The Chief Justice is the key person in the formation of opinion on the eligibility of persons to appointment in the superior judiciary and his opinion must be awarded against the executive , Observed the High Court in a recent verdict.
Section 95 (1) of the Constitution authorizes the Chief Justice, the Chief Judicial Officer, to be consulted by the President before the President appoints the Supreme Court judges.
Section 48 (3) requires the President to act on the advice of the Prime Minister in all cases, with the exception of the appointment of the Prime Minister and the Chief Justice.
The constitutional provision allows the Prime Minister, Chief Executive, to advise the President on the appointment of SC judges.
HC's verdict stated that the current appointment system can be improved by the Chief Justice.
The court also observed that the Chief Justice is the best and highest person to assess to what extent lawyers and bailiffs working in the subordinate judiciary are actually eligible to be appointed.
In response to a motion for injunction, the HC bench of Judge Obaidul Hassan and Judge Kirshna Debnath rendered the verdict on 13 April of that year. The copy of the full verdict was published yesterday.
"Given that the chief judge 's opinion has been made mandatory for the executive, it can be assumed that the chief judge is the head of the judiciary, one of the organs of The State, will recruit the appropriate people in the higher judicial system Having an appropriate legal basis, that is to say a sufficient knowledge of the right, human dignity and security. Integrity, "said the verdict on the appointment of SC judges.
However, the opinion of the Chief Justice has been ignored in the past.
Chief Justice Surendra Kumar Sinha on 24 December last year said he had advised the government to appoint eight additional judges to the HC in August 2016 after a lengthy discussion with the minister of the law.
"By mutual consent, a recommendation has been sent to the government for appointing the judges, but the process still had to see the light in four months," he said at the national judicial conference in the capital.
To date, no judge has been appointed by the President.
On the merits of the judicial petition, the verdict stated that the petitioner being a lawyer of the High Court became concerned about the recruitment of HC judges which has attracted serious criticism in the recent past.
The petitioner has requested for a leadership on the government to establish guidelines on the process of selecting individuals to be appointed as SC judges to bring transparency and competitiveness into such a process.
According to the current constitutional provision, a person, if he is a citizen of Bangladesh, has been a lawyer for the SC for at least 10 years or holds a judicial office for 10 years, is eligible for an appointment as As apex court judge.
There is no need for any other qualification. There is no other mechanism to examine the effectiveness of persons willing to be judges of the apex court.
The Constitution has long called for the enactment of a law specifying the other qualifications of a person desirous of being appointed a judge of the SC. But the parliament has not yet made such a law.
The HC, however, disposed of the judicial petition with some observations because it refrained from publishing guidelines.
"Given the constitution, there is a consultation provision with the chief justice before making an appointment in the superior court system, it is largely possible for the chief judge to select the persons competent for the judiciary Higher, "said the HC Verdict.
Now it is incumbent upon the chief judge to select the candidates and suggest to the president in the form of a recommendation to appoint them in the superior judicial system, it is read.
"There is a great opportunity for the Chief Judge to select the competent persons with sufficient legal and jurisdictional competence for the higher judiciary."
The HC stated that the applicant's bidder argues that, for the independence of the judiciary, the process of recruitment of judges of the higher judicial system must be exempt from all political influences.
It is his fear that, since the president is obliged to listen to the advice of the Prime Minister under the constitutional provision, there could be political influence in the process of recruiting judges in the Superior judicial power, said HC's verdict.
In his verdict, the HC focused on the process of selecting the courtroom appointment.
"In order to achieve the objective of an independent judiciary, the process of selecting judicial appointments in the higher judicial system must be designed to ensure the selection of a highly qualified person , Honest and eligible, "said.
He said the court wants to believe that if the current system does not work properly, legislators will vote to enact a charter in the constitution or make the appropriate law as suggested by the article 95 (2) (c) which will elevate the superior judicial power to a rare dignity that will command respectful obedience to the people of Bangladesh.
The HC also observed that a person should not be recommended for the post of his judge unless he has the commitment to the fundamental principles of state policy And the war of liberation.
He also stated: "In the process of selecting persons for elevation to the Division of the High Court, the Chief Justice may, if necessarily, need to consult or share his point Of view with at least two of his biggest brother judges in the Appeals Division and two of the senior judges of the High Court, as well as the formation of "opinion", as well as to ensure the recommendation Appropriate, effective and transparent ".