Office of Profit: A “Common Sense” Understanding

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”.

The Efficacy of Parliamentary Question A Comparative Investigation into the House of Commons and the Jatiya Sangsad Practices

The Efficacy of Parliamentary Question A Comparative Investigation into the House of Commons and the Jatiya Sangsad Practices

Nirmal Kumar Saha 

Associate Professor, Department of Law, University of Chittagong, Bangladesh

M Jashim Ali Chowdhury

Assistant Professor, Department of Law, University of Chittagong, Bangladesh

Full Text PDF Available at: https://www.academia.edu/84432781/The_Efficacy_of_Parliamentary_Question_A_Comparative_Investigation_into_the_House_of_Commons_and_the_Jatiya_Sangsad 

Abstract

Westminster institution of Parliamentary Question Time (PQT) has a special significance in enforcing ministerial responsibility. While PQT focuses mainly on departments and ministries, the Prime Minister's Question Time (PMQT) in the UK Parliament and other Westminster traditions remained more of a theatrical episode than an affective accountability tool. Bangladesh's experience with PMQT also presents a theatrical monologue. PQT and PMQT 1aken together, accountability impact of these in Bangladesh are not uncontested. Purpose of this paper is to assess the accountability impact of the PQT and PMQT in Bangladesh Jatya Sangsad and compare it with the UK House of Commons with reference to the procedural rules governing the sessions, structural issues guiding the speaker's discretion in conducting sessions and the attitudinal issues regulating the individual legislators and ministers approach to the device. While the authors share the view that parliamentary questions in Bangladesh are "generally not successful in ensuring responsible behaviour", the current paper seeks to travel beyond this generalised claim and find the deeper reasons contributing to the failure.

Use of Parliamentary Debates in Statutory Interpretation: The unclear position of Bangladesh judiciary

Use of Parliamentary Debates in Statutory Interpretation: The unclear position of Bangladesh judiciary

M Jashim Ali Chowdhury

Published in SCLS Law Review, Vol 4 No 3 (September 2021) pp 1-7

Link: https://www.academia.edu/75916332/Use_of_Parliamentary_Debates_in_Statutory_Interpretation_The_unclear_position_of_Bangladesh_judiciary

Abstract

The use of parliamentary debate in the judicial interpretation of statutes is discouraged (The Exclusionary Rule). It is done for a purpose. The judicial consideration of parliament’s internal proceedings might invite unnecessary tension between the two constitutional organs. Moreover, the parliament’s intention behind a law might not be discoverable from one or more of its members’ speeches. Considering the speech of the Ministers or sponsors of a Bill might also be dangerous. In such cases, the court might risk prioritizing the government’s intention over that of the legislature.

However, a famous British case called Pepper v Hart argued the opposite. It held that ministerial or sponsor statements in parliament may be considered in certain circumstances to understand the intent of the legislature. The case is being endorsed in other commonwealth jurisdictions like Australia, Canada and India. This short piece considers the position of the Bangladesh Supreme Court and finds that there is a serious judicial (un)mindfulness about the rationales behind the Exclusionary Rule.

Working and Impact of Parliamentary Committees in the UK and Bangladesh: A Theoretical Analysis

Working and Impact of Parliamentary Committees in the UK and Bangladesh: A Theoretical Analysis

M Jashim Ali Chowdhury

Published in Dhaka University Law Journal 32(2) (2021) pp 175-198

Available Online: http://dx.doi.org/10.3329/dulj.v32i2.57964

Abstract

There are four leading committee theories  that explain how the parliamentary committees are organised across the congressional and parliamentary systems, why they behave in particular ways and how the political parties influence their formation and work. These theories are known as the “distributive or gains from trade theory”; “information, scrutiny and expertise supply”; “coalition”; and “partisan cartel” theories. Exponents of the distributive or gains from trade theory argue that parliament members take their committee assignments seriously because it provides them with a scope to distribute development and other material benefits to their constituents and thereby enhances their chance for re-election. They can also use their committee positions as leverage to gain from trade or bargain with fellow parliament members working in other committees.  The information, expertise and scrutiny theory explains the institutional reasons issues for the Parliament that support a strong committee system. Proponents of this theory argue that a strong committee system helps the Parliament by supplying information and expertise about public policies and ensuring detailed scrutiny of the governmental proposals.  The coalition theorists considers the impact of collation governments on the committee system.  The Partisan cartel theory deals with the partisan influence in the  the committee formation process.  

