The warrant of precedence: redeeming the 'demeaned' judiciary

Judgment Review

The warrant of precedence:
redeeming the 'demeaned' judiciary

 M. Jashim Ali Chowdhury

Published in the Daily Star, Law and Our Rights, September 03, 2011

Available online: http://www.thedailystar.net/law/2011/09/01/index.htm

Warrant of Precedence is the instrument for determination of relative status of different public rank holders in the eyes of the citizenry. Apart from the State and ceremonial occasions, it is observed for 'all purposes of the Government'. The first Warrant of Precedence of Bangladesh was adopted in 1975. Thereafter a new one was adopted in 1986. In the latest one the District Judges are placed in Serial Number 24 along with Deputy Commissioners, Lieutenant Colonels and the Commandant, Marine Academy. The prime consideration behind such placement was the territorial jurisdiction of the offices of District Judge and Deputy Commissioner, both being at the peak of the district judiciary and administration respectively. Mr. Ataur Rahman, an Additional District Judge and the Secretary General of the Judicial Service Association, challenged the Warrant of Precedence for being ultra vires the Constitution (Md. Ataur Rahman v. Bangladesh and Ors 30 BLD (HCD) 154). Since his 'Office with the Association and Membership with the Judicial Service created a sufficiency of interest' to draw attention a public wrong causing a public injury, the Court found a person aggrieved in Mr. Ataur Rahman and decided to entertain the challenge (Para 63). And creating a lot of curiosity in public mind, the Division Bench comprising Moyeenul Islam Chowdhury J and Justice Syed Refat Ahmed JJ delivered its judgment on February 4, 2010 declaring the Warrant of Precedence ultra vires the Constitution.
Asserting the Judicial service as a class apart
The petitioner was soliciting the place of Judiciary as an independent organ of the body politic Constitution has given the Judiciary a special place in Chapter II of Part VI. To the petitioner judicial service of Bangladesh is not a mere 'service' and the judicial officers are not 'public servants' in the same sense as the executive administrative officials are. The judicial officers exercise sovereign judicial power in that fashion as the Cabinet members exercise the executive power and legislators the legislative power. Being at par with the political executives and legislators, they cannot be equated with the executive administrative functionaries (Para 5). While framing the Warrant of Precedence it was completely ignored that constitutionally, functionally and structurally the judicial service is a class apart (Para 24, Dr. M. Zahir arguing). In light of all these, the petitioner claimed that Warrant of Precedence be amended accommodating the constitutional post holders first and the constitutionally defined, referred or recognized posts like the District Judges or the Chiefs of Staffs thereafter (Para 20).
Judiciary vis-à-vis Administration: Arguing for a parity
In defence of the Warrant of Precedence, the respondents declined to recognize the judicial service as a class apart having any superiority over other services. 'Defence services, local governments, judicial services and other services are duly dealt with in places and articles of the Constitution and nowhere the Judicial Service is given superiority over other services,' the respondents claimed. Moreover the Judicial service is a 'public service' for all intents and purposes of the term. Service conditions of the Servants of the Republic stipulated in Articles 133 and 135 apply to the Judicial Officers as well. This confirms that the civil executives cannot be inferior to the judicial officers (Para 11). In all respects the Judiciary is a co-ordinate and co-equal organ with the other two organs of the State (Para 12). Hence the placement of the District Judge with Deputy Commissioner in Serial No 24 is duly justified.
An independent Public Service
The Court accepted the defence arguments to the effect that Judicial service is a public service and that the judicial officers are not constitutional functionaries (Para 66). First of all it is clear that the Subordinate Courts cannot be at par with the Supreme Court. While the Supreme Court is a creature of the Constitution, the Subordinate Courts are of the laws as per Article 114 (Para 65). The Judicial Service being a service of the Republic (Para 68), the judicial officers cannot be equated with constitutional post holders as well (Para 66).
Thereafter, referring to Mujibur Rahman v. Bangladesh 33 DLR (AD) 111, Para 71 the Court confirms that the Supreme Court and Sub-ordinate Courts are the repository of judicial powers. And this places the Judges in parity with the political executives and legislators, and of course, above the executive administrative rank holders. The later assists the political leadership while the judges function independently in a separate arm of the State (Para 75). While independence of judiciary is guaranteed by the constitution, the administrative executives are always at the beck and call of the political executives. From this point of view, the Chiefs of Army, Navy and Air Staffs also stands beneath the judicial officers (Para 78).
Inconsistencies in the Warrant of Precedence
The Warrant of Precedent was found to be hapazardous, arbitrary, irrational, inequitable, unreasonable (Para 89), ill-conceived and ill founded (Para 97) for reasons some of which are as follows:
1. The Pay Scale, a pre-eminently determining factor of the Warrant of Precedence (Para 74), places the District Judges in the 3rd Grade with Joint Secretaries of the Government. But quite inconsistently, the Warrant of Precedence accommodates them in Serial No 24.
2. The Government professed that highest district level executive and judicial officers have been placed in 24, after accommodating the national level officials like Secretaries and Additional Secretaries. Interestingly the Deputy Secretary, another national level official is placed in No 25 (Para 82).
3. Even then the status of the District Judges has been compromised further by adding a phrase “within their respective charges”. In case of the Professors of Medical and Engineering Colleges placed at No 23 there is no fetter imposed on their status by adding phrase like “within their respective charges.” In the same 24 serial, the Lieutenant Colonels and Commandant Marine Academy have no such fetters though their posts have local implications (Para 99).
4. Judges of the Supreme Court has been placed in Serial No 9 while a District Judge is at 24. In case a District Judge is appointed as a Judge of the Supreme Court, all on a sudden his status makes a quantum leap from No 24 to No 9, which is quite unreasonable. Naturally the District Judges should have been placed at a place in close proximity to the Supreme Court Judges (Para 98).
5. The Cabinet Secretary, Principle Secretary to the Government and the Chiefs of Stuffs have been bracketed in No 12 but stunningly enough some constitutional office holes like Attorney General, Comptroller and Auditor General and Ombudsman are found at serial No 15 (Para 89). To the Court, it is a staggering blow to the Constitution (Para 89). Even the lawmakers MPs, finding place in No 13, are downgraded by the Cabinet Secretary, the Principle Secretary and Chiefs of Stuffs (Para 91).
6. In 1975 Warrant of Precedence, the Speaker and the Chief Justice were bracketed in No 4. The Speaker is now in No 3 and the Chief Justice is at 4. The Court thinks that it would be pertinent to bracket the Prime Minister, Speaker and the Chief Justice in the same serial (Para 90).
7. In the Serial No 16, the Chairman of the Public Service Commission, a constitutional office bearer, has been equated with the Secretaries of the Government (Para 92). The Members of the Public Service Commission has been equated with the Additional Secretaries (Para 93).
In light of all above, the Court came out with a cure to the maladies. The formula is simple. Place the constitutional post holders first. Then accommodate the holders of constitutionally mentioned, recognized and referred posts like District Judges, Additional District Judges and Chiefs of Staffs etc (Para 80). In this second category, the District Judges and Additional District Judges, being at par with the political executives and legislators, should come before the Chiefs of Staffs. It is only after them that a Secretary to the Government, may he be the Cabinet Secretary himself, could come (Para 104).
Since the Warrant of Precedence has a tune of ceremonial showdown, the degraded placement of the District Judges has demeaned the judiciary before the public at large for all practical purposes (Para 79). Accordingly the Court felt that the District Judges have an 'inalienable' right to be treated in accordance with the law declared by the Appellate Division in Mujibur Rahman (Para 101). Therefore, 8 point directives were issued upon the Government (Para 104). It required an amendment of the Warrant of Precedence within 60 days of the receipt of a copy of the Judgment. The new Warrant of Precedence was to be submitted within 13.05.2010 without fail (Para 105). Presently the Order remains stayed and waiting its turn to be considered by the Appellate Division, the peak of the judicial pyramid.

