THE appointment of judges of the Supreme Court, almost every time, brings to the fore an issue that the government has for long neglected — a law for the judge’s appointment keeping to the constitution. The constitution, in Article 95(2)(C), sets out that judges of the Supreme Court must have ‘such qualifications as may be prescribed by law.’ The absence of such a law leaves the scope for public perception that such appointments are largely done on political considerations. Besides, the appointment of judges without having a relevant law in place goes against the verdict that a special High Court bench gave on August 7, 2008 that detailed a 12-point guideline on the appointment of judges of the Supreme Court — both the High Court and the Appellate Division. The third point of the guideline sets out that in the appointment of judges of the High Court, the chief justice will consult two senior most judges each of the Appellate Division and the High Court to form the opinion and consult other senior members of the Supreme Court Bar Association and the attorney general.
The resolution of the Supreme Court Bar Association arrived on April 25, 2010 that the government should frame a set of rules on the appointment of Supreme Court judges in the light of the High Court guidelines has also not been acted on. In a situation like this, experts say, the prime reason of the government for not enacting such a law is to appoint judges keeping to the choice of the government. The law minister, in making comments on the latest appointment of judges, sought to say that the enactment of a law for the appointment of Supreme Court judges was not needed while he said that the appointment at hand was in accordance with the constitutional provision. But he then asked why the Bangladesh Nationalist Party, which is now in the opposition camp, had not made any law or framed any rules on the appointment of judges. But the BNP’s not making any law when it was in power should in no way make a case for the ruling Awami League’s not making such a law or a set of rules. It appears that the ruling party, whichever it may be, chooses to be vocal about such a law when in opposition and chooses not to make the law when in power.
It is time the ruling class understood that the enactment of a law on the appointment of judges of the Supreme Court could make the appointment process specific and help to head off criticism or controversies that surface around such appointment every time it takes place. Such a law also helps in making the appointment based on qualifications, merit, ability and integrity and heading off any perceived or known political considerations that may taint the process.
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