Law Commission recommends appointing more qualified, experienced people in SC
The Law Commission has come up with a set of recommendations, including formulation of a law allowing appointment of legal experts from different professions as Supreme Court judges alongside the existing provision.
Right now, SC judges are picked from lawyers and lower court judges.
A seven-page report with six-point recommendation signed by Law Commission’s acting chairman Prof M Shah Alam was sent to the law ministry on Sunday.
According to the constitution’s article 95 (2) (a) (b), one having at least 10 years’ experience in the legal practice and service can become an SC judge.
Although the Article 95(2) (c) of the constitution provides for other qualifications for the appointment, but a law in this regard has yet to be passed.
There is also a scope under sub-section (c) of section 2 of article 95 of the constitution of appointing legal experts, law professors and researchers as SC judges, the law commission report said.
“The required conditions can be set under this section without amendment of the constitution,” the report said, adding that this provision exists in India and Nepal.
The report also discussed that retired or serving judges and lawyers can also be considered for the appointment under the law that the commission recommended introducing.
Not only practical experience but also in-depth knowledge and understanding of the vast theory, explanation and the use of law and perfect perception of justice are required to conduct judicial works.
This knowledge and understanding can also be achieved without having experience of working as judge and lawyer, said the commission.
Alongside persons with excellent academic career in law, university professors or researchers who are least 45-year-old and worked at reputed institutions can be appointed as SC judges, the commission recommended.
This exception will be helpful for qualitative development of the Supreme Court, the report said.
The commission also discussed the present constitutional provisions that said a person shall not be qualified for appointment as a judge unless he/she has, for not less than ten years, been an advocate of the Supreme Court or held judicial office in Bangladesh.
Regarding the qualification of at least 10 years’ experience as an advocate, the commission said mere enrolment as lawyer of the Supreme Court should not be acceptable in this case.
The lawyer has to have active and regular practice and also record of conducting a minimum number of cases successfully.
The report also said the lawyer who would be considered to be appointed as SC judge should have experience of conducting cases in the Appellate Division of the SC at least for two years.
About the present qualification of at least 10 years’ experience of holding judicial office, the commission said, in practice the district judges become HC judges.
But, the Law Commission says, at least three-year experience of working as district judge can be made mandatory and no constitutional amendment is needed for this.
“The period of having at least 10 years’ experience can be increased through amendment of the constitution,” it also said. Academic results of district judges should also be examined.
The commission said this 10 years’ experience should be counted only after the person worked as a judge. Only working with the law ministry or with judicial administration of any government organisation should not come under consideration.
In practice, the commission observed, lawyers get priority in appointment of HC judges. More than two-thirds of the HC judges had been lawyers.
But if more district judges or the judges with same status get the appointment, the SC will be benefited.
The commission recommended picking more HC judges from the lower level of the judiciary.
-With The Daily Star input
