Supreme Judicial Commission

Supreme Judicial Commission Ordinance was promulgated in March 2008 for recommending names of persons for appointment of judges of the Supreme Court. The Ordinance originally provided that the Commission would be constituted with the Chief Justice as chairman. Other members are Law minister, two senior most judges of the Appellate Division, Attorney General, two lawmakers, one to be nominated by the Jatiya Sangsad and the other by the leader of the opposition; president of the Supreme Court Bar Association and the law secretary. The Supreme Judicial Commission will recommend two names for appointment to each vacancy for the office of additional judge. It will also recommend three to five names from amongst the sitting judges of the High Court Division for elevation to each vacancy of the judges of the Appellate Division. The Commission may interview any person qualified to be appointed as judge of Supreme Court before making any recommendation. Before making recommendations for the office of additional judges, the Commission will scrutinise the academic qualifications, professional ability, good-will and honesty of the candidates.

For the office of judges of the Appellate Division, the Commission will examine the competence of the judges in dispensation of justice, honesty and reputation. The Ministry of Law shall send a list of names for the posts of High Court judges or additional judges for the High Court Division to the Commission. However, the Commission reserves the right to choose any person who is not in the list, or it may request the Ministry to include such person in the list. The Commission shall send its recommendation to appropriate authority for referring it to the President. Section 9(4) of the Ordinance also provided that the President was not bound by the recommendation of the Commission in appointing judges of the Supreme Court.

Upon a writ petition filed by a lawyer, the High Court Division issued a rule nisi upon the government to show cause as to why the Ordinance shall not be declared to be unconstitutional, and also stayed functions of the Supreme Judicial Commission for three months. Thereafter the Ordinance was amended providing that the Commission shall consist of the Chief Justice, three judges from each division of the Supreme Court, Advisor or Minister in charge of the Ministry of Law, Justice and Parliamentary Affairs, Attorney General and the president of the Supreme Court Bar Association. A special bench of the High Court Division consisting of three judges heard the rule and gave its verdict on 7 August 2008. Majority of the judges of that special bench declared section 9(4) of the Ordinance authorizing the President to disregard the recommendation of the Commission unconstitutional and holding the rest of the Ordinance constitutional. [Kazi Ebadul Hoque]