LAW
opinion
Appointment
of Additional Judges: Some issues….
M
Harunur Rashid
The
Constitution of Bangladesh has been based upon the basic
principle of rule of law. The framers of the constitution
introduced certain checks and counter checks with the
intention that no organ of the State gets absolute powers.
The function and power of every organ of the State are
subject to certain limitations laid down in the constitution.
The disputes arising between one organ and another are
to be resolved by some independent Tribunal namely judiciary.
Even
in case of the disputes between individuals, the judiciary
maintains the balance between their rights and the society.
In this way it has been the balancing the wheel of our
Constitution. The quality of excellence of the government
is determined on the basis of the efficiency of its judicial
system. This judicial function can only performed by an
authoritative, independent and impartial judiciary.
Justice
Bhagwati in one of his judgement observed "The principle
of independence of the judiciary is not an abstract conception
but a living faith which must derive its inspiration from
the constitutional charter and its nourishment and sustenance
from the constitutional values."
Independence
of judiciary in a country like ours is solely depends
on a legal culture to be particularly borne in mind by
the political community who run executive organ of the
state. The legal community must not confuse and mix up
independence of judiciary and separation of judiciary
together. These are, of course complementary to each other
but one can be established except the other and without
the separation of judiciary there can be independence
of judiciary.
In
our constitutional scheme there are certain things which
these days are considered as threat to independence of
judiciary and amongst other things, the appointment of
Additional Judges in the Supreme Court is a kind of threat
to independence of judiciary to people's perception at
large.
We
all know that article 98 of our constitution has empowered
the President to appoint additional Judges and for a number
of reasons the practice of appointment of Additional Judges
in the Supreme Court needs a serious consideration. Appointment
of a judge for such a short duration appears to be peculiar
in our part of the world.
Such
practice is not prevailing in the United Kingdom. Even
in India they do not have judges either in the sub-ordinate
judiciary or in the Supreme Court whose tenure is so short.
We do have sub-ordinate courts in the lower judiciary
but they are manned by judges belonging to regular judicial
service, which is one of the two constitutional service
and their tenure is same as others in the service of the
Republic.
To
my little understanding there are certain drawbacks in
the truest sense in continuing the existing system of
appointing Additional Judges in the Supreme Court of Bangladesh.
I would like to highlight some of them here to substantiate
my way of thinking about the matter.
Firstly,
an Additional Judge would not be in a position to perform
his duties as independently as a permanent judge, on account
of the fact that an Additional Judge is subject to fresh
test of fitness and suitability, physical, intellectual
and moral. The conduct of an Additional Judge would remain
subject to scrutiny by the high dignitaries in connection
with his reappointment or appointment afresh when his
tenure specified under article 98 in just to expire.
It
is obvious that he would not be in a position to deal
with the matters placed before him without fear of incurring
the displeasure of any one of them. Very often the order
passed by an Additional Judge against the State or the
Government, who are the biggest litigants in every civil
courts are sure to displease the policy makers of the
Government in one way or the other.
There
is no doubt that an Additional Judge takes the oath of
office to deal with the matters without fear or favour,
and affection or ill will. But after all he, too is a
human being. It was due to this reason only the constitutions
of many democratic countries did not lay down any provision
for appointing Additional Judges.
The
author is a joint district judge.
