‘Abraham Lincoln’ must be punished for High Treason

‘Abraham Lincoln’ must be punished for High Treason

M. Jashim Ali Chowdhury

Published in the 60 DLR (2008) December Issue, Journal Section at pp. 34-37.

General Pervez Musharraf liked to be called as Abraham Lincoln of Pakistan. In his speech to the nation after suspending the constitution for the second time and issuing a Provisional Constitutional Order ‘as the Chief of Army Staffs’ whereby he replaced Chief Justice Iftikhar Chaudhry with Justice Hameed Gogar and detaining the Supreme Court judges, he asserted that he had to violate the constitution to protect the constitution (Mushaaraf’s Mini Martial Law, Ali Iteraj, the Daily Prothom Alo, 5th November 2007). The reasons advanced by Musharraf for proclaiming emergency were, in his own words, "Judges were interfering with the government and that Islamic militancy posed a grave threat to the country" (Sad day for Pakistan Musharraf’s obsession with power spells danger, the Daily Star Editorial, 5th November 2007). He blamed the Judiciary for exceeding the limits and did not hide his intention to alter the Supreme Court.

Usurpation: the Musharraf Style

The track record of this self declared ‘Abraham Lincoln’ may be summarized as follows:

• On 12th October 1999, General Pervez Musharraf, the immediately ousted Chief of Army Staff and Chairman, Joint Chiefs of Staff Committee, through an unconstitutional measure took over the government and the affairs of the country, abrogated the Constitution and dissolved the central and provincial legislatures. On 14th of October 1999, the Provisional Constitution Order No. 1 of 1999 was issued which allowed the Constitution to operate subject to the Order. The President Rafiq Tarar was ‘allowed’ to remain in office.
• On 12th May 2000 in Syed Zafar Ali Shah v. General Pervez Musharraf, Chief Executive of Pakistan (PLD 2000 SC 869), the Supreme Court of Pakistan validated the takeover on the ground of ‘necessity’ and allowed Pervez Musharraf a three years’ term to return to democracy
• On 20th June, 2001 the Chief Executive issued Chief Executive’s Order No. 2 of 2001 which provided, ‘The person holding the office of the President of the Islamic Republic of Pakistan immediately before the commencement of the Proclamation of Emergency (Amendment) Order, 2001, shall cease to hold the office with immediate effect.’ On the same day, the Chief Executive issued Chief Executive’s Order No. 3 of 2001 and the Preamble to the said Order read: “Whereas it is expedient to provide for succession to the office of the President of the Islamic Republic of Pakistan and for matters connected therewith or ancillary thereto; Now, therefore, ………………………the Chief Executive of the Islamic Republic of Pakistan is pleased to make and promulgate the said Order”.
• On 9th April 2002 on the eve of expiration of the three years period, the Chief Executive and the President of Pakistan issued Chief Executive’s Order No. 12 of 2002 (Referendum Order). The Preamble to the Referendum Order, inter alia, provided as under: “……it is imperative to consolidate the measures taken by the Chief Executive of Pakistan for the reconstruction of the institution of state for establishing genuine and sustainable democracy …….. and it is in the supreme national interest to obtain a democratic mandate from the people of Pakistan through referendum for General Pervez Musharraf to continue to be the President of Pakistan.”
• Musharraf took over the charge of the government when the institutions of State stood seriously weakened and the democratic and moral authority of the government of the day stood gravely eroded (The Supreme Court in Syed Zafar Ali Shah). He dismissed the President because he thought it ‘expedient’ and so he was ‘pleased’ to take upon himself the charge of the President. The Zafar Ali Shah court thought it necessary to allow Musharraf three years to return to democracy. But he thought it more necessary to continue in power to return to ‘genuine and sustainable democracy’

Why the trial is important?

The judiciary and judges have got some realistic problems. When a Martial Law is actually declared and an usurper is firmly settled, the courts had to travel through the doctrine ‘efficacy’ (State v. Dosso, Uganda v. Commissioner of Prisoners Exparte Matuvo) or ‘necessity’ (Nusrat Bhutto v. Chief of Army Staff, Zafar Ali Shah v. Pervez Musharraf) to find out some excuse upon which to legalize the junta and thereby save the ‘skin’ of the judiciary.

