Focus on selection, removal will be rare
The Supreme Court is critical of the system for appointing higher court judges and stressed the need for a better selection process.
The apex court in the 16th amendment case verdict also observed that removal of judges from office would be a rare event if they were appointed through a rigorous judicial selection process.
According to article 95 (1) of the constitution, the president appoints the apex court judges after consulting with the chief justice.
It may seem that the president is empowered to make the appointment but he himself cannot exercise the power. In reality, the prime minister exercises the power as the president performs all his duties on the advice of the premier, except for the appointment of the PM and the chief justice.
Moreover, no law has been made in the last four decades in line with article 95 (2) (c) determining other criteria and qualifications required for a potential judge of the SC.
In the absence of the law, any Bangladeshi, who has been a lawyer of the SC for at least 10 years or has held an office in the lower judiciary for 10 years, is eligible to be appointed as a judge of the higher judiciary, according to article 95 (2).
"Now the executive [the government] prepares a list of its choice and then sends it to the chief justice as a formality, as if the office of the chief justice is a post box," said Justice Mirza Hussain Haider, one of the seven judges of the Appellate Division, in the 16th amendment case verdict.
"This practice will hardly find competent persons for appointment as a judge of the higher judiciary. Because the executive as well as legislature are generally comprised of political personalities, they cannot chose the right person having the depth of law," he said.
"Rather, person having political affiliation will get preference over the quality lawyers."
The Appellate Division of the SC, led by the chief Justice, on July 3 this year upheld the High Court verdict delivered last year that scrapped the 16th amendment to the constitution.
Through the amendment, the government had cancelled the chief justice led Supreme Judicial Council and had restored the parliament's power to remove SC judges on grounds of misconduct or incapacity.
Justice Haider said he fully concurred with the decision made unanimously in dismissing the appeal with observations. In addition, he expressed his own views about the matter.
He said the term 'consultation with the chief justice' should be made more open so that the consultation was not confined only to the chief justice and the representative of the executive.
But the consultation should be meaningful and practical so that the chief justice could discuss the matter with his colleagues and senior members of the Bar for evaluating strengths and weaknesses of a candidate, he said.
In the past, there were instances of ignoring the opinions of the chief justice.
For example, 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 had said while speaking at the national judicial conference.
The chief justice, who is the author judge of the 16th amendment case verdict, emphasised on the selection process.
" … through a rigorous judicial selection process and high standards of ethical conduct can help avoid the need for the use of removal mechanism. These are basics to be borne in mind but the executive ignores the criteria in the selection process which is seen all the time," said the chief justice in the verdict.
Expressing his views in the verdict, Justice Haider said in many countries, the practice and procedure of appointing judges have changed with time and that the consultation was no longer limited to the chief justice and the law minister representing the executive.
He said objective criteria, transparency, equal opportunity; integrity; moral value and meritocracy should be taken into consideration before appointing someone as a judge of the higher judiciary.
This should be the method of choosing competent persons who could have appropriate role in protecting the people's right and the constitution, Justice Haider said.
"In our country, since after liberation, the process of appointing judges in the higher judiciary is encircling consultation with the chief justice," he said, adding, "In old days the chief justice used to consult his brother judges and senior advocates for determining the credibility of any particular advocate/person if he is to be appointed as a judge of the High Court Division."
"But the said system/process is no more in practice now a days. Rather, it has become completely different," said Justice Haider.
Referring to article 95 (2) (c), he said, "Unless the appointment process is determined by enacting law as per constitutional provision how removal process could be enacted?
"First of all there should be a criteria determined by law for appointment of a person a judge in the higher judiciary and then the question of removal of such judge comes.
"But interestingly for the reasons best known to parliament, they have come forward with removal procedure … ," Justice Haider said.
"It is not understood as to why in spite of the fact that there are existing procedure in the constitution as to qualification of a person to be appointed as a judge in the higher judiciary as well as the removal process, parliament had been so eager to deal with the process of removal of the judges of the Supreme Court before determining the qualifications for appointment pursuant to article 95 (2) (c)?"
He said until parliament enacts the law for appointing judge in the higher judiciary, "the appointment process should be vested upon the said council headed by the chief justice, who can gather information/opinion through other various methods in respect of any candidate and thereby get the final order of appointment/removal by the president of the republic."