Ensuring integrity and efficiency in the highest courts
Friday, 23 April 2010
Enayet Rasul Bhuiyan
The on-going uproar in the judicial realm of the country has put into sharp focus the issues that had been known for a long time but were strangely overlooked although the same demanded attention and reforms in the national interest. First of all, it is normal expectation in any country that members of its highest courts or the judges in particular would reflect impeccable standards of the very highest integrity, professionalism and their complete dedication to the right legal principles. They would be very singularly expected to remain totally unmoved by all influences external to them in discharging real justice to its seeker in all cases and circumstances.
The lower courts of a country may suffer from some unavoidable drawbacks in their performances although the same would be also highly undesirable or unallowable. But ideally, there ought not to be scope in the slightest for compromise in the delivery of real justice in the higher courts. For if there are, the same then makes the true dispensation of justice an elusive chase.
Impartial expert observers of the legal system in Bangladesh say that the upper judiciary of the country needs deep cleansing considering its pivotal importance for the real dispensation of justice, upholding of people's vital interests and good governance. It is relevant to mention here also that a former President in his speech to the nation on the occasion of the formation of the immediate past reconstituted caretaker government, stressed on reforming important state institutions. He specially suggested at that time in some length how vitiated the judiciary had become from undue interference with its affairs and the great necessity of judicial reforms to effectively address these ills.
It should be notable that the Supreme Court Lawyers Association (SCLA), a representative body of senior legal practitioners , started a movement some four years 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 by the then elected government . But the SCLA found the appointments as grossly irregular bypassing the need for consultation and recommendations by the Chief Justice. More significantly, the SCLA charged that the appointed judges in terms of their legal competence, background and other qualities, were not of the high caliber to be deserving enough to grace the positions of High Court judges. A singular reason for the objection from the SCLA was that the appointment was designed to install the supporters of the then government in the highest positions of the judiciary to promote narrow party and coterie interests. The SCLA 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.
Although, the protestations were made during the government of the BNP-Jammat alliance, similar charges were made against the predecessor government of the Awami League also for appointing judges to the judiciary on political considerations. Only the scale of the appointment at that time was relatively small compared to what was done in 2004. On Sunday last, the Chief Justice (CJ) administered oath to 15 additional judges for the High Court. He did not administer oath to two more persons as judges. Some members of the Supreme Court Bar Association alleged that the concerned persons have controversial backgrounds not befitting judges of the High Court. Meanwhile, some other members of the same association later met the CJ, requesting the latter to administer the oath to the two more newly-appointed judges. In another development, five members of the Appellate Division of the Supreme Court did not attend the afore-mentioned swearing-in function where 13 newly appointed judges were administered the oath.
Independence of the judiciary is only half meaningful in the backdrop of very important pending reforms in the manner of appointment of judges in the highest courts. A move was both proposed as well as acted upon under the immediate past caretaker government to substantially change the mode of appointing judges in the highest position of the judiciary. The prevailing system then, and also now, allow for only a ceremonial role of the CJ in the matter. The new judges are selected practically by the law ministry under the influence of the government since long. The system feigns that the CJ is consulted in the selection of the judges whereas the reality is that the judges are nominated by executive fiat. The President unquestioningly approves of the nomination as the President is also from the ruling political establishment. There is plenty of scope, therefore, in the process for any incumbent government to appoint its persons of choice in the judiciary to carry out its biddings covertly or overtly after they become judges.
The normal practice should be appointing judges from among senior legal practitioners and jurists with long and proven records of non-partisan professional activities who have satisfied all requirements of high professional capabilities as well as having full integrity of character. The Chief Justice preferably should draw up a list of such persons exercising his discretion and acumen and submit the same to the President for formally authorising the appointments. When this process is not followed and institutional exercises are not properly made to determine fitness and to make loyalty to a political party as the supreme consideration, then the outcome will be unsavoury.
It is imperative to initiate without any loss of time deep and driving reforms in the upper judiciary. That process was not completed by the caretaker government. But the present government should complete it if it really wants the judiciary to work truly independently and deliver its best for the sake of good governance in the country. The present system of appointing judges will, therefore, have to be made transparent, non-partisan and clean.
