Appointment of Supreme Court Judges : Article 95(2)

Revisited
bdlawdigest.org/appointment-of-supreme-court-judges-in-bangladesh.html

June 10, 2017

JUDICIARY is reckoned as the least dangerous organ of a society. It is

vested with the task of dispensation of justice according to law. People
resort to the judiciary to get legal and fair remedy to redress their
grievances. But a doubt is cast upon the efficacy of this least dangerous
organ of the state if appointment procedure of the judges is saddled with
extraneous considerations rather than qualifications.

Judiciary probably the only organ among all the State functionaries where a person plays the
most crucial role from his or her individual’s perspective. Once a judge is appointed in the
Supreme Court with manipulation, political or otherwise, s/he can cause enormous harm to
the institution as well as the nation especially when the Constitution guarantees security of
his/her tenure. Lack of transparent system of ensuring accountability of a judge can also be
liable in this respect.

When the Constitution speaks about independence of the judiciary, it emphasizes on the
independence of the individual judge rather than the institution. Article 94(4) reads “…the
Chief Justice and the other Judges shall be independent in the exercise of their judicial
functions.” Likewise, Article 116A reads “…all persons employed in the judicial service and all
magistrates shall be independent in the exercise in their judicial functions.” Institutional
independence of Judiciary comes by way of necessary implication from Article 22 as well as
from the spirit of Part VI of the Constitution coupled with judicial pronouncements. In Eight
Amendment Case independence of the judiciary has been accepted as one of the basic
structures of the Constitution.

Power of appointment of Supreme Court Judges in Bangladesh is given to the President

under Articles 95 and 98 of the Constitution. But such power of the president ultimately falls
in the hands of the Prime Minister during the political government as the President is
required, under Article 48(3), to act in accordance with the advice of the Prime Minister in
appointing judges, except Chief Justice, under Articles 95 and 98 of the Constitution.
Although, conventionally chief Justice is consulted before appointing Supreme Court
Judges, such requirement is neither mandatory, nor was often followed in recent decades.

We know that in case of appointment of judges in the higher judiciary, the requirements
envisaged in Article 95(2) of our Constitution have to be fulfilled. Article 95(2) of our
Constitution stipulates that “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 other qualifications as may be prescribed by law for appointment as a judge of
the supreme court.”

Moreover, if the President is satisfied that the number of the judges of a Division of the
Supreme Court should be increased for the time being, the president may appoint one or
more duly qualified persons to be additional judges of that Division for such a period not
exceeding two years as he may specify.

Recently, the Government has appointed a few additional judges in the High Court Division. It
is alleged that out of these additional judges, some are not competent to become the
additional judges under Article 98 of Our Constitution. Though we know that there are no
specific requirements prescribed for the appointment of additional judges in the higher
judiciary, nevertheless the provisions mentioned in Article 95(2) of our Constitution is
applied in case of appointment of additional judges. To become a judge in the higher
judiciary, one has to practice for at least ten years as an advocate of the Supreme Court; but
it’s a matter of regret that the recent recruitment has not done justice to this requirement in
every case.

Our Constitution was adopted on 4th November, 1972 and came into force on 16th
December, 1972 and there are almost 2000 legislations in our country since then, but there is
no specific law concerning the appointment of judges and their qualification.

For the appointment of judges in the Supreme Court, clear guidelines should be made.
Appropriate legislation should be enacted, as contemplated in Article 95(2)(c) of the
Constitution, to set out the selection criteria. The Appointment Commission must have the
power to formulate the other qualifications of judges with sufficient clarity for making a
sound decision to appoint an appropriate person.

The Chief Justice will make a request to the Commission with the requisite numbers of
judges to be appointed. An advertisement should be made by the Appointment Commission
inviting application from persons qualified under provision of Art.95(2)(a)(b) of the
Constitution who are required to supply information set out by the Commission and will be
interviewed by the entire quorum of the Commission. The Commission will prepare a short
list and in turn will send the listed candidates’ information along with their observations to
the Chief Justice who will consider the short listed candidates’ aptness with a ‘Collegiums’
of judges consisting of all the judges of the Appellate Division and two senior most High
Court Judges. Recommendation of the ‘Collegiums’ will be placed before the President for
formal appointment. The President may send the recommendation, partly or wholly, back to
the ‘Collegiums’ for reconsideration. If the ‘Collegiums’ find no plausible reason for
reconsideration, they will forward their final recommendation to the President, who must
appoint them as a matter of formality.

