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HC halts Supreme Judicial Commission function

Writ petition filed challenging constitutional basis o f the ordinance

Staff Correspondent
The High Court (HC) yesterday stayed for three months functions of the Supreme Judicial Commission constituted recently by an ordinance to ensure transparency and impartiality in the appointment of Supreme Court (SC) judges.
The order came on a writ petition filed the same day by an SC lawyer challenging the constitutionality of the ordinance titled "Supreme Judicial Commission Ordinance 2008".
An HC division bench compris-ing Justice Syed Mahmud Hossain and Justice Farid Ahmed also issued a rule on the government and SC registrar to explain within three weeks why the ordinance shall not be declared unconstitutional.
President lajuddin Ahmed promulgated the law in March as part of the government measures to do away with room for politicisation in the appointment of judges to the HC and Appellate Divisions of the SC.
The ordinance prescribes setting up a nine-member commission that headed by chief justice
will recommend names for appointment as additional judges totheHC.
The petitioner observed that composition of the commission is unconstitutional as six of the members come from the executive and legislature Besides, he contended, five are below the rank and status of SCjudges.
He said a number of provisions in the ordinance run counter to the independence of the judiciary since those allow the president to reject names recommended by the commission and give the executive ‘complete control' over selection of the prospective judges.
Law minister, two senior most judges of the Appellate Division, attorney general, two lawmakersone to be nominated by the leader of parliament and the other by the leader of opposition-president of SC Bar Association and law secretary will be the othei members of the commission.
The S u p r e m e Judicial Commission will also recommend names of eligible candidates drawn from the HC Division for appointment as a judge of the Appellate Division.
Noted jurist Dr Shahdeen Malik moved for the petition filed by SC lawyer Idrisur Rahman while Additional Attorney General Salahuddin Ahmad opposed the plea for stay.
Law secretary and the SC registrar are respondents to yesterday's HC rule on the military-backed caretaker administration.
In his submission, the petitioner said the ordinance states that initially die law ministry will send a list of probable candidates and the commission will select one from those on the list.
"This ensures complete control of the executive over selection oi judges for the apex court." he added.
Ihe ordinance also authorises the president not to accept any of the names recommended by the commission. And this all undermines the independence of the judiciary, he observed.
Shahdeen Malik argued that the ordinance entails interviewing candidates whereas appointment to no other constitutional positions like the chief election commissioner or chairman of Pubic Service Commission requires interviewing thecandidates.
He said this is derogatory to the status and prestige of trie top court and more so when the interview will be conducted bv persons of the rank below an SC judge.
Shahdeen was assisted by Tawhidul Islam and Protikar Chakma.