Citizens' concern over appointment of judge in Supreme Court
Anisur
Rahman
Whether
Mr. Justice Syed Shahidur Rahman will be proved guilty or not before
the Supreme Judicial Council is not our concern. Our question is how
he got appointment having an allegation of misappropriation of funds
of the Supreme Court Bar Association while he was office bearer of the
association. Mr. Rahman was appointed as the judge of the highest court
of the country on April 24 despite protest from various quarters including
the senior lawyers of the Bar. It is not new here that the opposition
protests every decision of the government including the appointment
of judges in the Supreme Court. But for the first time corruption charge
was raised not only by the opposition lawyers but also by the senior
lawyers of the court against a person going to appointed as the judge
of the Supreme Court, the last resort to justice. But the government
did not pay any head to the allegation and appointed him at the cost
of dignity of the court.
Loopholes
in appointment procedure
Actually our constitutional provisions for the appointment of justice
are not sufficient to spare from the government to appoint a person
loyal to it. A person who has been practising law in the Supreme Court
for ten years or who has been performing judicial functions in the territory
of Bangladesh for ten years may be appointed as judge of the Supreme
Court by the president. Here lies some loopholes for the government
to manipulate the appointment procedure.
Firstly,
it is not mentioned here that such person must have regular practice
in the court. One may get enrollment in the Supreme Court by passing
an enrollment examination. And after ten years he may get appointment
as the judge of the court without having good record of practicing law
if he is in the good book of the government.
Secondly,
the Constitution does not define the term 'judicial officer'. According
to the decision of the Masdar Hossain case (Secretary, Ministry of Finance
Vs Md. Masdar Hossain, 20 (2002) BLD, AD) only the person who performs
the judicial functions will be treated as the judicial officer. One
who is the secretary of the Ministry of Law, Justice and Parliamentary
Affairs shall not be treated as the judicial officer. But last time
an officer of the law ministry was appointed as the judge of the Supreme
Court which is clear violation of the directions of the abovementioned
case.
Thirdly,
the president is entrusted with the sole power to appoint judges in
the Supreme Court. There is no check and balance on it. In our original
Constitution of 1972 there was a provision for consultation with Chief
Justice in the matter of appointment of judges in the Supreme Court
which is out dated by the constitutional fourth amendment. And now the
president has the unfettered power to appoint judges in the highest
court which may be influenced by the decision of the government. Because,
in our country decision of the president merely derails from the decision
of the party in power. Although it is said that there is a convention
that president should consult Chief Justice before exercising his power
in appointment of judges, but it has no binding force.
Legacy
of the Masder Hossain case
The decision of the Masdar Hossain case (Secretary, Ministry of Finance
Vs Md. Masdar Hossain, 20 (2002) BLD, AD) emphasised on the independence
of the lower judiciary as the appointment and other issues of the judicial
officers of the lower judiciary are dealt by the executive. The judgement
advocated for a Judicial Service Commission instead of the executive
authority to deal with matters including appointment. Ok. It is alright
that the appointments and other matters of the lower judiciary will
be dealt by the Judicial Service Commission. What will be of higher
judiciary?
It
is already assumed that our higher judiciary i.e. the Supreme Court
is independent in exercising its duty. " Judicial independence
involves both individual and institutional relationships: the individual
independence of a judge as reflected in such matters as security of
tenure and the institutional independence of the court as reflected
in its institutional or administrative relationships to executive and
legislative branches of government"(Walter Valente Vs Her Majesty
the Queen, 2 R.C.S. 1984, Masdar Hossain Case). It seems that our Supreme
Court has the individual independence as the tenure of its judges is
secured by the Constitution. But does it has the institutional independence?
Can we say that the Supreme Court is institutionally independent when
its judges who are the part and parcel of the court are appointed only
by the executive decision i.e. the president and the court or the Chief
Justice has no role to play?
May
be Mr. Rahman was appointed as the allegation against him was subject
to adjudication and Constitution does not prohibit such appointment.
But such type of practice must be stopped to keep the highest judiciary
beyond question. So the appointment procedure of judges of the Supreme
Court should be changed and the sole power of the president should be
shared. An Appointment Council represented by members of the opposition,
civil society and obviously by the government may be introduced to make
appointment in the Supreme Court more transparent. Because it seems
that the judge of the Appellate Division who is in the good book of
the government is appointed as the Chief Justice. Therefore consultation
with Chief Justice is no more acceptable as there is a possibility of
government interference in his decision making. Opposition's voice is
always ignored in every appointment of the important posts of the country.
This habit should give up. Supreme Court had the chance to give direction
to the government in this regard in Masdar Hossain case, but ignored.
The
Supreme Court had another option at least to direct the legislatures
to revive the provision of "consultation with chief justice"
in the matter of appointment of judges of the highest court, which was
in the original Constitution. Independence of judiciary is the basic
structure of the Constitution which is not attainable without participation
of the Chief Justice in the appointment procedure. Therefore, re-introduction
of the provision of the original Constitution will ensure the participation
of the court in appointment procedure of its judges. And the highest
court left it in a limbo.
Concluding
remarks
The allegation of corruption against Mr. Rahman is to be investigated
by the Supreme Judicial Council for the first time in the history of
Bangladesh. And for the very reason all of us turn to the matter. But
we must not avert from the main weakness of the Constitution, the appointment
procedure of the judges of the highest court. It will be a blunder to
expect independent and transparent judiciary if the sole power to appoint
judges of the Supreme Court lies with the executive.
Anisur
Rahman is an Assistant in Charge of the Law Desk.