The writer is Lecturer, Department of Law, University of Chittagong

The Draft Civil Service Act - Cords and Discords

The Draft Civil Service Act: Cords and discords

M. Jashim Ali Chowdhury

 Published in the Law and Our Rights, The Daily Star,

Available online: http://www.thedailystar.net/law/2011/07/04/index.htm

While employment in the service of the State goes back to the Middle Age notion of serving a monarch, the modern civil service established at the eve of 21st century witnesses major transformations towards democratic systems governed by rule of law. Now to concerns about the cost of public services, there has been more persistent criticism of the quality of service provided and the failure to meet citizens' expectations in terms of access, equity, speed of service and effectiveness. Hence there is a worldwide wave of reforms in civil service legislations where Bangladesh cannot afford to be an exception.

A vacuum to be filled up

While Article 133 of the Constitution contemplates an Act of Parliament regulating the appointment and conditions of service of persons in the service of the Republic, no umbrella Act has been enacted till date. The Civil Service, Defence Service and Judicial Service are dealt on a piecemeal basis by some Acts of Parliament and many rules, regulations, policies and notifications etc issued by the executives. Hence the total legal regime suffers from a certainty crisis and it is almost impossible to bring out the exact volume of laws, rules, policies, regulations, orders, notifications, instructions etc regulating the area.The Ministry of Establishment has published a draft act in its website and welcomed public opinion on it. This write up intends to present the key features of the draft with some commentaries regarding its further modification.

Key provisions of the Draft

1. The commencement clause of the Draft Act indicates that it shall come into force on the date fixed through official gazette of the government (Section 1(b)).

2. Regarding the principles of service the draft Act sounds engaging. Section 7(1) embodies many principles of good governance which the members of the service are to observe while performing their duties. Which includes balancing of interests, neutrality, generosity, efficiency, accountability, professionalism etc. Sections 7(2) and 10(1) narrate the functions and duties of members of civil service concentrating mainly on serving the people and non-discrimination.

3. Section 5 divides the ranks and profiles of the Civil Service into three groups: Superior Rank (including 1st and 2nd Grade Officers), Senior Rank (including 3rd to 9th Grade Officers) and Junior Rank (including 10th to 12th Grade Officers). While the Civil Servants of the Superior Rank bear the policy making responsibility, the Senior and Junior Rank officers are expected to oversee their enforcement.

4. The most debatable issue in the Draft is the appointment process which seems to encourage nepotism to some extent. All the 1st Grade officers would be promoted from amongst the 2nd grade officers. Section 5(4) of the Act empowers the government to appoint 10% of 2nd grade officers on terms and conditions set out by it while the remaining 90% are to be promoted from 3rd grade Senior Rank officers. In the 9th grade of the Senior Rank 80% posts shall be filled up by direct appointment while the rest 20% shall be filled up by promotion from Junior Rank. All other grades in the Senior Rank shall be filled up by regular promotion. However, except the 3rd grade, the government may directly appoint 10% officers in 'technical or specialized' posts created in each grade of the Senior Rank (Section 5(5)). In Junior Rank the 12th grade shall be filled up by direct appointment (Section 5(6)) while 10th and 11th grades should be filled up by way of promotion. Here again the government may directly appoint 20% officers in 'technical or specialized' posts created in each grade of the Junior Rank.

