Legal standards should be introduced

Muhammad Samsul Hoque

The appointment, confirmation and promotion of judges of the Supreme Court have recently taken a shape of greater concern than before. It deserves a solution in the light and spirit of the Constitution. A solution as permanent as it is possible would be a solution indeed. The permanent solution has to be traced out from the Constitution and nothing should be accepted as a substitute for the rule of law. Recommendation of the Chief Justice with regard to any matter of the judiciary should be weighed with much importance there may be none to oppose this proposition. Though the provision for consultation with the Chief Justice has been omitted by the 4th amendment of the Constitution, in view of the scheme and practice in this regard it is accepted that the Hon'ble President has an obligation to consult the Chief Justice.
It is to be accepted without any hesitation that the recommendation of the Chief Justice cannot carry weight more than a decision of the highest court of the country. Therefore the recommendation of the Chief Justice is not immune from being constitutionally tested and before the recommendation is sought to be judicially enforced it's constitutionality has to be ensured. Taking it as an accepted principle the President usually consult the Chief Justice before appointment of Judges in the Supreme Court. In the process of such consultation the Chief Justice makes recommendation to the President. We know not much as to how the learned Chief Justice takes decision for recommendation due to absence of law, rules or regulation in this regard. For the purpose of appointment as a Judge some disqualification have been provided in clause (2) of Article 95 of the Constitution. In sub-clause (c) of clause (2) of Article 95 there has been a directive for making necessary law prescribing qualification for appointment as a Judge of the Supreme Court. In the last three decades no law has been enacted in this regard.
The 'List of Members - Bangladesh Supreme Court Bar Association, Dhaka, 2003` contains serial numbers 1-3048. Excluding only those who are disqualified as per clause (2) to Article 95 of the Constitution, the rest of the members are qualified to be the judge of the Supreme Court. Further there are a quite good number of judicial officers who are also not disqualified as per the provision of Constitution. So the number of the qualified persons for appointment as a Judge of the Supreme Court at present may be about 1000 and the number is increasing.
The learned Chief Justice may recommend for about 10-15 persons in one time for appointment as a Judge. It is not humanly conceivable without any basis, that is, without any law, rules or legal instrument, to find out 10/15 most qualified persons from amongst 1000 or more. In making such recommendation does the Chief Justice enjoy absolute freedom?
Decision for appointment of judges in the higher judiciary must be made judiciously and constitutionally and of course not politically. The higher judiciary as the last of hope of people should be filled with best available qualitative persons and therefore a standard legal instrument for best selection is indispensable. If the legislature is found to have been reluctant to make rules in this regard, the Supreme Court, being guardian of the Constitution can do so.
True that the Judiciary cannot constitutionally encroach upon the Legislature. But it can and must, to resist encroachment upon itself by any other organ of the State. In democracy a party in power might have some partisan views and that partisan views might reflected in appointment of judges of the Supreme Court. So the Supreme Court in the exercise of it's authority as guardian of the Constitution can resist such encroachment and direct the executive to act within the constitutional demarcation.

Muhammad Samsul Hoque is an Advocate of Supreme Court.