Appointing judges to the highest courts
Thursday, 11 November 2010
Enayet Rasul Bhuiyan
A section of members of the Supreme Court Bar Association (SCBA) including a good number of the majority of the lawyers practicing in the High Court (HC) and the Supreme Court (SC), were found most excited last week over the swearing-in of the two temporary judges for the HC out of four who were earlier not sworn in by the immediate past Chief Justice (CJ) on alleged grounds of their lacking the background to be considered as fit enough to be HC judges.
The present CJ decided to swear them in citing the Constitutional prerogative to do so as the two were selected by the President. Indeed, the present Constitutional arrangement obliges the CJ to do the bidding of the President. But this is not an absolute rule perhaps as the previous CJ seemed to be within his rights in withholding the swearing-in of the two during his tenure on grounds of their alleged controversial background.
The present CJ while stressing the Constitutional necessity for doing what he did, could have at least underlined the point through statements that the present mode of selection of judges to the higher judiciary requires a more participatory and consultative approach to guard against undue controversy in the future linked to politicization and lack of fitment of appointed judges.
It is relevant to mention here that the past caretaker government promulgated the Supreme Judicial Council Ordinance (SJCO) aiming to make the appointment to the upper judiciary above any reproach. But it was not subsequently validated by an act of parliament and the problem lies there. If it was validated by an act of parliament, then a transparent, more consultative and scrutinizing system of appointment to the higher judiciary could be attempted to avoid objections and controversies.
The present system relies mainly on the law ministry and the President who is identified with the ruling party. The CJ appears to have a relatively smaller role in the selection of the appointees .
The preferred practice should be appointing High Court or Supreme Court judges from among senior legal practitioners and jurists with long and proven records of professional activities and full integrity of character. The Chief Justice (CJ) preferably should draw up a list of such persons exercising his discretion and acumen and submit the same to the President for formally authorizing the appointments. But this mode, regrettably, is not followed in Bangladesh.
The practice here in the absence of appropriate reforms remains one of the President drawing up a list of nominees for appointment of judges and then submitting the same to the CJ for swearing-in by the latter. The CJ's role in the selection process is minimal. The selection is alleged to be made mainly by the Law Ministry and , thus, the government of the day has the opportunity to exercise its powers in selecting the nominees . The Law Ministry then dutifully forwards the names of the nominees to the President. The President under the present system is from the ruling party. Therefore, it is thought that he usually has no objection in forwarding the names of the ones chosen by the government to the CJ for formally swearing them in as judges.
Thus, it should be obvious why such a process turns out to be inconsistent with the aspirations of prominent legal persons about appointing only persons of high professional caliber with impeccable records of honesty, impartiality, efficiency and scrupulousness in the highest judiciary. They can justify why such quality appointments are indispensable to maintain the expected standard of the higher judiciary, to ensure its utmost honest and fearless dispensation of justice above any parochialism or partiality.
Last year, the President sent the names of seven persons to the CJ for swearing them in as temporary HC judges. Two of the nominees for appointment as HC judges were not sworn in by the then CJ and there has been noted talk from some quarters since then that the CJ overstepped his authorities in failing to comply with the Presidential suggestions . But the CJ earned countrywide admiration of jurists and legal professionals for his guts and standing up to the alleged administration's pressures which were seen as aiming to force him to compromise in matters connected vitally to the quality and character of ones to be appointed as HC judges.
A roundtable discussion on the judiciary was held two years ago. The eminent persons who attended it were all very critical about the mode of appointment in the higher judiciary. They stressed the point or alleged that every government appointed some 'unfit' persons as judges of the higher courts.
It should be notable that the SCBA started a movement long ago against the appointment of judges to the higher judiciary on political considerations. Nineteen judges were appointed to the High Court on 23 August, 2004 under the then BNP led government. It is also notable that the SCBA objected similarly to the appointment of some HC judges under the Awami League led predecessor government. In 2004, the SCBA found some of the appointments as grossly irregular bypassing the practical need for consultation and recommendations by the CJ. More significantly, the SCBA charged that the appointed judges in terms of their legal competence, background and other qualities, were not of the high caliber or to be deserving enough to grace the positions of HC judges.
The SCBA alleged that the appointments were designed to install the supporters of the then government in the highest positions of the judiciary to promote narrow party and coterie interests. The SCBA not only voiced the protests, its members shunned the courts of these judges as a matter of deliberate policy to focus on the issue and as a mark of protest. The SCBA made similar protests during the latest appointment of four temporary judges to the HC overriding their objections with two of them being the controversial persons whom the previous CJ had refused to swear in as HC judges. The SCBA, like in the past, issued a call for avoiding the courts of the two controversial judges and declared also other protest programmes. The same would likely keep the premises of the highest courts restless and their environment hardly befitting the calm and dignity expected from the highest place of justice dispensation in the country.
According to unbiased legal experts and conscious, concerned and knowledgeable persons, the selection and appointment process to the higher judiciary needs to absolutely become a process free from any sort of influence or design based purely on the high merits of the individuals to be nominated for justifying their nominations and finally their appointments. According to them, anything short of it can only undermine quality and character among top members of the highest judiciary of the country and why this is dangerous needs no explanation. They also say that the judiciary is only theoretically independent. But this independence remains meaningless in their view as long as the scope remains to infiltrate the highest judiciary with individuals who may not possess unassailable records of highest professionalism and integrity of character. The true dispensation of justice at the highest levels may not by ensured by such persons, they say.
