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Download PDF President Iajuddin Ahmed yesterday promulgated an ordinance to set up a Supreme Judicial Commission that will recommend to the president names for appointment of additional judges to the High Court (HC).
The eagerly anticipated rule came as part of government measures to do away with room for politicisation in the appointment of judges to the HC and Appellate Divisions of the Supreme Court (SC).
However, Supreme Court Bar Association (SCBA) President Barrister Amir Ul Islam slammed it for not setting any criteria, qualities and qualifications for one to be a judge.
Talking to The Daily Star yesterday, he said, “The most important thing is to fix those criteria first. As a matter of fact, article 95(2) (c) of the constitution provides for other qualifications to be prescribed by law.
“But instead of having those criteria laid down as required by the constitution, this government seems to be giving this power to the commission it is about to set up and I think it is a violation of the constitution.”
According to the constitutional provisions on appointment of judges, a person shall not be qualified for appointment as a judge unless he has been an advocate of the SC for not less than 10 years; or has held judicial office for not less than 10 years; or has such other qualifications that may be prescribed by law for appointment of the apex court judges.
SCBA president also said, “It doesn’t really resolve the problems in appointing judges who have the competence and commitment to understanding adequately the constitutional values and practices, and also have track records of constitutional commitment and intellectual integrity.”
Contacted, law ministry officials could not elaborate on the content of the ordinance as, they said, they had the gazette notification in hand only yesterday afternoon.
Earlier on January 29, the government approved creation of the Supreme Judicial Commission to ensure neutral and fair appointment of SC judges.
However, sources said the ordinance has the provision of setting up a nine-member commission to be headed by chief justice.
Law minister, two senior most judges of the Appellate Division, attorney general, two lawmakers–one to be nominated by parliament and the other by the opposition leader–SCBA president, and law secretary will be the other members. The last one will function as the member secretary.
The Supreme Judicial Commission will also recommend names of eligible candidates drawn from the HC Division for appointment as a judge of the Appellate Division.
The appointment of judges became highly controversial during the five years of BNP-Jamaat-led alliance government for recruitment of additional HC judges on political consideration and their confirmation after two years there.
This all was possible because the president had to act on advice of the prime minister with regard to the appointments.
Addressing a function last year, Chief Justice Mohammad Ruhul Amin said it would take at least 20 years to rid the judiciary of the effects of irregularities in appointment of judges in the past.
Throughout the rule of four-party alliance, the SCBA protested appointment of judges on the basis of political affiliation instead of merit. It also decried the practice of ignoring the chief justice’s recommendations in the confirmation process and elevating the HC judges to the Appellate Division by superseding senior judges.
Criticising the ordinance, the SCBA president said it sets no specific criteria for the appointment of judges to the superior court either.
Citing from a provision of the ordinance, he said the government has chosen to have representatives from the legislature and the executive as the commission members and it gives an impression of ensuring quota or share in the appointment of the judges.
“I think this is against the principles of separation of the judiciary as well as the independence of the judiciary.”
Sources said the Supreme Judicial Commission will recommend two names for appointment as additional judges to fill vacancies in the HC. It will also recommend three to five names of the HC judges for elevation to the Appellate Division.
Before making recommendations for the additional judges’ posts, the commission will scrutinise the academic qualifications, professional ability, good will and honesty of the candidates.
For the posts of Appellate Division judges, the commission will examine the competence of the judges in dispensation of justice, honesty and reputation.
Barrister Amir said the act has been drawn up without consultation with the stakeholders.
Meanwhile, it could not yet be known exactly when the law will take effect, but some law ministry officials said since it requires having lawmakers as members of the commission it may not start functioning until the first session of next parliament.
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