Again, when the dictator has fallen and there has been no threat or any pressure the court has emphatically declared this martial law illegal (Asma Jilani v. The Government of Punjab, E.K. Sallah v. Attorney General)

There are however some exceptional and extra ordinary boldness on the part of the Judges but only to be miserable disregarded by the monopoly of the coercive force of arms. They were either frustrated by issuing decrees or proclamations or their jurisdiction restricted or the judges concerned removed from office by the new regime. For example, the question of validity and legislative capacity of an extra-constitutional regime was squarely confronted in Lakanmi v. Attorney General 1971 U. Ife L.R. 201 (Nigeria). The Nigerian Supreme Court rejected the government’s position that “what took place in January 1966 (in Nigeria – the Author) was a revolution and the Federal Military Government is a revolutionary Government …. It accordingly has an unfettered right ……….. to rule by force and by means of Decrees…..” The Court said that the 1963 Constitution of Nigeria reminded the fundamental and operative norm against which the courts could measure acts of the “interim Military Government.”

The military regime reacted sharply and quickly to the Lakanmi decision and to the holding that “the Federal Military Government is not a revolutionary government.” The Judgment of April 24, 1970, was followed on May 9, 1970, by the Federal Military Government (Supremacy and Enforcement of Powers) Decree No. 28 of 1970, which reasserted the unfettered and unlimited legislative competence of the military regime. In explicitly Kelsenite language, it declared that the events of January and July 1966 were revolution[s] ….. [that] effectively abrogated the whole pre existing legal order in Nigeria …. Involved an abrupt political change which was not within the contemplation of the Constitution ….. [and] established a new government …….. with absolute powers to make laws ….. No question as to the validity of any Decree or any Edict ….. shall be entertained by any court which has purported to declare …. The invalidity of any Decree ... is …null and void and of nom legal effect whatsoever as from the date of the making thereof. (Mahmud, Tayyab, "Jurisprudence of Successful Treason: Coup D'Etat & Common Law", Cornell International Law Journal, Vol. 27, p. 73, 1994)

The Supreme Court felt constraint to capitulate in the face of this express rebuke by the usurper regime. In Adejumo v. Johnson the Court acknowledged the validity of Decree No 28 and, by implication, that of the military regime. Interestingly, the Court said that Decree No. 28 “establishes and otherwise confirms the already existing ouster of the jurisdiction of courts of law…….” By saying that the new Decree was only declaratory in nature, the court in effect said that Lakanmi was wrongly decided.

So what should be the best approach to tackle these ‘Abraham Lincolns’? Yakub Ali J of the Pakistan Supreme Court had an answer in his judgment in Asma Jilani:

“My own view is that a person who destroys the national legal order in an illegitimate manner cannot be regarded as a valid source of law making. May be that on account of his holding the coercive apparatus of the State, the people and the courts are silenced temporarily, but let it be laid down firmly that the order which the usurper imposes will remain illegal and Courts will not recognize its rule and act upon them as de jure. As soon as the first opportunity arises, when the coercive apparatus falls from the hands of the usurper, he should be tried for high treason and suitably punished. This alone will serve as a deterrent to would be adventurers. (Constitutional Glimpses of Martial Law, Aleem Al Razee, UPL, p. 42)

Conclusion

Musharraf has left Pakistan with his legacy of ‘unconstituionalism’. The democratic forces of Pakistan now face the critical challenge of upholding constitutionalism in its letter and spirit. This again seems to be a daunting task. Military not only spoils the democracy but also corrupts the democratic mind setup of the politicians beyond recovery. Consequently politicians as well as democracy fail again and on any dark night someone else comes out of the garrison ‘to save’ the nation. Let’s call back the memory of Pakistan’s first Martial Law. On October 7, 1958 Iskander Mirza, while declaring Martial Law observed:

‘For the last two years I have been watching with deepest anxiety, for the ruthless struggle for power, corruption and shameful exploitation of our simple people, honest, patriotic and industrious masses, the lack of decorum and the prostitution of Islam for political ends. The mentalities of the politicians are so low that I am unable any longer to believe that elections will improve the present chaotic internal situation.’

But the key player behind ‘the ruthless struggle for power’ was identified by his chief ally Ayub Khan on October 27, 1958 morning when Iskander Mirza was exiled to London:

“The President had thoroughly exploited the weakness of the Constitution and had got everyone connected to the political life of the country utterly exposed and discredited. I do not think that he even seriously wanted to hold general election; he was looking for a suitable opportunity to abrogate the Constitution.”

Now there is a golden opportunity in Pakistan to break this vicious circle. Pakistan must not miss this.

M. Jashim Ali Chowdhury is a Lecturer in the Department of Law, University of Information Technology and Sciences (UITS), Chittagong.

