Supreme judicial council and its role to upload the dignity of the higher judicial
Introduction:
The independence of judiciary is a pillar of a democratic state based on the rule of the law. When every Protection fails, it provides a bulwark to the public against any encroachments on its Rights and freedoms under the law. These observations apply both domestically within the context of each nation-State and globally, viewing the global judiciary as one great bastion of the rule of law. Through out the world. Ensuring the integrity of the global judiciary is thus a task to which much energy, skill and experience must be devoted. It is also a fundamental human right which is – inter alia – recognized in Article 61of the European Convention on Human Rights2 and Fundamental Freedoms. One mean to ensure that the independence of the judiciary is observed are institutional safeguards such as institutions the mandate of which is to guarantee the judicial independence. One such institution is the Supreme Judicial Council. Its continued reform is among the benchmarks which is Monitoring and describes the development and role of the Supreme Judicial Council as well as some important achievements and challenges ahead for this important institution. Concepts of the role of the judiciary and the limits of its functions are similarly anchored in the fertile western intellectual thought of the seventeenth and eighteenth centuries and have been depicted in the writings of Count Montesquieu, who in 1748 wrote, “There is no liberty, if the judicial power be not separated from the legislative and executive. Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control; for the judge would be then the legislator. Were it joined to the executive power3, the judge might behave with all the violence of an oppressor.” Modern constitutionalism is firmly anchored in this concept of the separation of powers.
1 “right can be said, at least an arguable grounds, to be recognized under domestic law.
2. Everyone would probably agree that the current Human Rights Commission is a simply paper-tiger.
3 Government should be set up so that no man need be afraid of another” reminded Madison and others that a free and stable foundation for their new national government required a clearly defined and balanced separation of powers.
Activities of Supreme Judicial Council
Judicial Council responsibility is to ensure a high quality of judicial service. Council carries out this through the performance of its functions set out .One of the major functions of Judicial Council is receiving and assessing applications for the position of judge and deputy judge of the Court.
Judicial Council is also responsible for recommending the appointment of justices of the peace. Justice of the peace is an indispensable and essential part of judicial system. Access to justice requires trained active justices in each and every community.
Another important function of Council is receiving and reviewing complaints about the conduct or neglect of duty or the incapacity of a judge or justice. Judicial Council of the Supreme Court has various standing committees and the creation of ad hoc4 committees, the Judicial Council serves as a research arm for the Supreme Court. It often acts as a resource center where ideas for simplifying and expediting judicial procedures and/or correcting shortcomings in the system are studied. Additionally, the Judicial Council publishes an Annual Report which chronicles the activities of the Council, the Judicial College, The Judiciary Commission, the Law Library, and the Judicial Administrator’s Office. It also contains a compilation of statistics from the various courts in the state. At the institutional level an independent judiciary with the power of judicial review over executive actions, administrative legislation, judicial decisions, and laws including even
Constitutional amendments5
Fundamental Functions of the Judicial Council Are:
(a) To make recommendations to the Minister respecting appointments of judges and justices;
(b) Deal with complaints respecting judges and justices;
4. generally signifies a solution designed for a specific problem or task, non-generalizable, and which cannot be adapted to other purposes.
5. Please note that the judicial review ability of constitutional amendment was established by the Appellate
Division of the Supreme Court in the case of Anwar Hossaun Chowdhury in 1989.
(c) To make recommendations to the Minister and the chief judge on any matters that it considers necessary respecting the efficiency, uniformity or quality of judicial services;
(d) To report to the Minister and the chief judge respecting proposals for improving the judicial services of the court or on any other matters that may be referred to it by the Minister;
(e) After consulting with the chief judge and the Minister, to consider and recommend any judicial training that in its opinion may reasonably be necessary;
(f) To serve in an educational capacity, in any manner as it sees fit;
(g) For the better consideration of justice issues of concern to the community, to establish working committees to consider reform and improvements in the areas of family and young offenders matters and criminal, and civil laws, and to make recommendations on these areas to the council. The membership of these committees shall be in the discretion of the council, but the council shall attempt to include representatives of all interested groups on these committees;
(h) At the request of the supervising judge, to consider whether a change of residence or occupation of a justice merits the dismissal of the justice;
(i) At the request of the supervising judge, to assess whether or not justices have satisfactorily completed training opportunities offered by the court or whether or not justices have engaged in behavior inconsistent with the due administration of justice and, if it considers advisable, to refer its concerns about a justice to a tribunal; and
How many people consist in Judicial Council that’s depending on that country constitution.
