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11th-Feb-2016

Chief Justice needs help to appoint judges transparently: Secrecy must go

By Editorial Desk

It is a sign of hope that the lawyers, including Attorney General Mr Mahbubey Alam, disapproved strongly  the unjudge like conduct of the retired judge for issuing  public statements of defiance, holding press conferences against the Chief Justice of Bangladesh Mr Justice Surendra Kumar Sinha without showing any concern for the harm being inflicted on the justice system. To many, all this appeared unbelievable. Both the Attorney General and the President of Supreme Court Bar Association Khandaker Mahbub Hossain felt the urgency of responding together.
The shameful situation revealed itself over the conduct of a judge of the Supreme Court, Appellate Division, Mr Shamsuddin deserves serious consideration. The secret process of appointment of the Supreme Court justices had to be ended for ensuring competent and dignified judges for the Supreme Court. They were being appointed secretly in consultation with the President. Under the Constitution, the President acts in such matter on the advice of the Prime Minister.
 So, the Prime Minister has the power to politically influence the appointment of the judges of the Supreme Court. As the consultation between the President and the Chief Justice is privileged and unknown to outsiders there is a running debate for making the process of appointing Supreme Court judges transparent and openly fair.
In such a clandestine arrangement, it became easy for political leaders to get their active party men or followers appointed as judges of the Supreme Court. It did not occur to political leaders that by politicising the judiciary they were forgetting the importance of the need of politically unbiased justices. For the judges who were so appointed on party considerations it was an embarrassment to be seen as BNP or Awami League judges. This is bad for the judges' reputation and moral standing about their undiluted impartiality.
No nation building kind of political leader will fill posts of judges with party men for taking partisan advantages in the matter of dispensing justice. That is the crudest way of making the judiciary vulnerable to political pressure. We have been unlucky for not getting nation building leaders in free Bangladesh.
The conduct of retired justice Shamsuddin Manik is an extreme example of a politicised judge. He has been relying on his party loyalty and his strength as party follower.
This is no doubt very unbecoming of a judge to behave politically and openly seen to do so.
We blame the secret process of appointing judges of the Supreme Court for the failure of justice Shamsuddin to uphold the dignity of a judge of the highest court he was. Because of political background of his appointment as judge of the Supreme Court, he showed the arrogance of a politician whose party is in power.
Justice Shamsuddin was always sure of his strength in his political party. He condemned the then sitting Speaker, now President, Abdul Hamid for committing treason. The MPs of Awami League demanded angrily in the parliament his punishment. But he proved that MPs were no threat for him.
Former Chief Justice Mahmudul Amin Chowdhury was hurt at the conduct and activities of the retired justice Mr Shamsuddin tarnishing the image of the apex court. At a discussion meeting of the lawyers he described his (Justice Shamsuddin) conduct as madness. He further called upon all to come to the help of the present Chief Justice for saving the judiciary.
Now it should be clear to all that the flaws in appointing judges of the highest court secretly on considerations of party politics shunning the people to know anything about the kind of judges being appointed to do justice to them. We must stop party politics in the appointment of the judges.
The army backed caretaker government set up a Commission for independently advising the Chief Justice about who should be considered competent for appointment as judges of the Supreme Court. The educational qualifications are not enough. Most important qualification of a judge is his judicial temperament. To be a judge is an awful responsibility to do justice without fear or favour.
But the Commission was not acceptable to the Awami League government that followed. The ordinance for appointing the Commission was buried quietly.
The judiciary has to be saved by the lawyers and the judges acting together forgetting division among the lawyers along party lime and our considered suggestion is that for saving the judiciary from party politics the best way for the Chief Justice is to form an appropriate committee to help him in the appointment of independent minded judges for the Supreme Court. The committee will transparently and solely on the considerations of judicial competence and temperament recommend the names for appointment of judges for the Supreme Court. The consultation with the President will be more meaningful and the veil unwelcome of secrecy will be gone.
The people must not be let down in respect of their last hope in the judiciary to enjoy the protection of the rule of law and humane justice in the face of many odds. The justice system symbolises our civilised way of life and no weakness should allow us to make compromise on this.