Judges’ Appointment Case: A Quagmire of Judicial Activism

M Jashim Ali Chowdhury

Assistant Professor, Department of Law, University of Chittagong

(A critical review of the Ragib Rouf judgment providing guidelines in relation to appointment in higher judiciary published in today's Daily Star, Law and Our Rights (July 4, 2017). The over all theme of the review is that the judgement may not be counted as a very good instance of activism on the part of the higher judiciary. Some words of the original write up has been edited, due to space constraint and sober criticism perhaps. Posting the original write up here and also giving the Daily Star Law and Our Rights link of July 4, 2017)

As far as judicial review and activism is concerned most of our commentators have been laudatory and complementary. There are skeptics as well and they refuse to uphold intensive poking of noses by the judiciary in legislation and policy-making at the expense of the legislature and executive (See - S K Agrawala, Public Interest Litigation in India: A Critique, N M Tripathi, 1985 and Rajeev Dhavan, Litigation Explosion in India, N M Tripathi, 1986). Admittedly, there are some significant limits to judicial activism and the Court has been repeatedly confronted with a tradeoff between activism and restraint. Excessive judicial interest in policy issues may risk the court being shackled by limited impact its judgment may create on the ground.

The High Court Division’s sort of advisory opinion in relation to judges’ appointment in Ragib Rouf Chowdhury case seems to have pushed the limits of judicial activism. The “suggestions” given by the High Court Division in this case may be taken as a good case for judicial adventurism (Nupur Chowdhury, From Judicial Activism to Adventurism, Asia Pacific Journal of Environmental Law, November 2014). On a plain reading, the writ petition seeking “direction” upon certain parties to frame a “guideline” for the appointment of judges in the Supreme Court appears clogged within a quagmire of untouched legal questions, indeterminate parties, half-hearted reasoning and a curious ending.

The untouched question of Locus Standi

The petitioner, as lawyer, became concerned over the current appointment process (p. 2 of the full text judgment available in Supreme Court website), as it is susceptible to “control or influence by or of other organs of the State” (p. 4). Petitioner’s case in brief is that independence of judiciary being a basic structure of the constitution (p. 6), depoliticized  appointment of judges (p. 8) and also the appointment of persons of appropriate intellect and acumen is highly important for earning respect from bar (p. 11-12) and ensuring the independence of judiciary. While a preliminary inquiry into the sufficiency of interest of the persons pursuing a PIL is a norm, nothing of this sort was attempted in this case at all. The Court however had to concede that the petitioner did not come to enforce any the fundamental rights guaranteed under part III of the Constitution (p 31 of the judgment). Had this been the observation, the Court could have reject the writ petition following the “guideline 6” of the recent National Board of Revenue v. Abu Saeed Khan decision of the Appellate Division (18 BLC (AD) 116, para 38) which has cautioned the High Court to see whether public interest litigation turns into a “publicity interest litigation.”

Unsubstantiated opposition to the Commission system 

Most important point of the case, which unfortunately was not hard pressed by the petitioner with necessary elaboration and precision, was whether a system of public announcement of judicial vacancies and call for interest could be a constitutionally viable option. The Supreme Judicial Commission Ordinance issued in 2008 was declared void by the High Court Division (Idrisur Rahman v. Bangladesh 60 DLR (HCD) 714) on the ground that the President could reject the recommendation of the Commission and primacy of the Commission was not ensured there (p. 9).

Apart from drawing inspiration from the UK National Judicial Appointment Commission (p. 11), the petitioner did not explore the other salient features of the Commission system introduced in 2008 and positive nods given by the High Court Division to some of those. While opposing the open call system, the Attorney General and one of the amicus curies Barrister Shafiq Ahmed argued that the judges of the Supreme Court being appointed through President’s satisfaction are not persons employed in the service of the Republic. Therefore, unlike other services of the republic, open applications may not be called for (p. 18-19). This “service of the Republic” argument, however, ignores the Masder Hossian opinion of the Appellate Division where the judiciary was declared an integral part of the service of the Republic (52 DR (2000) (AD) 82, Para 27) and Justice M A Aziz decision of the High Court Division where ‘service of the Republic’ in relation to article 99 was interpreted as including all posts or offices of the Republic (60 DLR 2008 (HCD) 511, Para 223). Ironically, neither the petitioner nor the Court offered any rebuttal to this misplaced argument. The Court merely pressed that the Commission system has been rejected in India (p. 38-39).

Indeterminacy as to the parties to be “directed”

Foundation of the petition rested on the question as to who was to be “directed” to frame the guideline and for whom the “guideline” is to be framed. Relying on Ministry of Ministry of Justice vs. Md. Idrisur Rahman reported in 7 LG (2010) AD 17, the petitioner argued, and the court agreed, that only the Chief Justice reserves the right to initiate an appointment process in the highest court and government may only suggest suitable names to the Chief Justice (p. 7). Chief Justice would propose candidates to the President and President would appoint therefrom. President however is constitutionally required to receive the Prime Minister’s advice. Hence, Dr Kamal Hossain claims that the process is actually the reverse. The appointment is still being initiated by the executive and the Chief Justice is consulted on the basis of list of candidates provided by the executive (p. 22). Whatever be the process, theoretically it remains unclear who is to be “guided” on the selection criteria – President, Prime Minister or the Chief Justice? Interestingly, the petitioner filed the writ against all – President (through the Ministry of Law), Prime Minister (through the Principal Secretary and Cabinet Secretary) and Chief Justice (through the Registrar General of the Supreme Court). More interestingly, none of them appeared to contest the writ (!) The petitioner however, kept arguing that had there been some definite guidelines for the Chief Justice in initiating the process and government in suggesting names it would have been better (p. 7).

