According to a report published in Dhaka Tribune on September 25, Law Minister Anisul Hoque said: “The government was planning to enact the judges’ recruitment law.” We welcome the law minister’s statement in view of the fact that constitutional direction to enact such a law has remained ignored for the past four decades or so.
The Constitution of Bangladesh says that there shall be a Supreme Court (SC) for Bangladesh comprising the Appellate Division (AD) and the High Court Division (HCD). The chief justice (CJ) and the other judges appointed to the SC shall be independent in the exercise of their judicial functions.
Article 95 (2) of the constitution says that a person shall not be qualified for appointment as a judge unless he is a citizen of Bangladesh, and has been an advocate of the SC for at least 10 years, or has held judicial office for a minimum of 10 years in the territory of Bangladesh, or has such qualifications as may be prescribed by law for appointment of a judge in the SC.
All the past governments have ignored the constitutional obligation to frame a law that would prescribe qualifications for appointment of a person as a judge of the SC. The absence of such a law has provided an opportunity to the governments, particularly to the two largest political parties, BNP and AL, which have been ruling the country almost in succession for more than two decades, to politicise the appointments of judges in the SC.
Although scope exists for politicisation of appointment of judges at different tiers, the process of politicisation, in fact, starts at the level of additional judges (AJ) in the HCD. In exercise of the power conferred by Article 68 of the constitution, the president appoints the AJs in the HCD normally for a period of two years. If an AJ is not confirmed within two years of his (“he” includes “she”) appointment or within the extended period, if any, he ceases to hold his appointment.
The first attempt to prevent politicisation of appointments in the higher judiciary was made by the immediate past non-party caretaker government. The Supreme Judicial Commission Ordinance (SJCO), 2008, promulgated by the president, provided for the constitution of a nine-member Supreme Judicial Commission (SJC) headed by the CJ.
The law minister or adviser, three senior-most judges of the AD, two senior-most judges of the HCD, the attorney-general, and the president of the SCBA were the other members of the SJC. One advocate of the SC filed a writ petition in the HCD challenging the formation of the SJC.
On April 28, 2008, the HC issued Rule Nisi on the government and stayed the operation of the SJC for three months. The ninth parliamentary election had been held in December 2008 before the said writ petition was finally disposed of. The AL-led grand alliance that formed the government in January 2009 abstained from placing the SJCO, 2008 before the parliament for its approval. This means that the SJCO, 2008 met a natural death.
Now, let us have a look into the procedure that is followed in our neighbouring countries as well as in Great Britain, the birthplace of parliamentary democracy, in appointing the judges in the higher judiciary. It is learnt from the media that the present government of India has initiated a move to bring about changes in the procedure of appointment of judges in the higher judiciary.
The 18th amendment to the Constitution of Pakistan has brought about major changes in the procedure for appointment of judges in the higher judiciary of that country. Great Britain has also gone for bringing about changes in the procedure for appointment of judges in the higher judiciary.
On April 1, 2006, Great Britain ended 700 years of legal tradition. On that day, a new Judicial Appointments Commission (JAC) came into existence. Simply put, it is a commission charged with the responsibility of recommending names of persons for appointment as judges in the higher judiciary.
Bangladesh should learn lessons from these countries. In order to prevent politicisation of higher judicial appointments, the government should enact the law suggested by the constitution without any further delay.
The law should, inter alia, provide for the establishment of a JAC, suggest procedure to be followed by the JAC for recommending persons for appointment as CJ of Bangladesh and other judges of the AD and HCD. It should also suggest mechanisms to examine the criminal and other records of the candidates for appointment as AJs in the HCD. The sooner the law is enacted, the better it will be for the judiciary and the people.
