The power to appoint judges to the Supreme Court of Bangladesh is vested in the President under Article 95(1) of the Constitution. The President exercises such power as advised by the Prime Minister under Article 48(3) of the Constitution, which ultimately leaves the power to the government.
Although Article 95(1) requires the President to consult with the Chief Justice before making an appointment, it did not say anything as to whether the President has to follow the recommendation made by the Chief Justice.
Appointment to the higher judiciary in India is also made by the President after consultation with the CJI under Article 124(2) and 217(1) of the Indian Constitution. Similar to the provisions of the Constitution of Bangladesh, these two Articles do not contain any specific provision to comply with the recommendation made by the CJI.
Then, who has the final voice in appointing judges?
The question arose in S. P. Gupta v. Union of India-1981, SCC 87 before a seven-judge bench of the Indian SC. Examining the term 'consultation' within the meaning of Article 124(2) and 217(1), the Court held that the President is not required to concur with the CJI.
The CJI and other judges are merely constitutional functionaries having a consultative role and the power of appointment resides solely and exclusively in the government. The government can override CJI's opinion and arrive at its own decision.
Twelve years later, the matter arose back in Supreme Court Advocates-on-Record Association vs. Union of India, 1993, 4 SCC 441, before a nine-judge bench of the Indian SC, while the correctness of the majority views in S.P. Gupta case required reconsideration by a larger bench.
Does the recommendation made by the CJI have any primacy in the matter of appointment?
This was the major question to answer in this case. Considering the question in the context of the independence of the judiciary, the Court observed that the Constitutional purpose is to select the best available for composition of the higher judiciary that is essential to ensure the independence of the judiciary. The question of the primacy of the CJI has to be examined with reference to the Constitutional purpose sought to be achieved.
Legal expertise, ability to handle the cases, proper personal conduct and ethical behavior, firmness and fearlessness are essential attributes of a person suitable for appointment. Appointment in HC is made from the Bar and subordinate judiciary and appointment in SC are made mainly from amongst the HC judges. The maximum opportunity for adjudging their ability and traits is in Court and therefore, the judges are in the best position to assess their true worth for appointment. This is why the requirement of consultation with CJI and CJ of the High Courts was introduced.
The framers of the Constitution were also reluctant to leave the power to the absolute discretion of the Executive and therefore, a provision of consultation with CJI and CJ was introduced. It was done to achieve the independence of the judiciary that has to be safeguarded not merely by assuring the security of the tenure of judges and other conditions of the service but by preventing the influence of political consideration in the appointment.
The judgment resulted in the Collegium system for appointment and elevation of the judges in the higher judiciary, where the CJI in consultation with a forum of senior-most judges recommends the names of proposed judges. No appointment can be made by the President either in SC or HC unless it is in conformity with the final opinion of CJI. The Court issued a guideline to be followed in this regard. In 1998, responding to a question raised by the President, the SC delivered its Advisory Opinion clarifying the size of the Collegium and the manner as to how it will function (Third Judges Case 1998 7 SCC 739). This judgment resulted in aMoP for an appointment, which is being followed now.
In 2014, making the 99th Constitutional amendment, the National Judicial Appointments Commission Act, 2014 was passed by the government with a view to setting up a Commission for appointing judges that in fact scrapped the Collegium system. It had proposed that the appointment would be made by a six-member Commission headed by the CJI including two senior-most SC judges, central Law Minister and two eminent persons. However, the SC struck down the amendment and the Act as unconstitutional on the ground that the inclusion of Law Minister in the Commission infringes upon the independence of the judiciary and accordingly it revived the Collegium system.
Though through the judgments of the Three-Judges-Cases the Collegium system was evolved in India, yet a conflict of primacy remains there. The Supreme Court Collegium and government yet to reach any convergence in finalizing a fresh set of guidelines for making an appointment as the government wants veto power with it to reject any name recommended by the Collegium as a judge on the ground of national security.
In Idrisur Rahman vs. Bangladesh-2008, 60 DLR 714, an HCD bench in Bangladesh declared Section 9(4) of the Supreme Judicial Commission Ordinance, 2008 as void on the ground that the President has the final say in the appointment. In this case, a conclusion as to the norms for the appointment was reproduced, where the Collegium system for appointment having primacy of the CJ was suggested. However, the Appellate Division did not approve the norms except for the primacy of the CJ with the modification that in the matter of antecedent of the candidate, the dominance will lie with the Executive (29 BLD AD 79).
A significant development in the appointment system of higher judiciary in India has been made. Pakistan making its 18th Constitutional amendment introduced a Commission in this regard.
A law for appointing our HC judges is underway which should meet the expectations.
Muhammad Mamunur Rashid is Advocate at Judge Court, Sylhet
