Above the law?
Appointment of a former chief justice as chairman of the Law Commission is against the spirit of the constitution, Cynthia Farid argues
THIS comment relates to the recent appointment of former chief justice ABM Khairul Haque as chairman of the law commission. In this write-up, I argue that the appointment is against the spirit of Article 99 of the constitution of Bangladesh and may even be considered unconstitutional.
Retired judges are subject to certain constitutional limitations when considering post-retirement positions. These limitations are imposed by the constitution in order to preserve the impartiality and independence of the judiciary. Article 99 of the constitution provides that ‘except as provided in clause (2), a person who has held office as a Judge otherwise than as an Additional Judge shall not, after his retirement or removal therefrom, plead or act before any court or authority or hold any office of profit in the service of the Republic not being a judicial or quasi-judicial office.’ This implies two things. First, retired judges cannot hold any office of profit in the service of the republic; and second they are only allowed to do so if the post or the office of profit in the service of the republic is a judicial or quasi-judicial one.
It is important to note that Article 99 initially prohibited retired judges to hold any office of profit in the service of the republic — judicial, quasi-judicial or otherwise. This provision was first amended to include ‘judicial or quasi-judicial office’ in 1976 and 1977 through martial law proclamations and later reaffirmed and validated through the Fifth Amendment to the constitution. Since then the Supreme Court has held the Fifth Amendment to be unconstitutional on the basis that the judgement says all these subsequent additions to constitution by martial law regime were unconstitutional because martial law itself was unconstitutional.
However, certain amendments to the constitution by the martial law regime were not renounced in the Fifth Amendment judgement, including this opportunity for post-retirement employment. The original Article 99 was not revived and deviation from the original constitution prior to the martial law regime was, therefore, condoned by the Fifth Amendment judgement. This treatment of the courts may create a perception, which leaves it open for many to argue that this particular amendment to the constitution by the martial law regime increasing the ambit of post-retirement employment of judges had found favour with the Supreme Court justices in interpreting the amendments.
Article 99 of the constitution is of paramount importance and goes to the heart of the principles of constitutionalism and the need to maintain separation of powers between the three branches of the state. The judiciary ought to remain independent, impartial and free from all sorts of undue influence from any of the other branches. Courts are the staunchest guardians of the constitution and must provide the necessary checks and balances against encroachment by the other organs of the state. The rationale behind restricting post-retirement service for the judges is to avoid making such an appointment a cause for allurement while in office. Therefore, post-retirement conduct of judges should be regulated to safeguard their independence and impartiality and to ensure that they have not been influenced by any extraneous factor of post-retirement jobs during their tenure. If no such bars existed, judges may be made subject to undue influence from the executive while carrying out their functions in office by making lucrative offers of appointment post-retirement. This is a major contentious issue in neighbouring India where other than appearing in courts, judges can engage in almost any office of profit often leading them to retire early.
Article 99 has been interpreted by the courts in the following manner:
Definition of service of the republic: The meaning of ‘service of the Republic’ has been considered in a number of cases, including –
Ministry of Finance v Masder Hossain 2001 BLD (AD) 126 where the Appellate Division acknowledged that the judicial service was within the ambit of ‘service of the Republic’.
Aminul Haque Helal v Justice Sultan Hossain Khan (2007) 15 BLT 1 where the courts laid out a test for being in the ‘service of the Republic’ which included among other things a broad interpretation of ‘service of the Republic’; whether the government has sole power to appoint and dismiss; whether the post is paid out of the government exchequer, etc.
Abdul Bari Sarkar v Secretary v Bangladesh (1994) 46 DLR (AD) 37, 38, which interpreted the purpose behind the bar in Article 99 as a means to ensure that judges are not tempted to be influenced in their decisions in favour of the authorities, while keeping an eye out for future appointments.
