Enacting law for appointing judges

Bangladesh has adopted a Westminster style of parliamentary democracy. But the important departure is that unlike the British parliament, the parliament of Bangladesh is not sovereign. In Britain, parliament is supreme and it is beyond the competence of the courts to declare a law ultra vires. But in Bangladesh, the Supreme Court has been given the power of judicial review to see that parliament does not overstep the limits set by the constitution.

In other words, the constitution has circumscribed the power of parliament in making laws and has reposed on the Supreme Court the constitutional responsibility to adjudicate upon the validity of laws. The invalidation of the Constitution (Eighth Amendment) Act, 1988 so far it related to the creation of permanent benches of the High Court Division by the Appellate Division of the Supreme Court is a case in point.

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Although the constitution provides for a Westminster style of parliamentary system of government, yet the Supreme Court of Bangladesh enjoys the power of judicial review like the Supreme Court of the United States, that has a presidential form of government. The Supreme Court of the US upholds or declares null and void, and consequently of no effect the Acts of the Congress or state legislature or executive orders which are in conflict with the constitution. By doing so the Supreme Court becomes the guardian of the constitutional system of the US. The Supreme Court of Bangladesh with its power to invalidate any act of parliament or executive orders that are inconsistent with the constitution is thus the guardian of the constitutional system of the country.

The constitution provides that there shall be a Supreme Court for Bangladesh comprising the Appellate Division and the High Court Division. The Supreme Court shall consist of the Chief Justice and such number of other judges as the President may deem it necessary to appoint to each 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 ten years; or (b) has held judicial office in Bangladesh for at least ten years; or (c) has such other qualifications as may be prescribed by law for as a judge

The constitution further provides that if the President is satisfied that the number of judges in a division of the Supreme Court should be for the time being increased, he may appoint one or more duly qualified persons to be additional judges of the division for such period not exceeding two years as he may specify. An additional judge may be appointed as a judge, or appointment of an additional judge may be extended. It may be mentioned that excepting the appointment of the Chief Justice, the President shall, in the appointment of other judges including additional judges, act in accordance with the advice of the Prime Minister.

Now let us have a look into the constitutional and other legal provisions regarding appointment of judges in the higher judiciary in some other countries including our neighbouring countries practising presidential, parliamentary, or dual system of government.

The President of the United States with the advice and consent of the Senate appoints the justices of the Supreme Court, the highest court of the country. The constitution does not prescribe any qualifications; hence the President may appoint anyone for whom senatorial confirmation can be obtained.

In Britain, the Crown, on the recommendation of the Lord Chancellor who is the highest judicial officer, appoints judges of the Supreme Court of Judicature and the Court of Criminal Appeal.

In India, every judge of the Supreme Court is 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 deems necessary for the purpose. In the appointment of judges other than the Chief Justice, the Chief Justice of India is always consulted. A person is not qualified for appointment as a judge of the Supreme Court unless he is a citizen of India and (a) has been for at least five years a judge of one or more High Courts; or (b) has been for at least ten years an advocate of one or more High Courts; or (c) is, in the opinion of the President, a distinguished jurist. Every judge of a High Court is appointed by the President after consultation with the Chief Justice of India and the State Governor. The Chief Justice of a High Court is also consulted by the President in the case of appointment of a judge in that court. A person is not qualified for appointment as a judge of a High Court unless he is a citizen of India and (a) has for at least ten years held a judicial office in India; or (b) has for at least ten years been an advocate of one or more High Courts.

The Chief Justice of Pakistan is appointed by the President and other judges are appointed by the President after consultation with the Chief Justice. A person is not appointed a judge of the Supreme Court unless he is a citizen of Pakistan and (a) has been a judge of a High Court for a period of five years; (b) has been an advocate of a High Court for a period of not less than 15 years. A judge of a High Court is appointed by the President after consultation (a) with the Chief Justice of Pakistan; (b) with the Governor concerned; and (c) except where the appointment is that of the Chief justice, with the Chief Justice of the High Court. A person is not appointed a judge of a High Court unless he has been an advocate of a High Court for a period not less than ten years; (b) he, as a member of civil service, has served as or exercised the functions of a district judge in Pakistan for a period not less than three years; and (c) he has for a period of not less than ten years held a judicial post in Pakistan.

It appears that the judges in the higher judicature in the above mentioned countries are appointed with the consent of Parliament, or in consultation with the leaders of the parties in Parliament, or with the approval of the Cabinet, or on the recommendation of the Chief Justice.

In Bangladesh, the appointment of judges is at the pleasure of the executive. Being fully aware of the need for ensuring neutrality in the appointment of judges in the higher judiciary, the framers of the constitution that was adopted on November 4, 1972 and came into force on December 16 of the same year, incorporated a provision requiring the President to consult the Chief Justice in appointing judges.

But the provision was omitted by the Constitution (Fourth Amendment) Act, 1975 by the then Awami League (AL) government. During the last thirty years or so, the successive governments have found the deletion of that provision to their advantage and therefore have not taken any initiative to revive the provision. So there is no constitutional requirement to consult at least the Chief Justice for appointing judges in any of the two divisions of the Supreme Court. This has given a walk over to the executive in the appointment of judges.

Appointment as an additional judge is, in fact, the entry level in our higher judicature. During the last three decades, particularly since the early nineties, appointment of additional judges has been highly politicised. In the absence of constitutional obligation for consulting the leaders of political parties in parliament, or for obtaining recommendation of a judicial council or judicial service commission, or for consulting the Chief Justice in the appointment of judges, the two major political parties, the BNP and the AL, which have held the state power during the last fourteen years, seem to have at times appointed their party followers and sympathisers, without necessarily considering their qualifications, as additional judges. Appointment of a few unfortunate ones was not confirmed due to changes in government.

In India and Pakistan, a High Court judge cannot be appointed a judge in the Supreme Court unless he has served at least for five years as a judge in High Court. But such a provision does not exist in the constitution of Bangladesh.

Under the above-mentioned facts and circumstances, the need for enacting a law for appointing competent, experienced, and non-partisan persons as judges in the higher judiciary of the country can hardly be over-emphasised. Several quarters have already made suggestions on the issue.

These include: (i) constitution of an independent Appointment Board to help the Chief Justice to recommend persons to be appointed additional judges; (ii) enlargement of the Supreme Judicial Council with the inclusion of representatives of the Bar to recommend suitable persons for appointment as judges in the High Court Division; (iii) constitution of the Judicial Council with the Chief Justice, as ex-officio Chairman, and Law Minister, two senior-most judges of the Appellate Division as ex-officio members, and one distinguished jurist appointed by the President; (iv) revival of the constitutional provision for consulting the Chief Justice to appoint judges; (v) selection of judges from among the lawyers through a panel of Supreme Court judges; or (vi) 15 to 20 years' practice as an advocate of the Supreme Court to be eligible for appointment as a judge.

To conclude, there cannot be two opinions that appointment of non-partisan, competent, efficient, and honest persons as judges is a sine qua non for enabling the higher judiciary to successfully discharge its constitutional responsibilities. Enacting a law to this end will be a great service to the nation. The alliance government must take up the issue seriously, and the main opposition party and other opposition parties in parliament and outside parliament must cooperate in the enactment of the law.

M. Abdul Latif Mondal is a former Secretary to the government.