Modernising judicial appointment process
The Lord Falconer of Thoroton, the then secretary of state for Justice, United Kingdom summed up their judicial appointment process as, “…in a modern democratic society, it is no longer acceptable for judicial appointments to be entirely in the hands of a government minister. For example, the judiciary is often involved in adjudicating on the lawfulness of the actions of the executive. And so the appointments system must be, and must be seen to be, independent of government”.
In democratic system every state contains three organs, namely the legislature, the judiciary and the executive. The judiciary is called a cornerstone of constitution, playing a vital role in upholding the rule of law. Independent judiciary is a sin qua non (essential ingredients) of democratic government. Independence of judiciary means a fair and neutral judicial system of a country, which can afford to take its decisions without any interference from executive or legislative branch of government. The history of independent judiciary of Bangladesh and UK's judicial appointment process is not so old. The first Chairman of Judicial Appointment Commission commented during her first speech in November 2006, “for the first time in its 1,000-year history, the judiciary is fully and officially independent of the government. This has been described as the most significant change since Magna Carta in 1215”.
The history of independent judiciary of Bangladesh started from the Masdar Hussain case. The last caretaker government formally gave independence on 1 November 2007. The judiciary of Bangladesh consists of two divisions, the Supreme Court and the subordinate courts. The highest court in Bangladesh, the Supreme Court, is actually composed of two divisions; the Appellate Division and the High Court Division. The functions of the two are distinct, and separate appointments of judges are made to each. The Chief Justice of the Supreme Court sits in the Appellate Division and is the Chief Justice of Bangladesh; there is no separate Chief Justice of the High Court Division. Part VI of the Bangladesh Constitution explains Judiciary. The Article 95(1) of constitution vested power to President to appoint its judges. Conventionally the Law Minister selects Chief Justice from the appellate division judges. He requests the President to give oath to the Chief Justice. President, sometimes, in consultation with the Chief Justice appoints other judges of the Supreme Court. The president also gives a list to Chief Justice and requests to give oath to High Court judges. This is the normal procedure of judicial appointment of Higher Judiciary. Recently the unique non-party caretaker government has made the posting of chief justice highly political. This process created a political deadlock in 2006-07, the last term of caretaker government. Even the other judges' appointment process is secret sounding and threatening independent judicial status.
The Daily Star on 25 February 2010, (Independence of the Higher Judiciary, by Professor Asif Nazrul) wrote that 'In India and Pakistan, the decision to increase number of judges in the Higher Judiciary is a matter of parliamentary scrutiny and informed debate, in Bangladesh in the name of President it is the Law Ministry which decides whether and if so how many new judges would be recruited'.
The former Prime Minister of Britain, Gordon Brown on 3 July 2007 said, “For centuries, they [the Executive] have exercised authority in the name of the monarchy without the people and their elected representatives being consulted. So I now propose that in 12 important areas of our national life, the Prime Minister and the Executive should surrender or limit their powers, the exclusive exercise of which by the Government of the day should have no place in a modern democracy… and I propose that the Government should consider relinquishing its residual role in the appointment of judges” .
To make judicial appointment process fair and transparent, the Labour Government introduced Judicial Appointment Commission (JAC) by the Constitutional Reform Act 2005. The Commission is made up of 15 members. This Act also sets the Supreme Court as the Highest court of UK and Lord Chief Justice as head of Judiciary. The Lord Chancellor (Law Minister) request to fill up this post and may request any name to the commission. On the request the commission appoints four panel members to fill up the post of Chief Justice. To be a part of UK judiciary is highly prestigious and it has a lucrative salary structure. The JAC appoints other judges through an open competition. The days of 'secret soundings' and 'taps on the shoulder' are long gone; today's judicial applicants will be assessed on who they are, not who they know. In a comment, Baroness Usha Prashar, the Chairman of JAC stated that the Constitutional Reform Act also created a Judicial Appointments and Conduct Ombudsman to investigate any complains from candidates for judicial office. Even members of Judicial Appointment Commission are not out of the ombudsman process.
Bangladesh Supreme Court Bar Association arranged a seminar in 2007 titled 'Judicial reforms and independence of judiciary'. In the seminar former chief justice Mahmudul Amin Chowdhury proposed to form a committee to appoint judges. He also proposed that a seven-member committee should be formed and the committee 'should also include two judges from the Appellate Division and the High Court Division each, the attorney general and the president of the Supreme Court Bar Association'. (See New Age, August 11, 2007, p1). Barrister Amir-Ul-Islam, the then president of Bar, echoed the proposal and criticised the dubious ways of appointment of judges of the Supreme Court and supported Justice Chowdhury's suggestion of selection of judges by a selection committee.
Recently, most newspapers and concern scholars are visualising our judicial appointment process. It is like UK's old 'secret sounding' and 'tap on the shoulder' process. The media also repeats that our system is that of 'who they know' not 'who they are'. Merit and good character are sidelined. But for better democracy and upholding rule of law the higher judicial appointment system needs to be transparent and democratic. The main actor of the legal system should consider overall circumstances. They should keep in mind that Bangladesh is now under the threat of 'Failed State' by foreign policy magazine. The human rights of the people are in vulnerable position (October Odhikar Report). The freedom of speech is under threat. The people are scared about 1/11. We should remember our past and take lessons from history. If the United Kingdom can change their system and exclude Lord Chancellor from the chief justice, which is older than democracy, older than parliament, older than Magna Carta, older than the Norman Conquest, why can't we change their colonial system.
The writer is an ex student of Dhaka University and research Student of University of London, UK.