Integrity and dignity of a judge are the most important sanctity in earning respect from the
people. If the appointment of a judge shrouded in contention, however excellence s/he may
have in deliberation, s/he can never earn the admiration that s/he deserves to have as a
judge. Although Masdar Hossain judgement sets the stepping stone in aligning the
constitutional position about, inter alia, appointment of judges of the subordinate judiciary
through a judicial service commission, unfortunately, the very process of appointment of the
judges of the Supreme Court remains in the hands of the Executive and thereby political
manipulation in appointing Supreme Court judges can seriously damage the image and
prestige of judiciary leaving the separation of judiciary a mythical phenomena.

Most of the time, it is noticed that ‘appointment of judges’ receives political overtones.
Because of this reason, the most talented lawyers and judges in the sub-ordinate court
hardly get chance to become judges in the Supreme Court of Bangladesh. In this backdrop,
the following points are to be seriously taken into consideration by the policy makers:

– To enact a separate law on the appointment of judges and their qualification as indicated
in Article 95 (2) (c).

– To ensure the selection of at least 50% judges from the sub-ordinate court in case of
appointment of judges in the higher judiciary.

– To amend the provisions mentioned in Article 95 (2) of our Constitution. The tenure of an
advocate of the Supreme Court and a judge held judicial office in the territory of Bangladesh
may be increased with an additional focus on the submission record in their practice life and
their contribution to the life of law.

Article 95(2) of our Constitution only provides that ‘to become a judge of the
Supreme Court, a person has, for not less than ten years, to be an advocate of
the Supreme Court.’ Though there is a long-constitutional practice that the
President shall consult with the Chief Justice, but in fact it doesn’t work. It
apparently seems that once one becomes an advocate of the higher court, and
he doesn’t necessarily have to engage in actual practice. After ten years, even a
non-practicing lawyer may assume the sit of the bench as a judge in the
Supreme Court! Precisely for this reason, the provision of Article 95(2) (a) of our
Constitution has to be amended slightly by adding a word “practicing” before the
word ‘advocate’ (i.e. Practicing advocate).
As the practice goes, a judge of the sub-ordinate court becomes competent to become a
judge of the Supreme Court when he holds the post of District Judge (DJ) or Additional
District Judge (ADJ). In reality, it takes about fifteen to twenty years to become a DJ or ADJ
in the sub-ordinate court. So, it seems that the provision of Article 95(2)(b) of our
Constitution should be changed a little by adding a word ‘at least fifteen to eighteen years’ in
place of ‘ten years’. The other points in matter of judges’ appointment may be:

a) To sketch out a constitutional mechanism for ensuring effective consultation in the event
of appointment of justice in the higher judiciary.

b) At least forty-five years has to be completed to become a judge of the Supreme Court.

c) Hold a good academic record/result in his/her educational level (i.e. from S.S.C. to
Masters).

There is no better test of excellence of a state than to look at its administration of justice
system. Good judges can make the law sing and can even interpret a bad law for the greater
interest of the people. Being the watchdog of people’s right, we should take care that the
court remains an arbiter of justice and excellence.

Judges, who will be appointed through a transparent and acceptable system, will always be
respected, loved, feared and admired. People’s faith on the wisdom of the judges and
confidence on the system of their appointment do play pivotal role in establishing an
effective and independent Judiciary. Independence of Judiciary paves the way to make sure
“justice and fairness” to all. People will always be in doubt about receiving justice and
fairness from a judge who was improperly appointed. Independence of Judiciary can only be
achieved when the judiciary wins the heart of the people by ensuring fairness in all aspects
of its affairs. Independence of judiciary depends on some certain conditions like mode of
appointment of the judges, security of their tenure in the office and adequate remuneration
and privileges. Satisfactory implementation of these conditions enables the judiciary to
perform its due role in the society inviting public confidence in it.

“When the judiciary gets flooded with politics, there leaves the possibility of miscarriage of
justice. It’s a well settled principle that the independence of the judiciary is the basic structure
of any democratic constitution and if it gets influenced under the grip of politics, there would be
an attack on its independenc,” said by Alok Kumar Yadav, a faculty of International Law at
HNB Garhwal Central University, Shrinagar.

Cite this article as: Mohammad Rayhan Uddin, 'Appointment of Supreme Court Judges :
Article 95(2) Revisited' (Bangladesh Law Digest, June 10, 2017)
<https://bdlawdigest.org/appointment-of-supreme-court-judges-in-bangladesh.html>
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