Law opinion
Supreme Judicial Commission needs readjustment
M. Jashim Ali Chowdhury
The concept of a Judicial Commission for appointing Judges to the Higher Judiciary is not a new one. The Beijing Statement of Principles on the independence of judiciary in the LAWASIA Region [Beijing Statement] 1995 in its Art. 15 states that: 'In some societies, the appointment of judges, by, with the consent of or after consultation with, a Judicial Service Commission has been seen as a means of ensuring that those chosen as judges are appropriate for the purpose' (Sarkar Ali Akkas, Independence and Accountability of Judiciary: A Critical Review, p. 127). In Bangladesh the demand for an independent Commission to supervise the appointment of Supreme Court judges was even more acute. The vehement politicisation of the appointment process over the past years has seriously undermined the image and efficacy of the Supreme Court. Against this backdrop, the President promulgated 'The Supreme Judicial Commission Ordinance' on March 13, 2008 and it was published in Official Gazette on March 16, 2008.
Salient features of the Commission
Composition of the Supreme Judicial Commission: The Commission is a nine- member body consisting of the Chief Justice (The Chair), two senior most Judges of the Appellate Division, two Members of Parliament, one from treasury bench and another from the opposition bench, the Law, Justice and Parliamentary Affaires Minister, the Attorney General, the President of the Supreme Court Bar Association and the Secretary of the Law Ministry (Member Secretary) (s. 3(2)).
Commission Secretariat: Secretariat of the Ministry of Law, Justice and Parliamentary Affaires shall work as the Secretariat of the Commission (s. 3(4)).
Meeting of the Commission: Commission must meet once every six months (s. 4(5)). The Chief Justice is bound to call a meeting if requested by the President and the 'appropriate authority' (s. 4(6)) which is a Ministry, Department or Division assigned in this regard under the Rules of Business, 1996 (s. 2 (b))
Voting: The Commission shall try to take decision by consensus and if not possible, it shall decide by the majority of the members present (s. 4(7)).
Proposal for Appointment: Law, Justice ad Parliamentary Affaires Ministry shall propose minimum three and maximum five names per vacancy for consideration (s. 6(1)) whereas the Commission shall propose two names per vacancy for appointment (s. 6(2)). Names in addition to those proposed by the Ministry may be requested or considered by the Commission (s. 6(3)).
Commission's Recommendation: The President shall 'usually' appoint judges as per the recommendation of the Commission (s. 9(1)). The President may return any recommendation for reconsideration (s. 9(2)). In such case the Commission shall reconsider the recommendation. The amended recommendation or the original one, along with reasons explained, shall be sent back to the President (s. 9(3)). The recommendation of the Commission shall not be binding. The President may ignore the recommendation partially or wholly. If however he ignores the recommendation wholly, he shall assign reasons for that (s. 9(4)).
Submission of recommendation to the President: The Commission shall send its recommendation to the 'appropriate authority' (s. 7) which shall forward that to the President.
Loopholes of the Commission
The Supreme Judicial Commission Ordinance in its present form has grossly undermined the spirit behind the formation of the Commission itself. It has further extended the already extensive role of the executive in various ways. A commentator has termed this as 'Declaration of Independence by the Law Ministry' in the appointment process (Bicharpoti Nioge Ain Montronaloyer Shadinota Ghoshona, Mizanur Rahman Khan, Prothom Alo, March 24, 2008). The key issues are summed up as follows -
* The membership of the Law Minister and Law Secretary, Attorney General (who is usually appointed on political consideration), government party MP gives the ruling party a weighty voice in selection process (four out of nine votes). This is strengthened further by the proviso to s. 4(4) of the Ordinance which provides that the quorum of the Commission's meeting shall be five including the Chief Justice.
* In a meeting called by the Chief Justice upon the request of the 'appropriate authority' (the Chief Justice is bound to call the meeting in such case as per section 4(6)) the Chief Justice along with Law Minister, Law Secretary, ruling party MP and Attorney General may form the quorum and recommend the appointment of an executive sponsored candidate only by the vote of the Law Minister, Law Secretary, Attorney General and ruling party MP since the Commission shall decide by majority vote if the Chief Justice raises a note of dissent (MR Khan, Prothom Alo March 24, 2008).
* The membership of Law Secretary itself is seriously objectionable. In no case the qualification and background of a civil servant admit of his sitting over the judgment of the worth of a Supreme Court judge. Such membership is also an unprecedented one (MR Khan, Prothom Alo March 24, 2008).
* Again the membership of Law Minister, Attorney General, Law Secretary and MPs in the Commission offends the doctrine of separation of powers (Bicharpoti Nioger Udbot Oddadesh (Peculiar Ordinance for appointing Justices), Shahdin Malik, Prothom Alo, March 26, 2008).
