Direct Appointment of Lawyers to Appellate Division: Why Does Bangladesh Lack Precedents Seen Across the Subcontinent?
There is no constitutional barrier to appointing a lawyer directly as a judge of the Appellate Division without first serving in the High Court Division. Numerous examples of such appointments exist across the Indian subcontinent. While court rulings from across the region are widely discussed and studied, judicial appointments remain an area of significant difference. The question is why Bangladesh has not followed this practice.
Some lawyers consider direct appointments contrary to established judicial customs. However, several writ petitions have been filed in the past seeking such appointments. Under Article 95(1) of the Constitution, the President appoints judges to the Supreme Court, including the Appellate Division, after consulting the Chief Justice. Article 95(2)(a) does not expressly prohibit the direct appointment of lawyers to the Appellate Division. It sets out the eligibility requirements for judicial appointments.
To qualify for appointment as a Supreme Court judge, a person must be a citizen of Bangladesh and have at least 10 years of experience as an advocate of the Supreme Court or have held a judicial office in Bangladesh for at least 10 years.
Legal experts and Supreme Court lawyers have previously proposed direct appointments from the Bar to the Appellate Division to improve the efficiency of the judiciary and reduce the backlog of cases. Such proposals were raised in 2017 and 2018, and writ petitions were also filed. However, the relevant benches did not take up those petitions for hearing. As a result, Bangladesh has yet to establish such a precedent, despite numerous examples across the subcontinent.
Many lawyers believe that direct appointments to the Appellate Division, based on the Constitution and precedents from neighbouring countries, could help address the current shortage of judges. The High Court Division of the Bangladesh Supreme Court currently has 92 judges, including at least eight senior judges appointed during the tenure of Sheikh Hasina’s government. In contrast, the Appellate Division has only five judges, including the Chief Justice.
The current number of judges is insufficient to clear the Appellate Division’s case backlog. According to figures from January, 41,551 cases were pending before the division. The number has increased to nearly 43,000 over the past 10 months.
Although there is reportedly no lack of commitment to reducing the backlog, the shortage of judges remains a major obstacle. The court cannot establish multiple benches without appointing additional judges. Against this backdrop, relevant stakeholders believe the government should consider alternative ways to increase the number of judges in the Appellate Division.
However, one major complication is that the judges currently eligible for promotion from the High Court Division to the Appellate Division were appointed during the Awami League government. Allegations of politically motivated judicial appointments during that period were widely discussed. As a result, the government is reportedly uncertain about whom to appoint to the Appellate Division. In this situation, many are suggesting direct appointments from among senior Supreme Court lawyers as an alternative.
Examples from India
There are several examples of lawyers being directly appointed as judges of India’s Supreme Court. In 1964, Justice S.M. Sikri became the first lawyer to be directly appointed as a judge of India’s Supreme Court. He later became the country’s 13th Chief Justice. He was also the first person in Indian judicial history to move directly from legal practice to the Supreme Court and subsequently become Chief Justice.
In 2014, senior advocate Uday Umesh Lalit was appointed as a Supreme Court judge. He later served as India’s 49th Chief Justice in 2022. In 2018, advocate Indu Malhotra made history as the first woman lawyer to be directly appointed as a Supreme Court judge from the Bar. Most recently, in June this year, Justice Venkata Subramani Mohana was appointed as a woman judge from the legal profession. She became the second woman in India to be directly appointed to the Supreme Court from the Bar.
Other prominent lawyers who were directly appointed as Supreme Court judges include Justices A.C. Ray, Kuldeep Singh, N. Santosh Hegde, Rohinton Fali Nariman, L. Nageswara Rao, P.S. Narasimha and K.V. Viswanathan. At least a dozen such appointments have taken place in India.
Examples from Sri Lanka
In Sri Lanka, Supreme Court judges are generally appointed from among experienced judges of lower courts or officials from the Attorney General’s Office. However, there are exceptional cases of distinguished lawyers being directly appointed to the country’s highest court.
In 1977, Sri Lankan President J.R. Jayewardene directly appointed renowned lawyer Neville Samarakoon as Chief Justice of the Supreme Court. He moved from the Bar to the Bench and assumed the country’s highest judicial position without any previous judicial experience.
Justice Mark Fernando, regarded as one of the most respected and independent judges in Sri Lankan history, was directly appointed to the Supreme Court in 1988. Before his appointment, he had practised as a President’s Counsel, a senior category of lawyer in Sri Lanka.
