Judicial Appointment Shrouds Under Political Clouds in South Asia

jivesBy Jivesh Jha–

One of the hotcakes in judicial politics today is whether judges should be picked through competitive examinations or appointments. Although the constitutional provisions of the member states of South Asian Association for Regional Cooperation (SAARC) remains adherent to independence of judiciary, the basic principle of democracy, they have enacted laws that have given the government a role to play in entire judicial appointment process.

While rolling out National Judicial Council (NJC) as an authority to recommend the names of the persons eligible for being appointed as judge by His Majesty King, the Bhutanese Constitution fails to rule out the possibility of political interference in judicial appointments.

The Bhutanese Constitution under Article 21(17) stipulates that the NJC will consist of four members, where senior-most judge of SC, Chairperson of Legislative Committee of National Assembly, and the Attorney General will be the members; and the said body is supposed to be headed by Chief Justice of Bhutan.

Amid stipulating the tenure of judges, the Constitution envisions that Chief Justice of Bhutan will hold the office for five years or until attaining the age of 65 years, whichever is earlier, Article 21(6). On the contrary, the succeeding clause of statute makes it clear that the judges of SC would be holding the office for 10 years or until attaining the age of 65 years, whichever is earlier.

While scripting dissimilar provisions for the HC, the Constitution heralds that the judges of HC would hold the office for 10 years or until attaining the age of 60 years, whichever is earlier.

The provisions relating to judiciary has been enshrined under Article 21(1) to Article 21(18).

Meanwhile, sharing a similar story with Bhutan, the Pakistani Constitution also fails to negate the political interference in the judicial appointments.

The Judicial Commission of Pakistan (JCP) comprises of seven members which is headed by Chief Justice of Pakistan and assisted by two senior most judge of the SC, a former judge of SC nominated by Chief Justice of Pakistan in consultation with two senior most judges of the SC for a term of two years, Federal Law Minister, Attorney General, and a senior advocate of SC nominated by Bar Council for a term of two years, Article 175A (2).

However, Article 175A (3) opens with a non-obstinate clause—notwithstanding anything contained in clause (1) and (2)—which expressly secures that the senior most judge of the SC would be appointed as Chief Justice of Pakistan by the President.

Similarly, in case of appointment of judges to HC, the JCP will also take aid and advice from Chief Justice of the concerned HC, two most senior judges of the HC, provincial minister for Law and Justice, and a senior advocate picked by provincial Bar Council for a term of two years, Article 175 A(5).

Ensuring the similar currency to enjoy as of India, the Pakistani Constitution corroborates that the retiring age for judges of SC and HC would stand at 65 years and 62 years, respectively.

The provisions related to judicature have been allowed to find space under Article 175-212 in Constitution of Pakistan.

Nonetheless, the provisions relating appointment of judges to higher judiciary in Srilanka are at odds with Pakistan.

The appointment of the judges of higher judiciary is subject to the approval of Constitutional Council and appointed by the President, Article 107. The provision ranging from Article (107-111C) is placed under the heading of “Independence of Judiciary.”

However, there appears variation between the legislative intent and heading of the group of Article. The heading of the group of Articles ranging from 107-111C objects but the provisions supporting it rejects the essence of independence of judiciary.

While talking about the Constitutional Council, a body with teeth in entire appointments process, embraces the Speaker of the House as Chairperson whereas the Prime Minister, Leader of the Opposition in Parliament, one Member of Parliament appointed by the President, five persons appointed by the President on the nomination of both the Prime Minister and the Leader of the Opposition of whom two persons shall be Members of Parliament; and one member of parliament appointed by the President belonging to a party other than the respective political party from which the PM and leader opposition belong, are cuddled as members of the Council.

The members represented in Council holds the office for a term of 3 years, Article 41 A (8). Further, the statute commands that the Council must reflect an inclusive and pluralistic character.

Unlike the other countries of SAARC, the Srilankan Constitution stipulates the age of retirement of judges of SC and HC at 65 years and 63 years, respectively, Article-107(5).

The provisions related to judicature have been incorporated under Article 105-147.

While envisaging that the support of House is mandatory, the Constitution of Maldives envisions that Chief Justice of Maldives will be appointed by the President in consultation with Judicial Service Commission and confirmation of appointee by a majority of members of House of People, Article 147. The succeeding provision—Article 148—provides that President will appoint the Judges of the Supreme Court, after consulting the Judicial Service Commission and confirmation of the appointees by a majority of the members of the People’s Majlis (House of People).

However, its’ also been provisioned that Judicial Service Commission will play an instrumental role in appointing all other judges, Article 148(b).

The age of retirement for the judges has been slated at 70 years, Article 148(c).

The composition of judicial Commission has been incorporated under Article 158 where its’ been envisioned that Speaker, a Judge of the Supreme Court other than the Chief Justice elected by the Judges of the Supreme Court, a Judge of the High Court elected by the Judges of the High Court; a Judge of the Trial Courts elected by the Judges of the Trial Court; a member of the People’s Majlis appointed by it; a member of the general public appointed by the People’s Majlis; the Chair of the Civil Service Commission; a person appointed by the President; the Attorney General; and a lawyer elected from among the lawyers Bar Council will be the members.