Bulk of the amicus curies, Attorney General and even the Court agreed that law making responsibility in this regard rests with the parliament as per Article 95(2)(c) of the Constitution and the judiciary is not in a position to issue mandamus to the parliament (p. 32). Also, in absence of any express delegation of the law making authority from the parliament to the executive, the government also is not in a place to frame the guideline sought (p. 30). Then who else is to be directed? The Chief Justice? The Court however was convinced that such an attempt would “undermine” the power of the Chief Justice (p. 40).

A Curious Ending

The Court therefore “disposed of” the “misconceived” writ petition (p. 44) against the political executive. Yet it ended up in “suggesting” some “eligibility criteria” to the honorable Chief Justice – at least one of which has political implication and almost all of which are less likely to have any practical impact on the ground. That’s where we may think judicial activism turns into a judicial adventurism.

Life Imprisonment Verdict: A Contextual Reading

M Jashim Ali Chowdhury

Assistant Professor, Department of Law, University of Chittagong

(Published in The Daily Star: Law and Our Rights; 16 May 2017; Link: http://www.thedailystar.net/…/life-imprisonment-verdict-con…)

Our longstanding perception of 20 to 30 years of “life imprisonment” has been sharply questioned by the Chief Justice of Bangladesh in recent time. The latest judgment of the Appellate Division in Ataur Mridha v. State marks the official consolidation of his Lordship’s views. His arguments are quite clear and they make sense. “Life imprisonment” as one of the modes of sentencing is endorsed by section 54 of the Penal Code. Section 45, on the other hand defines “life” as the natural life of a human being unless something contrary appears from a given context. Honorable Chief Justice therefore calls for a plain but combined reading of sections 45 and 54 of the Penal Code. Both taken together, “Life imprisonment” would mean a sentence of imprisonment for the whole of the remaining period of the convicted person’s natural life (p 18 of the Appellate Division judgment in Ataur Mridha).

There is however confusion as regards the exact ‘law’ that is sought to be established by the Appellate Division through this judgment. While some of us see a strict rule of till death imprisonment for all life convicts, the Attorney General argues for a context sensitive reading of the verdict. Several thorough readings of the judgment gave me an impression that the Attorney General is perhaps right.

Section 57 and “Fractions of the Terms of Punishment”

Section 57 reckons “imprisonment for life” as equivalent to rigorous imprisonment for thirty years while calculating fractions of terms of some punishment. This particular section of Penal Code has continued to fetch our mistaken but longstanding perception of a 30 years’ tenure for life imprisonment. The Appellate Division in Ataur Mridha has successfully refuted the myth. Plainly understood, section 57 is applicable to cases where the court would need to award sentence in terms of fractions of sentence prescribed for a principal offence. Take the offence of ‘sedition’ for example. Sedition, as per Section 124A is punishable with imprisonment for life. If somebody attempts sedition but fails, the Penal Code would not define the punishment expressly. Rather Section 511 of the Code would require the court to award a sentence of maximum half of life imprisonment prescribed in section 124A. But what is “half” of one’s life? This time the section 57 would step in. Reckoning “life imprisonment” as thirty years imprisonment, a half-fraction of “life imprisonment” for this case would be fifteen years. The Appellate Division here holds that except helping us determine the fractions applicable to offenses like above, section 57 has no other role to play with the tenure of life imprisonment as such. Life imprisonment therefore means “imprisonment for the natural duration of a convict’s life” (p 50-51 of the judgment).

Problems of “Remission” under the Jail Code

Sections 45, 54 and 57 being convincingly resolved, the Court entered the gloomy area of “remission”, “commutation” etc. Some provisions of the Penal Code, Criminal Procedure Code (CrPC), and Jail Code and the longstanding perception and practices arising therefrom have fetched a generalized belief that a person sentenced to imprisonment for life would usually be released after spending a maximum of 21-22 years in prison.

In this regard, it is important to note that that the President’s article-49-power to grant pardons, reprieves, respites or remissions of punishments is exclusive and not justiceable (p 47 of the judgment). The Appellate Division also does not see any problem with the section 55 Penal Code and section 401 CrPC powers of the government to commute an imprisonment for life into an imprisonment of either description for a term not exceeding twenty years. A clear position of the Appellate Division is that ‘in absence of any order of commutation of sentence either under the Penal Code or the Code of Criminal Procedure,’ a prisoner sentenced to imprisonment for life is bound in law to serve the life term in jail (p 20 of the judgment).