5. Section 12(a) of the Act provides that recruitment tests for the direct appointment shall be conducted by the Public Service Commission. As a matter of principle the appointment would always be based on merit and qualifications (Section 12(e)). Job shall be permanent on basis of merit and departmental test results. Transfer and promotion also would be based on merit, suitability for the post and excellence of performance (Section 12 (f) (g)).

6. Section 15(3) provides that if someone fails in the promotional tests for three consecutive times he may choose voluntary retirement. If he fails for the fourth time government may compulsorily retire him without any notice.

7. In case of disciplinary actions, Section 20(2) of the Draft guarantees a right to hearing and a departmental proceeding without which no person in the service may be removed, dismissed or retired compulsorily. Section 21(3) provides that if any member of the civil service is convicted for upto three years for any offence not involving corruption and moral turpitude, the President may conclusively determine as to his continuance in service. In case of imprisonment for more than three years for any other offence or for any term for offence involving corruption or moral turpitude, the offender would be dismissed from service immediately.

The missing links

1. In light of our experience with the Ombudsman Act 1980, the commencement clause of the Draft may be the single cause for which the Act may be kept hanging indefinitely. There should not be any problem in giving a law immediate effect which has been passed after eliciting mass opinion and many thoughts and after-thoughts.

2. Given the alarming rate of civil servants' engagement with part time jobs and side businesses, there should have been a provision to the following effect: “Unless it is otherwise provided in the terms of his appointment or in any other law for the time being in force, every Civil Servant shall place the whole of his time at the disposal of the Government.” Such a provision is found in the Botswana Public Service Act 1998.
3. In almost every grade of the civil service ranks, the government may appoint a good number of officials on political considerations. A sort of spoil system is present almost everywhere in the world and sometimes it is useful as well. Without it, it will be difficult for a political government to execute its political agenda. However excessive scope of politicization we see in the Draft will surely spoil the spoil system itself.

4. The provision regarding dismissal on ground of conviction by court of law (Section 21) is not clear as to when the conviction should attract the dismissal. Logically the dismissal should follow the conviction by the court of first instance. A person with questionable disposition should not continue in the service on the excuse that his appeal is pending. Hence Section 21(3) should specifically provide that the dismissal would follow the conviction by the lower court specially when a civil servant may not even be sued or arrested without prior permission of the government (Section 21(2)).

5. The Civil Service laws of Srilanka Antigua, Barboda, Poland etc provide that the highest posts (Superior Ranks) in the civil service would be filled by parliamentary committees through interviews and examination of the civil servants service records. Under the Draft Act this power has been vested in the Executive. Introducing the parliamentary involvement in the appointment to the Superior Rank officials would poster democratic oversight over the administration.

6. The Draft Act gives a detailed list of duties and principles of services of the Civil Servants. There are provisions regarding the disciplinary proceedings as well. Another important supplement in this regard could be the protection for whistle-blowers. It is specific protection for persons drawing attention to suspected wrongdoing within the administration. To boost accountability within the framework of the Act, such protection for the whistle-blowers from victimization or discrimination on the ground of reporting a breach of duties could encourage anti-corruption drive a lot.

The initiative to enact a Civil Service Act is a commendable effort. Part IX of the Constitution dealing with the Service of the Republic gives a broad outline regarding the organization and principles of civil service. Now the proposed Act shall supplement the issues with greater details. The principal challenge after passing of the Act would be to bring the almost innumerable legal instruments regulating the area in conformity with the new law.

The writer is Lecturer, Department of Law, University of Chittagong.

The dilemma of constitution reprint

The dilemma of constitution reprint
M. Jashim Ali Chowdhury

I don’t know what instinct haunts all our rulers. Why do they always make a simple math tough? An enlightened judicial activism on the part of the Supreme Court has been badly injured by some people’s over-enthusiasm. Presently, we don’t know which provisions of the reprinted constitution are valid and which are not, writes M Jashim Ali Chowdhury

Published in the Daily New Age; April 15, 2011
Link: http://newagebd.com/newspaper1/op-ed/15412.html


NOWADAYS I face a lot of curious questions from my students. Be it in my class of jurisprudence or comparative law, students somehow manage to raise the issue of the constitution of Bangladesh. ‘Sir, do we have any constitution now? If yes, which one? The one before reprint or the one after it?’ A strange question to be answered with phrases like ‘perhaps,’ ‘maybe,’ ‘probably’, etc. The academic in me prompts to say, ‘Yes, we have one — the one after reprint.’ But the members of the special parliamentary committee on constitutional amendment have made the answer crooked. Moreover, I have not seen how the reprint looks like and don’t know what it contains. I feel like one of those six blind men who were asked to say how an elephant looked like.

