The long standing issue of enacting a new law for the appointment of the High Court judges is going to be solved as the interim government has decided to enact a new law in this regard within short time.
After the political change on August 5, as part of ensuring the independence of the judiciary, the issue of appointment of judges has been discussed widely. Lawyers and parties are giving different opinions on this matter and demanded to enact a law to appoint the qualified persons as the judges of the High Court Division to ensure transparency and accountability of the judiciary to the people.
Amid this demand, in a full court meeting held on November 4 at the Supreme Court judges lounge presided by the Chief Justice Syed Refat Ahmed, where both the Appellate Division and the High Court Division judges were present, widely discussed the issue and decided to take initiative for enacting the 'Judge Appointment Commission Act' in order to ensure transparency in the process of selecting qualified and competent judges, sources said.
The judiciary is now scrutinizing the appointment systems of the High Court judges of India and Pakistan, in which process or model of these two countries commissions were selecting the judges for the appointment. After finalizing the procedures of appointment of judges, the Chief Justice will send the proposal of enacting the law to the ministry as early as possible, sources said.
Notwithstanding a constitutional obligation, the law on the appointment of judges has not been framed even 53 years after the enactment of the charter.
According to Article 95 (1) of the Constitution, which was framed in 1972, the Chief Justice shall be appointed by the President, and the other Judges shall be appointed by the President after consultation with the Chief Justice.
(2) A person shall not be qualified for appointment as a Judge unless he is a citizen of Bangladesh and - (a) has, for not less than ten years, been an advocate of the Supreme Court ; or (b) has, for not less than ten years, held judicial office in the territory of Bangladesh ; or (c) has such qualifications as may be prescribed by law for appointment as a Judge of the Supreme Court.
The absence of such a law has enabled political parties to appoint judges as per their will and use them to fulfil their political objectives, experts opined.
However, they hoped that now the law for the appointment of the judges would be enacted as the current chief justice and the interim government vowed to make the judiciary independent from the administrative wing.
Supreme Court Bar Association (SCBA) president Barrister AM Mahbub Uddin Khokon expressed his anger over the lack of law on the appointment of judges.
He said, "At the time of appointing a judge in the lower court, you cannot apply if you are in the third class, you need talent. After becoming a district judge, they came to the High Court and the political parties appoint the High Court judges as per their will due to the lack of specific law."
Supreme Court lawyer Advocate Shishir Manir said that it was a constitutional obligation to enact a law to appoint the judges at the High Court Division.
"Due to the lack of specific law some unskilled people have been appointed at various times on political consideration. Party loyalty is given more importance than merit. That is why the judiciary is in this state at this time," he added.
So there is an immediate need to legislate the qualifications of judges. It is very important to set up a commission for appointment of judges in the High Court Division to make the judiciary independent and ensure more transparency, the Supreme Court lawyer said.
Chief Justice Syed Refaat Ahmed had on November 12 said that necessary initiatives would be taken soon to introduce a transparent and accountable process for appointments of High Court judges.
"The Supreme Court has already revived the Supreme Judicial Council to ensure the independence of the judiciary. Steps will be taken soon for the implementation of e-judiciary to bring transparency in the judicial process along with the modernisation of the judiciary and increasing the accessibility of the judicial system," he said.
He said this while addressing as keynote speaker at a regional conference in Thailand's Bangkok on Monday, which organised by UNDP, Thailand Institute of Justice. A number of representatives attended from different countries and Pacific region at the conference.
Law Adviser Asif Nazrul said the interim government is working to formulate a law for the appointment of High Court judges.
The law adviser came up with the comments while talking to reporters after a meeting with the members of the judiciary reform commission at the Judicial Administration Training Institute (JATI) in the capital on Thursday afternoon.
In 2010, a lawyer in the Supreme Court filed a writ seeking directions to formulate a policy for the appointment of High Court judges. On June 6 of that year, the High Court ruled in the preliminary hearing of the writ. In the judgment passed by the court after settling the rule, seven points were observed about the eligibility of appointment of judges.
The judgment said that a person should be at least 45 years old to become a judge of the Supreme Court. Judges should have at least three years of judicial experience in District and Sessions Courts.
There should be confidence in the four basic principles of the country and the Liberation War. The person recommended should have very good academic record, rich professional skills, legal acumen and work with concentration. The full copy of the judgment was published on May 23, 2017.
