The system of judicial appointment in Bangladesh: An analysis
The judiciary on Nov 1, 2007 began its new journey through its separation from the executive control in a bid to fulfill the people’s long-awaited dream for quick and unregulated dispensation of justice. Nov 1, 2007 is the historic and memorable day of the country. After200 years of colonial rule and 36 years since the nation’s independence, the judiciary has been finally separated from the executive.
The appointment of judges is an important aspect of judicial independence, which requires that in administering justice judges, should be free from all sorts of director indirect interference or influences. The principle of the independence of the judiciary seeks to ensure the freedom of judges to administer justice impartially, without any fear or favor. This freedom of judges has a close relationship with judicial appointment because the appointment system has a direct bearing on the impartiality, integrity, and independence of judges. It is widely recognized by jurists and commentators that public confidence in the judiciary is essential for the maintenance of judicial independence. An important requirement of sustaining public confidence in the judiciary is the openness and transparency in appointing judges. Openness and transparency in making appointments essentially depend on the mechanisms for appointment of judges. The mechanism for judicial appointment plays an important role in selecting the persons having the professional skills and qualities that are required for judges in an independent judiciary.
This paper seeks to examine the nature of the instruments for judicial appointment, which exist around the world. Its main purpose is to analyze how far the existing systems for judicial appointment are effective in maintaining judicial independence and public confidence in the judiciary.
Independence of judiciary
The dictionary meaning of ‘independence’ is ‘not subject to the control of any person, country, free to act as one pleases; autonomous, not affected by other etc. However, this meaning of independence is not applicable for the independence of judiciary. Judicial independence is defined, as a Judiciary uninhibited by outside influences which may jeopardize the neutrality of jurisdiction, which may include, but is not limited to, influence from another organ of the government (functional and collective independence), from the media (personal independence), or from the superior officers (internal independence) . Independence of judiciary truly means that the judges are in a position to make justice in accordance with their promise of office and only in accordance with their own sense of justice without submitting to any kind of pressure or influence from executive or legislative or from the parties themselves or from the superiors and colleagues.
Independence of judiciary depends on some certain conditions like mode of appointment of the judges, security of their tenure in the office and adequate remuneration and privileges. Satisfactory implementation of these conditions enables the judiciary to perform its due role in the society thus inviting public confidence in it.
Separation of judiciary and Bangladesh constitution
The article 22 of Bangladesh constitution utter that, the State shell ensures the separation of judiciary from the executive organ of the state. However, as this article is not mandatory to execute by the government, government does not execute this article. More over, by the constitutional amendment, lawmaker of our country reduces the independence of the judicial system. Besides this, the structure of the judicial system allows the executive branch of our country to influence the judicial system.
Regarding appointment of persons to subordinate courts, Article 115 of the constitution of Bangladesh says, “In the judicial service or as magistrate exercising judicial functions shell be made by the President in accordance with rules made by him in that behalf.” It is important to mention that this Article 115 is substituted for the original article 115 by the Constitution (4th Amendment) Act.1975 (Act 2 of 1975). In original Article 115 stated that the President would make the appointment but in case of direct judges the appointment would be made by the recommendation of the Supreme Court and in case of other judges in accordance with rules made by the Precedent after consulting with the appropriate Public service Commission and Supreme Court.
To control and discipline the subordinate court, the Article 116 says,” The control and discipline of the persons employed in the judicial service and magistrates exercising judicial function shell vest in the President and shell be exercised by him in consultation of supreme Court.”
Mechanisms for Judicial Appointment
Mechanisms for judicial appointment are important factors in appointing judges. In any society, the appointment of judges involves some formal and informal practices. The whole system depends largely on the political culture and social values of a society. Consequently, mechanisms for judicial appointment differ between jurisdictions. There are no standardized systems of appointment. Whatever mechanism is used in any particular country, it should be transparent and open to public inspection. Transparency and public inspection in the mechanisms for judicial appointment are of supreme importance to ensure appointment of the best available persons to judicial office and to enhance public confidence in the judiciary.
Mechanisms for judicial appointment operating in some different countries may be classified under two sub-headings: elective and appointive systems.
The elective system has two basic models, popular election, and election by the legislature. Under the popular election model, judges are elected on the basis of either partisan election or non-partisan election.
The appointive system of judicial appointment is widely employed all over the world. Under this system appointments to judicial office are made by the executive government. The Universal Declaration on the Independence of Justice [Montreal Declaration] 1983 provides:
Participation in judicial appointments by the Executive … is consistent with judicial independence, so long as appointments of judges are made in consultation with members of the judiciary and the legal profession, or by a body in which members of the judiciary and the legal profession participate.
Under this mechanism the executive government initially selects the candidates for judicial office, but makes formal appointments only when the selections are approved by parliament. For example, in the United States the President nominates and ‘by and with the Advice and Consent of the Senate’ appoints federal judges.