The accepted principles of constitutionalism consider a judgement of the Supreme Court to be mandatory. Judicial review of constitutional amendments has been jurisprudentially established. Previously, the 8th amendment was challenged and so were the 10th, 12th, 13th and 14th amendments. While the challenge to the 8th amendment was upheld, challenges to the 10th, 13th and 14th amendments were heard and decided on merit. Nowhere in those cases were the legality and desirability of judicial review of constitutional amendments questioned. Rather in compliance with the Supreme Court verdict, the constitution was reprinted after the 8th amendment case. Article 111 of the constitution (binding force of judicial decisions) is not a directory one to make a judgement of the Supreme Court directory. Hence, whatever is said, our concept regarding the legality of reprint as per the 5th amendment verdict is crystal clear. Reprint was the only course of action. At the same time, we don’t deny the necessity of an amendment in the form of a thorough review of the constitution. A court-ordered reprint will not remove the constitutional imbalance created by the military rulers. Hence, a parliamentary polishing is a dire necessity.

But what do we see, or at least read and hear, after the reprint? Well in advance, the prime minister declared that Bismillah and state religion would be retained. Was she speaking of the upcoming reprint? Or was she giving a blue print of the upcoming amendment? As the leader of the legislature she is entitled to give a policy indication to the legislators regarding a future constitutional amendment. She may politically decide to re-insert Bismillah by amendment. But as the head of the executive, she was not legally entitled to make such a direction regarding an ensuing reprint of the constitution, I’m sure. The executive is simply to execute a court order. It cannot make even a trivial change in the dictum of the Supreme Court (Tahera Nargis Syed vs. DIG Prison 41 DLR 508; Para 23). In the 5th amendment verdict, the court nowhere condoned the insertion of Bismillah in the preamble. How could the prime minister condone this? Not only that. There are allegedly around 60 changes in different places of the constitution regarding which the Supreme Court held nothing! Now it may, in all fairness, be asked whether, side by side with the legislature, the executive may also amend the constitution.

If someone challenges the reprinted version, the court would surely denounce many of the reprint innovations. Until then we have a constitution—to be seen by 500 people only—the authenticity and correctness of which is not beyond doubt. If no one challenges it, we have to look towards parliament. This again puts us in another puzzle. Recently, I watched lawmaker Abdul Matin Khasru in a live TV talk show. He happens to be a member of the special parliamentary committee entrusted with the task of drafting the proposed constitution amendment bill. With all his wisdom, he advised us not to be worried since the reprinted version of the constitution is a draft on the basis of which they would work further. However, this proposition does not solve the problem. Rather, if taken seriously, it may lead us to further obscurity.
Theoretically, a constitution is always a draft for the legislature that reserves every right to amend any of its provisions (except the basic structures, some say) anytime, subject to the procedure prescribed by the constitution itself. However, if we take the reprinted constitution as a ‘mere draft’ for the aid of the parliamentary committee, things become knotty. Then the operative constitution of the country will be the previous one. And if the previous one is still operative, surely parliament will need a referendum [as per the invalidated Article 142 (1A)] to amend the preamble and some other articles. Is Abdul Matin Khasru ready to consume the proposition? Would the ruling party venture this path?
I don’t know what instinct haunts all our rulers. Why do they always make a simple math tough? An enlightened judicial activism on the part of the Supreme Court has been badly injured by some people’s over-enthusiasm. Presently, we don’t know which provisions of the reprinted constitution are valid and which are not. I advised my students to wait and see. What else could I say?

_________________________
M Jashim Ali Chowdhury is a lecturer at the Department of Law, Chittagong University.

Re Prof. Yunus: Where 'Law' duels 'Dignity'

Judgment Review

Re Prof. Yunus: Where 'Law' duels 'Dignity'
M. Jashim Ali Chowdhury


Published in the Daily Star, Law and Our Rights, June 04, 2011
Link: http://www.thedailystar.net/law/2011/06/01/index.htm

For obvious reasons the W/P No 1890 of 2011 i.e., Prof Muhammad Yunus v. Bangladesh got sparking media sensation and public gaze. It is perhaps the most classic example so far in Bangladesh which painfully exposed the judiciary to a burden of doing justice to 'expectation' rather than to 'law'. Prof Yunus's right to be dealt with as per law was overshadowed by people's expectation to see him dealt with dignity and honour. This write up is an attempt to review the High Court Division's judgment where avoiding 'what ought to be', the court simply brought out the 'what was'. Page numbers of the full text judgment has been put within brackets.
Dr. Yunus and the Grameen Bank
Grameen Bank was established under the Grameen Bank Ordinance, 1983. In accordance with the original Section 14 of the Ordinance, the Ministry of Finance and Planning appointed Prof. Yunus as the Managing Director of the Bank in 1983. Subsequently, Section 14 of the Ordinance was amended by the Grameen Bank (Amendment) Act, 1990 providing that the Managing Director shall be appointed by the Board of Directors with prior approval of Bangladesh Bank. Accordingly, in 1990 the Board of Directors appointed Prof. Yunus as the Managing Director a fresh with the required approval from Bangladesh Bank.
Subsequently, in 1993 the Board adopted the Grameen Bank Service Regulations. It determined 60 as the age of retirement for the permanent workers of the Bank. In 1999, in the 52nd meeting of the Board, the issue of Prof. Yunus's retirement was raised since he was above 60 then. This time the Board resolved by a resolution that since he had been appointed by the Board itself, the age limit of 1993 Regulations would not be applicable to him.
Later on in 1999 Bangladesh Bank observed that its approval had not been obtained regarding the 1999 Resolution. Thereafter the Board made the Regulations of 2001 regarding the terms and conditions of service of subsequent appointees as the Managing Director. In its next Report of 2001, Bangladesh Bank did not make any observation regarding the issue. Lastly, it is in 2011 that after some corruption allegations against Grameen Bank, the present government discharged Prof. Dr. Yunus from the post of Managing Director of Grameen Bank on the excuse of passing 60 years age limit.
Arguments for Dr. Yunus
The most laudable point was that the Nobel Peace Laureate was removed from his office against thousands years of civilization and public interest and as such he should be treated not only in accordance with law, but also with honour, respect and dignity (Dr. Kamal Hossain arguing, p 8).
Second, the age of retirement being not mentioned in both the 1983 Ordinance and his appointment letter of 1990, he had the right to continue his service as long as he wishes (p 7). The Service Regulations of 1993 and 2001 being subordinate legislation under the Ordinance, they were not retrospectively applicable to his service (Barrister Rokon Uddin Mahmud arguing, p 10).
Third, Bangladesh Bank had a very limited role to play under Section 14(1) of the Ordinance except only to grant prior approval to the appointment of the Managing Director. The Ordinance did not otherwise confer any power to Bangladesh Bank to dictate or determine the terms and conditions of the service of the Managing Director including the age of retirement (p 7, 9, 11).
Fourth, Advocate Mahmudul Islam submitted that by allowing Prof Yunus to function as the Managing Director for about 11 years, the government impliedly approved his appointment creating a vested right in him to continue and as such now the government was estopped from relieving him from his post on the plea of expiry of his retirement age (p 10).
Fifth, no notice had been served by any authority or person upon Dr. Yunus. It not only constituted malice in law, but also malice in fact violating the principle of natural justice (p 9).

