The government is all set to appoint new judges to the High Court on political consideration ignoring the constitutional requirement for enactment of a law for such appointments.

The government is going to make the fresh appointments flouting the directives given separately by the High Court and Appellate Divisions of the Supreme Court regarding appointment of an HC judge and ignoring the Supreme Court Bar Association’s long-standing demand for framing a set of rules for appointment of such judges.

Legal experts told New Age that the AL government did not keep its election promises that ‘genuine independence and impartiality of the judiciary will be ensured’ and the Supreme Court would be given ‘the responsibility of controlling and supervising the lower judiciary’.

They were also disappointed as the SCBA’s April 25, 2010 resolution was not implemented which asked the government to frame a set of rules on the appointment of HC and SC judges in line with the guidelines issued by the Appellate Division and the High Court.   

A special HC bench in a verdict on August 7, 2008 upon a writ petition regarding the dropping of 10 additional High Court judges detailed a 12-point guideline for appointment of HC and SC judges.

The third point of the guidelines said, ‘In case of appointment to the High Court Division, the chief justice shall consult two senior most judges of the Appellate Division and an equal number of judges of the High Court Division to form his opinion and he shall also consult senior members of the SCBA and the attorney general.’

Jurist Shahdeen Malik told this newspaper on Saturday that Article 95(2)(c) of the country’s constitution stipulates that an HC judge must have ‘such qualifications as may be prescribed by law for appointment as a judge of the Supreme Court.’

‘The first reason for not enacting the law since the constitution was put in effect in 1972 is to appoint judges of the government’s choice,’ he viewed.

Shahdeen said that the backlog of cases could not be reduced to a tolerable level until the government appointed qualified law officers, who were responsible for the delays in case hearings causing the unresolved cases to pile up.

He went on that the attorney general and other law officers were also appointed on political consideration.

On Thursday SCBA’s secretary AM Mahbub Uddin Khokon in a press conference said that the government recently decided to appoint more SC judges flouting the Supreme Court verdict and the SCBA’s long-standing demand for framing rules for appointment of SC judges.

‘The senior advocates feel that it is imperative that the right persons are appointed as judges of the Supreme Court and such appointments should be made based on qualifications, merit, ability and integrity only,’ Khokon quoted an SCBA resolution adopted on July 26, 2003 when Rokanuddin Mahmud was the president and M Mahbub Ali, now the state minister for civil aviation and tourism, was the secretary of the association.

‘Known or perceived political considerations or affiliation should not be the basis of the choice made,’ he quoted further from the resolution.

Of the present 92 High Court judges, 70 have been appointed by the present AL government since it assumed in power in January 2009. 

As of June 30, 2019, at least 488,562 cases were pending with the High Court, according to Supreme Court statistics.   

The 2007 Supreme Court annual report said that there were 61 judges in the High Court Division as of January 2007 when 2,40,483 cases were pending with the  Division.

Asked to comment on the issue, law minister Anisul Huq said, ‘Enactment of a law for appointment of SC judges is not required at the moment.’

He hastened to add that the new HC judges were being appointed in accordance with the constitutional provision.

The minister wanted to know from Khokon, also a BNP leader, why the BNP government did not enact a law or frame rules for the appointment of such judges.

In response to the query as to whether the judges will be appointed this week, he said, ‘Wait and see.’

These appointments to the High Court will be the first after prime minister Sheikh Hasina assumed power for the third consecutive term in January 2019.

On May 30, 2018, 18 additional judges were first appointed to the High Court after she assumed power for the second term in January 2014.

On April 13, 2017, a High Court Division bench of Justice Obaidul Hassan and Justice Krishna Debnath laid down nine criteria for appointment of SC judges.

The bench had delivered the verdict while disposing of a public interest litigation writ petition filed by Supreme Court lawyer Raghib Rauf Chowdhury.

The criteria stipulate: the Chief Justice should not recommend a person for appointing as an SC judge if his antecedents did not believe in the state policy and the  spirit of War of Liberation; the candidate must have a brilliant academic profile, professional skills, legal acumen and integrity; the intending candidate must provide his/her curriculum vitae in the SC website so that the Chief Justice, if he wishes, asks him for an interview over his/her assets and liabilities; the minimum age of an intending judge should be 45 years. 

Other criteria state: an intending HC judge must have enrolled as an Appellate Division lawyer to ensure high level quality as a jurist; in very exceptional cases the advocates enrolled in the High Court Division having wide range of practicing experience with honesty and sincerity may be considered for recommendation as an HC judge; one with the experience of less than three years as a district judge should not be recommended as an HC judge; and the merit and integrity must be the prime criteria while recommending a lower court judge as an HC judge.

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