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September 19, 2004

Outcry about the appointment of Supreme Court judges: a lawyer's point of view

M.Moazzam Husain

On the 23rd day of Aug.2004, 19 persons were appointed by the President as Additional Judges of the High Court Division. And on the same day they were sworn in by the Chief Justice. Among them 5 are from subordinate judiciary and rest 14 are from the Bar. The en masse appointment is the single largest appointment ever made and that too immediately before a long vacation of the Court for about two months. The large scale appointment to such high posts having considerable financial involvement before a long vacation when it was not at all necessary is also unprecedented. Supreme Court Bar's discontent and deep concern over the recent trend of appointment of questionable persons as judges allegedly on political considerations burst into protest. Immediately following the appointments the Supreme Court Bar sat in an emergency requisition meeting and protested against the same as being made absolutely on political considerations in total disregard to the standard and efficiency of the persons holding such high posts. The appointments, as held by the Bar, were given to such persons as were not fit for elevation due to poor academic, ethical and professional profiles. The lawyers called upon the members of the Bar to abstain from attending the felicitation gathering of the newly appointed judges and also called upon the Chief Justice not to administer oath to them. Since appointments were given to the persons not fit to be judges the lawyers demanded abolition of the tradition of addressing the judges as "My Lords". Supreme Court Bar in a follow-up meeting held on 29th Aug. 04, decided, amongst other things, to file a writ petition challenging the constitutionality, validity and propriety of such wholesale appointment without following the process of 'effective consultation' meaning evaluation of their qualifications, experience and standard and scrutiny of their antecedents, allegations, age and all other relevant information so that inclusion of undesirable persons may be avoided. 'Notices Demanding Justice' were decided to be served upon the Chief Justice, the Law Minister and others to reconsider the appointments and take remedial measures so that the dignity and public image of the Supreme Court may be protected. Supreme Court Bar further decided to boycott the Chief Justice's court from the day on as the Chief Justice did not adhere to the demand of the Bar and administered oath to the newly appointed judges short of which the derogatory and arbitrary selection of judges could be put to a check, the Bar maintained.

A sections of lawyers opposed to Bar's decision organised meetings etc. as countermeasures. They (many of them reportedly not enrolled in the Appellate Division) were also found to flock into the Chief Justice's court room in a bid to stage a show down against the boycott. A kind of confrontational situation is now prevailing between the Bar and the government and the general members of the Bar as against a host of government-backed lawyers inter se.

The clear stand of the Bar is it is fighting for the cause of the institution. If the Supreme Court's dignity, standard, authority and public image are impaired in any manner the whole nation will suffer. Supreme Court being the highest seat of justice, guardian of the Constitution and last resort of the suffering masses needs persons of high ethical, moral, professional and academic profiles to be appointed as judges. Any short of it is bound to defeat the cause of justice, democracy and rule of law. And it is the high standing and awe of the judges in particular that pave the way for dispensation of justice free from fear or favour and inspire courage and confidence of the people in the courts. Supreme Court is an institution of global stature and is one of the standard bearers of a nation. The standard of the Supreme Court is reflected in the standard of the judges. No matter which party is in power, there cannot be any compromise in matters of dignity, integrity, impartiality and experience of the judges. This is not a job meant for tadbirkars or the party activist by virtue of being activists only. Nor the appointment of judges can be subject to arbitrary decision by the executive government to the derogation of the objective and purpose of the institution itself.

In the past we had come across outcries at the Bar against appointments, non-confirmation and supersession of judges. Question of integrity and inefficiency were also there. But this time the magnitude of resentment and protest seems to be a bit different. Besides being detrimental to the dignity of Supreme Court the appointments have spelt serious demoralising impact upon the Bench, the entire subordinate judiciary and the new lawyers of the Bar expecting to build career.

Not only Barrister Rokanuddun Mahmud, President of the Supreme Court Bar who has said he did not see many of the newly appointed judges to appear before courts prior to their elevation to the Bench but eminent jurist like Dr. Kamal Hossain has also said- there are persons among the newly appointed judges 'who do not know how to proceed with a case, will now deliver judgement'. Apart from the allegations that appointments are given to persons not fit in terms of educational and professional standards there are much graver allegations that among the appointees there are persons having questionable past. None can deny that Bar and Bench are the best judges of the performance and standing of a lawyer. But unfortunately, selection of judges still remains to be an exclusive executive-discretion with an apology of consultation with the Chief Justice which again is treated to be a mere formality not binding upon the government. The fatal and ominous culture of tadbirs and cut-throat politicisation has crept into the process of nomination of judges of the Supreme Court taking the advantage of absence of any law providing specific guidelines or criteria made for the purpose.