Department for Constitutional Affairs (DCA) Consultation Paper CP 11/03, Constitutional reform: a Supreme Court
for the United Kingdom, para 1, p 10; and see para 101 below
Department for Constitutional Affairs (DCA) Consultation Paper CP 10/03, Constitutional reform: a new way of
appointing judges, Foreword by the Lord Chancellor, p 3
DCA Consultation Paper CP 13/03, Constitutional reform: reforming the office of the Lord Chancellor and HL Deb, 26
January 2004, cols 13-17
Supreme Judicial Council of Bangladesh
From 1972 constitution6we know that judge will be removed when 2/3 of parliament member agree. It is quite possible constitution of removal process of judge. After death of bongobondhu shekh mujibur rahman in 1975 khondokar mustak got the power and throne to the president. He applied marshal law and cancel the judge removal process. But when former chief justice sayen in the power he separate the court, one is high court and another is Supreme Court but he didn’t gave any law how to remove judges. When Ziaur Rahman throne to the president, he create the law of judge’s removal process which is known as supreme judicial council7.
The government approved creation of the Supreme Judicial Commission to ensure neutral and credible appointment of Supreme Court judges. The approved ordinance was sent to the law ministry for final vetting before the president can promulgate them into laws. The Supreme Judicial Commission will be a nine-member body headed by the chief justice that will select and recommend candidates as judges in the High Court and Appellate divisions of the Supreme Court. 8
The government took the initiative in view of a strong public demand and adding the government has also discussed the matter with prominent individuals in the legal field.
The other eight members of the commission include the law minister, two senior most judges of the Appellate Division, the attorney general, a member of parliament each from the government and the opposition, the president of the Supreme Court Bar Association (SCBA), and the law secretary.
Through the prime minister the body will recommend to the president two candidates for each vacant post without any order of preference. The commission members may also interview the candidates. If the president disagrees with the recommendations, he will send it back to the commission for review. If the president disagrees with the revised recommendation also, he reserves the right to reject all recommendations altogether. But still now no judges removed by supreme judicial council in Bangladesh.
6 1972’s Constitution of Bangladesh
7. Bangladesh constitution article number 96
8 Daily Star ..jan 30,2008
Academic qualifications, professional skills, seniority, honesty and reputation will be considered while recommending names of additional judges in the High Court to bring rigor and accountability in the selection process.
For permanent appointment to the High Court, the additional judges will need further recommendations of the council, according to the proposal.
Judges have so far been appointed on political consideration since the power to appoint lies with the prime minister and the president acts on the advice of the premier. But still now no judges removed by supreme judicial council in Bangladesh.
The Dignity Of Higher Judicial In Bangladesh
Chief Justice of Bangladesh comment on the irregularity in the appointment of judges of the Supreme Court had a rippling effect in citizens’ minds. The chief justice said that it might take around twenty years before the issue dies down, probably as a result of entrenched procedure of removal9.
Four terms of administration by the political parties, covering a 15-year period, the two bosses of their respective political parties have proved themselves to be equally ruthless and indifferent to the interests and welfare of the ordinary citizens of this country.
All Lying of the organizations and institutions, including the public universities, which receive funds from the government, must not publicly show their political allegiance to any political party. Their allegiance should be to the people of Bangladesh first and last, and to no political party in between.
9Daily Star Apr 30 ,2007.
Caretaker government provision in our Constitution is unique, as we have copied the parliamentary or presidential style but have not learnt that the success of these democratic systems depends on tolerance of the views of the other political parties and a responsible attitude adopted by the opposition in the parliament through keeping a check on the policies of the party in power
It should be a matter of shame for any political party to expect that the chief adviser would side with the political party while holding the election because it appointed him as a judge in the Supreme Court. The high-water mark of this game dipped to the lowest level when Justice K. M. Hasan became a pawn in this political chess game.
It is true that in Western countries higher court judges are appointed and promoted by the government of the day. However, it needs to be noted that in all those countries, once appointed, the judges become truly non-political, without any bias towards the political party, which they once supported.