This paper aims to test each of the four committee theories on the U.K. House of Commons and Bangladesh’s “Westminster Parliament” . It argues that while the U.K. parliamentary committees have been able to overcome most of the partisan barriers and amass great institutional strength to make sense of the system in terms of all of the four theoretical strains, the operation and impact of the Bangladeshi committee system has remained hostage to a pervasive “partisan cartelisation”. The next part (Part 2) of the paper would will explain each of the four committee theories in greater detail. Part 3 would will briefly introduce the committee system of Bangladesh Jatya Sangsad. Parts 4-7 of the paper would attempt a comparative evaluation of the U.K. and Bangladesh’s parliamentary committee system vis-a-vis each of the four committee theories. Part 8 would conclude the paper.

Un-relating the Parliament and the Judiciary: Judges’ Appointment and Removal Cases in India, Pakistan, and Bangladesh

 

Un-relating the Parliament and the Judiciary: Judges’ Appointment and Removal Cases in India, Pakistan, and Bangladesh

Published in JULS Law Review Vol 1 (2020) pp 1-10

Full text available at:

https://www.academia.edu/73586549/Un_relating_the_Parliament_and_the_Judiciary_Judges_Appointment_and_Removal_Cases_in_India_Pakistan_and_Bangladesh 

Abstract

Parliament’s participation in the judicial accountability process needs re-appraisal in the Indian subcontinent. Parliaments’ institutional interaction with the judiciary is very far and few here, and there seems to be no serious conversation on why these two institutions would not relate to each other more robustly. Despite some very strong theoretical and institutional arguments for encouraging a legislature-judiciary partnership in their mutual accountability process, the courts in India, Pakistan and Bangladesh have shown a general distrust of the legislative branch. This short article argues that this trend of parliament and judiciary’s un-relating each other stems from the judiciary’s institutional chauvinism reflected in its hypersensitivity to the doctrine of judicial accountability and preference for what may be called judicial protectionism.

Jurisdictional and Procedural Dilemmas of the Family Courts in Bangladesh

 Jurisdictional and Procedural Dilemmas of the Family Courts in Bangladesh

M Jashim Ali Chowdhury*

Asma Bint Shafiq**

 Published in the Jahangirnagar University Journal of Law, Volume IX: 2021, Issue I, pp 51-71;

Full Text Available at: 

https://www.researchgate.net/publication/358685895_Jurisdictional_and_Procedural_Dilemmas_of_the_Family_Courts_in_Bangladesh_Jahangirnagar_University_Journal_of_Law_Vol_IX_2021_Issue_1_pp_51-71

                                                                      Abstract

The Family Courts Ordinance (FCO) 1985 was touted as a very significant development in the personal law enforcement regime. It sought to establish a civil court of exclusive jurisdiction to dispose of family suits. The court was supposed not to follow the rules of regular civil process codified in the Code of Civil Procedure (CPC) 1908. Instead, the Ordinance tried to provide a framework of rules that would avoid the protracted CPC process and ensure speedy disposal of the family suits. Additionally, a two-stage system of mediation was introduced in a hope that the avenues of alternative dispute resolution would help reduce the caseload of the courts and ease the sufferings of the litigants. The FCO also attempted to make the court’s decree execution process less cumbersome and more litigant friendly. This paper suggests that the system has failed in almost every aspect of its so-called speciality - exclusivity of its jurisdiction, avoidance of the CPC, the two-stage mediation and efficient and timely execution of decrees. After explaining how this is the case, the paper concludes with some recommendations touching upon key weaknesses of the system.

---

* PhD Candidate, King’s College London, London, UK. Email: m.chowdhury@kcl.ac.uk.

** Associate Professor, Department of Law, University of Chittagong, Email: asmabs04@yahoo.com

 

How Bangladesh can approach constitutional equality

 

How Bangladesh can approach constitutional equality

M Jashim Ali Chowdhury

WhiteBoard, Issue 6 (December 2021)

Link: https://whiteboardmagazine.com/2691/how-bangladesh-can-approach-constitutional-equality/

In 1972, Bangladesh enacted its constitution. The country was newly liberated and war-ravaged from the previous year. Its constitution was designed with socio-political and legal equality in mind. The constitution acknowledged peoples’ right to equality: an equality based on religion, race, ethnicity, gender and place of origin. It also outlined equal access to public services. At the same time, laws or policies that violate equal rights provisions were made unconstitutional. Such provisions can be struck down through judicial intervention.