Consultation with Judiciary and Legal Profession:
The executive government may appoint judges in consultation with the senior judiciary and legal profession. Generally, senior members of the judiciary and legal profession are consulted, and the consultations may be formal or informal.
Judges are in a position to assess the performance of lawyers who are to be appointed to judicial office. Therefore, consultation with members of the higher judiciary is very significant in appointing the best-qualified persons to judicial office. It is an important means to strengthen the independence of the judiciary.
In July 1998, the President of India asked for the advisory opinion of the Supreme Court on various areas of the judgment of 1993 including the issue of consultation. In October 1998, the Supreme Court in its advisory opinion confirmed the primacy of the Chief Justice’s opinion over that of the President in appointing judges. The Court, however, observed that the ‘sole, individual opinion of the Chief Justice of India’ does not constitute ‘consultation’ within the meaning of Arts 217 and 222(1) of the Constitution. In appointing judges to the Supreme Court, the Chief Justice must make a recommendation in consultation with the four most senior judges of the Supreme Court. In the case of appointments to the High Courts, the Chief Justice must consult the two most senior puissance judges of the Supreme Court. The views of the puissance judges should be in writing and should be conveyed to the [President] by the Chief Justice of India along with his [or her] views. The Supreme Court further observed that the Chief Justice is under an obligation to follow the ‘norms and requirements of the consultation process’, and recommendations made by him or her ‘without complying with the norms and requirements of the consultation process’ are not binding upon the President.
Use of an Independent Commission
The use of an independent commission in appointing judges is the most acceptable mechanism among the commentators in the contemporary world. The Beijing
Statement of Principles of the Independence of the Judiciary in the LAWASIA
Region [Beijing Statement] 1995 states:
In some societies, the appointment of judges, by, with the consent of, or after consultation with a Judicial Service Commission has been seen as a means of ensuring that those chosen as judges are appropriate for the purpose. Where a Judicial Service Commission is adopted, it should include representatives of the higher judiciary and the independent legal profession as a means of ensuring that judicial competence, integrity, and independence are maintained.
In respect of the composition of the commission and the system that may be used by it, the South African Model of a Judicial Service Commission is an important example. The South African Commission established under the Constitution of 1996 consists of the following members:
(a) The Chief Justice, who presides at the meetings of the Commission;
(b) The President of the Supreme Court of Appeal;
(c) One Judge President designated by the Judges President;
(d) The Cabinet member responsible for the administration of justice, or an alternate designated by that cabinet member;
(e) Two practicing advocates nominated from within the advocates’ profession to represent the profession as a whole, and appointed by the President;
(f) Two practicing attorneys nominated from within the attorneys’ profession to represent the profession as a whole, and appointed by the president;
(g) One teacher of law designated by teachers of law at South African universities;
(h) Six persons designated by the National Assembly;
(i) Four permanent delegates to the National Council of Provinces designated together by the Council with a supporting vote of at least six provinces;
(j) Four persons designated by the President as head of the national executive, after consulting the leaders of all the parties in the National Assembly; and
(k) When considering matters relating to a specific High Court, the Judge President of that division and the Premier, or an alternate designated by the Premier, of the province concerned.
Evidently, the South African Commission consists of judges, the Minister of Justice, practicing and academic lawyers, members of the National Assembly including a substantial number of opposition members, members of the Provincial parliament persons nominated by the President of South Africa after consulting leaders of all political parties represented in the National Assembly and in some cases the Premier of the Province or the Premier’s nominee. Thus the composition of the Commission is representative in nature and is not under the exclusive control of the executive government.
For the independence of judiciary, and the principal instrument for appointment of judges some criteria have to be fulfilled. These are:
- An independent judicial service commission.
- Independence of magistrate from the control of the executive.
- Implement all the article of constitution related to the independence of judiciary and appointment methods.
- Willingness of politicians regarding alteration of constitution, which can hamper the clarity of the appointment of the High Court Judges.
- Improvement of constitutional article, which are against the independence of judiciary.
Independence of judiciary from legislative and executive is important to maintain the constitutional right and development for a democratic country. So we have to appreciate the separation of judiciary in Bangladesh, which is implemented in November 1, 2007. All mechanisms for High Court Judges appointment may have no particular system, which can be treated as the best system. Despite this, in order to maintain public confidence in the appointment system and to ensure judicial independence the commission system is perhaps a very effective mechanism for judicial appointment. Recently the Govt. has formed the Judicial Service Commission, which will play an important role to make the judiciary independent. But it is also true that all the roads of justice may not be opened even after the separation of judiciary. Civil society should come forward, and the politicians and executive authority should understand that a sound judicial system keeps equilibrium of a society. However, to ensure the effectiveness of this mechanism the commission should be representative in nature comprising members of the executive, legislature, judiciary, legal profession and lay persons. Then the independence of judiciary will bring effective fruits in future.
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