CJ appointment
FROM PAGE 1
The reform commission recommends permanent attorney services for moving cases on behalf of the government at the apex and district courts without any political influence, and the formation of an independent investigation body in the criminal justice system. It also advocates swift justice for the common people at a minimum cost.
The government had constituted the eight-member reform commission, headed by former Appellate Division judge Justice Shah Abu Nayeem Mominir Rahman, on October 3 to propose necessary measures.
On December 11, the commission sent a copy of its preliminary report to Environment, Forest and Climate Change Adviser Syeda Rizwana Hasan, who is coordinating all the reform commissions, to apprise her of their progress.
The commission will submit its final report by January 15, 2025, its member and senior SC lawyer Tanim Hussain Shawon told The Daily Star on December 20.
A total of 12,721 people, including common citizens, lawyers, judges and court-related support staffers, have given their views to the commission through its website until December 10. A significant number of people also weighed in through emails and letters. Tanim added that the acceptable proposals will be included in the commission’s final report after they are examined.
The preliminary report states maintaining the judiciary’s independence and impartiality, and ensuring its effectiveness largely depend on the chief justice as the leader and top figure of the judiciary — a reality “partially” reflected in article 48 (3) of the constitution.
This article states the president can take a decision for the appointment of the chief justice alone, without consulting the prime minister or anyone else, according to his own wisdom.
“However, past experience shows that in several cases, the executive authority has exerted influence in various ways on the appointment of the chief justice. As a result, the independence, impartiality and effectiveness of the judiciary have been compromised at various times,” the preliminary report says.
“In the above situation, the commission believes that in order to make the appointment of the chief justice free from the influence of the executive authority, there should be a provision in the constitution to the effect that the president shall appoint the most senior judge in the Appellate Division as the chief justice.
“That is, the president cannot exercise his discretionary power or apply any other method in the appointment of the chief justice,” the commission said in its report.
The report says that the number of judges in the Supreme Court remains an important issue in the smooth discharge of judicial and other duties. Therefore, it recommends certain provisions instead of article 94 (1) of the constitution. The proposed provisions stipulate that the “minimum number of judges in the Appellate Division shall be seven and more judges shall be appointed as required as per the requirements of the chief justice”. The recommended provisions also stipulate that the “necessary number of judges shall be appointed in the High Court Division from time to time as per the requirements of the chief justice”.
About the formation of the “Supreme Court Judges Appointment Commission”, the reform commission states that, besides the chief justice, the other eight members will include two most senior Appellate Division judges, the two most senior judges of the High Court Division, one retired judge of the Supreme Court, the attorney general, the president of the Supreme Court Bar Association and another lawyer of the Supreme Court.
The opinion of the appointment commission will prevail in the appointment of SC judges.
The reform commission has already sent a draft ordinance
on the matter, prepared in light of articles 95 (1) and (2) of the constitution, to the Law and Justice Division.
The appointment commission will invite applications from candidates with the prescribed qualifications, which the final report will elaborate on, the preliminary report says.
A shortlist of candidates will be prepared based on a review of applications, which will be made public so that the people may send their objections or reservations. The shortlisted candidates will then be invited for an interview, following which the commission will select candidates through secret ballot after discussing suitability of the candidates. The president will then appoint the judges according to the recommendation of the commission within 15 days.
The proposed provisions state that the president may ask the appointment commission to reconsider nominees, stating reasons for doing so, but the commission will not be obligated to change its list. It may send back a modified list or the original one.
Currently, the president appoints judges of the Appellate Division and the High Court Division in consultation with the chief justice in line with the constitution.
The reform commission has held meetings and exchanged views with diverse stakeholders, including the chief justice, the law adviser and the attorney general, before making the preliminary report.
It also sat with the chairman of the International Crimes Tribunal; public prosecutors and government pleaders of Dhaka district; and representatives from Open Society Foundation, USA; Bangladesh Supreme Court Bar Association; Dhaka District Bar Association; Bangladesh Judicial Service Association; Bangladesh Judicial Employees Association; Federation of Bangladesh Chambers of Commerce and Industries; United Nations Development Programme; Japan International Cooperation Agency; American Department of Justice; Carter Center; National Bar Association; and Law and Justice Reform Forum.
Besides lawyer Tanim, the members of the reform commission are retired High Court judges Justice Emdadul Haque and Justice Farid Ahmed Shibli; former district and sessions judge and former registrar general of Bangladesh Supreme Court Syed Aminul Islam; former district and sessions judge Masdar Hossain; Dhaka University associate law professor Kazi Mahfuzaul Haque Supan; and a representative from students.