The Constitution and Rule of Law: A Third View

Everyone should be treated equally under the same law and the same courts, without any discrimination. Articles 27, 28, 29, and 31 of the Bangladesh Constitution provide an excellent description of the principle of equality, which is more progressive than in many neighboring countries.

It is widely recognised that the rule of law is a key source and an essential precondition of democracy. However, the rule of law cannot exist without an independent judiciary.

Therefore, judicial independence is extremely important for establishing the rule of law and a healthy democracy.

Experience is very important for appointing judges, along with checking their professionalism. In this regard, the words of former Chief Justice Chagla of the Bombay High Court are often quoted. He had vast knowledge of law, a sharp intellect, and extraordinary common sense. His wisdom was evident both inside and outside the courtroom.

This is the real strength of a judge, and this strength builds public confidence in judges and the judiciary.

In 69 DLR (HC) 317, a notable judgment mentioned seven criteria for judges. One of them is that a judge should be at least 45 years old, and those enrolled in the Appellate Division should get priority.

However, in practice, those who practiced for many years in district courts after getting High Court enrollment, or those who stayed abroad for a long time, should ideally be at least 50 years old when appointed as judges.

If professional success and other qualifications are sufficient, some flexibility can be shown regarding academic results.The Supreme Court Judge Appointment Ordinance 2025 has set the minimum age at 45 years, but there is no upper age limit.

In recent appointments, fewer senior members from the Bar were appointed. Instead, two retired judges (around 65 years old) from the judicial service were appointed. Considering this, priority should be given to experienced and senior members of the Bar.

The famous historian Abul Fazl, in his book Ain-i-Akbari, described an ideal person as someone who speaks with the knowledge of a lawyer and has the strong determination of a dervish. Therefore, to become a judge, one needs to be such a lawyer. It is not enough to be only a good lawyer; one must also possess good etiquette, morality, and character.

When appointing judges, the Honorable Chief Justice and the relevant authorities, especially the Permanent Council under Section 3(2) of the Supreme Court Judge Appointment Ordinance 2025, should ensure that justice and proper procedure are not violated and that the traditional good relationship between the Bar and the Bench is maintained.

Not only good academic results but also experience is necessary.In many cases, the provisions of the Constitution have not been properly followed, and experience and necessary rules have been ignored.
In an interview with Prothom Alo on 20 November 2016, former Chief Justice Mahmudul Amin Chowdhury said: “The mentality of ‘my people’ appointments has taken over everywhere. The question has become whether I will appoint capable people or ‘my own people’.

For the welfare of the people and the state, we all must come out of this situation. There are lawyers in the High Court whose academic results may not be very good, but they are excellent lawyers. Why should there be any objection to appointing them?”

In the past, even practitioners from Dhaka Judge Court and those with exactly 10 years of practice at High Court and Appellate Division were made Senior Advocates, while many deserving regular practitioners were left out. Recently, there are also reports of some young lawyers being selected as Senior Advocates.

For government law officers, senior advocates of the Supreme Court usually become Attorney General or Additional Attorney General (with some exceptions). In the past, Additional Attorney Generals were appointed from experts in civil, criminal, and writ matters.

In 2002, there was 1 Attorney General, 3 Additional Attorney Generals, 15 Deputy Attorney Generals, and 54 Assistant Attorney Generals. Now there are 103 Deputy and 228 Assistant Attorney Generals. At least 6 to 8 Additional Attorney Generals should be appointed to properly train and guide the large number of junior officers. If needed, the law should be amended.

Lawyers and judges are like the two wings of a bird or the two barrels of a gun. If the relationship between the Bar and the Bench is not good, justice and the rule of law cannot reach a high level. Some judges wrongly think that lawyers are inferior. This idea is incorrect.

The relationship between judges and lawyers should be similar. For establishing impartial justice, a deep and harmonious relationship between judges and lawyers is essential. If this relationship improves, the judiciary, society, culture, and economy of the country will also improve.

The relationship between judges and lawyers should remain sweet and bright, like the two wings of a bird flying together.The beautiful feature of the Bangladesh Constitution is the principle of equality. The Bar and the Bench are complementary to each other.

In 35 DLR (AD) 290, it is said:”Both the bar and bench are two arms of the same machinery; unless the work is done harmoniously, justice cannot be properly administered.”Therefore, to build a strong relationship between the Bar and the Bench and to ensure equality and justice, the matters mentioned above deserve serious consideration. We hope that the Honorable Judges will deeply consider all these issues in light of established law, precedents, and the principle of equality for building a just society and for the betterment of future generations.

Following the principle of equality in all areas is very important. Otherwise, the rule of law and social order will collapse. Feudalism, syndicate culture, or any form of discrimination in the legal profession is undesirable-just as described in Rabindranath Tagore’s poem Dui Bigha Jomi. Such practices create division and disorder in the future.

The Prophet Muhammad (peace be upon him) warned that previous nations suffered severe consequences due to the failure to administer justice properly.For the sake of the rule of law, democracy, and a fair justice system, equality and impartiality must be ensured in judge appointments and in all other areas.

(The writer is Senior Advocate, Bangladesh Supreme Court and former Vice President, Supreme Court Bar Association).