The Commission is constituted by the President, the head of state, Article 160.

While debarring other tenets of Islam, the Constitution provisions that for becoming a judge in Maldivian judiciary one must be a Sunni Muslim, Article 149(b)(1).

The provisions relating to judiciary has been allowed to find space under Article 141-166.

Similarly, the Afghani Constitution provides that the Supreme Court judges shall be appointed by the President and with the endorsement of House of People, Article 117.

Airing a unique provision in South Asia, the Constitution opines, “Three members for a period of four years, three members for seven years, and three members for ten years. Later appointments shall be for period of ten years. Appointment of members for a second term shall not be permitted. The President shall appoint one of its members as Chief Justice of the Supreme Court,” reads Article 117.

The newest Constitution of the world, which was enforced on Nepali soil on September 20 last year, stands in favor judicial appointment made on the recommendation of Judicial Council (JC), where the Law Minister shares a berth.  On the face of Article 129, the Nepali Constitution provisions that Chief Justice of Nepal will be appointed by the President, while the Justices of the Supreme Court (SC) will be chosen on the recommendation of JC.

The constitution of JC has been provided under Article 153. It envisages that the Chief Justice of Nepal will be ex-officio Chairman of the Council, whereas the Federal Law Minister, senior-most judge of the SC, a legal expert nominated by the President on the recommendation of the Prime Minister, and a senior advocate appointed by the President on the recommendation of Nepal Bar Council will be acting as members.

The recent appointments of judges in courts of Nepal explain a political chemistry that the persons should pass the litmus paper test conducted by the ruling political class for becoming judges.

“Recently the JC led by former Chief Justice Kalyan Shrestha and Law Minister Agni Kharel made a controversial appointment of 11 SC judges. Most of them are advocates with known political affiliation with ruling party—CPN(UML),” said political analyst Anurag Acharya.

Although Article 42 has been incorporated to quicken the pulse of inclusive character of the government, the judicial appointments fail to acknowledge the provision as “out of 11, the JC appointed just two woman, two Janajatis and 0 Dalit.”

“Currently Nepal’s Apex Court has  seven upper caste males compared to one woman, who is holding the office of Chief Justice, and one from ethnic background. However, there is no any person from Dalit,” further added he.

Arguing that the Nepal’s judiciary is snowed under political influence, Acharya further said, “The JC led by former Chief Justice Ram Prasad Sah and Law Minister Narahari Acharya appointed tainted Judges Cholendra Rana and Gopal Parajuli last year.” Raising an eyebrow on the non-inclusive character of the JC, Acharya further added, “The JC, Nepal’s constitutional body, which appoints judges is itself incomplete and lacks inclusive character. There is just one woman member, who happens to be the Chief Justice, having no person from Dalit category.” Noted, the majority members of JC belong to a particular Khash Brahmin caste. “Currently Nepal’s apex court has 7 upper Hill caste male judges compared to one woman, the incumbent Chief Justice, one from ethnic background and zero Dalit.”

In August 2015, Nepali Congress-led government recommended 60 names for District Court judges. Of them, only 8 are from Janajatis, 3 Madheshis and 0 Dalits,” added Acharya. Shading light on representation of different ethnic groups in judiciary, he said, “An authentic research shows that the SC, the highest Court of land in Nepal, is not inclusive in character, where 71% judges are from upper Hill caste (Brahmins, Kshetris), and the women judges share 14.2% space. However, the representation of indigenous communities, Dalits, Muslims and Madheshi is very minimal.” The story is not so much different in Appellate Court, where out of the total, 72% of judges belong to upper Hill caste, 8.7% are from Madheshi origin, 4% women and 1.2% Dalits.” Similarly, the identical wind is blowing in District Court as “90% of judges are from upper Hill castes, 3% Madheshi, 0.5% women and 7.2% Janajatis.”

“Looking at the above figure, it is not difficult to assess why Nepal’s political and legal system has been unkind to Janajatis (indigenous communities), women and Madheshis, who are vulnerable groups of the country,” further said Acharya, who is an eminent political writer, associated with ‘Nepali Times’ newspaper in Kathmandu.

On a separate context, the SC had refused to entertain a writ petition against government even as there was clear violation of Article 76(9). The provision says that the strength of Council of Ministers should not exceed 25 members. However, the KP Oli-led government has arbitrarily elevated the strength of Council of Ministers, while ignoring the Constitutional provision. “The number of members in the Council of Ministers at present is incompatible to the Constitution. A writ petition was filed before the SC but the Court did not take issue seriously,” said Bishal Khanal, faculty of Constitutional Law at Kathmandu University, Nepal. He further said that maintaining rule of law in the country has become a story so far.

