Gulam Rabbani :
In the absence of a transparent law or policy, the appointment of judges in the higher judiciary has always been a question. However, the Constitution has prescribed for enacting a law regarding the recruitment of judges in the higher judiciary.
According to the Article 95(2)©, “A person shall not be qualified for appointment as a Judge unless he is a citizen of Bangladesh and has such qualifications as may be prescribed by law for appointment as a Judge of the Supreme Court.”
But this Article of the Constitution has not come into effect as no law is enacted till today. That is why the recruitment of the judges in the higher judiciary is going on in a nontransparent way, which is raising questions again and again.
Former Law Minister Barrister Shafique Ahmed said, “Judges of the higher judiciary are being appointed without any specific law or rules over the years. It has become a custom. But there should be a specific law for the transparency in appointing judges in the higher judiciary.”
Parliamentary Standing Committee on the Ministry of Law, Justice and Parliamentary Affairs took an initiative in 2012 for formulating a policy over the recruitment of judges in the higher judiciary. Later a draft was also prepared by the Law Ministry.
Emphasis was placed on experience, age and educational qualifications in recruitment of judges in the draft policy. The draft was prepared in consultation with the former Chief Justices, lawyers and other stakeholders and following the provisions for the appointment of judges of other neighboring countries. But it was not finalized.
Later in 2014, the Law Commission also recommended for enacting a law over the issue, but it was also unheeded.
The Supreme Court also gave some directions in different verdicts over judge recruitment in the higher judiciary. A five-member bench of the Appellate Division headed by then Chief Justice MM Ruhul Amin passed some directives in a verdict delivered on February 25 in 2010. Later some other judgemens also gave some directives over the issue.
The High Court on April 13 in 2017
gave seven-point guidelines regarding judge recruitment. The court has recommended appointing people having sincere allegiance to the four fundamental principles of the State and the spirit of Liberation War.
The bench of Justice Obaidul Hassan and Justice Krishna Debnath made the observations in a full verdict on a writ petition seeking guidelines on the appointment of Supreme Court judges. The verdict on the writ petition filed by Barrister Raghib Rauf Chowdhury was issued on Apr 13 and its full version was published on May 22 in 2017.
The existing process to select judges “could be made more effective, improved, transparent and realistic by taking the following matters into account as ‘eligibility criteria'”, the verdict says. However, the suggestions were not implemented yet.
Sources said, a process has been under progress to recruit some new judges in the High Court division of the Supreme Court. In this circumstance the lawyers demanded to formulate a policy before the recruitment of the new judges.
Former Secretary of the Supreme Court Bar Association (SCBA) Barrister A M Mahbub Uddin Khokan strongly demanded for formulating a policy for the appointment of the judges before appointing any new judge in the Appellate and High Court divisions of the Supreme Court.
Barrister Khokon said, “In order to ensure the independence of the judiciary and above all to establish the rule of law, it is imperative to formulate a policy in accordance with the Article 95(2) of the Constitution and in the light of the High Court judgment in this regard to appoint judges in the Appellate and High Court divisions of the SC.”
It is imperative that the right person should be appointed as a judge of the Supreme Court and such appointment should be made upon qualifications, merit, ability and integrity only and that known or perceived political connections or affiliations should not be the basis of the choice made, the lawyer added.
