Your
Advocate
Q:
I am a lawyer intending to join the Bar soon. I regularly go through
your column with keen interest. I enjoy your answers and in fact feel
enlightened. In the recent past I noticed in the newspapers that lawyers
are divided on the point of appointment of some judges as judges of
the Appellate Division superseding their seniors. Later there were serious
movement for removal of a high court judge on corruption charge and
ultimately the judge was removed. Presently lawyers have again gone
into movement against appointment of some new judges in the High Court
Division demanding cancellation of their appointments calling these
appointment tainted with political considerations and not made on their
eligibility. Serious questions about their educational standard has
also arisen. Sir my questions are: a) how the judges of the High Court
Division are appointed b) can it be said that the persons who are practising
in the High Court for a long time are incapable of writing something
in English or Bengali correctly? c) Does the Government have any benefit
in giving appoint to such persons, if any? d) If the Supreme Court suffers
can anybody be benefited? e) How the chief justice is responsible in
such appointments if there is no provision for consultation with him?
Aardar Habibur Rahman, Bogra.
Your
Advocate: You have raised one of the very sensitive ongoing
issues. The appointment of 19 judges at the same time that too, immediately
before the long vacation is gong to be the most controversial appointments
in the history of appointment of judges of the Supreme Court. The Supreme
Court Bar has immediately reacted and protested the appointment on various
grounds that you seem to have already noticed. And the Bar is still
on movement demanding cancellation of the appointments. In this background
let me take up your questions and answer them on after another.
First, appointments of the Judges of both the Divisions of the Supreme
court including the Chief justice are made by the President by virtue
of his power conferred upon him under Article 95 of the Constitution.
Save in cases of appointment of the Chief Justice all other appointments
are made by the President in consultation with the Chief Justice. Though
the earlier consultation clause is no more in existence in the Constitution
it goes by convention which does have the fore of law.
Your
second question goes deep into our misfortune. The declining standard
of our legal education, unmanageable influx of juniors at the Bar from
different socio-economic background, lack of senior lawyers to maintain
and train up the juniors, erosion of old values and an overall situation
akin to free-style prevailing at the Bar have contributed to the falling
standard in which it is hardly possible to say who can write a sentence
or cannot write a sentence correctly. I, as a member of the Bar do believe
that if there was a statistics of such standard the number of such lawyers
on show might have been alarming. The degeneration in legal education
and at the Bar has seriously contributed to declining standard of the
Bench as well.
In
reply to your third question I must say that neither the Government
nor anybody else in this country can be benefited by appointing inefficient
persons as judges. More so Govt. is the single largest litigant. If
the quality judgements could not be produced virtually the institution
for that matter the whole nation will suffer. But in our present day
reality one can no more rule out the possibility of giving appointments
more in considerations of political affiliations than of efficiency.
Lawyers have come to protest asserting their personal knowledge and
experiences in respect of many who are given appointments.
Your
fourth questions possibly stands addressed in the reply to the third
so I think no separate treatment is necessary.
Lastly,
the question of responsibility of the Chief Justice in matters of such
appointment. On this point the lawyers view is that after all no appointment
can be made without consultation with him. Moreover, they demanded not
to administer oath to the newly appointed judges but he didn't respond
positively to the Bar's demand. The crisis, therefore, emerged.
Your
advocate M. Moazzam Husain is a lawyer of the Supreme Court of Bangladesh.
His professional interests include civil law, criminal law and constitutional
law.
Corresponding
with the Law Desk
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Daily Star 19 Karwan Bazar, Dhaka-1215; telephone 8124944,8124955,fax
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