The Court responds
Hearing the Attorney General on behalf of the government, the Court proceeded straight to the demand for treatment not only in accordance with law, but also with honour, respect and dignity. And it remained stiffly cold, “Any question of the propriety or legacy of the Nobel Prize is in no way involved in the writ petition (p 12).”

Then turning to the legal issues involved the Court took up the question whether the 1993 Regulations would apply to Dr. Yunus. The Court answered yes on the following grounds -
1. Section 14(4) of the Ordinance specifically envisages that the Managing Director shall serve under the Bank on such terms and conditions as may be prescribed by regulations (p 19).
2. Again the Regulations of 1993 apply to all 'worker' of Grameen Bank. As per the Regulation 2.1(Cha) 'worker' means all permanent and temporary officers and employees of the Bank which includes the Managing Director as well.
3. Moreover, Clause 2.0 of Prof. Yunus's appointment letter of 1990 clarifies that he shall be treated as a regular employee of Grameen Bank (p 18).
Next the validity of the 1999 Resolution exempting Dr. Yunus from the scope of the Regulations was taken up. The Court found the submissions made by Dr. Yunus's Advocates misconceived, unreasonable and irrational for following reasons
1. The Service Regulations, 1993 is a subordinate legislation under the Ordinance, but the resolution is simply a decision having no force of a law (p 21)
2. It is not conceived in any judicial system, which upholds rule of law that by any resolution or decision any law can be repealed, amended, suspended and made applicable or inapplicable (p 22).
3. Alternation of the terms and conditions of the petitioner's service by the 1999 resolution obviously required prior approval of Bangladesh Bank as per Section 14(1) of the Ordinance which was not taken (p 22).

The objections regarding retrospective effect of the 1993 Regulations were also overruled by the court. It was one of the conditions of Prof Yunus's 1990 appointment that his service would be regulated by the regulations to be made in accordance with the Ordinance (p 16). Having accepted the condition and enjoyed advantages and benefits thereunder, he was estopped from raising any objection regarding retrospective effect (p 20). Moreover, it is settled by case law that subordinate legislation may get retrospective effect if authorized by the parent law. The retrospective effect of the 1993 Service Regulations was envisaged by Section 14 of the Ordinance (p 29).

Regarding Natural Justice concern, it was found that the issue was being placed before the Government since 1999 (p 24). Therefore for not issuing any notice, Prof. Yunus was not prejudiced. The fact of the expiry of his retirement age being admitted, service of any notice would not serve any fruitful purpose and so it was not reasonably required by the Principle Natural Justice (p 25).

As to the implied approval, it was found that the appointment of 1990 was duly approved by the Bangladesh Bank. But after alteration of the terms and conditions of the petitioner's service by the resolution of 1999, even no proposal for such approval was placed and consequently the plea of 'implied approval' or 'approval by conduct' to such imaginary appointment should have no basis (p 23). It is a long established principle of law that there can be no estoppels or waiver against any statutory provisions (p 25)
A silent expectation remains unfulfilled
The writ petition was summarily rejected. The Appellate Division confirmed the High Court Division verdict in toto and hence now Prof. Yunus is none for Grameen Bank. Presumably the Court had to do justice though the heaven falls and it has done so. Yet a silent expectation remains unfulfilled. Was there no other way 'outside the court' to uphold the dignity of the Nobel Laureate? Or could the Court have passed one or two suggestive comments as to what should be done, especially when now-a-days the court frequently makes such urges to the policy makers? The answer seems to be beyond our laymen's acumen. We only see the doctrine proved, 'Law is not the respecter of persons.' Sometimes not even of one who may be respected!



The writer is Lecturer, Department of Law, University of Chittagong.

Law and Politics - Some observations in cantonment house case

Judgment Review

Law and Politics
Some observations in cantonment house case

M. Jashim Ali Chowdhury

Published in the Daily Star, Law and Our Rights, February 26, 2011. 