The constitution-framers were cognizant of providing historically disadvantaged groups with a level playing field. Initially, women, religious minorities, ethnic minorities and the rural population were the most deserving candidates for preferential treatment. Accordingly, Article 28(4) of the constitution was the first in the book mandating the state to enact ‘special provisions in favour of women or children or for the advancement of any backward section of citizens.’

Thereafter, article 29(3) permitted preferential treatment for ‘any backward section of citizens to secure their adequate representation.’ It is important to know that the phrase ‘backward section of citizens’ is not defined in the text. Bangladesh’s constitution, however, mandated affirmative action for those groups of citizens who might have been subject to historic and prolonged disadvantage, disempowerment and exclusion. This action was mend to address the deeply rooted social marginalisation facing a post-colonial nation.

2021 marks the 50th year of Bangladesh’s constitution. How has the country fared in safeguarding its marginalised groups? This writeup argues that Bangladesh’s implementation of two crucial constitutional provisions, articles 28(4) and 29(3), has amounted to a positive-discrimination approach. Bangladesh’s Supreme Court, however, calls this affirmative action a ‘reasonable classification.’ To understand how a post-colonial country like Bangladesh dealt with its most vulnerable, the differences between ‘positive discrimination’ and ‘reasonable classification’ needs to be properly discussed.

The ‘positive discrimination’

In Bangladesh’s case, the constitutional preference for marginal groups is popularly, perhaps mistakenly, called the ‘positive discrimination’ system. Discrimination being the antithesis to premises of equality and non-discrimination contained in the country’s founding constitutional provisions. Here the term ‘positive discrimination’ might not reflect the philosophy behind of the two rights-provisioning articles, 28(4) and 29(3).

Positive discrimination conveys a message where a discriminatory treatment is given to a group to balance against their antagonistic counterparts. There are some issues with this articulation though. On the one hand, it might imbue policymakers with a simplistic understanding of why addressing the concerns is marginalised is important. On the other hand, it may invite makeshift policies that serve populist and political advantages rather than objectively addressing the setbacks facing marginalised communities. More importantly, it trivialises the proportionality of action. Let us take two examples.

Until recently, Bangladesh’s quota system in public service used to be criticised as a subjective tool. In other words, it lacked a thorough evaluation of the necessity and the proportionality of the policy. The policy ensured the reservation of some 55% jobs in the civil service for certain groups for an indefinite period. However, the policy didn’t have a review mechanism. In other words, thus there could be no periodic evaluation of its necessity or impact.

Similar arguments are being made about women’s representation in Bangladesh’s Parliament. There is no denying that historically women were excluded from the country’s political process and, of course, there is a legitimate need for a preference system. However, the methods chosen should be subject to proper scrutiny.

Bangladesh has a gender-based reservation for women in the legislature. The reserved candidates are not directly elected by voters; rather they are appointed by political parties. However, they cannot legislate laws. The impact and the democratic value that the reserved seat members add to the parliamentary process is therefore up for debate. In 1972, the non-amended constitution introduced reserved seats for women members through indirect election for ten years. The system has since continued, albeit with periodic renewals.[1] In reality though, these renewals have essentially been an extension of the same policy.

Consecutive extensions of the reserved seats, however, has not gone uncriticised. On two occasions, the issue went before the Supreme Court. In two cases, first in Dr Ahmed Hussein v. Bangladesh[2] and later in Farida Akter v. Bangladesh,[3] it was argued that indirectly elected seats were undemocratic. In both cases, the Court rejected this argument and held that indirect election was justifiable under article 28(4) of the constitution. In other words, indirect election was a preferential action.

The Supreme Court’s verdicts, however, could not silence the critiques. In another case, a bench of the High Court Division of Bangladesh’s Supreme Court questioned the indefinite continuation of the policy.[4] This case dealt with women’s reserved seats in city corporations. In the verdict, the court expressed its doubts on the constitutionality of the parliamentary reservation. It recognised the need for a system of direct election to generate women’s reserved seats.

