How
to have experienced judges in the Supreme Court
Hasanat
Alamgir
Article 96 (1) of our constitution says- subject to the other provisions
of this article, a Judge shall hold office until he attains the age
of [sixty-five] years. The Jatiya Sangsad has just amended this section
of the constitution, and raised the retirement age of the Supreme Court
judges by 2 years.
If
we summarise the arguments of the treasury bench from whatever we have
learnt from the media reports, we will find that apparently a growing
need of competent and experienced judges in higher judiciary has motivated
to focus on this age issue. The government wants to make sure that the
higher court has sufficient number of skilled and efficient judges.
Supreme Court Judges indeed perform very vital duties, like, explaining
the constitution, guiding issues related to human rights, and revising
cases against the lower court verdicts. In fact, the Judges themselves
have been trying to raise their retiring ages for a while. The bureaucrats
of the executive branch have been trying hard to raise their retirement
age to 60 years from 57 years for about 2 decades, and no government
ever cared about it. Each government opted to contract out bureaucrats
they like and trust, rather than extend the overall retirement age for
all of them.
We have been observing
the superior court judges after retiring at 65 have been engaging themselves
in numerous quasi and pseudo-judicial employments (e.g., Press Council,
Election Commission, Court of Settlement, Administrative Appellate Tribunal,
Law Commission, Judicial Administration Training Institute, etc.). By
giving them an opportunity of working in the judiciary for 2 more years,
the nation will be benefited from their valuable expertise. If the need
is real, and the judges demand it, then the government's compliance
is definitely admirable. Unfortunately, the mistrust among the public
and the political parties about government's covert motive is so high
in our country that it is hard to believe that a government does anything
without any concealed cause.
Now, why is the
need of experienced judges become so acute in our higher judiciary?
The Law Minister has cited specific examples that twenty five Supreme
Court judges - 19 of High Court and 6 of Appellate Division are set
to retire in next four years. He is concerned that judges having less
than 10 years of experience in the Appellate Division and High Court
will work at important benches. What has led to this likelihood that
there will be so many untried judges in the higher judiciary in near
future? How can we make sure that we have adequate number of qualified
sitting judges in our higher judiciary?
Political
malice and whim has played a key role in creating such a situation.
The previous government appointed 40 additional judges, nine of whom
were confirmed during its tenure. That left confirmation of 31 others,
who could not complete their 2 years probation period, in the hands
of the later government. This government being suspicious of those appointee's
previous political perhaps 0identity and ideology, and eager to recruit
judges allied closely to its own political philosophy declined to confirm
services of 15 of the judges. It is known from different sources that
the then Chief Justices recommended confirmation for most of these judges.
If these judges were absorbed, they would have gained already 3-4 years
of experience by this time.
The current government
has also given new appointments to 26 additional judges. If this government
can run its full tenure, these judges will possibly be absorbed; but
from the third year of its term, any new recruits will have analogous
destiny like those 15 judges, if a different government takes over in
next election. A vacuum will recur, and we will again be scared of having
an acute shortage of learned judges.
It can be rationally
anticipated that a judge should work no less than 15 years at the High
Court Division before going up to the Appellate Division, and a continuous
work experience of at least 18-20 years can train one best for qualifying
to be the Chief Justice -- the judicial head of a country of 140 million
people. It is observed in the higher judiciary, that most of the new
recruits start in their early or mid 50s. If a judge is recruited when
he is 52 years, if everything goes well, he will be confirmed at 54,
and if he is expected to serve there for 12/13 years, he will have almost
no possibility to get to the Appellate Division. We have recently observed
a fairly good number of judges hold the position of the Chief Justice
for about or less than 1 year. Before they have an opportunity to understand
the duties and responsibilities of the position, formulate agendas and
means for the development of the judicial system, and in so doing offer
good leadership, it becomes time for them to retire. A practice to appoint
judges at an earlier age (e.g., late 40s) can ensure that we get seasoned
judges at the High Court Division, Appellate Division, and that we benefit
by a Chief Justice, who can serve longer and better.
The inexperience
quandary is more widespread when the new recruits happen to be practising
lawyers. The jobs of a lawyer and a judge are indeed very different
in respect to duties, responsibilities, public relations, and compensation
(salary and benefits). When a District Judge is elevated to the higher
judiciary, he brings with him extensive working experiences in various
capacities (Assistant Judge, Sub Judge, and Additional District Judge)
in the lower judiciary. He, also, has the least possibility of allegiance
to any political structure. Whereas, for a lawyer, it takes time to
get used to act and behave like a judge overnight.
Regrettably, it
is because of their non-alignment to formed political philosophies,
the proportion of District Judge to lawyers is getting smaller in every
batch of appointments at our higher judiciary. If we analyse the two
recent recruitment, government's uninterest to choose District Judges
become obvious.
In August of 2003,
the government appointed five additional judges at the Supreme Court.
In this lot, only one was a career district judge. The rest belonged
to the Bar.
Another set of recruitment
in April last year only two were District Judges. It is evident that
only 20% places at the higher judiciary are occupied by internal judicial
service promotions.
The discrimination
against the district judges in promoting to the Supreme Court frustrates
the judicial cadre service holders as their career potentials shrink
terrifically. Their agony multiplies as whenever the senior members
of the lower judiciary can make it to the higher judiciary, they almost
reach their retiring ages by then. Thus, from the High Court Division,
unsurprisingly, they can never go up the ladder to the Appellate Division,
forget about ever contending for the position of the Chief Justice.
It is imperative that the top judge of the country should have a solid
understanding and a firm grasp over the functionalities and intricacies
of the lower judiciary including the magistracy. A veteran District
Judge is plainly barred to go high under the existing system.
Political considerations
and discriminations of the government are prevailing in appointment
and confirmation of judges to the highest judiciary, as the process
is not transparent and not clearly prescribed by law. Getting over with
political whim and malice, appointing judges at a younger age, confirming
efficient judges (with Chief Justice's recommendation), and raising
the ratio of district judges in recruitment can help in ensuring transparency,
and create trust in higher judiciary recruitment.
Hasanat
Alamgir is a Doctoral Candidate at the University of British Columbia,
Vancouver.
