Serving the nation not the executive

Reviewing the views

Serving the nation not the executive

M. Jashim Ali Chowdhury

Published in the Daily Star, Law and Our Rights, May 30, 2009
Url: http://www.thedailystar.net/law/2009/05/04/views.htm

Independence of judiciary if not ensured is meaningless in all respects and from all perspectives. Appointment in the judiciary must not be executive overridden. Tenure, discipline and removal etc should be essentially internal for the judiciary. Most importantly, it must be secured that judgments are delivered without fear or favour. This is exactly what the framers of our constitution intended. They seemed vehemently opposing every probability of submissiveness on the part of the judiciary and tried to seal every leak in the constitution in this regard. Accordingly, articles 147(3) and 99 were included in the constitution disqualifying the Supreme Court judges from holding any office of profit in the Service of the Republic both during the continuance of their service and after the retirement or removal therefrom.
This two-tier prohibition was intended to immunise the judges from all sorts of favoritism and allurement for possible future appointments. Though the original article 99(1) put a total bar on judges' appointment to any post or office, it was re-tailored by a military ruler to lift the embargo partially by making a retired judge eligible for appointment to judicial or quasi judicial offices. Inclusion of 'quasi judicial' was disingenuous. In Anwar Hossain Chowdhury v. Bangladesh 1989 BLD (AD)(Spl) 1 Justice Shahabuddin Ahmed observed, “Under the colour of quasi judicial office judges may be appointed to executive office also” (para 365). The later events have proved this observation.

While disposing of the challenges in this regard on different occasions, the central question the Supreme Court faced was what should be the true meaning of 'office of profit in the service of the Republic'. The court's judgments varied over times. This endeavor aims at surfing through different standings of the Supreme Court over the past years to find out the genuine connotation of service of the Republic.
A bona fide mistake

The first glance over the concept was made in Abu Bakar Siddique v. Justice Shahabuddin Ahmed 17 BLD (1997) 31. Justice Shahabuddin Ahmed was nominated to the office of President in 1996. His nomination was challenged in the High Court Division by Advocate Abu Bakar Siddique. Mr. Asrarul Hussein appearing on behalf of the petitioner challenged the nomination on the ground that the office of President being an office of profit in the service of the Republic, Shahabuddin Ahmed was barred by article 99(1) from being elected to that post. Right from the President down to a peon of a government office, everybody is holding his post in the service of the Republic as all of them are getting remunerations from the exchequer of Bangladesh and -- rendering services to the Republic, Asrarul Hussein argues (para 25). All the civil servants gazetted, non-gazetted or constitutional post holders -- are discharging their duties towards the state and so all are to be treated as persons holding offices in the service of the Republic (para 26). Hence a judge of the Supreme Court is barred by article 99(1) from appointment to any civil or constitutional post.
Dr. Kamal Hossain, Barrister Rafiqul Huq and Barrister Mainul Hussein appeared before the Court as amicus curie. They along with the Attorney General, dwelt on the hypothesis that a person in the service of the Republic is necessarily governed by Part IX of the Constitution containing provisions regarding appointment, tenure etc (para 27). They summed up the technical differences between positions of the holders of constitutional posts and persons in the cadre services. Persons in the cadre services serve during pleasure of the President. They are entitled to seek relief in the administrative tribunal constituted under article 117 (para 51). They may not be removed or reduced in rank until given a reasonable opportunity of showing cause under article 135(2). They are regulated by the PSC and other government rules and regulations. All of these are definitely not intended for the holders of constitutional posts. In this sense, only government officers and employees hold office of profit in service of the Republic (para 60). So it is absurd to think that persons holding constitutional posts are holding office of profit in the service of the Republic (para 28). Accordingly a Judge of the Supreme Court may be appointed to any constitutional post after retirement.
The High Court Division was engulfed by arguments of the reputed experts and the enlightened arguments of Mr. Asrarul Hussein were silenced mistakenly. Shahabuddin Ahmed's neutrality and integrity was undoubtedly beyond question. The intention of the then ruling party also could not be termed as mala fide. But it produced a weak interpretation of the constitution and hence a bad precedent to be misused later. That day the Court forgot that article 99(1) prohibited all sorts of offices not to disadvantage a particular person but for the greatest interest of judicial independence. Now the Court warns us, “One encroachment leads to another. What has been done may be done again in a lesser crisis and less serious circumstances” [Advocate Ruhul Quddus v. Justice M A Aziz 60 DLR 2008 (HCD) 511, para 372].
A Judge on deputation