In 2014, then President Mahinda Rajapaksa appointed Justice Priyantha Jayawardene directly from the legal profession to the Supreme Court. Justice Prasanna Jayawardene was appointed through a similar process in 2016. During the British colonial period and the early years after independence, lawyers such as H. Rodrigo and Victor Perera were also directly appointed as judges of the country’s highest court.
Pakistan’s Constitutional Provision
Pakistan’s Constitution also allows lawyers to be directly appointed as Supreme Court judges. Under Article 177(2)(b) of the Pakistani Constitution, a person who has practised as an advocate of a High Court for at least 15 years is eligible for direct appointment as a Supreme Court judge.
However, despite this constitutional provision, there has not been a single such appointment in Pakistan’s judicial history. All judges of the country’s Supreme Court have been appointed through promotion or transfer from different provincial High Courts. Provincial bar associations have long been urging the authorities to implement the constitutional provision. However, the Judicial Commission of Pakistan has yet to introduce the practice.
Recent Appointments in India
Between May 22 and 27 this year, several lawyers were directly appointed to judicial positions in India. Advocate Sheel Nagu was appointed Chief Justice of the Punjab and Haryana High Court. Justice Shree Chandrashekhar was appointed to the Bombay High Court, while senior advocate Sanjeev Sachdeva was appointed Chief Justice of the Madhya Pradesh High Court.
Justice Arun Palli was appointed Chief Justice of the High Court of Jammu and Kashmir and Ladakh. Senior advocate V. Mohana was also appointed as a judge of the Supreme Court.
Bangladeshi Lawyers Divided Over Direct Appointments
However, senior Supreme Court advocate Manzil Morshed considers the idea of directly appointing lawyers to Bangladesh’s Appellate Division, following the examples of India and Sri Lanka, a weak proposal. He said, “Our country has a custom for appointing judges to the Appellate Division. Judges are appointed according to that practice. If the custom is not followed, controversy may arise. Here, custom is a law. Such an idea was considered during the previous Awami League government, but the appointment could not be made. The current government’s focus is on politics. That may be why these discussions are being brought forward. How can someone who has no experience writing judgments in the High Court Division write judgments in the Appellate Division? This is a weak idea. A lawyer is prepared to argue for one side, not to remain neutral.”
On the other hand, senior Supreme Court advocate Delwar Hossain Chowdhury said the Constitution does not impose any restriction on such appointments. However, raising the issue had previously led to a contempt of court case against the late journalist Mizanur Rahman Khan.
He said a Supreme Court judgment had stated that judges must be appointed to the Appellate Division from the High Court Division. Certain observations were also made in the contempt proceedings. According to him, moving from the High Court Division to the Appellate Division is effectively a form of promotion, although it is technically a fresh appointment. The judge must take a new oath of office.
He added that Bangladesh could not make such appointments unless it adopted the Indian system. If the judgment in the contempt case against Mizanur Rahman Khan was taken into consideration, such direct appointments would not be possible.
Previous Writ Petition
In 2018, Supreme Court advocate Yunus Ali Akand filed a writ petition on the issue. In his petition, he argued that under Article 95 of the Constitution, anyone with at least 10 years of experience practising as an advocate of the Supreme Court was eligible for appointment as a judge, including the Chief Justice. However, no lawyer had ever been directly appointed through this provision.
He also pointed out that, apart from the appointment of additional judges to the High Court Division for a specified period under Article 98, direct judicial appointments had never been practised in Bangladesh. At the time, Akand said a person appointed as Chief Justice had to take the oath of office four times during their judicial career.
First, when appointed as an additional judge of the High Court Division after practising as a lawyer; second, when appointed as a permanent High Court judge after serving for two years as an additional judge; third, when promoted to the Appellate Division; and finally, when appointed Chief Justice.
He argued that the process was different in India, where lawyers with at least 10 years of experience in a High Court could be directly appointed as judges or Chief Justice of the Supreme Court. In the United States, the President appoints Supreme Court judges, including the Chief Justice, with the consent of the Senate.
In his writ petition, Akand also argued that the failure to appoint judges directly from among qualified lawyers under Article 95 violated the Constitution’s Preamble and Articles 27, 28 and 40, resulting in discrimination against members of the legal profession.
