Article 95(2) of the Constitution revisited

                                        - Advocate Mohammad Rayhan Uddin 

JUDICIARY is considered to be a neutral organ of a society. It is vested with the task of dispensation of justice according to law. People resort to the judiciary to get legal and equitable remedy to redress their grievances. But a doubt is cast upon the efficacy of this least dangerous organ of the state if appointment procedure of the judges is saddled with extraneous considerations rather than qualification.

Judiciary is probably the only organ among all the State functionaries where a person plays the most crucial role from his or her individual perspective and s/he can personally feature most in discharging his/her duties. Once a judge is appointed in the Supreme Court with manipulation, political or otherwise, s/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.

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 “…the Chief Justice and the other Judges shall be independent in the exercise of their judicial functions.” Likewise, Article 116A reads “…all persons employed in the judicial service and all magistrates shall be independent in the exercise of their judicial functions.” Institutional independence of Judiciary comes by way of necessary implication from Article 22 as well as from the spirit of Part VI of the Constitution coupled with judicial pronouncements. In Eight Amendment Case independence of Judiciary has been accepted as one of the basic structures of the Constitution.

Power of appointment of a judge in the Supreme Court is given to the President under Articles 95 and 98 of the Constitution. 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), to act in accordance with the advice of the Prime Minister in appointing judges, except Chief Justice, under Articles 95 and 98 of the Constitution. Although, conventionally chief Justice is consulted before appointing Supreme Court Judges, such requirement is neither mandatory, nor was often followed in recent decade.

We know that in case of appointment of judges in the higher judiciary, the requirements envisaged in Article 95(2) of our Constitution have to be fulfilled. Article 95(2) of our Constitution stipulates that “A person shall not be qualified for appointment as a judge unless he is a citizen of Bangladesh and (a) has, for not less than ten years , been an advocate of the supreme court; or, (b) has, for not less than ten years, held judicial office in the territory of Bangladesh; or (c) has such other qualifications as may be prescribed by law for appointment as a judge of the supreme court.”

Moreover, Article 98 of the Constitution states that if the President is satisfied that the number of the judges of a Division of the Supreme Court should be increased for the time being, the president may appoint one or more duly qualified persons to be additional judges of that Division for such a period not exceeding two years as he may specify.

Recently, the Government has appointed a few additional judges in the High Court Division. It is alleged that out of these additional judges, some are not competent to become the additional judges under Article 98 of Our Constitution. Though we know that there are no specific requirements prescribed for the appointment of additional judges in the higher judiciary, nevertheless the provisions mentioned in Article 95(2) of our Constitution is applied in case of appointment of additional judges. To become a judge in the higher judiciary, one has to practice for at least ten years as an advocate of the Supreme Court; but it’s a matter of regret that the recent recruitment has not done justice to this criteria for  every recruitment cases.

Our constitution was adopted on 4th November, 1972 & came into force on 16th December, 1972 and there are almost two thousand legislations in our country since then, but there is no specific law relating to the appointment of judges and their qualification.

For appointment of judges in the Supreme Court clear guidelines should be made. Appropriate legislation should be enacted, as contemplated in Art.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 sufficient clarity for making a sound decision to appoint an appropriate person.

The Chief Justice will make a request to the Commission with requisite numbers of judges to be appointed. An advertisement should be made by the Appointment Commission inviting application from persons qualified under provision of Art.95(2)(a)(b) of the Constitution who are required to supply information set out by the Commission and will be interviewed by the entire quorum of Commission. The Commission will prepare a short list and in turn will forward the listed candidate’s information along with their observation to the Chief Justice who will consider the short listed candidates’ aptness with a ‘Collegiums’ of judges consisting of all the judges of the Appellate Division and two senior most High Court Judges. Recommendation of the ‘Collegiums’ will be placed before the President for formal appointment. The President 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.

Integrity and dignity of a judge are the most important sanctity in earning respect from the people. If appointment of a judge shrouded in contention, however excellence s/he may have in deliberation, s/he can never earn the admiration that s/he deserves to have as a judge. Although Mazdar Hossain judgement 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 judge’s can seriously damage the image and prestige of judiciary leaving the separation of judiciary a mythical phenomena.

Most of the time, it is noticed that ‘appointment of judges’ receives political overtones. Because of this reason, the most talented lawyers and judges in the sub-ordinate court hardly get the chance to become judge in the Supreme Court of Bangladesh. In this backdrop, the following points are to be seriously taken into consideration by the policy makers:

-To enact a separate law relating to the appointment of judges and their qualification as indicated in Article 95 (2) (c). 

-To ensure the selection of at least 50% judges from the sub-ordinate court in case of appointment of judges in the higher judiciary.

-To amend the provisions mentioned in Article 95(2) of our Constitution. The tenure of an advocate of the Supreme Court & a judge held judicial office in the territory of Bangladesh may be increased with an additional focus on the submission record in their practice life and their contribution to the life of law. 

Article 95(2) of our Constitution only provides that ‘to become a judge of the Supreme Court, a person has, for not less than ten years, to be an advocate of the Supreme Court.’ Though there is a long-constitutional practice that the President shall consult with the Chief Justice, but in fact it doesn’t work. It apparently seems that once one becomes an advocate of the higher court, he doesn’t necessarily have to engage in actual practice. After ten years even a non-practicing lawyer may assume the sit of the bench as a judge in the Supreme Court. Precisely for this reason, the provision of Article 95(2) (a) of our Constitution has to be amended slightly by adding a word “practicing” before the word ‘advocate’ (i.e. practicing advocate).

As the practice goes, a judge of the sub-ordinate court becomes competent to become a judge of the Supreme Court whenever he holds the post of District Judge (DJ) or Additional District Judge (ADJ). In reality, it takes approximately fifteen to twenty years to become a DJ or ADJ in the sub-ordinate court. So, it appears that the provision of Article 95(2) (b) of our Constitution should be changed a little by adding a word ‘at least fifteen to eighteen years’ in place of ‘ten years’. The other points in matter of judges’ appointment may be:

-To sketch out a constitutional mechanism for ensuring effective consultation in the event of appointment of justice in the higher judiciary.

-At least forty-five years has to be completed to become a judge of the Supreme Court.

-Hold a good academic record/result in his/her educational level (i.e. from S.S.C. to Masters).

There is no better test of excellence of a state than to examine its administration of justice system. Good judges can make the law sing and can even interpret a bad law for the greater interest of the people. Being the watchdog of people’s right we should take care that the court remains an arbiter of justice and excellence.

Judges, who will be appointed through a transparent and acceptable system, will always be respected, loved, feared and admired. People’s faith on the wisdom of the judges and confidence on the system of their appointment do play pivotal role 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 can only be achieved when the judiciary wins the heart of the people by ensuring fairness in all aspects of its affairs. Independence of judiciary depends on some certain conditions like mode of appointment of the judges, security of their tenure in the office and adequate remuneration and privileges. Satisfactory implementation of these conditions enables the judiciary to perform its due role in the society thus inviting public confidence in it.

“When the judiciary gets flooded with politics, it leaves possibility of miscarriage of justice. It’s a well settled principle that the independence of judiciary is the basic structure of any democratic constitution and if it gets influenced under the grip of politics, there would be an attack on its independency,” said Alok Kumar Yadav, a faculty of International Law at HNB Garhwal Central University, Shrinagar.

Advocate Mohammad Rayhan Uddin

LL.B (Honours), LL.M, MBA.

Advocate, Supreme Court of Bangladesh
& Judges' Court, Chittagong.

Cell No: +88 01914676110

http://www.lawjournalbd.com/2017/08/article-952-of-the-constitution-revisited/