The process by which judges are appointed in the judiciary is an important factor to safeguard judicial independence. In establishing rule-based government, an independent judiciary plays a substantial role. In Bangladesh, following the Masdar Hossain case, the subordinate judiciary was formally separated from the executive in 2007. However, the process of appointment of judges in the Supreme Court of Bangladesh still rests in the hands of the executive.
According to Article 95(1) of the Constitution of Bangladesh, the President can appoint the Chief Justice. The High Court Division (HCD) and the Appellate Division (AD) judges are appointed by the President in consultation with the Chief Justice.
Nevertheless, the President, under Article 48(3) of the Constitution, has to act in accordance with the advice of the Prime Minister except when appointing the Chief Justice. This ultimately vests a significant portion of the power of appointing justices in the hands of the cabinet. Hence, to ensure that the process of appointing judges does not rely on the hands of the executive, a Supreme Judicial Council could be formed like the one during the regime of the caretaker government in 2007-09.
The Council, like the former one in 2008 would be headed by the Chief Justice and include the Minister of Law, three senior-most Judges of the AD, two senior-most judges of the HCD, the Attorney General and the President of the Supreme Court Bar Association. They would recommend, after selection, two competent names against each vacant post to the President for appointing one of them as a judge.
Alternatively, a Collegium of judges can appoint new judges in the Supreme Court, as it is done in India, where it is formed of the Chief Justice and four senior-most judges from the AD. The Collegium would submit a list of eligible candidates to the President who would ultimately appoint the most suitable candidates as judges.
In both the abovementioned methods, proper consultation with the Chief Justice will be done by the President and this will ensure that the executive can in no way influence the whole procedure. After all, a fair procedure of appointment of judges of the Supreme Court is the first step towards ensuring actual and absolute independence of the judiciary.
Student of Law
University of Dhaka