Role of the judicial activism to appoint high court judges that exercise unauthorized political power

Role of the judicial activism to appoint high court judges that exercise unauthorized political power-explain

Introduction

Judiciary is one of the three branches of government which plays an important role in resolving disputes between citizens as well as between citizens and government. Judicial independence and accountability are important features of the administration of justice in a democratic country. Separation of judiciary is the precondition of the sound and independent judiciary. As per the Constitution of Bangladesh the judiciary constitutes one of the three vital organs of the State. Since its genesis in 1971, the country has experienced different systems of government including socialist democracy, parliamentary and presidential forms of democracy, military rule, non-party caretaker government, etc. The judiciary has been dealt with differently by these different forms of government despite the almost symmetrical behavioral patterns of manipulation. Even though the Constitution provides an independent judiciary, there have been wide ranging criticisms about the nature and extent of de facto independence. The system of appointment of the judges of the Supreme Court has all along been a controversial issue.

The constitution did not provide complete independence for the courts of lower judiciary and it was left on the lawmakers to enact laws in this regard. Long after thirty five years since the adoption of the constitution, ironically the immediate past military-controlled caretaker government (2007 – 2008) accomplished this task through promulgation of three ordinances in response to a judicial direction of the Supreme Court of Bangladesh. Presently the lowest tier of the lower judiciary, that is, the Magistracy is being run by the judicial officers, leaving positive impacts on the poor people in need of litigation.

Outlines Of Current Judicial System

After independence the first highest court in Bangladesh was the High Court established under s 2 of the High Court of Bangladesh Order 1972 promulgated pursuant to the Proclamation of Independence 1971 and the Provisional Constitution of Bangladesh Order 1972. The High Court consisted of a Chief Justice and ‘so many other judges as may be appointed from time to time’. They would be appointed by the President and held office ‘on such terms and conditions as the President may determine’. Subsequently, by the High Court of Bangladesh (Amendment) Order 1972 an Appellate Division of the High Court of Bangladesh was established and it consisted of the Chief Justice and two other judges of the High Court appointed by the President after consultation with the Chief Justice. The High Court of Bangladesh existed until the Supreme Court was established under die Constitution of Bangladesh. Below the Supreme Court, there is a network of subordinate civil and criminal courts and tribunals sitting throughout the country.

Mechanisms For Appointment Of High Court Division Judges

Discussion in this section deals with the mechanisms for appointment of High Court Division Judges:

· Under Art 95(1)[1] of the Constitution, the Chief Justice and other judges of the Supreme Court are appointed by the President. In addition Art 98 of the Constitution empowers the President to appoint additional judges of the Supreme Court. However, in practice, all judges of the Supreme Court are initially appointed to the High Court Division as additional judges for a period of two years under Art 98 and then they may be appointed as High Court Division Judges under Art 95(1) Subsequent to serving in the High Court Division, they are only appointed as Appellate Division Judges on the occurrence of a vacancy (Akkas, 2002: 147).

· According to the original Art 48(3) of the Constitution, the President was bound to act in accordance with the advice of the Prime Minister in the exercise of all his functions, except in appointing the Prime Minister. Therefore, the President could appoint the Chief Justice and other judges only on advice of the Prime Minister.

· This system continued until 1991, when the Constitution (Twelfth Amendment) Act 1991 re-introduced a parliamentary system of government. The President must now act in accordance with the advice of the Prime Minister when exercising his or her functions, except in appointing the Prime Minister and the Chief Justice. The President may appoint the Chief Justice without consulting the Prime Minister, but in appointing other judges of the Supreme Court, he or she is bound to act on the advice of the Prime Minister.

· The Twelfth Amendment of the Constitution has almost revived the original Constitution, but it has not revived the original Arts 95 and 98, which related to the appointment of Supreme Court Judges. In terms of the President’s powers in appointing the Chief Justice and other judges, there are two basic differences between the original Constitution and the Twelfth Amendment of Constitution. First, under the original Constitution, in appointing the Chief Justice the President was bound to act in accordance with the advice of the Prime Minister. Under the Twelfth Amendment, the President is not bound to appoint the Chief Justice in accordance with the advice of the Prime Minister. Secondly, in appointing the puisne judges of the Supreme Court, consultation with the Chief Justice was obligatory under the original Constitution, but under the Twelfth Amendment, there is no constitutional obligation to consult the Chief Justice.

