Despite having a constitutional obligation to enact a law regarding the recruitment of Supreme Court judges, the governments that ruled Bangladesh in the last 43 years until date have failed to formulate the law.
The Law Ministry took an initiative in 2012, during the ruling Awami League’s previous term, but it did not materialised because of the negligence of the ministry officials. The ministry took the move after a draft proposal of the law, placed by an opposition member in parliament on the private members’ day, had been rejected.
As a result, the initiative of enacting the “Superior Judicial Commission Act” to recommend the government on recruitment of Supreme Court judges has remained unresolved.
The recommendation of the Parliamentary Standing Committee on Law Ministry, which cleared the bill after scrutiny, also went in vain because of the rejection.
However, the present government is set to enact the law finally following the decision and instruction came during the government’s previous tenure.
Law Minister Anisul Haque told the Dhaka Tribune last week that the government was planning to enact the judges’ recruitment law. “But it may take some time as the ministry has already initiated preparing the draft law on removing the Supreme Court judges after amending the constitution.
“It is too hard to prepare two draft laws at the same time. It will never be logical too. So, we will prepare the recruitment draft after completing the other.”
Citing the necessity of enacting the recruitment law, former law minister Shafique Ahmed told the Dhaka Tribune yesterday that the government should initiate preparing it immediately in line with the constitution which was ignored earlier.
“If enacted, the new law will help the government coming out of debate and controversy regarding the recruitment of Supreme Court judges,” he added.
Jatiya Party leader Mojibul Haque Chunnu, now state minister for labour and employment, had tabled a draft bill on the judges’ recruitment in the House in ninth parliament. But the bill was rejected as it was a private members’ bill.
“Later, the Law Ministry instructed the ministry officials to prepare a draft law following the one put forward by Chunnu. Though the ministry started working to prepare the draft, they failed to complete it,” Shafique said.
He hoped that the ministry would consider Chunnu’s bill.
According to article 95(2)(C) of the constitution, a person shall not be qualified for appointment as a judge unless he/she is a citizen of Bangladesh and has such qualifications as may be prescribed by “law” for appointment as a judge of the Supreme Court.
Jatiya Party leader Chunnu told the Dhaka Tribune last week that he had tabled the draft bill to find qualified and efficient judges for the apex court.
After examining the bill, the Parliamentary Standing Committee submitted a report to the House with some observations. The committee members and legal experts including then law minister Shafique praised it. “But, finally it was rejected in parliament since it was a private members’ bill,” Chunnu said.
Shafique then suggested him to change the provision of judges’ entry-level age from 50 to 45 years and academic results to be all through second division or class or same level of grade point.
Chunnu said: “There was no reason to ignore the bill after getting experts’ opinion and support of the parliamentary watchdog. The present government may re-initiate the procedure following the draft bill.”
According to the draft, applicants interested to become Supreme Court judges must be a Bangladesh national with minimum masters degree in law from accredited universities.
A Superior Judicial Commission will scrutinise the applications and recommend the government to recruit qualified persons for the office. The Law Ministry will forward the commission’s proposal, with the consent of the chief justice, to the president for approval.
The candidates must not have any relation or involvement with any political party as a member. The persons who were convicted on criminal cases or punished for moral outrage, serving in any profitable posts of the state, declared fuddled by any court and who took citizenship of any other country would not be qualified for the position.
Moreover, the senior, efficient and neutral judges of the High Court will be considered for the Appellate Division as appellate judges.
The draft proposes that the chief justice will be the chairman of the seven-member Superior Judicial Commission. The senior-most judges from the Appellate Division and the High Court will be its members.
The speaker will nominate a parliament member as its member. The other members are the chairman of Bangladesh Public Service Commission, the attorney general and the president of Supreme Court Bar Association.
The commission will recommend two names against a post of the Supreme Court judge to the president for recruitment. To finalise the recommendations or any other reasons, the commission will sit every six months, says the draft bill.
