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Quest for justice and need for strengthening judiciary
Dr. Kamal Hossain
The quality of judges of the Supreme Court cannot be expected to improve unless improved recruitment procedures are adopted so that the best available candidates may be recruited. This will call for effective consultation and adoption of objective criteria for recruitment which give due weight to educational qualifications, professional experience, sensitivity to human rights, gender sensitivity and reputation for integrity.
The time-honoured process for appointment of judges to the High Court in pre-independence times, and later to the High Court and the Supreme Court, called for consultation with the Chief Justice and other constitutional functionaries.
The Constitution of Bangladesh as adopted in 1972 in Article 95(1) provided that the Chief Justice shall be appointed by the President and other Judges shall be appointed by the President after consultation with the Chief Justice. The words "after consultation with the Chief Justice" were deleted by the Fourth Amendment in 1975. When this question arose subsequently, namely whether the time-honoured practice of consultation would be followed or not, an opinion was formally recorded that the practice of consultation should be followed, and every appointment made since was made in conformity with that practice.
An issue arose in 1994 when six judges were appointed by the then Government without consultation with the Chief Justice. Upon representations made by the Bar, pointing out the importance of compliance with the consistent practice regarding consultation with the Chief Justice, the appointments made without consultation were cancelled. Fresh appointments were then made after due consultation with the Chief Justice.
There was thus was an acknowledgement that the Constitution envisaged and required that appointment of judges to the High Court Division and the Appellate Division be made after consultation with the Chief Justice. Such appointments were not to be made by the exercise of the unfettered discretion of the executive, but was a constitutional responsibility which had to be exercised after consultation.
Subsequently, however, in 19 August, 2005 this requirement was substantially disregarded when 19 judges were sworn in on the last working day before the Court vacation commenced.
The Supreme Court of India in support of its views regarding selection of judges for appointment in the higher judiciary made the following observation: [T]he persons to be selected for appointment to judicial officers are only those who are functioning within the judicial sphere and are known to the Judges of the Superior Courts. The executive can have no knowledge about their legal acumen and suitability for appointment to the high judicial offices. In the process of consultation the expertise, to select the right person for appointment, is only with the Judiciary. The consultation, therefore, is between a layman (the Executive) and a specialist (the Judiciary). It goes without saying that the advice of the specialist has a binding effect.
The Pakistan Supreme Court attaches critical importance to "effective consultation" regarding appointment of Judges in the High Court and the Supreme Court in the following terms:
"Consultation" is defined as effective, meaningful, purposive leaving no room for complaint of arbitrariness or unfair play. Recommendations made by the Chief Justice of the High Court and Chief Justice of Pakistan in respect of appointment of Judges in the High Court are to be accepted by the President/Executive in the absence of very sound reasons to be recorded.
Constitutional jurisprudence and practice underscore the critical role of the independence of the judiciary and of ensuring appointment by the executive is made after effective consultation with appropriate persons, in particular relevant constitutional functionaries, and principally with the Chief Justice. Effective consultation means that if the recommendation of the Chief Justice is to be departed from, in particular, where his recommendation is that seniority should be respected, a departure from it needs cogent reasons to be given and this to be conveyed back to the Chief Justice, so that he may further comment upon it. It is this exchange of views, with supporting facts and reasons, which is an essential requirement of effective consultation.
Judicial accountability mechanism
The need for an effective Code of Conduct for regulating judicial conduct on and off the bench at all levels of the judiciary is generally agreed. The new code, which should apply to the Supreme Court as well as Subordinate Court judges, would inform the judge of the standards he/she is expected to rise to, create peer pressure for the judge to observe those standards, and, through wide dissemination (via print, audio and/or visual media), inform the public of the standards they have the rights to expect of the judiciary. The code should, among other things, set out the principles or judicial ethics; explanatory comments and hypothetical problems with answers drawn from actual disciplinary actions taken; and remedial and punitive sanctions for code violations. It should cover such matters as disclosure of assets, participation in trade or business ventures, seeking or acceptance of financial benefits which are not clearly available by virtue of office, involvement in conflict of interest situations and engagement in public or media controversy. A provision should be made for a judicial committee to advise judges on difficult and/or doubtful potential ethical issues, so as to enable them, if possible, to avoid future sanctions.
Under the new accountability framework, all judges are required to make a written declaration before the JSC, upon appointment, annually thereafter, and upon leaving office, of their and their close relatives' income and assets.
Concluding observations
In conclusion, one would endorse the recommendations which emerged from Commonwealth Judicial Colloquia a decade ago, relating to the role of the judiciary which are of particular relevance to any programme of judicial reform in the South Asian Region:
(a) In democratic societies fundamental human rights and freedoms are more than paper aspirations. They form part of the law. And it is the special province of judges to ensure that the law's undertakings are realised in the daily life of the people. In a society ruled by law, all public institutions and officials must act in accordance with the law. The judges bear particular responsibility for ensuring that all branches of government - the legislature and the executive, as well as the judiciary itself - conform to the legal principles of a free society.
(b) It is the vital duty of an independent, impartial, well-qualified judiciary, assisted by an independent well-trained legal profession, to interpret and apply national constitutions and ordinary legislation, and to develop the common law in the light of these values and principles. To play its vital role in a healthy democracy the protections enjoyed by judges, including financial independence and security of tenure, are an important defence against improper interference and free the judiciary to discharge the particular responsibilities given to it within national constitutional frameworks.
The author is a noted lawyer and Former Minister of Law and Foreign Affairs
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