Judiciary and the Dilemma of ‘Office of profit’: A Pandora’s Box

Judiciary and the Dilemma of ‘Office of profit’:

A Pandora’s Box

M Jashim Ali Chowdhury

Published in: The Chittagong University Journal of Law, Vol. XI, 2006 (Published in March 2010 at pp 58 - 82.

The full text of the article is available at: https://www.researchgate.net/publication/336442967_Judiciary_and_the_Dilemma_of_'Office_of_profit'_A_Pandora's_Box

Introduction

Though the expression ‘Office of Profit’ is not defined in the Constitution, it has a pretty sound backing of the doctrine of Separation of Power. The view is that holding executive offices by an MP or a Judge may either be incompatible with his duty or may affect his independence and thus weakens the loyalty to his assigned office. Then instead of ensuring the necessary accountability of the Executive, his office may become subservient to rather than the watchdog of the Executive.

The prohibition against any Member of Parliament taking any ‘office of profit’ was in the Constitution of Bangladesh, 1972 in sub-clause (f) of Article 66(2). This was however, renumbered as sub-clause (dd) by the Second Proclamation Order IV of 1978. The motive was to prevent any scope of timidity on the part of the Legislature to hold the Executive accountable. However, since the very nature of the Multi-Party Parliamentary Democracy makes the Executive more a part than a counterpart of the Legislature, the Constitution excludes some specific offices from the definition of office of profit in Article 66(2A). The Judiciary, on the other hand, is a completely different arena. Independence of judiciary requires it be secured that judges are so placed that during their term of office they remain above inducement or hope for preferment. A judge must be a recluse, a man apart.1 Accordingly Articles 147(3) and 99 were included in the Constitution of Bangladesh disqualifying the Supreme Court judges from holding ‘any office or post’ whatsoever both during the continuance of their service and after the retirement or removal therefrom. This two tier prohibition was intended to immune the judges from all sorts of allurement for possible future gains.

Unfortunately, Article 99 was amended later on to put a ceiling on the bar limiting it to any ‘office of profit’ in the service of the Republic other than ‘judicial or quasi-judicial’ offices. This indiscriminate insertion of ‘office of profit threshold’, widely used around the world in relation to the Members of Parliament, opened a Pandora’s box of political favoritism for the Judges. By now we have had many shocking instances of judges holding constitutional, judicial (e.g, Labor Appellate Tribunal, Administrative Tribunal etc), quasi-judicial or even non judicial offices like the Chief Election Commissioner (CEC), Chairman of the Anti-Corruption Commission and Chairman of the Law Commission under the guise of quasi-judicial office. Now-a-days Judges are seen to be rewarded not only after their retirement but also even during their service in the Supreme Court, appointment of Justice M. A. Aziz as CEC being the glaring example.

This write-up aims at surfing through the historical evolution of ‘office of profit’ to show how a concept essentially used in relation to the Legislature got a firm root in our judicial discourse. It strongly argues that applying the ‘office of profit threshold’ for the Judges needs a careful perusal and second thought. The later part of the paper explores the different standings of the Supreme Court over the past years to find out the genuine connotation of ‘office of profit in the service of the Republic’. Lastly, I come to a conclusion with some concrete what-to-do findings in this regard.