* Allowing the Law Ministry to nominate three to five names per vacancy for appointment to the Appellate Division (s. 6(1) and (2)) has put the seniority rule at stake.
* The Law Ministry is given the power to propose the names under s.6 of the Ordinance. Though the Commission may request addition of more names or may consider other names, this scope is practically limited due to executive dominance in the Commission. Now the governing party can have the panel of preferable candidates settled well before the Commission.
* The primacy of the opinion of the Judiciary in selection process remains unrecognized as before. The President may ignore the recommendation of the Commission wholly. Though he is required to put in writing the reasons behind his so doing, there is no express provision for publication of the reasons. So the reasoning may be withheld from public on the excuse of the security of the State or public policy (MR Khan, Prothom Alo, March24, 2008). But the primacy of the Judiciary's opinion in the appointment process is a cornerstone of judicial independence. The Indian Supreme Court in Gupta v. President of India (1982) AIR (SC) 149 and Advocates- on-Record Association v. Union of India (1994) AIR (SC) 268 interpreted the 'consultation' referred to article 124(2) of the Indian Constitution as 'concurrence' (Appointment of Judges in the Supreme Court: Needs a fresh approach, Barrister Moyeen Firozee, 60 DLR (2008), February Issue, Journal p. 10). The Pakistani Supreme Court has done the same in Al-Jehad Trust v Federation of Pakistan, 1997 PLD SC 84 (Judicial Independence: Overview and Country-Level Summaries, Asian Development Bank, October 2003). Article 174 (4) (a), (b), (c) of the Constitution of South Africa also runs in the same line.
Recommendations
To ensure substantial independence and to increase the efficiency of the Commission, the Ordinance should be amended to the following effect
* The membership of the Commission should be limited only to the Chief Justice and his two or three senior most colleagues in the Appellate Division keeping the concept of separation of powers in mind. Obviously, it is important to have some laymen participation in the selection process. Sometimes they play the role of the child in the story of the emperor's new cloth, who cries out, 'But he's got nothing on' (The South African Judicial Service Commission, Carmel Rickard, online: http://www.law.cam.ac.uk/docs/view.php?doc=879). According to the Ordinance, the Commission can invite any person in the meeting of the Commission if it feels necessary (s. 5(8)). The participation of Law Minister, MPs and Senior Advocates in the Commission should be seen from this perspective.
* Office of the Registrar of the Supreme Court should work as the Secretariat of the Commission.
* Instead of having names proposed by the Law Ministry, the Registrar of the Supreme Court pursuant to a formal order of the Chief Justice will make a request to the Commission indicating the number of positions vacant.
* An advertisement should be made inviting application from candidates meeting the requirements of Article 95(2)(c) of the Constitution.
* Written nominations together with written letters of consent to nomination by the candidates as well as candidates' CVs and completed questionnaires or application forms should be sent to the Registrar of the Supreme Court who shall circulate them to members of the Commission.
* A sub-committee may be appointed by the Chair of the Commission to sift through the applications and draw up a shortlist. Only once the Commission has approved the shortlist, the names of those to be interviewed may be published.
* Though the Commission can interview a candidate (s. 5(7)), there is no requirement for a full quorum for that purpose. Interview of short listed candidates should be conducted by the full Commission.
* Intermediary of the 'appropriate authority' in submitting Commission's recommendation to the President should be done away with. Rather the Commission shall submit its recommendation directly to the office of the President.
* Section 9(2) should be amended to provide that the President must advise the Commission, with reasons if any, of the nominees who are unacceptable and any appointment which remains to be made. Section 9(4) should be amended to the effect that the President must make the appointments as per the Commission's recommendation submitted under section 9(3).
* Keeping in mind that starting from 1976, different governments violated seniority more than ten times, there should be a provision that in case of appointment to the Appellate Division, the seniority should be the prime consideration unless there are persuasive reasons for not doing so. This is reasonable in the sense that a High Court Division judge, who has gone through the selection process twice earlier during his appointment as Additional Judge, and during his confirmation, should not be bypassed or denied appointment to the Appellate Division except in the rare case of incapacity or inefficiency.
Concluding remarks
The Caretaker Government is supposed to place diverse issues of reform on the table of upcoming dialogue with the political parties. Presumably ratification of the Ordinances promulgated by it would be a major demand on behalf of the government. Remembering their allergy towards an independent judiciary, the political parties should have no objection, I think, in ratifying such an executive friendly Ordinance for judicial appointment. The Supreme Judicial Commission Ordinance needs immediate amendment.
The writer is lecturer of Law and Justice Department, Metropolitan University, Sylhet.
