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Govt to enact law for HC judge recruitment

Plan to bring competent people in judiciary, rid it of controversy

ZAYADUL AHSAN and JULFIKAR ALI MANIK
The government is going to introduce a law determining the criteria for appointment of judges to the High Court (HC) to bring more competent and experienced people in the judiciary.
Currently, one having at least 10 years' experience in the legal prac-
tice and service can be an HC judge. The existing rules enable many less qualified people to get the job, experts say.
Fifty-five judges were recruited in the last three and a half years. The appointment of many of them sparked criticism as they were reportedly recruited on political considerations.
Commenting on the new judges,
eminent jurist Dr Kamal Hossain once observed that there are people among them who cannot even write a single sentence correctly in English.
Not only the appointment and qualification, the confirmation of judges has also become an issue of debate. The four-party government did not confirm 15 additional judges of the High Court who were
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appointed during the previous Awami League rule.
The debate over the judges' appointment brewed a few years ago is going on. Protests and agitation have now become a regular phenomenon on the court premises.
Alarmed at the situation, the government is considering working out a way to rid the judiciary of criticism and determine the criteria for appointment of the HC judges.
"We are pondering over introducing a law on the required qualification for judges; we need to do this," Law Minister Moudud Ahmed told The Daily Star on Thursday.
Since this is a sensitive issue, the law should be formulated through talks with all political parties having representation in parliament, legal experts, senior lawyers and jurists, he said.
"I personally think there should be a guideline and law on the qualifications needed for a judge as there are many criticisms and allegations over the issue," said Moudud.
The existing provision (for advocates) of a 10-year practising experience in the Supreme Court is too minimal, more experienced people should be made judges, he said.
At present HC judges are appointed as per Article 95(2) of the constitution.
The section 95 (2) reads: "A person shall not be qualified for appointment as a Judge unless he is a citizen of Bangladesh and- (a) has, for not less than ten years, been a advocate of the Supreme Court; or (b) has, for not less than ten years, held judicial office in the territory of Bangladesh.
"In some cases, it has been found that lawyers after their enrolment keep themselves busy otherwise, not in practice," Moudud said, adding that many of them practise law hardly for two years of the 10-year professional career to achieve the qualification for a judge.
"Since 10 years' experience is too little, we will have to raise it," he said, mentioning that once there was a provision requiring 15 to 20 years' experience to be a judge.
Asked whether any constitutional amendment is needed to re-fix the qualification, the law minister replied in the negative. "Article 95 (2) (c) provides the scope for fixing the qualification by introducing a new law. So, we are thinking to enact a law (in this regard)."
"The new law will not only raise the required level of experience, it will also determine other qualities of a judge, which will be finalised through talks," Moudud said.
The law ministry is presently collecting relevant laws and court observations of other countries to review those for fixing qualifications of judges.
Sources said a lawyer having 10 years' experience is usually found to have worked most of the time under a senior advocate and spent a little time for his own practice.
A High Court division bench while delivering the verdict of a case involving a judge on May 20, 2002 observed the judges must have a firm character and should follow a code of conduct.
Appointment of judges should follow a transparent and fair system. It is not enough to appoint a judge just by consulting the chief justice. Judges must be appointed through the full court reference of the High Court, the bench said.
The bench also said the selection
of judges from lawyers by the chief justice has some loopholes. To overcome this, the process must go through a panel of Supreme Court judges.
In the greater interest of the nation, the executive must keep the issue of appointment of judges above politics. The Supreme Court recommendations on the appointment must be made effective and meaningful, the judgement suggested.
It further said during the selection of judges the background of nominees must be checked and crosschecked as a precautionary measure.
The judgement said the appointment of the judges should be kept above political considerations.
On the qualities needed to be a judge, the then Indian Chief Justice Bhagavati said in a judgement in 1982: "What is necessary is to have judges who are prepared to fashion new tools, forge new methods, innovate new strategies and evolve a new jurisprudence, who are judicial statesmen with a social vision and a creative faculty and who have, above all, a deep sense of commitment to the constitution with an activist approach and obligation for accountability, not to any party in power nor to the opposition nor to the classes which are vociferous but to the half hungry millions of (India) who are continually denied of basic human rights."
Article 124 of the Indian constitution says categorically that in the case of appointment of a judge other than the chief justice, the chief justice of India shall always be consulted.
Article 111 (2) of Sri Lankan constitution says: The Judges of the High Court shall be appointed by the President of the Republic by warrant under his hand and be removable and be subject to disciplinary control by the President on the recommendation of the Judicial Service Commission.
However, the present government of Bangladesh did not consult the chief justice during judges' appointment, and also ignored his recommendations while confirming the judges, though it is a convention.
Former vice chairman of Bangladesh Bar Council Barrister Amir-Ul Islam said last week, "Judges are being appointed according to their partisan identity, not considering their talent, character, quality, language skill or legal sense."
The worst thing that has happened to the judiciary is arbitrary appointment of the judges, he observed.
Supreme Court Bar Association had even decided once not to address the controversially appointed judges 'my lord'.
Barrister Amir suggested formation of a Judicial Service Commission for regulating the appointment process of the judges and conducting academic evaluation to ensure quality of judicial service.
He stressed the need for a permanent inspection system to ensure transparency and accountability of the judiciary.