IN A recent timely address, the chief justice Syed Refaat Ahmed has called on the interim government to initiate sweeping reforms to preserve the neutrality and independence of the judiciary. He has stressed the urgent need to effectively free the judiciary from the influence of the executive and the legislative, emphasising the principle that justice must remain beyond the reach of political machinations. 鈥楾he judiciary鈥檚 role is not to govern according to the whims of rulers but to serve as an impartial arbiter of the law,鈥� the chief justice said, underscoring the institution鈥檚 responsibility to uphold the rule of law and protect rights of citizens.
The speech has come at a critical juncture as concern about the process of appointing Supreme Court judges continue to grow. Referencing Article 95(2) of the constitution, which outlines the qualifications for judicial appointment, he noted that political considerations often overshadow merit, leading to a compromised judiciary that fails to reflect its independence.
He proposed two potential solutions: the introduction of a judicial collegium system, modelled on India鈥檚 practice of senior judges collectively deciding judicial appointment, or the judicial appointment commission model, similar to the US approach. The reforms, he argued, would ensure that appointment to the highest courts are based on merit, not political loyalty, thereby safeguarding the judiciary鈥檚 impartiality.
The appointment and removal of justices are not mere administrative procedures. They are vital to the health of the constitutional framework. The processes, influenced by the colonial legacy and political dynamics, hold the key to ensuring an independent judiciary. In Bangladesh, where the judiciary is often seen as the final defence against the executive overreach, the maintenance of its independence is crucial for protecting fundamental rights and sustaining public confidence in the legal system.
Since Bangladesh鈥檚 independence in 1971, the legal system has evolved from British colonial principles in developing its distinct constitutional identity. The framers of the constitution recognised that an independent judiciary is essential to upholding the rule of law. However, despite these foundational ideals, political interference in judicial appointment has become a persistent issue. The manipulation of judicial selections for political advantage has eroded the judiciary鈥檚 integrity, sparking long-standing debates about the need for structural reforms to restore the court鈥檚 independence.
Comparative insights from other judicial systems, particularly India鈥檚 collegium system, offer valuable lessons. The Indian model, which allows senior judges to collectively decide judicial appointment, has been widely praised for increasing transparency and reducing political influence. Bangladesh could benefit from similar reforms, either through a collegium system or an independent commission, to restore public trust in its judiciary and reinforce the rule of law.
The views of legal philosopher Ronald Dworkin further bolster the case for such reforms. Dworkin famously argued that the judiciary must serve as an interpreter of law and a defender of individual rights, independent of external pressures. He maintained that judges are not mere instruments of power but custodians of justice, entrusted with the moral and legal responsibility to uphold rights and principles that transcend political influence. His philosophy underscores the necessity of robust mechanisms to protect judicial independence and ensure transparency in the appointment and removal of judges.
In light of these ideas, the chief justice鈥檚 call for reform represents a golden opportunity for Bangladesh. By implementing global best practices in judicial appointment and establishing a separate secretariat for the judiciary, Bangladesh can strengthen its legal institutions and fulfil the constitutional promise of justice for all.
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Historical context of judicial appointment
The judicial system in Bangladesh is deeply influenced by its colonial past under the British rule. The legacy of executive control over judicial appointment, as practised in colonial times, continues to influence the system to a certain extent. Under Article 95 of the constitution, judges of the Supreme Court are appointed by the president, typically based on seniority and recommendation. However, the executive鈥檚 influence on judicial appointment has raised concerns about the erosion of judicial independence.
The historical tension between the executive and the judiciary came to the forefront in landmark cases such as Anwar Hossain Chowdhury v Bangladesh (1989), where the Supreme Court emphasised the preservation of the basic structure of the constitution. Despite these judicial interventions, political influence on the appointment of justices has remained an issue, particularly highlighted in the controversies surrounding the appointments of chief justices.
The removal of judges in Bangladesh is governed by Article 96 of the constitution, which initially provided for impeachment by the parliament. However, following the 16th amendment case (2017), where the Supreme Court struck down the amendment that empowered the parliament to remove justices, the Supreme Judicial Council system was reinstated. This council, composed of the chief justice and the next two senior most judges, investigates allegations of misconduct or incapacity and submits recommendations to the president. Notable cases such as Masdar Hossain v Bangladesh (2000) further emphasise the importance of judicial independence as the court declared the need for freeing the judiciary from executive control. The struggle between ensuring accountability and preserving judicial autonomy is a constant theme in Bangladeshi jurisprudence, with judges facing political pressure while they attempt to uphold the rule of law.
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Comparative perspective
RONALD Dworkin鈥檚 theory of law as integrity posits that judges should interpret the law not merely as a set of rules but as a reflection of moral principles inherent in the legal system. In this context, the judiciary鈥檚 role transcends the mere application of law; judges are seen as guardians of constitutional values. This aligns with the principles underpinning India鈥檚 collegium system, which seeks to insulate judicial appointment from executive control
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Collegium system in India
First judges case (1981): This case initially upheld the executive鈥檚 authority in judicial appointment. Second judges case (1993): The Supreme Court reversed its earlier stance, establishing the collegium system, where the chief justice of India and the two senior most judges of the Supreme Court would recommend appointment. Third judges case (1998): This further expanded the collegium, requiring consultation with the four senior most judges for appointment and transfers.