Available: http://www.thedailystar.net/law/2011/02/04/index.htm 

The recently evacuated cantonment residence of the Honourable Leader of the Opposition was for long at the centre of political controversy. This was the house in which late President Ziaur Rahman entered in 1972 as the Deputy Chief of Army Staff. He became the Chief of Army Staff after August 1975 and later on the President of the country in 1976. Whatever post he held, Zia and his family never left the house. After the death of Zia in 1981, the present Leader of the Opposition being his wife became the recipient of his life long pension. Besides that, the Council of Ministers in its meeting held on 12.6.1981 took a decision to provide her huge financial and other benefits including a house with all modern amenities in Gulshan. Neither in that nor in any other meeting of the Council of Ministers did the Government take any decision to demise the cantonment house to Begum Zia.

It is alleged that the then (1991) Premier Begum Zia made the Cantonment, otherwise a depoliticized zone harbouring an apolitical military force, the focal point of all political influences. Coming to power in 1996 the AL government served Begum Zia a notice to leave the house which was not paid heed to. In 2009 a new notice was served to that purpose. Subsequently another notice asking her to show cause as to why she should not be directed to return the property in question within 15 days was served. The third and final notice asked her to hand over the possession of the house by another one month. This time Begum Zia challenged the notices before the High Court Division (W/P No. 2910/2009). After three successive motions of no-confidence over three different Benches, she placed her trust on the Bench comprising Nazmun Ara Sultana J. and Sheikh Hasan Arif JJ. This write-up intends to throw some ethics based academic lights on the legal points raised and answered therein. Specific references of the 40-page judgment available in the Supreme Court website are indicated within brackets.

The Cantonment House: Class A-1 or B-4?: The million dollar question that would determine the fate of the Writ was about the Class in which the cantonment house belonged. A Class A-1 land is not readily transferable while others may be. Rule 5 of the Cantonment Land Administration Rules, 1937 (CLA Rules, 1937) defines Class A-1 lands as the lands 'actually used or occupied by the Military Authorities, for the purposes of fortifications, barracks, stores, arsenals, aerodromes, bungalows for military officers.' The Leader of the Opposition's house, an official bungalow of a high ranking military officer, was definitely under Class-A1 category. Begum Zia's pleaders, however, raised at least three curious issues.

Who was in 'active occupation'?: Br. Huq once again put a technical jargon relying on Rule 4 of the CLA Rules, 1937. It requires a Class-A land to be in 'active occupation of the army'. But at the time of the lease the house was occupied by Begum Zia and her sons who were unquestionably the civilians! Therefore there is no scope to say that the said land was in 'active occupation of the army', Br. Huq amazingly brought something out of nothing (p 12). The Court however remained passive and found it 'not acceptable at all' that since some civilians continued living there, a bungalow no more remained in the active occupation of the army (p 20).

A wrong entry in Register: Relying on an entry in General Land Register prepared by the Military Estate Officer (MEO), Mr. Khan forcefully argued that the land was actually a Class B-4 land (p 11). The Attorney General offered the 'most probable' explanation as to the mistaken entry in General Land Register. Though the Court accepted the explanation, it based its decision on another point - a mere entry in the General Land Register would not change the actual class of a land which it acquired by virtue of statutory rules, i.e., Rule 5 of CLA Rules, 1937 (p 19).

Building arguments for a 'Building Site': The fogginess of Classification being almost removed, the petitioner traveled another way. Now her advocate argues that the house in question is 'Building Site' as per Rule 2(c) of the CLA Rules, 1937. The majeja of a 'building site' is that as per Rule 26 of CLA Rules 1937 it can be leased out for any period with the sanction of the government! The court however put the question in the alternative, 'Can it be argued that any building site cannot be treated as Class A-1 land?' So there is no escaping from the Class A-1 insignia (p 24).

Transferring a Class A-1 land: The land being undoubtedly in Class A-1 category, it could not be used or occupied for any purpose other than those specified in Rule 5 of CLA Rules. Given the situation, Advocate TH Khan now relies on Rule 16 and 26 of 1937 Rules which conditionally allow lease of any land irrespective of its class to any private individual (p 11). The Court in its turn relies on Rule 14 which permits use or occupation of a Class A-1 land with previous sanction of the government. The sanction being only for 'use or occupation', Mr. Khan's argument could not save the transfer of 165 Khata cantonment house for Tk.1/ (p 22). Taking the chance of a linguistic vacuum in Rule 26, Br. Huq argued that it never required a 'public interest' purpose for the lease. Begum Zia's case being very 'exceptional', the requirement was duly satisfied (p 27)! The Court pin pointed the Supplemental Notes to Rule 26 where the 'exceptional reason' is explained as 'reason of a public nature' (p 26). And Begum Zia's lease, a gesture of goodwill, involved no reason at all of a public nature (p 28).

A Presidential Supremacy Approach: To defend the 1981 bounty to Begum Zia her Advocates didn't left any avenue of arguments unexplored. Mr. TH Khan was of the view that the laws and rules regulating the administration of Cantonment properties did not take away the 'sovereign authority' of the government to execute such a lease (p 10). For this purpose, Barrister Moudud Ahmed found the classification of the land immaterial (p 14). Naturally the Court would not accept such an 'absolute or open-ended discretion' in the Government, a trustee of the people, to dispose of public property to whomsoever, at any price and in any manner he likes (p 33). As to the involvement of the Army Chief, Mr. Khan declared a sort of independence for the Army. He argued that the proposal being initiated from the Ministry of Defense, the President need not consult the Council of Ministers (p 11)! For obvious reasons, the Court could not consume such an Austinian assertion that the Chief of Army Staff could demise any government property defying even a democratically elected government (p 30).