Possibly they remain true to their broad ideologies, in the sense that they are conservative, liberal or labor-oriented, or supporters of environment or capitalism. But in those countries no compromises are made in relation to the qualification and integrity of a judge whose only duty is to deliver judgments without being influenced by the policy of a political party, whether in power or in opposition.
Coming to the Supreme Court10, we find that there are 67 judges in the High Court Division and 7 in the Appellate Division, including the chief justice. The last political regime confirmed 41 judges, even as it withheld the confirmation of the appointments of the majority of the judges made by the Awami League government.
It has been alleged that in the majority of these appointments, confirmations, withholding confirmations, the principal criteria were not observed in selecting legal eagles shining in brilliance, but in loyalty to the political party in power.
10Annual report 2008 of the Supreme Court of Bangladesh, Page 4, 5
The Constitution provides that a legal practitioner of ten years standing in the Supreme Court, or one, who has performed judicial functions for ten years, is eligible for appointment a judge. It need not be said that it is the minimum technical qualification of a judge.
The president appoints a judge in the Supreme Court after being advised by the government of the day. In that sense, it is a political appointment like any other appointment for high position in the country. In the matter of appointment, confirmation and promotion of a judge, the role of the chief justice seems to be negligible.
In the current Constitution, there is no need on the part of the government for consultation with the chief justice when appointing judges to the Supreme Court or promoting judges from the High Court Division to the Appellate Division. The chief justice can only recommend confirmation of an additional judge of the High Court after the expiry of a two-year period. But it is up to the government to accept or override his recommendation.
After confirmation of a judge of the Supreme Court, he or she cannot be removed unless she/he voluntarily resigns, or the Supreme Judicial Council makes an enquiry and submits a report to the president, when he may pass an order removing the judge on grounds of gross misconduct..
It has been proved that, once appointed the judges are not invincible, and they can be removed if there are serious allegations against them. Under the current potentially harmful circumstances, it would be proper for the Supreme Judicial Council to conduct enquiries into suspected cases and inform the president accordingly.
The president may deem it fit to ask the Supreme Judicial Council to make enquiries in the appropriate cases and report its findings. The president, after getting advice from the government, may pass removal orders of the questionable judges on grounds of gross misconduct.
The day has come for an operation directed at a cleaning-up of the judiciary, for the judiciary is the last bastion of hope and the guardian of the fundamental rights of the citizens of the country.
The administration of justice is a field where we need to prop up our own resources, particularly when the question comes of holding aloft our legal integrity and sagacity, and dispensing justice without fear or favor.
For that reason we need to have judiciary personnel of high caliber, both in morals and depth of knowledge, equal in dignity with their counterparts in other countries. Not only litigants but also all citizens of the country want to show their respect to an institution where the symbol is the scale of justice, determining right from wrong.
It must be in our mind or we must be remember that ultimately a judge, and for that matter the prime minister or the president of the country, is in office only to serve the people and serve the nation.
5. Conclusion
Judicial Council lies in its appreciation of the distinction between impugned judicial actions that can be dealt with in the traditional sense, through a normal appeal process, and those that may threaten the integrity of the judiciary as a whole, thus requiring intervention through the disciplinary provisions The Supreme Judicial Council draws up general judicial policies, ensures the independence of the judiciary and monitors its development; it oversees the work of the courts and the Public Prosecutor’s Office and also facilitates and monitors legal procedures. The Council considers judicial appointments and promotions, proposes draft laws on judicial issues and comments on draft judicial co-operation agree¬ments between states.
Barrister Salahuddin Ahmed is a former Visiting Professor at the Law School, University of North Carolina, USA.
Prof. Dr. Borhan Uddin Khan ,Dean, Faculty of Law,University of Dhaka
Sheikh Hafizur Rahman Karzon is a Lecturer, Department of Law, Dhaka University
BIBLIOGRAPHY
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9. www.dca.gov.uk/consult/confr.htm
10. Bognetti, ‘ The Concept of Human Dignity in European and U.S. Constitutionalism ’ , in G. Nolte (ed.),European and US Constitutionalism , Science and Technique of Democracy No. 37 (2005), at 75, 79.
11. Annual report 2008 of the Supreme Court of Bangladesh, Page 4, 5
12.Bangladesh Legal Decisions, Khondoker Ehteshamuddin Ahmed @ Iqbal v Bangladesh, 1981 BLD (AD) 107.