India鈥檚 collegium system, developed through a series of judicial pronouncements, offers an alternative model that could potentially be adapted for Bangladesh. In India, the collegium, headed by the chief justice of India and composed of four senior-most judges of the Supreme Court, is responsible for recommending appointment and transfers of judges to the president. This system emerged in response to concerns about political interference in judicial appointment.
The collegium system gained prominence after the second judges case (1993), where India鈥檚 Supreme Court asserted that judicial appointment should be led by the judiciary to ensure independence. The third judges case (1998) further clarified the structure and function of the collegium, establishing that it would consist of senior judges who would provide recommendations for appointment and transfers based on merit and seniority.
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Collegium System in Bangladesh perspective
THE collegium system can serve as a model for Bangladesh by offering a more transparent and judiciary-led appointment process. The following are key elements of the system that could be adapted:
Composition: The collegium would be headed by the chief justice, alongside four senior-most judges of the Supreme Court. This panel would be responsible for recommending appointment to the president This body is responsible for recommending appointment and transfers of judges. The recommendations are forwarded to the president for formal appointment, but the executive has little discretion in rejecting the recommendations.
Function: The primary function of the collegium would be to recommend the appointment and transfer of justices to the High Court based on merit and seniority. The process would also include consultations with the executive to ensure checks and balances.
Recommendations: The collegium recommends candidates based on their judicial record, integrity and merit.
Consultation: The collegium consults other judges and legal experts to ensure that the recommended candidate is fit for appointment.
Appointment of chief justice: The appointment of the chief justice under the collegium system would be based on seniority, but with a structured consultative process to ensure merit and independence. This would reduce the risk of political favoritism in selecting the head of the judiciary.
Removal process: Under the collegium system, removal would be guided by a transparent process involving the judiciary. A judicial council, composed of senior judges, would investigate allegations of misconduct or incapacity against any justice, including the chief justice, and make recommendations to the president. This would replace the current supreme judicial council model, providing a more judiciary-centred approach to accountability. Judges in India can only be removed through impeachment, requiring a two-thirds majority in both the houses of the parliament. The collegium plays no direct role in the removal process, but its recommendations and influence in the appointment process bolster the credibility of the judiciary.
Under the collegium system, judicial appointment and promotion are recommended by the judiciary, thereby minimising executive interference. This model could offer a solution to Bangladesh鈥檚 challenges by promoting judicial independence and ensuring that appointment is based on merit rather than political allegiance.
In contrast to Bangladesh, where executive influence is more pronounced, India鈥檚 collegium system reflects a Dworkinian approach to judicial independence. Ronald Dworkin argued that judges are custodians of constitutional morality and should act as protectors of fundamental rights, free from political pressure. The collegium鈥檚 structure ensures that judicial appointment is primarily driven by the judiciary, aligning with Dworkin鈥檚 vision of a principled and independent judiciary.
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Advantages of collegium system
ADOPTING the collegium system in Bangladesh could significantly enhance the judicial landscape by addressing key issues affecting the judiciary. First and foremost, it would promote judicial independence by transferring the power of appointment primarily to the judiciary, thereby minimising executive overreach and political interference in judicial selection. This system emphasises merit-based appointment, ensuring that individuals are chosen for their integrity and competence, aligning with Ronald Dworkin鈥檚 principles of law as a moral enterprise. The collegium would also introduce essential checks and balances. While the president retains formal authority to appoint judges, the recommendations from the collegium would effectively limit executive discretion, providing a necessary check on political influence within the judiciary.
Furthermore, enhancing transparency and accountability in the appointment process would help to restore public confidence in judicial integrity, especially if reforms akin to those implemented in India are adopted. By ensuring that justices are appointed based on their commitment to constitutional rights, rather than political loyalty, the collegium system would better protect citizens鈥� rights and uphold the rule of law. Ultimately, by placing the responsibility for appointment and removal in the hands of the judiciary, this system would significantly reduce political influence, thus strengthening the overall independence and effectiveness of the judicial system in Bangladesh.
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Criticism and reform
THE collegium system, while it offers a promising alternative for judicial appointments in India, has faced significant criticism because of its lack of transparency and accountability. Operating without a clear set of criteria for candidate selection, the collegium conducts its deliberations behind closed doors, raising concerns about the fairness of its processes. To address the issues, several reforms are necessary. First, establishing a transparent set of guidelines for evaluating candidates based on merit, integrity and professional competence would enhance the system鈥檚 credibility. Second, while the maintenance of judicial independence is crucial, subjecting the collegium鈥檚 decisions to a degree of public scrutiny would ensure accountability without undermining the judiciary鈥檚 autonomy.
The appointment and removal of justices and chief justices in Bangladesh have long been marred by political influence and lack of transparency. Adopting a collegium system, akin to that of India, could be a transformative step toward ensuring a more independent judiciary that functions as a true guardian of constitutional rights. By prioritising merit, seniority and accountability, the collegium system offers a balanced approach that aligns with Dworkinian ideals of judicial independence and moral integrity.
As Bangladesh continues to evolve its legal and constitutional framework, it must embrace reforms that protect the judiciary from political interference, ensure transparency in judicial appointment and uphold the rule of law. The collegium system, with appropriate adaptations, could provide the structural reforms necessary to achieve these goals, ensuring that the judiciary remains a pillar of justice and democracy.
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Kollol Kibria, an advocate at the Dhaka judges court, is a political and human rights activist.