Law Opinion
Independent judiciary: Some proposals
Sheikh Hafizur Rahman Karzon
An independent judiciary is sine qua non for any democratic polity. The judges are put on a high pedestal. In countries with written constitutions the courts are regarded as temples of justice, the judges its oracles.
Constitutional supremacy presupposes the existence of a strong neutral organ, namely judiciary, which was entrenched in the original Constitution of Bangladesh, and undone by the Fourth Amendment.
Later on, some partial steps were taken to reinstate the independence of the judiciary, but there was no headway until 1999 when the Appellate Division gave a 12-point direction, in the Masdar Hossain case, to separate the judiciary.
The people had to wait a long time to see the publication of a gazette notification of four rules which the caretaker government took only five days to issue, to the dismay of previous democratic governments which passed seven years without doing it. The legal experts and civil society have lauded the initiative of the caretaker government, as they consider it the first step toward separating the judiciary from the executive.
Under the present scheme, if it goes smoothly, a Judicial Recruitment Commission will be established which will take the responsibility of the Public Service Commission and finalise appointments of judicial officers (of lower judiciary) through competitive examinations. A Judicial Pay Commission and a Judicial Service Commission will be formed to deal with the salary structure, posting, promotion, and disciplinary actions of the judges.
I, like other sentient people, also highly appreciate the steps of the caretaker government, but want to point my finger at the appointment procedure of the judges of the Supreme Court and allegations of corruption in the judiciary, both lower and higher.
The original Constitution placed the judiciary in an independent position so that it could keep check and balance and act as the guardian of the constitution. In 1975, the Awami League government made the judiciary subservient to the capricious authority of the executive.
Numerically, five negative sides of the judiciary have come to the fore in the past years. First, the executive is appointing judges of the higher judiciary on political consideration, which affects the quality, integrity and high judicial standards of judges.
Under the existing constitutional scheme (articles 95 and 98), the law ministry prepares a list of persons from among the advocates of the Supreme Court, district judges and civil servants to be appointed as additional judges of the High Court Division for two years. The list is then sent to the office of the prime minister for her/his consideration, and then to the president for final approval.
After the completion of two years term, the additional judges are given fresh and permanent appointment to the High Court Division, popularly known as "confirmation of judges."
The executive has no constitutional obligation to consult the chief justice either during preparation of the list or confirmation of additional judges, but there is a convention of consulting the chief justice during preparation of the list and their confirmation.
This practice has been consistently followed from the British period. Unfortunately, this was violated by the BNP government in 1994 when it appointed some additional judges without consulting the chief justice.
Second, confirmation of the additional judges is vested in the executive; hence it has been using power unscrupulously by not confirming the judges. In the last 20 years 22 judges were not confirmed on completion of their two-year period. Among them, 16 had to go back to the bar during the BNP-Jamaat government because they were appointed by the Awami League government, which, itself, was also alleged to have selected the judges of the apex court on political considerations.
In 2003, the BNP-Jamaat government confirmed two additional judges out of eight, though the chief justice recommended confirmation of six additional judges. The same government confirmed services of 17 additional judges on August 22, 2006, ignoring the chief justice's recommendation to appoint15 on the basis of their performance. In the confirmation list the government included two more judges, one of whom triggered a controversy as the Supreme Court Bar Association questioned the genuineness of his certificate.
Third, the executive violates seniority in appointing judges in the Appellate Division to place like-minded judges in the apex court. Starting from 1976, different governments violated seniority more than ten times.
Fourth, the appointment of chief justice, after the introduction of the Thirteenth Amendment, has been in danger of being starkly politicised, which the BNP-Jamaat government did by ignoring seniority, and increasing the age for judges. It outraged the 14-party alliance, and they created a situation in which Justice K. M. Hasan was compelled to refuse the post of chief adviser to the caretaker government.
The provision for appointing the chief adviser from among the retired chief justices and judges of the Appellate Division has, some contend, vitiated the whole higher judiciary.
Fifth, at least two judges of the Supreme Court resigned because of corruption charges. In a survey report of Transparency International, the police department and lower judiciary have been identified as the most corrupt service organisations. 83 and 75 percent of the citizens, respectively, fall victim to corruption in the police department and the judiciary when they require assistance of these departments (The Daily Bhorer Kagoj, December 21, 2002.).
Given the present situation, if we cannot stop appointment of judges of the Supreme Court on political considerations, and curb corruption of judiciary, it will be dangerous to give unfettered power to a group of corrupt political stalwarts.
The revival of the provisions of the original Constitution may not suffice, rather we should think of introducing some well-guarded method of appointing judges of the higher judiciary.
There shall be a constitutional body comprised of the president, prime minister, speaker, leader of opposition, chief justice, last retired chief justice, chief adviser of the immediately past caretaker government, attorney general, president of the Supreme Court Bar Association, vice-chairman of the Bar Council, and senior most five advocates of the Supreme Court, for appointing judges to the High Court Division.
This body will appoint judges to the High Court Division from among advocates of the Supreme Court, district judges, district magistrates, university teachers, law researchers, and human rights leaders.
The registrar of the Supreme Court will prepare a list of probable candidates on the basis of their academic credentials, professional efficiency, honesty and commitment to rule of law and justice.
The constitutional body will then finalise the appointment of the High Court Division judges. The judges of the Appellate Division and the chief justice will be appointed according to seniority, adherence to which will be mandatory for the executive.
Photo: Star
The author is an Assistant Professor, Department of Law, University of Dhaka.
