Judicial independence: Removing executive influence in judicial appointments

In Bangladesh, political interference in judicial appointments remains a hindrance to ensuring judicial independence. Photo: Mehedi Hasan

Recently, Chief Justice Dr Syed Refaat Ahmed has urged the interim government to enact extensive reforms to preserve the judiciary's independence and impartiality. He emphasised the judiciary's obligation to uphold the rule of law and protect individuals' rights, stating that the judiciary's role is not to govern according to the whims of rulers but to function as an impartial arbiter of the law.

The message was conveyed at a critical juncture amid escalating concerns over the selection procedure for Supreme Court judges. He indicated that political considerations often overshadow merit, leading to a compromised judiciary that fails to embody its autonomy, referencing Article 95(2) of the constitution, which delineates the criteria for judicial appointments.
He proposed two potential reforms for judicial independence: adopting a judicial collegium system, as seen in India, where senior judges collaboratively select judicial appointments, or a judicial appointment commission model similar to the United States. He argued that these reforms would safeguard the judiciary's impartiality by basing appointments on merit rather than political ties.

Judicial appointments and dismissals go beyond simple administrative tasks—they are vital to upholding the constitutional framework. Rooted in political dynamics and colonial history, these processes are crucial for ensuring an unbiased judiciary. 

In Bangladesh, where the judiciary is often viewed as the last defence against government overreach, judicial independence is essential for protecting fundamental rights and maintaining public trust in the legal system.

Since independence in 1971, Bangladesh's legal system has developed a unique constitutional identity, heavily influenced by British colonial traditions. Despite foundational principles favouring an autonomous judiciary, political interference in judicial appointments remains. This has fuelled prolonged calls for institutional reform to restore judicial integrity and reduce politicisation.

Insights can be drawn from other legal systems, particularly India's collegium model, which reduces political interference by enabling senior judges to collectively approve appointments. Similar reforms could help restore public trust in Bangladesh's judiciary, either through an independent commission or a collegium framework.

Legal expert Ronald Dworkin supports such reforms, asserting that the judiciary must uphold individual rights and interpret the law free from external influence. Dworkin argues that judges have a moral duty to protect rights beyond political interests, emphasising the need for safeguards to maintain judicial independence and transparency in appointments.

The context of judicial appointments 

Bangladesh's judicial system has deep roots in its colonial past under British rule, where governmental oversight in judicial appointments was a standard practice. Today, Supreme Court judges are appointed by the president under Article 95 of the constitution, typically based on seniority and recommendations. 

However, concerns persist about the erosion of judicial independence due to executive influence over these appointments.

Landmark rulings, such as Anwar Hossain Chowdhury v. Bangladesh (1989), have emphasised the importance of maintaining the constitutional framework, highlighting ongoing tensions between the administration and judiciary. 

Despite judicial efforts, political influence continues to shape judicial appointments, particularly in the contentious process of selecting chief justices.

Article 96 of the constitution, initially allowing parliamentary impeachment of judges, now operates under the Supreme Judicial Council system following the Supreme Court's annulment of the 16th Amendment in 2017. 

This council, comprising the chief justice and two senior judges, investigates allegations of judicial misconduct and makes recommendations to the president. 

The importance of judicial independence was underscored in cases like Masdar Hossain v. Bangladesh (2000), which asserted that the judiciary must be free from governmental intervention. 

Bangladeshi jurisprudence consistently wrestles with balancing judicial independence and accountability as judges strive to uphold the rule of law amid political pressures.

A comparative perspective

Ronald Dworkin's theory of "law as integrity" suggests that judges should view the law as an embodiment of moral principles rather than a mere set of rules. This perspective aligns with India's collegium system, which aims to shield judicial appointments from state influence, reinforcing judges as guardians of constitutional principles that extend beyond pure legal enforcement.

The collegium system in India

India's collegium system, established through landmark rulings, reformed judicial appointments to limit political influence. The First Judges Case (1981) affirmed the executive's role in appointing judges. 

However, in the Second Judges Case (1993), the Supreme Court shifted authority to the judiciary, creating a collegium where the Chief Justice and the two senior-most judges recommend appointments. 

This was further expanded in the Third Judges Case (1998) to include consultation with the four most senior judges for appointments and transfers. The system allows the president to act on recommendations provided by the collegium, chaired by the Chief Justice of India and composed of the top Supreme Court judges.

