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Download PDF The High Court (HC) yesterday stayed for three months functions of the Supreme Judicial Commission constituted recently by an ordinance to ensure transparency and impartiality in appointment of Supreme Court (SC) judges.
The order came following a writ petition filed by an SC lawyer challenging the constitutionality of the ordinance titled “Supreme Judicial Commission Ordinance 2008”.
An HC division bench comprising Justice Syed Mahmud Hossain and Justice Farid Ahmed also issued a rule on the government and SC registrar to explain within three weeks why the ordinance shall not be declared unconstitutional.
President Iajuddin Ahmed promulgated the rule in March as part of the government measures to do away with room for politicisation in the appointment of judges to the HC and Appellate Divisions of the SC.
The ordinance prescribes setting up a nine-member commission that headed by chief justice will recommend names for appointment as additional judges to the HC.
The petitioner observed that composition of the commission is unconstitutional as six of the members come from the executive and legislature. Besides, he contended, five are below the rank and status of SC judges.
He said a number of provisions in the ordinance run counter to the independence of the judiciary since those allow the president to reject names recommended by the commission and give the executive ‘complete control’ over selection of the prospective judges.
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–president of SC Bar Association and law secretary will be the other members of the commission.
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.
Noted jurist Dr Shahdeen Malik moved for the petition filed by SC lawyer Idrisur Rahman yesterday while Additional Attorney General Salahuddin Ahmad opposed the plea for stay.
Law secretary and the SC registrar are made respondents to the rule.
The ordinance states that initially the law ministry will send a list of probable candidates and the commission will select one from those on the list.
“This ensures complete control of the executive over selection of judges for the apex court,” said the petitioner.
The ordinance also authorises the president not to accept any of the names recommended by the commission. And this all undermines the independence of the judiciary, he observed.
Shahdeen Malik argued that the ordinance entails interviewing candidates whereas appointment to no other constitutional positions like the chief election commissioner or chairman of Pubic Service Commission requires interviewing the candidates.
He said this is derogatory to the status and prestige of the top court and more so when the interview will be conducted by persons of the rank below an SC judge.
Shahdeen was assisted by Tawhidul Islam and Protikar Chakma.
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