The on-going uproar in the judicial realm of the country has put into sharp focus the issues that had been known for a long time but were strangely overlooked although the same demanded attention and reforms in the national interest. First of all, it is normal expectation in any country that members of its highest courts or the judges in particular would reflect impeccable standards of the very highest integrity, professionalism and their complete dedication to the right legal principles. They would be very singularly expected to remain totally unmoved by all influences external to them in discharging real justice to its seeker in all cases and circumstances.
The lower courts of a country may suffer from some unavoidable drawbacks in their performances although the same would be also highly undesirable or unallowable. But ideally, there ought not to be scope in the slightest for compromise in the delivery of real justice in the higher courts. For if there are, the same then makes the true dispensation of justice an elusive chase.
Impartial expert observers of the legal system in Bangladesh say that the upper judiciary of the country needs deep cleansing considering its pivotal importance for the real dispensation of justice, upholding of people's vital interests and good governance. It is relevant to mention here also that a former President in his speech to the nation on the occasion of the formation of the immediate past reconstituted caretaker government, stressed on reforming important state institutions. He specially suggested at that time in some length how vitiated the judiciary had become from undue interference with its affairs and the great necessity of judicial reforms to effectively address these ills.
It should be notable that the Supreme Court Lawyers Association (SCLA), a representative body of senior legal practitioners , started a movement some four years 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 by the then elected government . But the SCLA found the appointments as grossly irregular bypassing the need for consultation and recommendations by the Chief Justice. More significantly, the SCLA charged that the appointed judges in terms of their legal competence, background and other qualities, were not of the high caliber to be deserving enough to grace the positions of High Court judges. A singular reason for the objection from the SCLA was that the appointment was designed to install the supporters of the then government in the highest positions of the judiciary to promote narrow party and coterie interests. The SCLA 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.
Although, the protestations were made during the government of the BNP-Jammat alliance, similar charges were made against the predecessor government of the Awami League also for appointing judges to the judiciary on political considerations. Only the scale of the appointment at that time was relatively small compared to what was done in 2004. On Sunday last, the Chief Justice (CJ) administered oath to 15 additional judges for the High Court. He did not administer oath to two more persons as judges. Some members of the Supreme Court Bar Association alleged that the concerned persons have controversial backgrounds not befitting judges of the High Court. Meanwhile, some other members of the same association later met the CJ, requesting the latter to administer the oath to the two more newly-appointed judges. In another development, five members of the Appellate Division of the Supreme Court did not attend the afore-mentioned swearing-in function where 13 newly appointed judges were administered the oath.
Independence of the judiciary is only half meaningful in the backdrop of very important pending reforms in the manner of appointment of judges in the highest courts. A move was both proposed as well as acted upon under the immediate past caretaker government to substantially change the mode of appointing judges in the highest position of the judiciary. The prevailing system then, and also now, allow for only a ceremonial role of the CJ in the matter. The new judges are selected practically by the law ministry under the influence of the government since long. The system feigns that the CJ is consulted in the selection of the judges whereas the reality is that the judges are nominated by executive fiat. The President unquestioningly approves of the nomination as the President is also from the ruling political establishment. There is plenty of scope, therefore, in the process for any incumbent government to appoint its persons of choice in the judiciary to carry out its biddings covertly or overtly after they become judges.
The normal practice should be appointing judges from among senior legal practitioners and jurists with long and proven records of non-partisan professional activities who have satisfied all requirements of high professional capabilities as well as having full integrity of character. The Chief Justice preferably should draw up a list of such persons exercising his discretion and acumen and submit the same to the President for formally authorising the appointments. When this process is not followed and institutional exercises are not properly made to determine fitness and to make loyalty to a political party as the supreme consideration, then the outcome will be unsavoury.
It is imperative to initiate without any loss of time deep and driving reforms in the upper judiciary. That process was not completed by the caretaker government. But the present government should complete it if it really wants the judiciary to work truly independently and deliver its best for the sake of good governance in the country. The present system of appointing judges will, therefore, have to be made transparent, non-partisan and clean.