Applicability of the collegium model in Bangladesh

A similar collegium system could enhance judicial independence in Bangladesh by creating a transparent, judiciary-led appointment process. Here's how the model might function:

Structure and responsibilities: A Bangladeshi collegium would include the Chief Justice and the four most senior Supreme Court judges, responsible for recommending judicial appointments and transfers based on seniority and merit. 

Although the executive could participate throughout the process, its role would be consultative rather than decisive, with recommendations forwarded to the president for formal approval.

Criteria and consultation: Recommendations would prioritise merit, integrity, and judicial experience. The collegium would also consult other judges and legal experts to evaluate each candidate's qualifications. Selection of the Chief Justice would emphasise seniority and independence, reducing potential political bias.

Removal process: The collegium model could enhance transparency by involving senior judges in removal proceedings. A judicial council would investigate allegations of misconduct or incompetence against any judge, including the Chief Justice, and provide recommendations to the president. 

This approach, unlike the current Supreme Judicial Council model, centres accountability within the judiciary. In India, judge removal requires a two-thirds majority in parliament, underscoring the judiciary's autonomy.

Dworkinian perspective on judicial independence

India's collegium reflects Ronald Dworkin's principles of judicial independence, emphasising the judiciary as a custodian of constitutional values free from political interference. 

Dworkin argued that judges should safeguard fundamental rights based on moral principles, not political pressures. The collegium's structure aligns with this philosophy, reinforcing a judiciary-driven process for judicial appointments. 

In Bangladesh, adopting such a model could reduce executive influence and ensure judicial nominations are grounded in merit, promoting an ethical and independent judiciary.

Advantages of the collegium system 

By addressing significant issues affecting the judiciary, Bangladesh might substantially enhance its judicial environment via the implementation of the collegium system. Granting the court primary appointment power will primarily enhance judicial independence by diminishing political interference in the selection of judges and curtailing presidential overreach. 

Ronald Dworkin's perspective on law as a moral pursuit aligns with this system's emphasis on meritocratic appointments, ensuring individuals are chosen for their ability and integrity. The collegium would also implement significant checks and balances. The collegium's recommendations would substantially limit presidential discretion, establishing a vital safeguard against political influence inside the judiciary while the president retaining the formal authority to designate justices.

Furthermore, enhancing accountability and transparency in the selection process would aid in restoring public confidence in the integrity of the court, especially if reforms such as those implemented in India are adopted. 

The collegium system would more effectively safeguard individuals' rights and uphold the rule of law if judges were selected based on their commitment to constitutional rights rather than their political affiliations. 

Ultimately, granting the judiciary control over nominations and dismissals will significantly reduce political meddling, improving the overall independence and effectiveness of Bangladesh's judicial system. 

Reformation and critique 

The collegium system, although a possible alternative to judicial appointments in India, has faced significant criticism for its deficiency in accountability and transparency. 

The fairness of the collegium's operations is questioned due to the absence of established criteria for candidate selection and the confidentiality of its deliberations. 

Several modifications are necessary to address the issues. The system's credibility would be enhanced by establishing a transparent framework for evaluating candidates based on their credentials, ethical integrity, and professional competence. 

Secondly, although it is essential to maintain judicial independence, accountability might be ensured without undermining this independence if the decisions of the collegium were disclosed to the public. 

In Bangladesh, political meddling and a deficiency of transparency have persistently hindered the appointment and removal of judges and chief justices. To ensure a more autonomous judiciary that really safeguards constitutional rights, the adoption of a collegium system like that of India may represent a transformative advancement. 

The collegium system offers an equitable approach aligned with Dworkinian values of judicial independence and moral purity by prioritising merit, seniority, and responsibility. 

Bangladesh must implement reforms that uphold the rule of law and ensure openness in judicial nominations, and protect the judiciary from political interference as it advances its legal and constitutional framework. 

With appropriate revisions, the collegium system might provide the necessary institutional reforms to achieve these goals, ensuring that the judiciary remains a fundamental pillar of democracy and justice. 

Sketch: TBS

Mohammad Anisul Haque Emran is a legal consultant, arbitrator, mediator, and human rights activist.

Disclaimer: The views and opinions expressed in this article are those of the author and do not necessarily reflect the opinions and views of The Business Standard.