Abdul Mannan Khan v Bangladesh, Civil Appeal No 139 of 2005 where the court distinguished the meaning of ‘service of the Republic’ between various constitutional posts, and laid out the test for assessing whether the judiciary’s independence has been curtailed by stating that the critical question was whether the judge is free to perform his adjudicative role without interference from the Executive or the legislative branch.
Ruhul Quddus v Justice MA Aziz (2008) 60 DLR 511 where the court observed among other things that permitting the retired judges to have appointment to some other constitutional posts (mentioned in article 147 (4)) conflicts with the basic feature of the independence of the Supreme Court.
Law Dev (Taslimuddin) v Bangladesh, Writ Petition No 7119 OF 2009 (Unreported), the court held that the constitution uses ‘service of the Republic’ both in the sense of executive government and in a generic sense holding or acting in an office of emolument in the service of the republic. Hence, on that ground, the members of the judicial service cannot be excluded from the ambit of ‘the service of the Republic’.
The above cases establish that the definition of ‘service of the Republic’ uses the word ‘government’ in a generic sense. Therefore, members of the judicial service are within the ambit of the ‘service of the Republic’. Holding an office as the Law Commission chairman is tantamount to performing functions which are ‘in respect of the Government of Bangladesh’. The post is appointed by the government; it is also an office of profit whose remuneration is secured through the government exchequer. Therefore, for all relevant purposes, it is an office of profit in the service of the republic, implying that a retired judge cannot assume such an office unless it is a judicial or a quasi-judicial function.
Meaning of judicial or quasi-judicial service: Unfortunately, the courts have not interpreted whether the Law Commission functions are of a judicial or quasi-judicial nature. However, Oxford dictionary suggests that the meaning of judicial is: relating to a Law Court or Judge/ of, by, or appropriate to a law court or judge; relating to the administration of justice. Merriam Webster suggests judicial to mean: as of or relating to a judgment, the function of judging, the administration of justice, or the judiciary ; belonging to the branch of government that is charged with trying all cases that involve the government and with the administration of justice within its jurisdiction; ordered or enforced by a court; of, characterized by, or expressing judgment.
Common sense would suggest that while the functions of a Law Commission are legal functions of the government covering law reforms, it is certainly not of a ‘judicial’ nature, it does not adjudicate on matters, settle disputes and has no relation to judicial administration. The Law Commission Act 1996 enumerates the various functions of the Law Commission under section 6 which includes among other things addressing delays in the disposal of civil and criminal cases at various tiers of courts through research and recommendation — a review of those functions as listed one fails to understand which functions qualify as judicial or quasi-judicial.
In the past, a number of retired chief justices and at least one judge of the High Court Division had been appointed chairman of the Law Commission but those appointments were well before the judgements in the Thirteenth Amendment, MA Aziz and Law Dev Cases which had certainly changed the interpretation of Article 99 of the constitution.
The principles of constitutionalism are designed to protect ‘the people’ from tyrannical governments. However well-intentioned a government or its servants maybe, one unconstitutional act sets a precedent for generations. In 1958, the first Law Commission of India headed by jurist MC Setalvad, in its 14th report on ‘Reforms of the Judicial Administration’, observed, ‘It is clearly undesirable that Supreme Court judges should look forward to other Government employment after their retirement. The Government is a party in a large number of cases in the highest court and the average citizen may well get the impression that a judge who might look forward to being employed by the Government after his retirement would not be impartial.’ There is good sense and wisdom in such an observation, one which the framers of the constitution of Bangladesh had certainly intended. Even retired chief justice ABM Khairul Haque himself has made similar observations and the need for addressing post-retirement allurement in many of the judgements quoted above. Therefore, in observance of constitutional principles and Article 99 of the constitution, the current appointment of the Law Commission chairman should be urgently reviewed for compliance with the constitution.
Cynthia Farid is a barrister-at-law.
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THIS comment relates to the recent appointment of former chief justice ABM Khairul Haque as chairman of the law commission. In this write-up, I argue that the appointment is against the spirit of Article 99 of the constitution of... Full story