If the civil service quota and the gender-reserved seats in the parliament are any indication, Bangladesh’s successive governments haven’t got to grips with the constitutional provisions on affirmative action. Meanwhile a ‘reasonable classification’ approach to affirmative action might present policymakers with a better tool for affirmative action. As one prominent Bangladeshi judge put it, a preferential classification ‘must be founded on an intelligible differentia which distinguishes persons who are grouped together from others left out of the group.’[5]

Difference will be intelligible only when policymakers show ‘a rational relation of the action they take to the object they seek to achieve.’ A preference system, in that sense, should never be arbitrary, artificial or too subjective to carry it towards ‘a point where instead of being a useful servant, it becomes a dangerous master.’

The ‘reasonable classification’

For Bangladesh, a ‘reasonable classification’ approach over a ‘positive discrimination approach’ would be commensurate with the commonly acclaimed affirmative action jurisprudence of the United States. The USA has a continuing struggle with racial justice and a fundamental tension with constitutional equality. The country has over a hundred years of history of liberal attempts to uplift its black communities. The equalising attempts, through laws and policies, have all faced resistance from the privileged white groups.

Despite some minor contradictions, the US Supreme Court adopted a clear principle. The principle is: any policy with race and gender as a basis for action would survive the constitutionality challenge only if it not a numerical quota system. It also has to be limited in scope and backed up by evidence of past discrimination. The US Supreme Court also has a rigid threshold known as the ‘strict scrutiny test.’ Here the court questions whether an affirmative action law reflects a ‘compelling governmental interest’ that could make the action worth pursuing.[6]

Facing a constitutional controversy, former president Bill Clinton famously announced his four ‘Clinton Principles.’ It required that any existing affirmative action programme in the country would be discontinued or reformed if they inculcated the following four principles:

1. Subjective quotas’

2. Preference for unqualified claimants of benefit;

3. Reverse discrimination towards other equally qualified claimants; or

4. Unnecessary continuation even after fulfilling the original purpose.

Clinton’s first principle distinguished the more whimsically allocated ‘quotas’ from objectively settled affirmative action ‘goals.’ The quotas were essentially fixed and rigid, whereas the affirmation action goals were more flexible.

The second principle halted preferences for anyone ‘unqualified.’ This principle is particularly relevant for Bangladesh. For example, in Bangladesh thousands of quota vacancies in its public service remain unfilled due to the lack of qualified candidates.

Clinton’s fourth principle, i.e. ending affirmative action as soon as the purpose is achieved, requires a continuous evaluation of the progress and the process. Using this principle as a yardstick, Bangladesh’s strict quota reservation for women parliamentarians fails to serve any significant input to the women political empowerment goals. Critics have argued that far from addressing the male numerical majority, Bangladesh’s reservation policy has not enriched the parliamentary process.

Bangladesh’s current mindset of positive discrimination might not fulfill the basic tenets of its constitutional equality philosophy.

Bangladesh’s current mindset of positive discrimination might not fulfill the basic tenets of its constitutional equality philosophy. Bangladesh’s commitment to equality for the groups that require it most is well-documented. However, the preference system in Bangladesh – that is to say the quota policy – is unhelpfully rigid. It is imprudently non-institutional and does not have a system of objective evaluation of what is in the interests of necessity. After a 50-year journey, Bangladesh is ready for some constitutional retrospection.

[1] Renewals were in 1978, 1990, 2004, 2011 and lastly, 2018

[2] 44 DLR (AD) 109

[3] 11 MLR (2006) (AD) 237

[4] In Shamima Sultana Seema v. Bangladesh, 57 DLR (2005) 201

[5] Justice ATM Afzal put it in Sheikh Abdus Sabur v. Returning. Officer 41 DLR (AD) (1989) 30

[6] Wygant v. Jackson Board of Education 76 U.S. 267 (1986) and City of Richmond v. J.A. Croson Co 488 U.S. 469 (1989)

Photo ©️ Mahmud Hossain Opu 

Jashim Ali Chowdhury

Jashim Ali Chowdhury is Assistant Professor of law at the University of Chittagong, Bangladesh. He is a lawyer and a legal researcher. He was a Fulbright Scholar at the Institute of International Education, USA. He pursued his graduate studies in comparative law at Tulane University, USA.