A section of members of the Supreme Court Bar Association (SCBA) including a good number of the majority of the lawyers practicing in the High Court (HC) and the Supreme Court (SC), were found most excited last week over the swearing-in of the two temporary judges for the HC out of four who were earlier not sworn in by the immediate past Chief Justice (CJ) on alleged grounds of their lacking the background to be considered as fit enough to be HC judges.
The present CJ decided to swear them in citing the Constitutional prerogative to do so as the two were selected by the President. Indeed, the present Constitutional arrangement obliges the CJ to do the bidding of the President. But this is not an absolute rule perhaps as the previous CJ seemed to be within his rights in withholding the swearing-in of the two during his tenure on grounds of their alleged controversial background.
The present CJ while stressing the Constitutional necessity for doing what he did, could have at least underlined the point through statements that the present mode of selection of judges to the higher judiciary requires a more participatory and consultative approach to guard against undue controversy in the future linked to politicization and lack of fitment of appointed judges.
It is relevant to mention here that the past caretaker government promulgated the Supreme Judicial Council Ordinance (SJCO) aiming to make the appointment to the upper judiciary above any reproach. But it was not subsequently validated by an act of parliament and the problem lies there. If it was validated by an act of parliament, then a transparent, more consultative and scrutinizing system of appointment to the higher judiciary could be attempted to avoid objections and controversies.
The present system relies mainly on the law ministry and the President who is identified with the ruling party. The CJ appears to have a relatively smaller role in the selection of the appointees .
The preferred practice should be appointing High Court or Supreme Court judges from among senior legal practitioners and jurists with long and proven records of professional activities and full integrity of character. The Chief Justice (CJ) preferably should draw up a list of such persons exercising his discretion and acumen and submit the same to the President for formally authorizing the appointments. But this mode, regrettably, is not followed in Bangladesh.
The practice here in the absence of appropriate reforms remains one of the President drawing up a list of nominees for appointment of judges and then submitting the same to the CJ for swearing-in by the latter. The CJ's role in the selection process is minimal. The selection is alleged to be made mainly by the Law Ministry and , thus, the government of the day has the opportunity to exercise its powers in selecting the nominees . The Law Ministry then dutifully forwards the names of the nominees to the President. The President under the present system is from the ruling party. Therefore, it is thought that he usually has no objection in forwarding the names of the ones chosen by the government to the CJ for formally swearing them in as judges.
Thus, it should be obvious why such a process turns out to be inconsistent with the aspirations of prominent legal persons about appointing only persons of high professional caliber with impeccable records of honesty, impartiality, efficiency and scrupulousness in the highest judiciary. They can justify why such quality appointments are indispensable to maintain the expected standard of the higher judiciary, to ensure its utmost honest and fearless dispensation of justice above any parochialism or partiality.
Last year, the President sent the names of seven persons to the CJ for swearing them in as temporary HC judges. Two of the nominees for appointment as HC judges were not sworn in by the then CJ and there has been noted talk from some quarters since then that the CJ overstepped his authorities in failing to comply with the Presidential suggestions . But the CJ earned countrywide admiration of jurists and legal professionals for his guts and standing up to the alleged administration's pressures which were seen as aiming to force him to compromise in matters connected vitally to the quality and character of ones to be appointed as HC judges.
A roundtable discussion on the judiciary was held two years ago. The eminent persons who attended it were all very critical about the mode of appointment in the higher judiciary. They stressed the point or alleged that every government appointed some 'unfit' persons as judges of the higher courts.
It should be notable that the SCBA started a movement long ago against the appointment of judges to the higher judiciary on political considerations. Nineteen judges were appointed to the High Court on 23 August, 2004 under the then BNP led government. It is also notable that the SCBA objected similarly to the appointment of some HC judges under the Awami League led predecessor government. In 2004, the SCBA found some of the appointments as grossly irregular bypassing the practical need for consultation and recommendations by the CJ. More significantly, the SCBA charged that the appointed judges in terms of their legal competence, background and other qualities, were not of the high caliber or to be deserving enough to grace the positions of HC judges.
The SCBA alleged that the appointments were designed to install the supporters of the then government in the highest positions of the judiciary to promote narrow party and coterie interests. The SCBA not only voiced the protests, its members shunned the courts of these judges as a matter of deliberate policy to focus on the issue and as a mark of protest. The SCBA made similar protests during the latest appointment of four temporary judges to the HC overriding their objections with two of them being the controversial persons whom the previous CJ had refused to swear in as HC judges. The SCBA, like in the past, issued a call for avoiding the courts of the two controversial judges and declared also other protest programmes. The same would likely keep the premises of the highest courts restless and their environment hardly befitting the calm and dignity expected from the highest place of justice dispensation in the country.
According to unbiased legal experts and conscious, concerned and knowledgeable persons, the selection and appointment process to the higher judiciary needs to absolutely become a process free from any sort of influence or design based purely on the high merits of the individuals to be nominated for justifying their nominations and finally their appointments. According to them, anything short of it can only undermine quality and character among top members of the highest judiciary of the country and why this is dangerous needs no explanation. They also say that the judiciary is only theoretically independent. But this independence remains meaningless in their view as long as the scope remains to infiltrate the highest judiciary with individuals who may not possess unassailable records of highest professionalism and integrity of character. The true dispensation of justice at the highest levels may not by ensured by such persons, they say.