· Under the present system, the executive government enjoys an exclusive privilege in appointing Supreme Court Judges. The Prime Minister being the Chief Executive of the State plays the decisive role in making appointments. In practice, the Ministry of Law, Justice and Parliamentary Affairs takes the initiative for the appointment of judges. With specific recommendations of the Minister-in-charge candidates for appointment are submitted to the Prime Minister and then they are submitted to the President for formal approval. However, before making any appointments, the government informally consults the Attorney-General, judges and lawyers.

· Although there is no constitutional requirement to consult the Chief Justice, all appointments are made in consultation with him or her. The Chief Justice, before forming his or her opinion about the suitability of the persons for the office of Supreme Court Judge, informally consults the other judges of the Supreme Court and sometimes senior lawyers of the Supreme Court Bar Association.

· The original Constitution adopted the provision of consultation as a major safeguard against political appointment and it was a constitutional acknowledgement of the role of the Chief Justice in appointing judges (Kamal, 1994: 29). Following the withdrawal of the provision requiring consultation with the Chief Justice, there is great scope for appointments to be made based on political or other considerations regardless of merit.

Appointment Of High Court Division Judges On Political Considerations

· The appointment of judges on political considerations is a very sensitive issue in different countries. Since judges are appointed by the executive government, political considerations might have some influence in the making of judicial appointments. In some cases, political considerations may play a major role in appointing judges. It is likely that political parties in power would prefer a judge to be of their own ideology (Thomson, 1987:71). Therefore, it is impossible to remove politics totally from the process of appointing judges.

· Political considerations may intrude into the process of judicial appointments in a number of ways. Firstly, executive government may be driven to select persons ‘who are sympathetic to its own political’ ideology with a prospect of influencing the judiciary in future. Secondly, appointments can be made of persons who are directly involved in politics. Thirdly, appointments of judges can be made ‘as a personal reward for political services’ (Blackshield, 2000: 427-428).

· However, political ideology should not be considered as a disqualification for a person to be appointed as a judge. When appointments are made not purely on political grounds, there is no harm in appointing judges from among lawyers who have been involved in politics or who are supporters of a political party; as Shetreet says, ‘politics should be neither a shortcut to nor an impediment in the way of appointment to a judicial office’ (Shetreet, 1976: 75).

· As to political considerations in appointing judges, none of the international instruments (Montreal Declaration 1983, UN Basic Principles 1985 and Beijing Statement 1995) adopts any specific provisions, but it is recognized in these documents that there must be no discrimination because of political or other opinion.

· In fact, intrusion of political considerations into the making of judicial appointments is very common in most jurisdictions. The reality is that if political appointments are allowed to intrude into the process it is very likely that the full range of candidates for appointment will not be considered. By the time political appointments are made there are no jobs left for appointments on merit alone. Even if merit is used it becomes merit plus political considerations. Since this situation is unavoidable, utmost effort should be made to limit the impact of political considerations on judicial appointments. With this end in view, two important considerations are necessary to make the appointments in the best possible way.

· Appointments should not be made only because of political ideology, but the professional skills and personal qualities must be considered. Secondly, appointments should not be made as a reward for political services.

Conclusion

In Bangladesh, since the existing criteria for appointment of judges are not explicitly published and the mechanisms used in making the appointments are not transparent and open to public scrutiny, the following measures should be taken to improve the system:

· Judges should be appointed only on the basis of the explicit and publicly known criteria and through a transparent process. With a view to defining explicit and publicly known criteria for appointments, the Canadian and English models[2] of criteria should be taken into consideration.

· In order to ensure transparency in the appointment process and to exclude political or other considerations in appointing judges, an independent Judicial Service Commission should be established for the appointment of judges of all levels including the judges of the Appellate Division. In this regard, the South African model of Judicial Service Commission can be followed.

· All judicial vacancies including the High Court Division and the Appellate Division should be advertised and appointments should be made by open competition so that the best-qualified people can be appointed to judicial office. Open competition perhaps can restrain the executive government from appointing judges on the basis of discretion or favor.

· The criteria and mechanisms for judicial appointment recommended above should be guaranteed by the constitutional or statutory law so that noncompliance with the guaranteed criteria and mechanisms can be challenged in court

[1] http://www.thedailystar.net/forum/2010/November/chaos.htm [Accessed 11 June 2012]

[2] UK Ministry of Justice, The Governance of Britain: Judicial Appointments, Consultation Paper, October 2007, Ch 2. See also S Evans and J Williams, ‘Appointing Australian Judges: A New Model (2008) 30(2) Sydney Law Review 295 at 297

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