The New Nation - Internet Edition

Moyeen Firozee, Barrister

Integrity and dignity of a judge are the most important criteria in earning respect from the people. If appointment of a judge is shrouded in contention, whatever excellence s/he may have, s/he can never earn the admiration that s/he deserves as a judge. Although Mazdar Hossain judgment sets the stepping stone in aligning the constitutional position regarding, inter alia, appointment of judges of the subordinate judiciary through a Judicial Service Commission, unfortunately, the very process of appointment of the judges of the Supreme Court remains in the hands of the Executive and thereby political manipulation in appointing Supreme Court judges may seriously damage the image and efficacy of the judiciary leaving the separation of judiciary a mythical phenomenon.

When the Constitution talks about independence of judiciary it emphasises on the independence of the individual judge rather than the institution. Article 94(4) reads " t the Chief Justice and the other Judges shall be 'independent in the exercise of their judicial functions." Likewise, Article 116A reads " t all persons employed in the judicial service and all magistrates shall be independent in the exercise of their judicial functions." Institutional independence of Judiciary can be found by way of necessary implication from Article 22 as well as from the spirit of Part VI of the Constitution coupled with judicial pronouncement. In Eight Amendment Case Independence of Judiciary has been accepted as one of the basic structures of the Constitution. In Mazdar Hossain's case, the Appellate Division held, endorsing a Canadian Supreme Court judgment, "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 and administrative relationships to the executive and legislative branches of government".

Judiciary is probably the only organ among all the State functionaries where person plays the most crucial role from his/her individual's perspective and s/he personally, featured most in discharging duties. Once a judge is appointed in the Supreme Court with manipulation, political or otherwise, he can cause enormous harm to the institution as well as the nation, specially when the Constitution guarantees security of his/her tenure and due to lack of transparent system of ensuring accountability of a judge.

Under Articles 95 and 98 of the Constitution the President is empowered to appoint judges in the Supreme Court. But such power of the President ultimately falls in the hands of the Prime Minister during the political government as the President is required. under Article 48(3) of the Constitution, to act in accordance with the advice of the Prime Minister in appointing judges, except Chief Justice. Although conventionally, Chief Justice is consulted before appointing High Court Judges, such requirement is neither mandatory, nor was often effectively followed in recent decades.

While Judicial Service Commission is constituted to remove Executive's influence in appointing judges in the subordinate judiciary; and while the control of their conditions of service shall be exercised by the President in consultation with the Supreme Court under Article 115 of the Constitution it is utterly undesirable that judges of the Supreme Court are appointed by the Executive, specially when they have the primary responsibility to ensure independence of Judiciary.

In India power to appoint Supreme Court Judges passed into the hands of judiciary and role of the executive becomes merely formal. Article 124(2) of Indian Constitution, inter alia, says "every Judge of the Supreme Court shall be appointed by the President after consultation with such of the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary for the purpose."

In 1993 in Supreme Court Advocates-on- Record Association's case and later in 1998 [1998 (7) SCC 739J. in an unanimous opinion rendred by a nine-Judge Bench of the' Supreme 'Court of India on a reference being made, by the President decided that 'consultation' referred to in Article 124(2) means concurrence'. After confirming that the concept of the primacy of the Chief Justice of India is essential, the Supreme Court of India devised a specific procedure for appointment of Judges in the interest of "protecting 'the integrity and guarding the independence of the judiciary." Now the Chief Justice of India and his four seniormost colleagues, generally referred as the 'Collegiums' for the purpose of appointment of Judges to the Supreme Court make recommendation to the President. Supreme Court of India repeatedly made it clear that apart from appointment of Chief Justice, the President is bound to follow the recommendation made by the Collegiums.

Although Articles 95 and 98 of the 1972 unamended Constitution of Bangladesh contained provision of consultation with Chief Justice for appointment of other Supreme Court Judge such provision was removed by the Constitution (Fourth Amendment) Article 1975. However, by convention such consultation was made even after 1975, but without having any meaningful or binding effect.

Enormous and arbitrary power of judiciary without any accountability prompted significant criticism in India as recent events have shown that there is considerable corruption in the judiciary, even at the top. In Times of India Editorial, it bas been written on October 12, 2007 that many of the senior-most judges of the Supreme Court of India have their own proteges to promote and usually the best people do not get selected. They are also often at loggerheads with each other which also greatly delays the selection, The whole process is also totally ad hoc, arbitrary and no system for comparative evaluation of the suitability of the candidates is followed.