The Appellate Division, however, sees problem in the longstanding practice of remissions awarded to the prisoners under various rules of the Prisons Act and Jail Code. The Court feels that any mechanical conversion of life sentence into one of fixed term by the jail authority is apparently without jurisdiction. If the jail authority reports any life convict’s case to the government after the completion of twenty years, the government may consider it under section 4

01 CrPC (p 34 of the judgment). But if they are being mechanically released after completion of twenty years through the regular remission framework of the Jail Code, it would be a clear violation of law (p 33 of the judgment). The reasons behind this position are twofold. As a life imprisonment of indefinite duration, the remission earned by a prisoner do not in practice help him, as it is not possible to predict the date of his death (p 24-25 of the judgment). Addtionally, the Jail Code remission rules being mere ‘administrative instructions’, they cannot ‘stultify the effect of the sentence of life imprisonment given by the court under the Penal Code’ (p 60 of the judgment).

A Context Sensitive Reading

It is clear that from page 77 of the judgment and onwards the Appellate Division was concerned not with the remission in life imprisonments in general. From the Indian and native precedents referred therein and also from the particular context of the case in hand (Ataur Mridha’s lawyer was pleading for a commutation of death penalty), it is abundantly clear that the Court was much more focused: “If [this court or the High Court Division] on consideration of the nature of offence committed by the offender and taking consideration of the interest of the victim and the accused, commutes the sentence of death [to imprisonment] till life …. this category of cases would be beyond application of remission” (p 88 of the judgment).

What could it best possibly mean? Is the Government’s commutation power under section 401 CrPC restricted for “all” cases of life imprisonment? Or it is “only in cases where one’s death sentence is commuted (by the court) to life imprisonment”? The Attorney General favors the second one. From a contextual point of view, I would also.

The Ground Rule

Therefore, the ground rule of Life Imprisonment after Ataur Mirdha would be like this: Life imprisonments are meant for the whole duration of the convict’s life. No life convict may be given remission under the Jail Code, Prisoners Act and subordinate rules. A life convict however may be eligible for commutation of sentences under article 49 of the Constitution, section 55 of the Penal Code and section 401 of the CrPC. A death convict whose sentence has been commuted to life imprisonment will not be eligible for remission, commutation, etc under the Jail Code, Prisoners Act, Penal Code or CrPC. Article 49 however remains unaffected."

The EC Search Committee: Towards a “Consensual” Constitutional Convention?

The EC Search Committee:

Towards a “Consensual” ConstitutionalConvention?

M Jashim Ali Chowdhury

Assistant Professor, Department of Law, University of Chittagong.

Published in The Daily Star, Law and Our Rights (Page 12), (7th February, 2017)

This is the second consecutive time that the President has constituted a Search Committee to find some suitable candidates for the Election Commission of Bangladesh. The 2017 committee is different from that of 2012 both in formation and situation. The 2012 committee consisted mainly of the senior judges of the Supreme Court while that of 2017 has forged a combination of the judges, academics and career bureaucrats and thereby stretched its root within the wider social circle. The situational contrast between the two committees is also strikingly identifiable. The formation of 2017 committee has attracted more deliberation and consultation than the earlier one. Caretaker government being on the center of political discourse then, parties and civil society groups did not take the 2012 Committee as seriously as they take the present one. Also the Election Commission as an institution is much more suffocated now than it was in 2012. Caretaker government being out of the agenda now, the 2017 committee has much more to deliver than its predecessor.

While I share the prevailing doubt as to whether most of the members in the present committee would actually be able to shun down their perceived “leaning” and recommend names objectively and whether the Prime Minister would actually be “willing” to forgo her constitutional privilege of advising the head of state, the two consecutive search committees for the Election Commission have a very crucial thing to offer. It is the possible emergence of a constitutional convention of consultation and specialized committee system for appointment in constitutional bodies and other autonomous bodies of constitutional significance.

Appointments in the constitutional bodies like the Supreme Court, Election Commission, Public Service Commission, Comptroller and Auditor General and autonomous bodies like Anti-Corruption Commission and Human Rights Commission, etc have been widely debated in our recent political discourse. The judiciary sought, with a little success, to mitigate the “gravitational pull” of the Prime Minister’s political advice by requiring constitutional consultation with the Chief Justice and ensuring a primacy for the judicial opinion (Syed Dastagir Hossain v. Idrisur Rahman 15 BLC (AD) 49). A writ petition pending before the High Court Division now seeks to remove the remaining thread of the pull by calling for the formation of a search committee to recommend judges in the High Court Division (Ragib Rouf Chowdhury v. Sec., Ministry of Law). Very little could be achieved in relation to other constitutional and autonomous bodies however.