The 'Political' Science of Law: The lease deed being void ab initio failed to create any tenancy at all. Yet the Court allowed the Leader of the Opposition at least 30 days to vacate the house (p 40). Counting the time from the final notice of 24.5.2009, the Leader of the Opposition got almost a one and half year to evacuate a house she was gifted unlawfully. Unfortunately the court sanctioned deadline was not cared for. A Leave to Appeal was made but consciously no stay on the High Court Division's order was sought. The field was created for a political victory from a clearly lost legal battle. Instead of arguing on the Leave Petition, a no-confidence on the Appellate Division itself was ready to be placed! Passing the deadline, Begum Zia was 'evicted' by the government and the 'tears of an ex-Prime Minister' over-shadowed a sheer illegality behind an unethical bounty. The 'bereaved nation' observed a day-long hartal in protest of political oppression! Now we realize why our teachers tell us in classes, “There is politics in law.”

The writer is a Lecturer, Department of Law, University of Chittagong.

The Private University Act, 2010; Would the barking dog bite?

Law Analysis

The Private University Act, 2010; Would the barking dog bite?

M. Jashim Ali Chowdhury

Published in the Daily Star, Law and Our Rights, January 15, 2011

Link: http://www.thedailystar.net/law/2011/01/03/index.htm

The footstep, foothold and stronghold of the Private Universities in the filed of higher education is now a fait accompli. Today it requires no recognition but a critical appraisal. Well, then how to see it? A glass half empty? Or a glass half full? Some may prefer the first, while others may choose the last. But I (with my recent past three and half years' fellowship with private universities) would prefer a more specific answer it is one-third full leaving another two-thirds empty! 

The glass is 1/3 full because these (around 60) Universities are imparting:
-higher education to the students (around 95% of total students passing HSC) who would otherwise remain unattended by the public education machinery;

-politics and session jam free education; and

-responsible academic behaviour on the part of the faculty members ensured through the prism of continuous evaluation.

The glass is 2/3 empty because:
-bulk of the universities (except a few) are still lagging behind in quality education;

-there is a substantial accusation that some of these universities are still 'selling' certificates;

-the so called Evening Programs are the most attractive profit zones harboring the grossest irregularities;

-infrastructural and logistic arrangements are simply pathetic (except in some 'rich' universities);

-in terms of quality, fairness and accountability, the 'branch campuses' pose a nightmare;

-'research' as a component of University education is, subject to a few exceptions, almost unknown;

-most unfortunately, the spontaneous interference on the part of the sponsors ('owners' they are commonly called) in the administrative and academic affairs strikes at the root of the very concept of a 'University'. Sometimes a private university sponsored by a status hungry business tycoon resembles one of his many other private limited companies or at best a rural private college established in memoriam of the wife of a petty millionaire!

Given the circumstances, avoiding direct stance against the concept of Private University as a whole, some prescribe care coupled with a gentle admonition. The parliament has passed the Private University Act, 2010 which is professed to medicate some of the diseases beyond treatment of the repealed Private University Act, 1992 and Private University Ordinance 2008.

Establishing a Private University: A Private University may be established with a provisional certificate for initial seven years (Section 7(2)). This may be extended for another 5 years (Section 11(2)). Failure to apply for extension of provisional permission within first seven years or for permanent permission within maximum 12 years may result in the closure of admission (Section 12(1)). Most of the Private Universities are now running with provisional permission and have even failed to apply for permanent certification.

Regarding the permanent campus: For a permanent certificate a Private University needs, among others, a permanent campus established on at least 1 Acre landed property in any Metropolitan area or 2 acres landed property in other areas (Section 9(1)). This means that a Private University must find out its permanent campus within maximum 12 years of its commencement. Most of the private universities are unacceptably legging behind in this regard.

On the 'branch campuses': Sections 3(3) and 13(2) of the Act prohibit establishment of Branch Campuses, though there may be several sister universities with a common name (Proviso to Section 5). In that case the Private Universities willing to maintain their already established branches may opt for the establishment of independent administrations comprising separate Vice Chancellors, Syndicate, Senate and Academic Council, etc.

Locating the campuses: The campuses beneath or above commercial complexes, garment factories or even grocery shops mark our intellectual insolvency. Apart from the branch campuses, there is a tendency to establish as many campuses as possible in the same city, which are not less deficient than the branch campuses in terms of quality assurance. To check this unhealthy tendency, section 13 of the Act provides that seats of the campuses must be specified in the provisional or permanent certificate. Section 3(4) of the Act prohibits establishment of university campuses in certain places to be specified by the government.

Making Private University affordable: The competitively sky rocking tuition fees of the private universities has put them high above the reach of students with modest and middle class background. Section 42 takes care of this by requiring the tuition fee structure to be in consonance with the 'socio-economic standard' of the country. The University Grants Commission (UGC) is given a consultative status in this regard. However, the 'socio-economic standard' being a relative and vague term, poses no immediate 'threat' to the current trend. Again, Section 9(4) requires reservation of at least 6% seats for freedom fighter's wards and poor students coming from rural areas. These students would enjoy full tuition fee and other fees waiver.

Overseeing the academic affairs: Section 13(3) of the Act requires permission of the UGC to establish a Department or Faculty in a particular campus. Section 24 requires department-wise Syllabus Committee comprising external experts. Though these provisions form part of the day to day administration of UGC, there are substantial allegation of corruption and bribery within the UGC itself, in approving courses, syllabus and other academic curricula.