In the UK. for last 900 years, the Lord Chancellor had the sole power to select which judge was to be appointed by the Crown. In 2005, by Constitutional Reforms Act, an independent Judicial Appointments Commission (JAC) is set up to select judicial office holders including High Court judges solely on merit and good character, through fair and open competition, from the widest range of eligible candidates to officially enshrine judicial independence in law and to enhance accountability, public confidence and effectiveness. JAC appoints judges based on some core qualities and abilities which are as follows:

1. Outstanding intellectual capacity

a. High level of legal expertise

b. Ability quickly to absorb and analyse information

c. Appropriate knowledge of the law and its underlying principles and the ability, where appropriate, to master unfamiliar areas of law

2. Personal Qualities

a. Integrity and independence of mind

b. Sound judgement

c. Decisiveness

d. Objectivity

e. Ability and willingness to learn and develop professionally

3. Ability to Understand and Deal Fairly

a. Ability to treat everyone with respect and sensitivity whatever their background

b. Willingness to listen with patience and courtesy

4. Authority and Communication

a. Ability to express and explain clearly and succinctly to all concerned matters of procedure and judgement

b. Ability to inspire respect and confidence

c. Ability to maintain authority when challenged

5. Efficiency

a. Ability to work at speed and under pressure

b. Ability to organise time effectively and produce clear reasoned judgments expeditiously

c. Ability to work constructively with others (including leadership and managerial skills where appropriate).

Vacancy for judicial office in the UK including High Court Judges and other senior positions are advertised and JAC invites applications along with references from candidate's nominated referees and other experts. A short listing is made after scrutiny of extensive track record, information supplied by the candidates and contained in the references. Short-listed candidates are called for an interview before a high level expert panel and they assess all the information about each candidate and prepare reports. Reports of the candidates likely to be considered by the Commission are sent to the Lord Chief Justice and another experienced expert. For candidates likely to be recommended for appointment, a series of good character checks are done with the Office for Judicial Complaints (a body dealing with complaints against existing judges) Police, Revenue and relevant professional bodies. The Commission considers all the information gathered and recommends to the Lord Chancellor one candidate for each vacancy. The Lord Chancellor can reject that recommendation but he is required to provide his reasons to the Commission and has to refer to JAC for selecting an alternative candidate.

To modulate the method qf appointment of judges in our Supreme Court, guidance may be taken from both Indian and English experience. Although opinion of the existing judges of the Supreme Court is invaluable, giving exclusive power to the judges, like in India, is not practicable and productive as judges are not always in the best position to assess the right candidate due to their professional limitations to mix with people freely. On the other hand, giving all the power to a commission (like JAC in the UK) shall leave the opinion on the existing Supreme Court judges aside whereby breaking the rich tradition of our Constitution.

In order to find an effective yet a balanced method of appointment of Supreme Court judges, two tier scrutiny processes should be in place before a formal appointment is made by the President. Firstly, initial and comprehensive scrutiny should be made by an independent Commission. And secondly, final scrutiny must be made by a 'Collegium' of judges consisting of all the existing judges of the Appellate Division and two senior-most existing High Court Judges.

'Supreme Court Judges Appointment Commission' may be formed consisting of one retired Chief Justice (if no one is available, a retired Appellate Division Judge) as chair, additional three retired Supreme Court Judges (at least one retired Appellate Division Judge, if available), Attorney-General for Bangladesh, Vice Chairman of the Bar Council President of the Supreme Court Bar. No existing judge should be part of this Commission, mainly to avoid any controversy in the scrutiny process and to have a second tier assessment to maintain check and balance.

For appointment of judges in the Supreme Court clear guidelines should be made. Appropriate legislation should be enacted, as contemplated in Article 95(2)(c) of the Constitution, to set out the selection criteria, The Appointment Commission must have the power to formulate the other qualifications of judges with sufficien clarity for making a sound decision to appoint an appropriate person.

The entire process of appointment must be initiated and conducted by the Supreme Court· Secretariat under the direct guidance of the Chief Justice. Registrar of the Supreme Court pursuant to a formal order of the Chief Justice will make a request to the Commission indicating the number of judges to be appointed. An advertisement should be made, by the Appointment Commission inviting application from persons, qualified under Article 95(2) of the Constitution, who are required to supply information set out by the Commission and will be interviewed by the entire quorum of the Commission.

Process of advertisement shall ensure that no pick and choose are made by the Commission and those qualified persons' who are willing and ready to act as judge shall have the opportunity to be selected. In the process many bright and eligible candidates who do not have political affiliation or strong connections or do not maintain lobbies shall have a fair chance to prove themselves. Moreover, it will introduce professionalism in the judiciary as many candidates will have a careerplan to become a judge and will prepare themselves for judiciary from the very early stage of their career.

The 'Commission will prepare a short list (double the requisite number) and, in turn, will forward the listed candidates' information along with its own observation to the Chief Justice who will consider the short-listed candidates' aptness with the 'Collegiums' of judges. Recommendation of the 'Collegiums' will be placed before the President for formal appointment. The President, after considering the advice of the Prime Minister in compliance with Article 48(3) of the Constitution, may send the recommendation partly or wholly, back to the 'Collegiums' for reconsideration. If the 'Collegiums' find no plausible reason for reconsideration, they will forward their final recommendation to the President, who must appoint them as a matter of formality.

Judges, who will be appointed through a transparent and acceptable system, will always be respected, loved, feared and admired. People's faith in the wisdom of the judges and confidence in the system of their appointment have profound significance in establishing an effective and independent Judiciary. Independence of Judiciary paves the way to ensure "justice and fairness" to all. People will always be in doubt about receiving justice and fairness from a judge who was improperly appointed. Independence of Judiciary will truly be achieved when the judiciary wins the heart of the people by ensuring fairness in all aspects of its affairs.