This brings me to the fundamental issues surrounding a typical constitutional convention. Sir Ivor Jennings prescribes a three prong test to know whether a particular “practice” is a constitutional convention or not. First, Jennings would ask, what are the precedents? Secondly, did the actors in the precedents believe that they were bound by a rule? Thirdly, is there a reason for the rule? (I. Jennings, The Law and the Constitution, 5th ed., London 1959, p. 136).

Now in this search committee issue, answers to the first two questions are in the negative. We have seen only two committees so far and this makes the committee system a quite novice practice instead of being a long held and unbroken one. Also, nobody will even think of suggesting that the Awami League government is acting under a belief in a binding obligation whatsoever.

In contrast, Jennings’ third question may have something to offer. Is there a reason for the practice? Of course, the ruling party and opposition parties have a very important reason for creating and nurturing a committee system like this. While a constitutional convention is not “enforced” by the courts, it is “recognized” as aids to judicial interpretation (Att.-Gen. v Jonathan Cape Ltd [1976] Q. B. 752). The question then is – whether a novice practice with a good reason uncoupled with a sense of obligation could ripe into a constitutional convention.

To avoid a lengthy academic analysis, constitutional conventions may be created within shortest possible time through consensus or agreement of concerned parties. The agreement need not necessarily be imposing an “obligation” on the actors (Joseph Jaconelli, Do Constitutional Conventions Bind?, Cambridge Law Journal, 64(1), March 2005, pp. 149–176). It will only need a really convincing “reason” behind. David Hume, in his Treatise of Human Nature (1738), has justified the interest of mutuality and reciprocity as a convincing reason for a conventional norm. Professor Gilbert Harman has further synthesized the behavioral explanation as one of mutual adjustment between members of society (G. Harman, Justice and Moral Bargaining, (1983) 1 Social Philosophy and Policy, 114). German political system is abundant in ready-to-refer examples of consensual constitutional conventions emerging out of political agreements forged out of interest rather than obligation (Greg Taylor, Convention by consensus: Constitutional conventions in Germany, Int. J. Const. Law (2014) 12(2):303-329).

Are the interests of transparency, credibility and legitimacy not convincing enough for forging and recognizing a constitutional convention of appointing search committees for selection in constitutional and autonomous bodies?Greg Taylor* * Honorary Professor, Philipps-Universität, Marburg, Germany; Associate Professor, Law School, Monash University, Melbourne. The author wishes to thank Werner Bachmann, Dr. Rüdiger Hitz, Ian Killey, P.S.M., Nicole Teschke and the Budget Committee of the Bundestag for their assistance in the research for this article, and Dr. Sabine Pittrof and the anonymous reviewer for useful comments. The usual caveats apply. This article was completed just after the general federal elections of Sept. 22, 2013. Email: greg.taylor@monash.edu. Search for other works by this author on: Oxford Academic PubMed

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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.

President’s ‘Lockean’ Prerogative of Mercy: A Lawful Lawlessness?

President’s ‘Lockean’ Prerogative of Mercy: A Lawful Lawlessness?

M. Jashim Ali Chowdhury

Published in: The Chittagong University Journal of Law

Vol XV (2010; published in May 2012), at pp 23-49

The full text of the article is available at: https://www.researchgate.net/publication/336442944_President's_'Lockean'_Prerogative_of_Mercy_A_Lawful_Lawlessness 

The right to pardon a criminal, either by mitigating or by entirely remitting the punishment, is certainly the most slippery of all the rights of the sovereign. By exercising it he can demonstrate the splendor of his majesty and yet thereby wreak injustice to a high degree. With respect to a crime of one subject against another, he absolutely cannot exercise this right, for in such cases exemption from punishment constitutes the greatest injustice toward his subjects.

Immanuel Kant

The Metaphysical Elements of Justice, John Ladd (trans.), Hackett, 2nd ed. 1999, p. 144

A legally sanctioned Alegality

The traditional understanding of Athenian, Roman and British jurists, among others, stands that a polity must make some provisions for the power to pardon, whether for the purpose of remedying injustice, tempering justice with mercy or furthering the interests of the state.[1] Ideally the power of pardon does not exist under a perfect administration of the laws. The admission of the power is a tacitly conceded imperfection of human action in the punishment of offenders. Yet some vilifies the concept for making a mockery of murder victims, undermining democracy, using raw power to cut down the law itself and making law meaningless. Some others reject such a feeling saying that clemency issues from a court of equity exercising a ‘prerogative’ inherent in the sovereign. The essence of a ‘prerogative’ being discretionary, its efficacy is bound up to its very disregard of declared law. Thus Jhon Locke famously defines ‘prerogative’ as:

[The] power to act according to discretion, for the public good, without the prescription of the Law, and sometimes even against it, is that which is called Prerogative. For since in some Governments the Law-making Power is not always in being, and is usually too numerous, and so too slow, for the dispatch requisite to Execution: and because also it is impossible to foresee, and so by laws to provide for, all Accidents and Necessities, that may concern the public; or to make such Laws, as will do no harm, if they are Executed with an inflexible rigor, on all occasions, and upon all Persons, that may come in their way, therefore there is a latitude left to the Executive power, to do many things of choice, which the Laws do not prescribe.[2]

However it is the insinuation of this ‘Lockean prerogative’[3], understood as a residuum of plenary executive power, independent of the specific grants of presidential power in the Constitution that has made most pardon exercises controversial and open to questions. Interestingly Article 49 of the Constitution of Bangladesh itself leaves no residuum regarding prerogative of mercy. Rather it provides a sweeping, unlimited and absolute authority in the President regarding the pardon power: 

The President shall have power to grant pardons,[4] reprieves[5] and respites[6] and to remit[7], suspend or commute[8] any sentence passed by any court, tribunal or other authority.

Moreover Sections 401[9], 402[10] and 402A[11] of the Code of Criminal Procedure 1898 add to the abundancy of the executive authority by empowering the head of the Executive, i.e., the Prime Minister as well in this regard. Predictably this absolute power carries with it an inherent danger of being abused and actually the case is so. In Bangladesh we had to bear the pain of seeing pardon of even death sentence only on political considerations.[12]

The abuse of discretion, however, is not a peculiar one for Bangladesh. More or less the controversial incidents of pardon are frequent in almost all parts of the world. Even in the USA[13], the most sophisticated democracy of the world, a series of high-profile pardons like Andrew Johnson’s sweeping pardons of thousands of former Confederate officials and military personnel after the American civil war, Gerald Ford's post-Watergate pardon of Richard Nixon,[14] Jimmy Carter’s grant of amnesty to Vietnam-era draft evaders, George H.W. Bush’s pardons of 75 people, including six Reagan administration officials accused in connection with the Iran-contra affair and Bill Clinton's eleventh-hour pardons of Marc Rich as well as other individuals[15] raised significant concerns about ways in which pardons might be used to advance personal, partisan or pecuniary interests.

Therefore several scholars have put forth a variety of proposals, such as requiring that pardons be approved by a board; that president gives adequate notice to relevant parties before granting a pardon; that he gives reasons for the pardons; that pardons be issued only after conviction, or that legislature be empowered to disapprove of presidential pardons, etc.

This exercise shall try to explore the ins and outs of each potential alternative and examine their comparative adaptability in different jurisdictions, which may ultimately lead us to one, two or even more concrete ‘what to do’ findings suitable to the genius of the body politic we have got in Bangladesh. Even before that I would like to present a brief historic account of the pardon power as it was and is exercised by the British Crown. Keeping our common law heritage in mind it will help us to understand the breadth of the ‘prerogative’ that actually prevails in the homeland of common law jurisprudence. Inspiration is also heavily drawn from the American jurisprudence on presidential pardon.

Notes -- 

[1] John Dinan, The Pardon Power and the American State Constitutional Tradition, The Polity, Vol. 35, No. 3 (Apr., 2003), pp. 389-418, Palgrave Macmillan Journals, http://www.jstor.org/stable/3235525, (Accessed on: 25/07/2011), p. 408

[2] Jhon Locke, Two Treatises of Government (Section 160 of the Second Treatise) quoted in Thomas S. Langston and Michael E. Lind, John Locke & the Limits of Presidential Prerogative, The Polity, Vol. 24, No. 1 (Autumn, 1991), Palgrave Macmillan Journals, pp. 49-68 at p. 55; Stable URL: http://www.jstor.org/stable/3234984 (Accessed on: 09/09/2011)

[3] Relying principally on a broad reading of the vesting clause of Article II, Section 1, of the U.S. Constitution, scholars, executive branch legal counsel, certain Supreme Court Justices and several Presidents of USA have claimed an essentially monarchical prerogative power for the American executive. These "presidentialists" frequently assert that the Framers and ratifiers of the U.S. Constitution intended to endow the President with a supposed "Lockean prerogative," understood as a residuum of plenary executive power, independent of the specific grants of presidential power in Article II. According to many presidentialists, Congress cannot restrict or eliminate this residual "executive prerogative" by law.

[4] Complete relinquishment of all sorts of punishments, sentences and legal disqualifications so as to restitute the convicted in the position he held before the conviction.