On the part timers: An unhappy feature that puts a private university under serious challenge is the running of the courses by part-time teachers basically drawn from the public universities. The 2010 Act has paid due attention to the part timers. Section 35(3) has put a ceiling on the part-timers which should not cross 1/3 of the total numbers of permanent faculties. Section 35(4) requires a 'No Objection Certificate' to be submitted by a part time faculty from his original workplace. Some Public Universities themselves have a rule requiring their faculties to take prior permission for any part time engagement and submit more or less 10 per centum of their income there from. However, public university authorities have been generous enough to apply the rule in flexible manner. Now it remains to be seen how section 35(4) of the Private University Act improves the situation and ensures the accountability of the honourable teachers.

Again, the 'Resource Persons' from non teaching professions are not included in the 1/3 limit. Exactly what does the term 'resource persons' means is not clarified in the Act. If they mean experts from the practical field occasionally coming to the classes to give a touch of reality in the world of books, this is no doubt a progressive provision. But we know the reality. We know a lot of Civil Servants and Judicial Officers 'serving' as part time faculties and conducting full-swing courses in different private universities. Critiques often say these 'resource persons' serve dual purposes help maintain a good 'link' with the power base of the state and come to 'aid' in times of administrative or legal difficulties faced by the university concerned. With the 'part time' faculties, 'resource persons', 'advisers' and 'coordinators' you can manage things for the time being. But this is never going to give the private universities an institutional shape, though the sponsors like to point at Oxford and Cambridge as the best examples of private universities leading from the front.

Job security etc: Most of the private universities deliberately lack any Service Rules so that the teachers and employees may be treated in whatever manner they like. Job security, academic freedom and non-intervening working conditions are a far cry there. It is quite humiliating that in some universities the administrative officers 'police' the teachers! I know even of an Honourable Vice Chancellor who was 'instructed' over phone not to come to office the next day! This is why the young and promising teachers of the time are not ready to take 'private university teaching' as a profession. This is still too dangerous a risk to take. All coming here come as transit birds to stay in the platform to catch the train. Sections 16 and 43 of the Act require the copies of service rules, rules regarding the creation of posts, appointments and pay scale to be submitted to the UGC. In absence of adamant political commitment these provisions would ensure nothing more than a mere formality.

The Accreditation Council: The greyest area in the Act is the proposed Accreditation Council. Given the huge workload of the UGC and its infrastructural insufficiency to oversee the activities of the private universities, an Accreditation Council seems befitting. As per Section 38, the Accreditation Council would be established by the Government and its functions and powers shall also be determined by the Government by Rules. It will be interesting to see how the Government exercises its rule making power to establish a tiger having claws and teeth.

Doubted aspirations!
The Private University Act 2010 wants to see 'non profitable' private universities (Sections 44 and 45) devoted strictly to the cause of education and research which is a lofty dream indeed. Private Universities are the realities of an era of deregulation where education is not a mere virtue rather an essential commodity. Naturally the profit seekers will explore opportunities in a 'business' that earns wealth as well as status and their political power bases are not too weak. Now let's see, how aspirations of education flourish!

The writer is Lecturer, Department of Law, Chittagong University.

A compilation taking us back to the original spirit

Law Book Review

A compilation taking us back to the original spirit

M. Jashim Ali Chowdhury

Making the Constitution of Bangladesh Barrister Md. Abdul Halim Publisher: CCB Foundation, Dhaka Price Shown: Tk. 250/-

Barrister Halim is a popular writer of law books with around 30 publications to his credit. As an author he came to light through his first scholarly endeavor Constitution, Constitutional Law and Politics: Bangladesh Perspective which enjoyed a sort of monopoly in the study of Constitutional Law of Bangladesh over the last decade. Since then he is writing relentlessly on various issues. The present one under review, Making the Constitution of Bangladesh, is the latest of his efforts.

Divided into five chapters, Chapter 1 (pp 9-38) of the compilation contains a short commentary on the history of constitution making which is an abridged reproduction of some of his thoughts we already read in Constitution, Constitutional Law and Politics: Bangladesh Perspective. The extracts from Abul Fazl Huq's Constitution Making in Bangladesh published in the Pacific Affaires Journal (Vol 46, No 1, Spring, 1973) of University of British Columbia, available in JSTOR's online catalogue will throw light on the constitution making from an altogether different point of view. A short note on the Declaration of Independence (p. 11) reflects his own assessment of the issue.

Chapter 2 (pp 39-58) reproduces some pre-constitutional instruments like the Proclamation of Independence, Laws Continuance Enforcement Order, the Provisional Constitution of 1972 etc. Chapter 3 (pp 59-86) accommodates the report of the Constitution Drafting Committee to the Constituent Assembly. This document has special significance to the new generation readers of the constitutional history. Chapter 4 (pp 87-200) reprints the Draft Constitution proposed by the drafting committee to the Assembly and lastly Chapter 5 (pp 201-304) reprints the original constitution of 1972.

I may not agree with some of the 'weaknesses and drawbacks' in the constitution making that the author finds, yet I acknowledge the greater purpose the compilation would serve specially to the post-liberation generation in taking them back to the root of the original spirit enlightening our nationhood. This handy compilation would serve the purpose of researchers working on our constitutional history.

The reviewer is Lecturer, Department of Law, University of Chittagong.