges solely on merit and good character, through fair and open competition, from the widest range of eligible candidates to officially enshrine judicial independence in law and to enhance accountability, public confidence and effectiveness. JAC appoints judges based on some core qualities and abilities including intellectual capacity (professional expertise, understanding and analytical ability, sound knowledge of the law and its underlying principles etc.); personal qualities (integrity and independence of mind, sound judgement, decisiveness, objectivity, fairness, patience etc.); communication skills; and efficiency.

Vacancy for judicial office including High Court Judges and other senior positions are advertised and JAC invites applications along with references from candidate's nominated referees and other experts. A short listing is made after scrutiny of extensive track record, information supplied by the candidates and from references. Short listed candidates are called for an interview before a high level expert panel and they assess all the information about each candidate and prepare reports. Reports of the candidates likely to be considered by the Commission are sent to the Lord Chief Justice and another experienced expert. For candidates likely to be recommended for appointment, a series of good character checks are done with the Office for Judicial Complaints (a body dealing with complaints against existing judges), Police, Revenue and relevant professional bodies. The Commission considers all the information gathered and recommends to the Lord Chancellor one candidate for each vacancy. The Lord Chancellor can reject that recommendation but he is required to provide his reasons to the Commission and has to refer to JAC for selecting an alternative candidate.

To modulate the method of appointment of judges in our Supreme Court, guidance may be taken from both Indian and English experience. A 'Supreme Court Judges Appointment Commission' may be formed consisting of one retired Chief Justice as chair, three retired Supreme Court Judges (at least one retired Appellate Division Judge, if available), Attorney General, Vice Chairman of Bar Council, President of the Supreme Court Bar.

For appointment of judges in the Supreme Court clear guidelines should be made. Appropriate legislation should be enacted, as contemplated in Art.95(2)(c) of the Constitution, to set out the selection criteria. The Appointment Commission must have the power to formulate the other qualifications of judges with sufficient clarity for making a sound decision to appoint an appropriate person.

Registrar of the Supreme Court will make a request to the Commission, with requisite numbers of judges, for appointment. An advertisement should be made by the Appointment Commission inviting application from persons qualified under Art.95(2)(a)&(b) of the Constitution who are required to supply information set out by the Commission and will be interviewed by the entire quorum of Commission. The Commission will prepare a short list (double the requisite number) and, in turn, will forward the listed candidates' information along with its own observation to the Chief Justice who will consider the short listed candidates' aptness with 'Collegiums' of judges consisting of all the judges of the Appellate Division and two senior most High Court Judges. Recommendation of the 'Collegiums' will be placed before the President for formal appointment. The President may send the recommendation, partly or wholly, back to the 'Collegiums' for reconsideration. If the 'Collegiums' find no plausible reason for reconsideration, they will forward their final recommendation to the President, who would appoint them as a matter of formality.

Judges, who will be appointed through a transparent and acceptable system, will always be respected, loved, feared and admired. People's faith on the wisdom of the judges and confidence on the system of their appointment do play pivotal role in establishing an effective and independent Judiciary. Independence of Judiciary paves the way to ensure “justice and fairness” to all. People will always be in doubt about receiving justice and fairness from a judge who was improperly appointed. Independence of Judiciary can truly be achieved when the judiciary wins the heart of the people by ensuring fairness in all aspects of its affairs.

The writer is an advocate of the Supreme Court of Bangladesh.


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