Even as there is a well-accepted tradition of appointing the senior most judge of SC as Chief Justice, the Nepali statute envisages that ‘any person who has worked as a judge of the SC for at least three years is eligible for appointment as Chief Justice of the SC,’ Article 129(3).

However, the Constitution provisions that the SC judges will be retired when he/she attains the age of 65 years or a tenure of six years, whichever is earlier. Similarly, the age of retirement for High Court judges is 63 years, Article 142(1) (b).

The provisions relating to judicature have been enshrined under Article 126-156.

The Bangladesh Constitution- under Article 95(1) provisions that Chief Justice and other judges shall be appointed by the President. Noted, the President always acts on the advice of Prime Minister, who heads the Central Cabinet of the popular government, Article 48(3).

The arrangement of provisions relating to judiciary has been enshrined under Articles 94-117. The judges will hold the office until he attains the age of 67 years, Article (96) (1).

However, the Constitutional provision offers a blanket power to a three-member Supreme Court Judicial Council, which comprises of Chief Justice of Bangladesh and the next two senior judges of the Apex Court, to make an inquiry on any form of misconduct caused by the judges while dispensing his duty. And, most importantly, on the recommendation of the said Council, the President removes the tainted judges from the office, Article 96(6).

While blowing bugle against the political interference, the Constitution of India envisions that the independence of judiciary is the keystone of the statute, declaring the independence of judiciary as the basic structure of the fundamental document.

In an endeavor to ensure the independence of judiciary, the Constitution has made a deliberate and conscious departure from the other Constitutions of the world. The appointment, removal and transfer of judges of higher courts and subordinate courts have been placed entirely in the hand of judiciary, leaving no room for the influence of executive and legislature.

The Article 124 provides that every judge of the Supreme Court shall be appointed by the President after consultation with judges of the Apex Court. The Collegiums of the SC judges play an instrumental role in appointment of judge of higher judiciary. The President appoints the judges of the SC in the line with recommendation floored by the Collegiums, while ensuring the role of executive merely as a formality.

The Collegiums is comprised of the Chief justice of India (CJI) and his four senior-most colleagues.

So far the appointment of CJI is concerned; there is a well-settled principle that the senior-most judge of the Apex Court should always be appointed as CJI.

However, the procedure for the appointment of judges in High Court differs from the procedure followed in SC.

The Cornerstone has been set by Article 217 which commands that while appointing the judges of HC, the President needs to consult the three authorities, namely the CJI, the Governor of State concerned, and the Chief Justice of HC. However, the well-accepted tradition is more or less different than the enacted provision.

Ensuring a judiciary free from politics, “The collegiums of the SC play a pivotal role in appointment of judges of HC as well. Amid appointing the judges of HC, the collegiums of SC and Chief Justice of HC are consulted by the President. However, the Governor of the state concerned plays a role only in giving oath of office and secrecy to the judges,” said Pramod Tiwari, a former Civil Judge and distinguished faculty of International Law at Uttaranchal University, Dehradun. Similarly, in case of appointment of Chief Justice of HC, “the senior-most judge of any HC can be appointed as Chief Justice of any HC. For example, a senior-most judge of Guwahati HC can be appointed as Chief Justice of Sikkim HC. The question here is seniority.”

“This is the sparkling feature of the Indian constitution which has succeeded enough to put political intervention in judicial appointments at arm’s length. The judiciary which is snowed under political intrusion would obviously fail to administer a fair and reasonable justice. I think, India has begun a new chapter before the world map to give a blow to the judicial politics,” said Dr Sharafat Ali, Principal of Siddhartha Law College, Dehradun, while showing satisfaction with professor Tiwari.

Unlike Bangladesh Constitution, the Constitution of India envisages that the judges would hold the office in the Apex Court to administer justice until he attains the age of 65 years, while for the same the age bar has been slated at 62 years for the High Court, envisaged in Article 124 (2) and Article 217(1), respectively.

It is notable that Article 74, which says that there shall be a Council of Ministers to aid and advice the President, has no application on Article 124 and 217, i.e. the President is not bound to act in consultation with Council of Ministers, while appointing the judges of higher judiciary, however he is supposed to dispense his functions regarding the appointments of judges after consultation with collegiums of SC judges headed by Chief Justice of India,” said Abhiranjan Dixit, faculty of International Law at Uttranchal University, Dehradun.

“The Indian Constitution happens to be a sole constitution in SAARC to thwart political interference in judicial appointments. It’s beyond any iota that the judicial appointments made under clouds of politics would air the biasness—be it official bias, pecuniary or personal bias—even during the administration of justice. It is notable that a judge, who is appointed by a ruling political class, may not pronounce judgment against the ruling government,” said Dr JN Singh, a faculty of International Law at Siddhartha Law College, Dehradun.

“When the judiciary gets flooded with politics, there leaves possibility of miscarriage of justice. It’s a well settled principle that the independence of judiciary is the basic structure of any democratic constitution and if it gets influenced under the grip of politics, there would be an attack on its independency,” said Alok Kumar Yadav, a faculty of International Law at HNB Garhwal Central University, Shrinagar.


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