Judges' appointment case: A quagmire of judicial activism

As far as judicial review and activism are concerned, most of our commentators have been laudatory and complementary. There are skeptics and they refuses to uphold interference by the judiciary in legislation and policy-making. Admittedly, there are some significant limits to judicial activism and the Court has been repeatedly confronted with a tradeoff between activism and restraint. Excessive judicial interest in policy issues may risk the Court being shackled by limited impact its judgment may create on the ground.

The High Court Division's (HCD) sort of advisory opinion in relation to judges' appointment in Ragib Rouf Chowdhury case seems to have pushed the limits of judicial activism. The “suggestions” given by the HCD in this case may be taken as a good case for judicial adventurism (Nupur Chowdhury, From Judicial Activism to Adventurism, Asia Pacific Journal of Environmental Law, Nov. 2014). On a plain reading, the writ petition seeking “direction” upon certain parties to frame a “guideline” for the appointment of judges in the Supreme Court appears clogged within a quagmire of untouched legal questions, indeterminate parties, half-hearted reasoning and a curious ending.

The petitioner, as lawyer, became concerned over the current appointment process (p. 2 of the full text judgment available in Supreme Court website), as it is susceptible to “control or influence by or of other organs of the State” (p. 4). The petitioner's case in brief is that independence of judiciary being a basic structure of the constitution (p. 6), depoliticised  appointment of judges (p. 8) and also the appointment of persons of appropriate intellect and acumen is highly important for earning respect from bar (pp. 11-12) and ensuring the independence of judiciary. While a preliminary inquiry into the sufficiency of interest of the persons pursuing a PIL is a norm, nothing of this sort was attempted in this case at all. The Court however had to concede that the petitioner did not come to enforce any the fundamental rights guaranteed under part III of the Constitution (p. 31 of the judgment). Had this been the observation, the Court could have rejected the writ petition following the guideline 6 of the recent National Board of Revenue v Abu Saeed Khan decision of the Appellate Division (18 BLC (AD) 116, para. 38) which has cautioned the HCD to see whether public interest litigation turns into a “publicity interest litigation.”

Most important point of the case, which unfortunately was not hard pressed by the petitioner with necessary elaboration and precision, was whether a system of public announcement of judicial vacancies and call for interest could be a constitutionally viable option. The Supreme Judicial Commission Ordinance issued in 2008 was declared void by the HCD (Idrisur Rahman v Bangladesh 60 DLR (HCD) 714) on the ground that the President could reject the recommendation of the Commission and primacy of the Commission was not ensured there (p.9).

Apart from drawing inspiration from the UK National Judicial Appointment Commission (p. 11), the petitioner did not explore the other salient features of the Commission system introduced in 2008 and positive nods given by the HCD to some of those. While opposing the open call system, the Attorney General and one of the amicus curies Barrister Shafiq Ahmed argued that the judges of the Supreme Court being appointed through President's satisfaction are not persons employed in the service of the Republic. Therefore, unlike other services of the republic, open applications may not be called for (p.18-19). This argument, however, ignores the Masder Hossian opinion of the Appellate Division where the judiciary was declared an integral part of the service of the Republic (52 DR (2000) (AD) 82, para. 27) and Justice M A Aziz decision of the HCD where 'service of the Republic' in relation to article 99 was interpreted as including all posts or offices of the Republic (60 DLR 2008 (HCD) 511, para. 223). Ironically, neither the petitioner nor the Court offered any rebuttal to this misplaced argument. The Court merely pressed that the Commission system has been rejected in India (pp. 38-39).

The petition rested on the question as to who was to be directed to frame the guideline and for whom the “guideline” is to be framed. Relying on Ministry of Justice v Md. Idrisur Rahman (2010), the petitioner argued, and the court agreed, that only the Chief Justice reserves the right to initiate an appointment process in the highest court and government may only suggest suitable names to the Chief Justice (p. 7). Chief Justice would propose candidates to the President and President would appoint therefrom. President however is constitutionally required to receive the Prime Minister's advice. Hence, Dr. Kamal Hossain claims that the process is actually the reverse. The appointment is still being initiated by the executive and the Chief Justice is consulted on the basis of list of candidates provided by the executive (p. 22). Whatever be the process, theoretically it remains unclear who is to be guided on the selection criteria – President, Prime Minister or the Chief Justice? Interestingly, the petitioner filed the writ against all – President (through the Ministry of Law), Prime Minister (through the Principal Secretary and Cabinet Secretary) and Chief Justice (through the Registrar General of the Supreme Court). The petitioner argued that if there were some definite guidelines for the Chief Justice in initiating the process and government in suggesting names it would be better (p. 7).

Bulk of the amicus curies, Attorney General and even the Court agreed that law making responsibility in this regard rests with the parliament as per Article 95(2)(c) of the Constitution and the judiciary is not in a position to issue mandamus to the parliament (p. 32). Also, in absence of any express delegation of the law making authority from the parliament to the executive, the government also is not in a place to frame the guideline sought (p. 30). Then who else is to be directed? If it is the Chief Justice then the Court however opined that such an attempt would “undermine” the power of the Chief Justice (p. 40).

The Court therefore disposed of the 'misconceived' writ petition (p. 44) against the political executive. Yet it ended up in suggesting some 'eligibility criteria' to the honourable Chief Justice – at least one of which has political implication and almost all of which are less likely to have any practical impact on the ground. That's where we may think judicial activism turns into a judicial adventurism.

The writer is an Assistant Professor of Law, University of Chittagong.