Consultation with the Chief Justice in appointing SC judges

Article 95(1) of the Constitution of Bangladesh mandated the President to consult the Chief Justice (CJ) when appointing Supreme Court (SC) judges. This requirement was removed by the 4th Amendment in 1975 but reinstated by the 15th Amendment in 2011. This issue was first examined in Bangladesh v Idrisur Rahman, reported in 29 BLD (AD) 79, also known as the Ten Judges' case. The Appellate Division (AD) ruled that consulting the CJ was a necessary "constitutional imperative or convention" for appointing SC judges, even when this requirement was omitted by the 4th Amendment. Evidence shows that all SC judges were appointed after consulting the CJ, except once in 1994, confirming that such consultation has crystallised into a customary practice. The Court also held that considering CJ's opinion with primacy is crucial for judicial independence, a principle enshrined in the rule of law.

As the 8th Amendment case held the rule of law as a basic structure of the constitution, the Prime Minister or President cannot violate it. Under Article 48(3), the President must act on the Prime Minister's advice when appointing SC judges. Then, what would happen when the opinion of the CJ and PM comes into conflict?  In this regard, the Court established a bifurcated consultation process: first, the CJ's opinion would have primacy for evaluating legal acumen and suitability of the judges concerned, and, secondly, the Prime Minister's opinion would have primacy for assessing antecedents. However, this process left ambiguity regarding situations where the CJ's recommendation was not accepted by the executive.

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Recently, this finding was modified in ABM Altaf Hossain and others v Bangladesh (2023). The Appellate Division ruled that in case of conflict between the CJ's and the executive's opinions, neither would have primacy, and the appointment would not proceed. This departure from long-standing judicial convention relied on the Indian SP Gupta Case (1982), where the Indian Supreme Court held that in case of conflict, neither opinion had primacy. However, this rule was later overruled in India by the Advocates-on-Record Case (1993), where the CJ's opinion was given primacy. Although the latter case was also referred to in the ABM Altaf Hossain case, reliance was primarily put on the SP Gupta case. In my opinion, this can be seen as abusive selective borrowing of a constitutional idea, not justified by contemporary comparative constitutional law theories.

The Court criticised the Ten Judges' case for rendering primacy to the executive through the bifurcated consultation process and aimed to uphold judicial independence. However, in doing so, the Court rather inadvertently strengthened the executive's power over the judiciary. For instance, if the CJ recommends a candidate and the Prime Minister rejects it, the candidate would not be appointed, effectively giving the Prime Minister dominant authority in judicial appointments.

Indeed, the Court did not provide strong legal reasoning for deviating from its precedent. It only cited the absence of "political motivation" in the present case and contrasted it with the Ten Judges' case. A well-substantiated justification was required for effecting such significant change in the constitutional jurisprudence.

The writer is Lecturer in the Department of Law and Land Administration, University of Rajshahi.