Justice Md Abdur Rouf, then a Judge of the High Court Division, was appointed as the Chief Election Commissioner of Bangladesh in December 1990. He was appointed a Judge of the Appellate Division in 1995. His new appointment was challenged in Shamsul Huq Chowdhury v. Justice Md Abdur Rouf 49 DLR (1997) 176 on the ground of being grossly violative of article 118(3). Under article 118(3)(a) of the Constitution, a person who has held office as Chief Election Commissioner shall not be eligible for appointment in the Service of the Republic.
In this case as well, the High Court Division held that holders of constitutional posts are not persons in the service of the Republic. Therefore holding the office of CEC by a Judge does not stand as a bar against his appointment as Judge of the Appellate Division.
Service of the republic redefined

Service of Republic came under consideration of the Appellate Division in Secretary, Ministry of Finance v. Masder Hossain 2001 BLD (AD) 126. This was the case for separation of judiciary. Naturally the respondents' main focus was on establishing the judicial service as a distinct one from other cadre services. Barrister Amirul Islam appearing on behalf of the respondents submits that judges are not in the service of the Republic as service in respect of Government means the executive or administrative functionary of the State. He, like the amicus curie in Shahabuddin Ahmed case underscored the theoretical distinction that judges hold office during the good behavior while persons in the service of the Republic hold office during pleasure of the President under article 134 i.e., part IX (para 28).
But Mahmudul Islam, the then Attorney General echoes the voice of Mr Asrarul Hussein in Shahabuddin Ahmed's case arguing that all officers whether judicial, civil or military are members in the service of the Republic in respect of the government. Here government includes three branches of the state parliament, executive and judiciary (para 10). Government may be sued in the name of Bangladesh (Article 146) and so government means the Republic (para 26).
The Appellate Division acknowledged that it was not right to claim judicial service not to be a service of the Republic (para 27). It is also not proper to say that existence of rules and regulations different from those in part IX to govern a particular service takes it out of the ambit of service of the Republic. Persons appointed to the Secretariat of the Parliament and the staff of the Supreme Court, although governed by separate terms and conditions of service, are in the service of the Republic (para 27). So the holders of constitutional posts are very well in the service of the Republic. This is a clear negation of the submissions of the amicus curie in Shahabuddin Ahmed case.
A charade on the constitution

Justice M A Aziz was appointed as CEC while he was a Judge in the Appellate Division. He didn't even resign from his post. His appointment was challenged in Advocate Ruhul Quddus v. Justice M A Aziz 60 DLR 2008 (HCD) 511. The petitioner argued that since M A Aziz was holding an office of profit in the service of the Republic (Judge of the Supreme Court), he was barred from appointment to another office of profit (CEC) by the combined operation of articles 99(1) and 147(3). The defence argument sang the old song offices of a judge of the Supreme Court and Chief Election Commissioner being constitutional posts are not office of profit in the service of the Republic (para 226). Amicus curie appearing at the request of the court argued that 'service of the Republic' should be given a broader meaning and even the President is in the service of the Republic (para 60). If one receives salary from the exchequer, he serves the Republic (para 75).
The High Court Division relied on the intention of the framers of the constitution (para 193) and emphasized on the common sense approach. Any kind of jugglery of words will be fruitless if it does not make common sense (para 219) and common sense tells that the 'service of the Republic' mentioned in article 99 includes all post or office of the Republic (para 223). Republic means the State which is defined to include parliament, government, statutory public authorities (para 230) and the judiciary (para 239). The definition does not use the word 'in the Government' rather it uses 'in respect of government' (para 286). So it is service not only in government but also service, post or office in relation to the governance (para 256), the governance of the whole Republic (para 251).
So the conclusion becomes inescapable that as per article 99(1) judges of the Supreme Court are barred from assuming any post whatsoever after their retirement (para 277). Even the exception of judicial or quasi judicial offices in article 99(1) being offensive to the basic structure of independence of judiciary cannot sustain (para 321).
Concluding remarks

Judges are more often bribed by their ambition and loyalty than by money (MA Aziz Case, para 376). The slightest scope of inducement during their service in the court is bound to affect the performance of the judiciary. So better we revive the original article 99. The Judges of the Supreme Court must not take any appointment judicial, quasi judicial or non judicial made pursuant to the recommendation of the executive (MA Aziz Case, para 354). They being the servant of the Republic must serve the nation not the executive.

The writer is Senior Lecturer, Department of Law, Northern University Bangladesh..