The appointment of judges is a cornerstone of judicial independence and the rule of law. Article 95(2)(c) notes that judges of the supreme court shall have "such qualifications as may be prescribed by law for appointment as a Judge of the Supreme Court". Despite this mandate, no legislation has been enacted to detail these qualifications, leaving the appointment process vulnerable to subjective interpretation. This ambiguity undermines the spirit of constitutionalism, as it fails to provide clear criteria for ensuring the competence and integrity of judicial appointees. The absence of a statutory framework also opens the door to potential political interference, as successive governments have leveraged this loophole to appoint individuals aligned with their ideological preferences rather than prioritising merit or judicial independence.

Historically, the lack of legislative action on this matter can be attributed to political reluctance, as enacting such laws would curtail the discretionary power of the executive in judicial appointments. The judicial appointment process, therefore, stands at odds with the principles of separation of powers and checks and balances as enshrined in the Constitution. Over the decades, various legal experts and civil society organisations have highlighted the need for a comprehensive judicial appointment law. Attempts to initiate discourse on this issue have been met with resistance, largely due to the entrenched political interests that benefit from maintaining the status quo. The judiciary's credibility has often been questioned, with accusations of bias and inefficiency stemming from the perceived politicisation of appointments.

By enacting a Judicial Appointments Act and establishing an independent appointment commission, Bangladesh can ensure that its judiciary remains a bulwark of justice and democracy, free from undue political influence.

To address this pressing issue, Bangladesh can draw inspiration from other jurisdictions. For instance, the Judicial Appointments Commission in the United Kingdom serves as an independent body that ensures transparency and meritocracy in judicial appointments. A similar model can be proposed for Bangladesh, wherein a bipartisan commission comprising representatives from the judiciary, legal fraternity, and civil society is tasked with recommending candidates based on predefined qualifications and standards. In addition, it is imperative to draft and enact a Judicial Appointments Act, clearly specifying the qualifications, experience, and ethical standards required for judicial appointees. Such legislation should include mechanisms for public scrutiny, periodic review, and accountability to ensure that the process remains fair and transparent.

From a policy perspective, a multi-stakeholder dialogue involving the judiciary, legislature, legal experts, and civil society organisations is necessary to build consensus on the contours of a Judicial Appointments Act. This dialogue should aim to strike a balance between ensuring judicial independence and maintaining executive accountability. Furthermore, the enactment of such a law must be accompanied by institutional reforms to bolster the judiciary's independence. For example, ensuring financial autonomy for the judiciary and enhancing the training and professional development of judges can significantly improve judicial performance and public confidence in the system. Political will is indispensable in this regard. Political parties must transcend partisan interests and prioritise the long-term stability and credibility of the judiciary as a foundational pillar of democracy.

The absence of legislation under Article 95(2)(c) of the Constitution of Bangladesh is a critical gap that undermines the principles of transparency, meritocracy, and judicial independence. Addressing this issue requires a combination of legislative action, institutional reforms, and political commitment. By enacting a Judicial Appointments Act and establishing an independent appointment commission, Bangladesh can ensure that its judiciary remains a bulwark of justice and democracy, free from undue political influence.

The writer is Student of Law, Jagannath University.