No law to recruit judges in higher courts

23 October 2021


Gualm Rabbani :
In the absence of a transparent law or policy, the appointment of judges in the higher judiciary has always been in question. However, the Constitution has prescribed for enacting a law regarding the recruitment of judges in the higher judiciary.
According to the Article 95(2)©, "A person shall not be qualified for appointment as a Judge unless he is a citizen of Bangladesh and has such qualifications as may be prescribed by law for appointment as a Judge of the Supreme Court."
But this Article of the Constitution has not come into effect as no law is enacted till today. That is why the recruitment of the judges in the higher judiciary is going on a nontransparent way, which is raising questions again and again.
A process has been under progress to recruit some new judges in the High Court division of the Supreme Court, sources said. In this circumstances the lawyers demanded to formulate a policy before the recruitment of the new judges.
Senior lawyer Khurshid Alam Khan said the government should formulate a law for recruiting judges in the Appellate and High Court divisions.
"After every appointment, the Supreme Court Bar Association (SCBA) and its members used to question the transparency of the appointment process. These questions might be remitted if a
 transparent procedure is followed for this process," added the lawyer.
Former Secretary of the Supreme Court Bar Association (SCBA) Barrister A M Mahbub Uddin Khokan strongly demanded for formulating a policy for the appointment of the judges before appointing any new judge in the Appellate and High Court divisions of the Supreme Court.
Barrister Khokon said, "In order to ensure the independence of the judiciary and above all to establish the rule of law, it is imperative to formulate a policy in accordance with the Article 95(2) of the Constitution and in the light of the High Court judgment in this regard to appoint judges in the Appellate and High Court divisions of the SC."
It is imperative that the right person should be appointed as a judge of the Supreme Court and such appointment should be made upon qualifications, merit, ability and integrity only and that known or perceived political connections or affiliations should not be the basis of the choice made, the lawyer added.
Parliamentary Standing Committee on the Ministry of Law, Justice and Parliamentary Affairs took an initiative in 2012 for formulating a policy over the recruitment of judges in the higher judiciary. Later a draft was also prepared by the Law Ministry.
Emphasis was placed on experience, age and educational qualifications in recruitment of judges in the draft policy. The draft was prepared in consultation with the former Chief Justices, lawyers and other stakeholders and following the provisions for the appointment of judges of other neighbouring countries. But it was not finalized.
Later in 2014, the Law Commission also recommended for enacting a law relating the issue, but it was also unheeded.  
The Supreme Court also gave some directions in different verdicts over judge recruitment in the higher judiciary. A five-member Bench of the Appellate Division headed by then Chief Justice MM Ruhul Amin passed some directives in a verdict delivered on February 25 in 2010. Later some other judgemens also gave some directives over the issue.
The High Court on April 13 in 2017 gave seven-point guidelines regarding judge recruitment. But the implementation of those guidelines has not been visible.

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