Bar has rather revolted against the appointment essentially on ground of fitness of the persons. As for the Bench, the position may be better guessed than described. I have meanwhile come across some of the judges of the Supreme Court who said by way of reaction that they had lost taste in the word "Justice" and did no more want to be known as justices. There is clear indications of serious demoralising impact in the members of the BCS(Judicial) Cadre and among the district level judicial officers. I have noticed open murmuring among the ministerial staff of the Supreme Court about the quality of judges. The nature and depth of reaction, resentment and frustration on the appointment of judges this time is unprecedented for the simple reason that the Bar, the Bench and all others immediately concerned look at it as the worst ever example of partisan selection in gross disregard to the minimum level of fitness of candidates.

The hard-line activists among the pro-govt. lawyers are trying to brand the movement as politically motivated. They are defending the appointments as made in accordance with law and in consultation with the Chief Justice. But one thing is missing in the claim of the pro-govt. lawyers that is- this is not as much a question of law, consultation, political consideration or public policy as of the quality of persons appointed which found voice in the protest made at the Bar. Whole thing that is voiced in the protest of the Bar and reflected in the murmuring of the people around essentially revolves round the quality and background of particular persons appointed as judges. If more or less acceptable persons could be appointed the question of 'politicisation,' 'effective consultation' etc. would not have gained ground precisely because the question of legislative gap as to consultation and/or absence of specific criteria or guideline for such appointment has been a long lingering problem shared and harvested from by successive governments without any sincere step to solve it once for all.

Many of the persons appointed being utterly unacceptable as judges of the Supreme Court and there being none to dispute their lack of efficiency pinpointed by the Bar the movement has surpassed the speculation of political, sectarian or personal motives and merged into the common concern of all the conscious citizens of the country. As for myself, I, as a lawyer practising exclusively in the Supreme Court for quite long years, have no hesitation to say that there are persons among the newly appointed judges whose appointments are not only derogatory to the public image of the Supreme Court but also amounts to sowing seeds of degeneration of this great institution. The appointments of those persons have specially damaged the image of the Supreme Court in the locality and the local Bars they have originally come from and in the people they are personally known to.

There is possibly no wrong in political appointment of judges of the Supreme Court provided it is done keeping the eligibility at the top of the agenda. There is a basic truth in the field of knowledge and expertise that thing to be acquired through long study, experience and training cannot be substituted by personal relationship or political affiliations. In the area of knowledge and acumen none can finally gain by bad choice. If someone who matters in the helm of affairs falls ill requiring a bypass surgery and looks for a doctor belonging to his political ideology having no expertise in the surgery he requires should he choose him for the purpose? Even if chosen would he be benefited? So is the case with the judges. Neither the institution nor persons so eagerly appointing or so firmly defending the negative appointments can ultimately gain from them. Virtually everybody suffers and pays the price for the indiscreet and shortsighted acts done.

The serious reservations and roaring complaints about the fitness of many of the newly appointed judges expressed at the Bar and beyond are exceedingly alarming and goes to the root of our attainments so far made. News and articles were published in different dailies ventilating the concern of the legal community and the conscious citizens of the country about the nature and quality of appointments. The uproar sounds like SOS and must be responded positively by all concerned including the government, even if its bona fide is doubted by any quarters. The allegations and information are not only alarming from the point of view of the Supreme Court but also indicative of serious infirmities in the selection process of the judges working in the government. The government's usual policy of giving a go-by or suppressing the outcries against it instantly calling them motivated is most likely to prove counterproductive in the peculiar context of the present problem.

The very nature of things demand that all who matter in the helm of affairs should immediately sit together in search of ways and means for upholding and maintaining the dignity and public image of the Supreme Court not as much for the Supreme Court itself as for our civilised existence.

The author is an Advocate, Supreme Court.