[5] Temporary suspension of operation of a conviction

[6] Postponement of execution of a sentence

[7] Reduction of amount of sentences without changing its nature, e.g., a longer version imprisonment may be converted into a shorter version imprisonment.

[8] Sanctioning a punishment lighter than the earlier one, e.g., simple imprisonment may be substituted in place of a rigorous imprisonment.

[9] When any person has been sentenced to punishment for an offence, the government may at any time without conditions or upon any conditions which the person sentenced accepts, suspend the execution of his sentence or remit whole or any part of the sentence.

[10] The government may, even without the consent of the person sentenced, commute any one of the following sentences for any other mentioned after it, death, transportation, rigorous imprisonment for a term not exceeding that to which he might have been sentenced, simple imprisonment for a like term, and fine.

[11] In case of death sentence, the powers granted in Sections 401, 402 maybe excercised by the President as well.

[12] Professor Dr. Iaj Uddi Ahmed pardoned the death penalty of Mr. Mohidduin Zinto, a worker of Sweden BNP, who was convicted to death in a murder case while others convicted for the same offence were executed. President Zillur Rahman also has pardoned at least twice on considerations which apparently seem to be purely partisan.

[13] The President's power to pardon is stated simply in the US Constitution: The President "shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment" (Art. II, Sec 2 Cl. I of the Constitution of United States of America)

[14] Pardon was granted by President Gerald Ford to former President Richard Nixon on September 8, 1974, for official misconduct which gave rise to the Watergate Scandal. The majority of Americans showed disapproval and he was narrowly defeated in the Presidential campaign, two years later.

[15]Those receiving pardons included President Clinton’s brother, the son of his education secretary, his former housing secretary, Susan McDougal of Whitewater fame, an old political friend from Georgia, and Marc Rich, whom the government had indicted for the largest tax scam in the nation's history. Marc Rich fled the US to escape a massive tax invasion to Switzerland in 1983. Many present and former high ranking officials in Israel, as well as leaders of the Jewish community in America and Europe, urged the pardon of Rich because of his charitable contribution and services to Israeli causes, the peace process in the Middle East through education and health programs in Gaza and the West Bank. It was suggested that Rich’s wife, Denis made political contributions which comprise more than $1 million to the Democratic Party; $450000 to the Clinton library etc.

Contempt of Court: In Search of a "Law"

Contempt of Court: in Search of a ‘Law’

M. Jashim Ali Chowdhury*

Published in: The Chittagong University Journal of Law Vol. XVII, 2012 (p.24- 51)

The full text of the article is available at: 

https://www.researchgate.net/publication/336813194_Contempt_of_Court_In_Search_of_a_'Law 

Abstract

The seriousness and frequency in the recent attention of the Supreme Court of Bangladesh on its Contempt Jurisdiction has drawn a substantial public gaze. Here, the overall instability in the body politic over contentious constitutional and political issues has not left the judiciary untouched. Faced with the problems of choosing between what is right and what is easy, the highest judiciary of Bangladesh had unavoidably and unintentionally to be engaged in a bit of political discourse and hence became subject to both bona fide criticisms and motivated attacks from the vested quarters. Therefore, on many a occasion the Supreme Court ventured the path of punishing its contempt and paved the way for a heated debate on this.

The problems that the age old Contempt Act 1926 poses today are primarily two-fold. Firstly, this Act leaving an undefined offence of contempt with a maximum but nominal punishment creates an unwelcome vacuum, uncertainty and inadequacy in contempt jurisprudence. Secondly, the reactionary approach of ‘enforcing’ obedience through contempt power taken by the colonial judges has had a subtle but permanent impression in the mind set-up of the present day courts and judges. While the rest her South Asian neighbors have introduced important changes in contempt laws, the Bangladeshi jurisprudence on the Contempt of Court unfortunately still lives in the era of 1926. Though a Bill on Contempt of Court was tabled in the Parliament in 2006 it was not ultimately passed. A 2008 Ordinance made by the Military backed Caretaker Government was rejected outright by the Supreme Court. Therefore, we need a ‘Law’ capable of handling the problems of the 21^st century with an approach suitable to the genius of the time.

In this paper I would present a short picture of the existing judge made, statutory and subordinate laws relating to contempt of courts in Bangladesh. The possible roadblocks that the High Court Division has put through The Contempt of Court Ordinance Case of 2008 on the way to the proposed rejuvenation are also addressed. Thereafter attention is paid to the emerging trends of contempt laws of Britain and also of our neighboring South Asian Countries. Thereafter I shall try to chalk out the guiding principles of the proposed Contempt Law for Bangladesh.

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*  Assistant Professor, Department of Law, University of Chittagong