Office of Profit: A “Common
Sense” Understanding
Dr M Jashim Ali Chowdhury, Lecturer in Law, University of Hull, UK
(A slightly abridged post was published in the Daily Star, Law and Our Rights (Bangladesh) on 03 March 2023. Link: https://www.thedailystar.net/law-our-rights/news/office-profit-common-sense-understanding-3261946)
In a generic
sense, all the posts, positions, and offices of the republic, including the presidency,
are “offices of profit”. This argument is based on a very foundational rule of
constitutional interpretation found in article 152(1). Article 152(1) requires
us to take the meaning of a constitutional phrase or word in its generic sense
“except where the subject or context requires” thinking “otherwise.” In this
write-up, I propose to consider two such “subjects or contexts” – the
differentiating philosophies surrounding the representative and integrity
branches of the state. I endorse what Justice ABM Khairul Hoque called a
purposive and “common sense” interpretation of the constitution (Advocate Ruhul Quddus v Justice M. A. Aziz 60 DLR (2008) HCD 511).
The Representative Branch
Article
66(2)(f) bars the holders of the office of profits in the service of the
republic from seeking membership in parliament. As per the opening clause of
article 66(2), if an MP candidate is found to hold any office of profit, they
are disqualified. If a sitting MP takes any office of profit, they become
disqualified to continue as an MP. Article 66(3) makes an exception to this. It
declares the offices of the President, Prime Minister, Speaker, Deputy Speaker,
Minister, Minister of State and Deputy Minister as
offices not of profit for “the purpose of this article”. It must mean
that the presidency, and other listed offices, are offices of profit for all
other purposes. This should be the most commons sense way to understand it. The
High Court Division judgment in Justice M. A. Aziz's case confirms this
understanding (para 262). Around 12 years earlier, Barrister Asrarul Hoque also
pressed this view in Abu Bakar Siddik v Justice Shahabuddin Ahmed (17 BLD
(1997) 31, para 38).
Now, why did
the constitution framers make some offices, like the Prime Minister, Speaker, Deputy
Speaker, Minister, Minister of State or Deputy Minister, not of profit for the
MP candidates or sitting MPs? It is apparent from the list itself. All these
posts are meant for the political government of the country, for which the
politicians and elected representatives should generally be considered a natural
fit. The constitution's declared intention is that the MPs are elected to these
posts (except the maximum of one-tenth technocrat ministers under article 56(2)
who, of course, may be elected the MPs in by-elections). It is also natural
that people who held those offices previously could return to the parliament
later, as the opposition MPs, for example. Hence, the exclusionary clause in
article 66(3) is context-specific and politically sensible.
Interestingly, the office of the President
was not on the list until 2011. The 2011 inclusion is a misfit in the list. Unlike
the Prime Minister, the nine-tenth of the ministers, the Speaker, and the
Deputy Speaker, a presidential candidate need not necessarily be a sitting MP,
nor are the former Presidents usually expected to seek the MP election later.
Whatever the intention of the 2011 government, the position remains the same - article
66(3) is an exception only to be applied to the elected representatives and
political office bearers.
The Integrity Branch
The discussion
above brings us to the integrity branches. These offices are institutions
responsible for working as the fourth branch of the state. Comprised of
unelected, tenured, job secured and functionally independent office bearers,
these organisations run a powerful machinery of politically neutral and legal
accountability against the political branch. It is, therefore, pertinent they
are insulated from political manipulation and post-retirement aspirations.
Hence, the 1972 version of article 99 said that retried judges are not eligible
for “any other post or office” after retirement. Let us keep in mind that the
service conditions of the election commissioners (Article 118(5)), public
service commissioners (Article 139(2)), auditor general (Article 129(2)), ombudsman
(section 4(2) and 5, the Ombudsman Act 1980), anti-corruption commissioner
(section 10(3), ACC Act 2004) human rights commissioner (section 8(1), NHRC Act
2009), and information commissioner (section 16(1), RTI Act 2009) are
considered at the Supreme Court judges’ level. Things unbecoming of a judge of
the Supreme Court must be a thing unbecoming of these people too.
On the former judges’
appointment to the presidency, we have Justice Shahabuddin Ahmed’s case. In that case, the court
validated Justice Shahabuddin Ahmed’s nomination and election to the presidency
in 1996. Justice Shahabuddin was a highly respected person and the decision was
quite popular. So, prominent lawyers like Dr Kamal Hossain, Barrister M Amirul
Islam, Barrister Rafiqul Hoque and the then Attorney General Barrister K S Nabi
supported the nomination. They relied on some technical, I would say literal, differences
between the presidency and other offices in the services of the republic. Those
arguments had similar resonances to some of those we hear today - such as, the
President does not take remuneration (it's an honorarium rather), President is
a constitutional post (not to be controlled by statute law like ACC Act),
President is an elected (not appointed) post, President is the head of the
state (not a servant of the republic), President is not removable in a process
like others, etc.
When pitched against
the constitutional philosophies behind the integrity institutions, these
arguments are destined to fail. The jurists who pressed those literalist
arguments in Shahabuddin Ahmed case shunned
them in Masder Hossain case (52 DLR
2000 (AD) 82). They argued, and the Appellate Division agreed, that these types
of technical distinctions could not stand. Advocate Mahmudul Islam and Barrister
M Amirul Islam were categorical in claiming that all posts - ‘parliament,
executive and judiciary’ - are the posts
in the service of the republic (para 10 and 28).
A Common Sense Approach
Justice M A Aziz's case took the matter a step further. In this case, the court overruled
another precedent named Shamsul Hoque Chowdhury v Justice Abdur Rouf (49 DLR (1997) 176). In Abdur Rouf, the court held that constitutional posts are not offices
of profit. In the M A Aziz, Justice
ABM Khairul Hoque denounced it and called for a “Common Sense Approach” to
constitutional interpretation. Devoid of common sense, mere jugglery of
constitutional texts would be fruitless, Justice Hoque argued (para 219). His common
sense told us that the office of profit should mean any post or office of the republic
which has anything to do “in respect of (not, in) the government” (para 256).
To conclude, the constitutional foundation
of the integrity branch is based on objectivity, neutrality and insulation from
political co-optation. While one cannot question a political government's right
to choose its presidential candidate, a candidate so chosen must be open to constitutional
scrutiny. A more interested reader may like to consult the following article
available in any standard google search – “Judiciary and the Dilemma of 'Office of profit': A Pandora's Box”.
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