The chief justice is the key person in forming opinion as to the eligibility of persons for appointment in the higher judiciary and his opinion shall have primacy over that of the executive, observed the High Court in a verdict recently.
Article 95 (1) of the constitution entitles the chief justice, head of the judiciary, to be consulted by the president before the latter appoints the Supreme Court judges.
According to Article 48 (3), the president has to act as per the prime minister's advice in all cases, except for the appointment of the premier and the chief justice.
The constitutional provision allows the PM, head of the executive branch, to advise the president regarding appointment of the SC judges.
The HC verdict said the existing system of appointment can be more improved by the chief justice.
The court also observed the chief justice is the best and prime person to evaluate as to which lawyers and the judicial officers working in the sub-ordinate judiciary are truly eligible to be appointed.
In response to a writ petition, the HC bench comprising Justice Obaidul Hassan and Justice Kirshna Debnath delivered the verdict on April 13 this year. The copy of the full verdict was released yesterday.
"Since the opinion of the chief justice has been made mandatory for the executive, presumably it can be said the chief justice being the head of the judiciary, one of organs of the state, will recruit the proper persons in the higher judiciary having proper legal background i.e. sufficient knowledge of law, man of dignity and integrity," said the verdict on the appointment of the SC judges.
However, the chief justice's opinion was ignored in the past.
Chief Justice Surendra Kumar Sinha on December 24 last year said he advised the government to appoint eight additional judges to the HC in August 2016 after a long discussion with the law minister.
"On mutual consent, a recommendation was sent to the government for appointing the judges, but the process was yet to see the light of day in four months,” he said while speaking at the national judicial conference in the capital.
Till date, no judge has been appointed by the president.
About the background of the writ petition, the verdict said the petitioner being a High Court lawyer has become concerned about the HC judges' recruitment which has given rise to serious criticism in the recent past.
The petitioner prayed for a direction upon the government to frame guidelines in respect of the process of selection of persons for being appointed as judges of the SC to bring transparency and competitiveness in such process.
According to the current constitutional provision, a person, if he is a citizen of Bangladesh, and has been an advocate of the SC for at least 10 years or has been holding judicial office for 10 years, is eligible for appointment as an apex court judge.
S/he needs no other qualification. There is no other mechanism to scrutinise the efficiency of individuals willing to be judges of the apex court.
The constitution has long been calling for enactment of a law specifying other qualifications of a person willing to get appointed as a judge of the SC. But the parliament has yet to make any such law.
The HC, however, disposed of the writ petition with some observations as it refrained from issuing any guideline.
"Since as per the constitution there is a provision of consultation with the chief justice before making any appointment in the higher judiciary, there is ample scope for the chief justice to select the competent persons for the higher judiciary," said the HC verdict.
Now it is the responsibility of the chief justice to select the candidates and to suggest the president in the form of recommendation to appoint them in the higher judiciary, it read.
"There is ample opportunity for the chief justice to select the proper persons having sufficient legal acumen and competence for the higher judiciary."
The HC said the petitioner's submission is that for the sake of independence of judiciary, the recruitment process of the Judges of the higher judiciary must be free from all political influences.
It is his apprehension that since the president is bound to listen to the prime minister's advice as per the constitutional provision, there might be political influence in the process of recruitment of the judges in the higher judiciary, stated the HC verdict.
In its verdict, the HC focused on the selection process of judicial appointment.
"To achieve the objective of an independent judiciary the selection process of judicial appointment in the higher judiciary needs to be designed in such a manner as to guarantee the selection of highly qualified, honest and eligible person," it said.
It said the court wants to believe that if the existing system fails to work properly, legislatures will come forward to enact a charter into the constitution or make proper law as hinted by Article 95(2)(c) which shall elevate the higher judiciary to a rare dignity which will command the respectful obedience of the people of Bangladesh.
The HC also observed that a person should not be recommended for the post of its judge unless he or she has the commitment to the fundamental principles of the state policy and Liberation War.
It also said, "In the process of selecting the persons for elevation to the High Court Division, the chief justice may, if feels indispensably necessary, consult or share his view with at least two of his senior most brother judges in the Appellate Division and two of the senior most Judges of the High Court Division as well in forming 'opinion' and also to ensure the recommendation appropriate, effective and transparent."