The Law Commission has recommended passing a law allowing appointment of legal experts from different professions as Supreme Court judges. The tradition so far has usually been for SC judges to be
picked from among lawyers and lower court judges.
A seven-page report with a six-point recommendation signed by the Law Commission's acting chairman, Prof M Shah Alam, was sent to the law ministry on Sunday.
According to Article 95 (2) (a) (b) of the constitution, an individual with at least 10 years' experience in legal practice and service can become an SC judge.
Although Article 95(2) (c) also prescribes other qualifications for the appointment, a law in this regard has yet to be formulated.
There is also scope under sub-section (c) of Section 2 of Article 95 of the constitution for the appointment of legal experts, law professors and researchers as SC judges, the report said.
"The required conditions can be set under this section without constitutional amendment," it said, adding this provision exists in India and Nepal.
The report also noted that retired or serving judges and lawyers could also be considered for appointment under the law that the commission recommended introducing.
Not only practical experience but also in-depth knowledge and understanding of vast theory, explanation and use of law, and perfect perception of justice are required to conduct judicial work.
This knowledge and understanding can also be achieved without a person having to work as a judge and lawyer, said the commission.
Alongside persons with excellent academic career in law, university professors or researchers who are least 45 years’ old and have worked at reputed institutions can be appointed as SC judges. This exception will be helpful in ensuring qualitative development of the Supreme Court, it added.
The report also mentions the constitutional provision that says a person shall not be qualified to be a judge
unless he/she has, for not less than 10 years, been an SC advocate or held judicial office in the country.
The commission said mere enrolment as a lawyer of the Supreme Court should not be acceptable. The lawyer must practice regularly and have a record of a minimum number of successful cases.
The report also said a lawyer considered for the position of an SC judge should have experience of conducting cases in the Appellate Division for at least two years.
The commission also mentioned the current practice of selecting district judges as HC judges. At least three years' experience can be made mandatory for this without any constitutional amendment, it added.
Academic results of district judges should also be examined.
"The required experience of 10 years can be extended through constitutional amendment,” it also said.
The commission said this “10-year experience” should be counted when the person has been a judge. Only working with the law ministry or judicial administration of any government agency should not come under consideration.
In practice, the commission observed, lawyers get priority in the appointment of HC judges. More than two-thirds of HC judges have been lawyers.
Bui it will be good for the SC if more district judges or judges with the same status get appointment as SC judges. The commission has recommended picking more HC judges from the lower level of the judiciary.
It also suggested scrapping Article 98 of the constitution that provides for temporary appointment of additional HC judges and
judges to the Appellate Division from the HC, as the provision is inconsistent with the spirit of an independent judiciary.
Il said the process of the president's seeking advice from the chief justice and the chief justice's giving advice in the appointment of judges has to be transparent and in black and white.
The report also said the formation of a separate judicial commission to recommend SC appointments is not required. Such commissions have been introduced only in the UK and Pakistan and the time has not come to evaluate their results.
The appointment and qualification of SC judges have been an issue of debate for the last one decade.
Following a writ petition, the HC on June 6,2010 asked the government to explain in six weeks why specific guidelines should not be framed for judges' appointment to bring transparency and competitiveness into the process.
The government has not replied to the rule yet.
Prof M Shah Alam, acting chairman of the commission, told The Daily Star that his office was yet to receive any reaction from the government.
He said the commission had made the recommendations on its own. However, the parliamentary standing committee on law, justice and parliamentary affairs around two years ago sent a letter asking the commission to make recommendations on some legal issues, including SC judges' qualifications.
Prof Shah Alam also said Law Minister Shafique Ahmed at a recent programme in the capital had informally asked him to make recommendations on judges' qualifications.