THE Daily Star of April 18 carried a front-page report which said that the five-member sub-committee formed by the parliamentary committee on law, justice and parliamentary affairs ministry was going to recommend enactment of a law for setting the criteria, qualities and qualifications for appointment of the Supreme Court judges.
The sub-committee has almost completed drafting the law for placing in the next meeting of the main committee, which after discussing the draft law will send it to the law, justice and parliamentary affairs ministry for necessary action. This is heartening news because no move had been made in the past 38 years or so to enact the law even though there were allegations of politicisation of appointments in the higher judiciary.
The Constitution provides that there shall be a Supreme Court in Bangladesh comprising the Appellate Division and the High Court Division. The president appoints the chief justice and other judges. A person shall not be qualified for appointment as a judge of the Supreme Court unless he is a citizen of Bangladesh, and he (a) has been an advocate of the Supreme Court for at least 10 years; or (b) has held judicial office in Bangladesh for at least 10 years; or (c) has such other qualifications as may be prescribed by law for a judge of the Supreme Court.
A look into the processes of appointment of judges in the Supreme Courts of the United States, United Kingdom, India and Pakistan shows that the judges are appointed by the heads of the states with the consent of the Senate (United States); or, on the recommendation of a selection committee (United Kingdom); or, in consultation with the chief justice (India and Pakistan).
The Constitution of the United States does not prescribe any qualifications; hence the president may appoint anyone for whom senatorial confirmation can be obtained. The Constitutions of India and Pakistan prescribe qualifications for appointment of judges in the High Courts and Supreme Courts.
Judiciary is one of the three pillars of our nation, the other two being executive and legislature. Aware of the "long arm" of the executive, which is composed of the president, the prime minister and the cabinet, and conscious of the need for ensuring neutrality in the appointment of judges in the higher judiciary, the framers of the Constitution incorporated a provision requiring the president to consult the chief justice in the matter of appointment in the Appellate Division and the High Court Division of the Supreme Court.
Clause (I) of Article 95 of the Constitution says: "The chief justice shall be appointed by the president, and other judges shall be appointed by the president in consultation with the chief justice." But this clause was replaced by the Constitution (Fourth Amendment) Act, 1975. The new clause (I) reads: "The chief justice and other judges shall be appointed by the president."
The Constitution (Twelfth Amendment) Act-1991, which reintroduced parliamentary form of government, did not reinstate the original clause (I) of Article 95. Article 98 of the original Constitution provided for appointment of additional judges by the president after consultation with the chief justice. The fourth amendment omitted the words "after consultation with the chief justice," which were not reinstated by the twelfth amendment.
Pursuant to the above amendments, there is no constitutional requirement for the president to consult the chief justice for appointment of judges in the higher judiciary. Mahmudul Islam, a former attorney-general, writes that the present practice of consultation with the chief justice in the appointment of judges in the Supreme Court "is not a formal matter."
There is also no independent judicial commission or board to recommend names for appointment as judges or additional judges in the Supreme Court. The ordinance promulgated by the last caretaker government for the constitution of a supreme judicial commission headed by the chief justice and comprising, among others, two senior-most judges of the Appellate Division, the attorney-general and the president of the Supreme Court Bar Association (SCBA) as members to recommend names for appointment of judges was not ratified by the ninth Parliament.
The absence of constitutional requirement to consult the chief justice and to go by his recommendation, and /or the non-existence of a judicial commission or board to recommend names for appointment as judges, leaves the appointment of judges in the higher judiciary at the pleasure of the executive.
The parliamentary sub-committee seems to have been convinced of the need for such a body because its chief, former law minister Abdul Maltin Khasru, says that the sub-committee is examining whether a body headed by the chief justice can be formed through enacting the law to recommend names of persons to be appointed as Supreme Court judges.
In fact, the process of politicisation in the appointment of judges in our higher judiciary starts at the level of additional judges in the High Court Division. In exercise of the power conferred by Article 98 of the Constitution, the president appoints additional judges in the High Court Division normally for a period of two years. If an additional judge is not confirmed within two years of his appointment or within the extended period, if any, he ceases to hold his appointment.
During the last thirty-five plus years, particularly since the reintroduction of parliamentary democracy in the early nineties, appointment of additional judges in the High Court Division has reportedly been politicsed. There are allegations that the BNP and the AL appointed their party followers and sympathisers as additional judges in the High Court Division.
The appointment of 19 additional judges in the High Court Division by the BNP-led four-party alliance government in 2004 was opposed by the SCBA on the ground that they were appointed on political considerations. A distinguished jurist like Dr. Kamal Hossain questioned their fitness for appointment.
Recently, the AL-led government appointed 17 additional judges in the High Court Division. There has been controversy over two of them, who were not administered oath by the chief justice.
There cannot be two opinions that appointment of non-partisan, competent and honest persons as judges is a sine qua non for enabling the higher judiciary to successfully discharge its constitutional responsibilities. If the AL-led government and the ninth Parliament can enact a comprehensive law to regulate the higher judicial appointments, they will do a great service to the nation.