Judges may be selected by Independent Constitutional Body

Md. Imman Ali and Obaidul Hassan, JJ HASSAN M.S. AZIM, Barrister-at-Law and Advocate of the Supreme Court of Bangladesh, son of late Md. Anwarul Azim and three others v. Bangladesh, represented by the Secretary, Ministry of Law, Justice and Parliamentary Affairs, Bangladesh Secretariat, Dhaka· In the case of appointment of Judges to the Supreme Court the President is obliged to act in accordance with the advice of the Prime Minister, but in the case of appointment of the Chief Justice there is no such obligation and the President alone has the authority to appoint the Chief Justice. The mode of appointing Chief Justices and Judges in the subcontinent have been inherited from the age old conventions followed in England, but the centuries-old convention of the appointment of Judges being made by the Lord Chancellor was done away with in the year, 2006 with the promulgation of the Constitutional Reform Act, 2005. When the matter of appointment of Judges was discussed from the year 2003, Lord Faulkner, the then Secretary of State for Constitutional Affairs, asserted that it was no longer acceptable for judicial appointments to be entirely in the hands of a Government Minister (namely the Lord Chancellor) Accordingly, the British Government announced its intention to establish an independent Judicial Appointment Commission (JAC) to recommend candidates for judicial appointment on a more transparent basis. The Judicial Appointment-commission comprises 15 members, including a Chairman, who come from various vocations and professions. A Committee is selected for the purpose of selecting the Chief Justice and other Judges, and within that Committee there will always be two senior members of the judiciary and two members of the Judicial Appointment Commission. (Para-18) It is not for us to suggest that a Judicial Commission must be created, but we only suggest that the President may consider taking opinion, when appointing Judges or appointing the Chief Justice, from any persons whom he so chooses, including any Commission or Committee set up under the Constitution that he may choose for his ease of reference. We believe that in appointing the' Chief Justice of the country the President would refer to all and any quarters who would advise him or assist him in choosing the right person for the post of Chief Justice and we believe that reference to any Commission made for the purpose of scrutinizing the ability of Judges to be appointed as a Chief Justice would lead to transparency in the system of appointment. Allegations of politicising appointments are abundant, as can be seen from the judgment of the High Court Division in Md. Idrisur Rahman and others v. The Secretary, Ministry of Law, Justice and Parliamentary Affairs, 29 BLD 32. This niggling complaint pervades through the different strata of our society. It is our view that possibilities of any appointments being made on political considerations would be, minimised if the selection was to be made by an independent constitutional body and to be decided finally by the President. (Para-2l) With regard to the petitioners' claim that reasons must be assigned for supersession, since, we do not accept that there is any rule of appointing from the senior-most Judges, no question of assigning reasons could arise. Moreover, we agree with the learned Attorney General that giving reasons would only stigmatize the Hon'ble Judges who are superseded. (Para-22). Mr. Hassan M.S. Azim, Advocate with Mr. Mohammad Abdus Salam, Advocate, Mr. Riaz Uddin, Advocate & Ms. Shakila Farzana, Advocate, In person. Mr. Mahbubey Alam, Attorney General with Mr. Md. Motaher Hossain, Deputy Attorney General with Mr. Samarendra Nath Biswas, Assistant Attorney General with Mr. Md. Jahangir Alam, Assistant Attorney General, For the respondents. Judgment delivered on October 26, 2010. Judgment Md. Imman Ali, J: This is an application filed under Article 102(1) and (2)(a)(i) of the Constitution of the People's Republic of Bangladesh. 2. The petitioners are learned advocates of the Supreme Court of Bangladesh and filed the instant application as a Public Interest Litigation (PIL) with the view to uphold the "Supremacy of the Constitution" and "Rule of Law" for ensuring independence of the judiciary from other organs of the State. They are concerned about the deviations made by the government on four occasions in the recent past from the recognised well established Constitutional Convention to appoint the senior-most Judge of the Supreme Court of Bangladesh as the Chief Justice of Bangladesh. It is stated in the petition that it is a fundamental right of every citizen to have access to impartial and independent Courts/Tribunals and the exercise of that right is dependent on the independence of judiciary which can be secured only through appointment of persons of high integrity, repute and competence, strictly in accordance with the procedure prescribed under the Constitution, to the high office of Judges of superior Courts. The selection of a person to the high office of the Chief Justice of Bangladesh is a pivotal appointment for maintaining the independence of the judiciary and for providing a free and unobstructed access to impartial and independent Courts/Tribunals to the ordinary citizens. Any deviation from the method prescribed under the Constitution for appointment to the high office of Chief Justice of Bangladesh would give rise to infringement of the right of a citizen to have free, fair and equal access to independent and impartial Courts/Tribunals. It is further contended that if the appointments of Judges are not made in the manner prescribed in the Constitution then the same will be detrimental to the independence of the judiciary which will lead to lack of confidence among the people. 3. Mr. Hassan M.S. Azim, learned advocate appearing in person as petitioner No.1 submits that the Rule of seniority, Le. the senior-most Judge of the Supreme Co

19 June, 2013 Wednesday

Judges may be selected by Independent Constitutional Body