It appears from the newspaper reports that the SCBA has demanded cancellation of appointment of the newly appointed 19 Additional Judges of the High Court Division and resorted to a court boycott programme including the court of the Chief Justice as he ignored their demand for cancellation of the swearing-in of the aforesaid new 19 Additional Judges. The bad news is that the SCBA has not only brought the allegation of political patronage in the appointment of these 19 Additional Judges but it has questioned their fitness for appointment to these posts: "Who can not write a sentence in English and who does not know how to proceed a case will now deliver judgement. He will hand down death sentence without hearing the case. It's a shame," said the eminent jurist Dr. Kamal Hossain in the SCBA's meeting on August 29. It is further learnt from the press reports that the SCBA has decided to serve notices on the Minister for Law and Parliamentary Affairs and the Chief Justice of Bangladesh seeking explanations from them as to what consideration was applied to the appointment of these 19 Additional Judges. The Bar would file a writ petition with the High Court to challenge the aforesaid appointment after receiving the explanations.

The Constitution of the People's Republic of Bangladesh provides that there shall be a Supreme Court for Bangladesh comprising the Appellate Division and the High Court Division. The Supreme Court shall consist of the Chief Justice and such number of other Judges as the President may deem it necessary to appoint to each division (Article 94). Regarding the appointment of Additional Judges, the Constitution provides that if the President is satisfied that the number of the Judges of a division of the Supreme Court should be for the time being increased, the President may appoint one or more duly qualified persons to be Additional Judges of the division for such period not exceeding two years as he may specify. The appointment of such an Additional Judge may however be extended.

Article 95 of the Constitution states in pertinent part:

A person shall not be qualified for appointment as a Judge unless he is a citizen of Bangladesh, and he (a) has been an advocate of the Supreme Court for at least ten years, or (b) has held judicial office in the territory of Bangladesh for at least ten years, or (c) has such other qualifications as may be prescribed by law for appointment as a Judge

Judiciary is one of the three basic pillars of the state, the other two being executive and legislature. The executive is composed of the President, the Prime Minister, and the Cabinet, comprising such Ministers as the Prime Minister may from time to time designate. Aware of the "long arm" of the executive and conscious of the need of the independence of the judicature in the country, the framers of the Constitution incorporated an article which provides that the state shall ensure the separation of the judiciary from the executive organs of the state (Article 22). But this constitutional obligation still remains unimplemented.

Being fully aware of the need for ensuring neutrality in the appointment of judges in the higher judiciary i.e. in both the divisions of the Supreme Court, the framers of the Constitution incorporated a provision requiring the President to consult the Chief Justice in the matter of appointment of Judges in the High Court Division and the Appellate Division of the Supreme Court. But this provision was omitted by The Constitution (Fourth Amendment) Act, 1975 (Act No. 11 of 1975) by the then Awami League government. Although there is a convention for the consultation with the Chief Justice, such a consultation need not be a formal one, and the recommendation, if any, of the Chief Justice is not binding on the executive. As a result, during the last thirty years or so, there has been continuous allegation of politicisation of appointment in the higher judiciary. The allegation is not totally baseless.

The Presidential form of government introduced by the fourth amendment was replaced by the parliamentary form of government through the Constitution (Twelfth Amendment) Act, 1991 (Act No. 28 of 1991). But the provision requiring consultation with the Chief Justice for appointment of judges of the Supreme Court was not revived. The executive does not want to shorten its reach. Mahmudul Islam, a former Attorney General of Bangladesh, in his book Constitutional Law of Bangladesh, published by Bangladesh Institute of Law and International Affairs, thus writes that the present practice of consultation with Chief Justice in the appointment of judges of the Supreme Court is not a formal matter. It must be an effective consultation and the recommendation of the Chief Justice should not be by-passed unless there be very cogent reasons for it. It is felt that our policy makers and the legislators will give a serious thought for the revival of the relevant article of the original Constitution requiring the President to consult the Chief Justice in the matter of appointment of judges of the Supreme Court. It can be mentioned that Article 124 of the Constitution of India provides that in the case of appointment of a judge other than the Chief Justice, the Chief Justice of India shall always be consulted.

Article 95 of the Constitution empowers the President to appoint the Chief Justice and other judges of the Supreme Court. But according to clause (3) of Article 48 of the Constitution, the President in the exercise of all his functions, save only that of appointing the Prime Minister and the Chief Justice, shall act in accordance with the advice of the Prime Minister. The President, therefore, cannot independently exercise his authority in the matter of appointment of judges of the Supreme Court.

The importance of neutrality in the matter of appointment of judges of the Supreme Court can hardly be overemphasised. If the political parties, particularly the major political parties, can abandon their narrow partisan view on the issue and come to an understanding to help enact necessary amendment(s) to the Constitution, they will do a great service to the nation. Recurrence of the present unpleasant affairs in the Supreme Court could probably be avoided.

M. Abdul Latif Mondal is former Secretary, Government of Bangladesh