Farhad Uddin Ahmed Bhuiyan
The Law officers of Bangladesh have a significant role to help and make sure justice delivery system in Bangladesh by way of their untiring efforts and making out the prosecution cases on behalf of the State. In most of the cases, law officers have to carry out thorough legal research to make out the prosecution case and ensure justice and equity. After a tiresome and continuous speculation, citation of cases, making sure the other factors concerned with evidence and proof; the law officers have to bag the fruits of the cases in fact.
As I realized that the establishment of an independent Prosecution /Attorney Services Commission can only ensure the utmost and opted selection process of the law officers of Bangladesh , I filed a writ petition in the Hon’ble High Court division of the Supreme court of Bangladesh and accordingly I moved this petition on 17.11.2019 before the division bench of high court comprising of Mr. Justice Moyeenul Islam Chowdhury and Mr. justice Khondaker Diliruzzaman and after hearing the Hon’ble Court issued Rule NiSi to show cause as to why the respondents should not be directed to establish an Independent Prosecution / Attorney Services Commission to regulate and control all affairs of the law officers of Bangladesh including appointments, promotion, training etc. The Rule is still pending for hearing.
Since it requires a lot of responsibility, honesty, courage,quality, morality, dedication to profession , integrity etc. to deal with and carry out the position as law officer of the country, no compromise should be done in the selection process of the Law officers of Bangladesh.
At the very outset, I must bring to light that appointment of the Law officers, more particularly, Attorney General, Additional Attorney General, Deputy Attorney Generals, Assistant Attorney Generals etc. has been given decade after decade only on consideration of political belief and background; kicking out the existing law and constitutional bindings only to avail and implement the political interest by every past and present government; resulting hatred and unsatisfactory services by the politically appointed incompetent and in eligible law officers. Appointment of Law officers on political consideration has been destroying the appropriate framework of the state prosecution services.
My point is that the appointment of law officers of Bangladesh must be through competitive examination(s) by establishing an independent Prosecution Services Commission for ensuring the best and impartial prosecution services.
The existing system of appointment of the law officers in Bangladesh has, in fact, been markedly paddled because of the naked political interference and consideration which actually vitiates the spirit of article 22 of the Constitution of the People’s Republic of Bangladesh. If the tradition of politically motivated appointment of law officers of Bangladesh runs, then in no time the state prosecution will have to encounter a serious and detrimental consequences and scarcity of competent law officers.
It is relevant to point out that due to the appointment of comparatively incompetent and ineligible law officers, the state has not been able to ensure & gear up the proper prosecution services from such politically appointed law officers to win & establish the prosecution cases .
Sorrowful matter is that by not considering those learned advocates who have dedication, absolute legal knowledge, skills on legal research and verbal submission, appreciable capacity of statute interpretation and legal literature drafting having high standing morality and honesty rather the respondents have been giving the said appointment from those who have the political identity; ignoring the concept whether they are competent to be appointed for the post or not raising a question of serious uncertainly of the fate of the state prosecution services and as such your Lordships may kindly realize the future consequence of such politically motivated appointment tradition .
Through the Masdar Hossain case, the judiciary got its independence and thus to remain unchanged the independent functions of the judiciary a strong team of law officers, having high standing morality, professional ethics, morality and honesty aiming to acquire outstanding knowledge on legal issues for rendering services to the state prosecution is crying need in Bangladesh and there is no alternative to establish an Independent Prosecution Services Commission to regulate all affairs of the law officers’ appointment, removal, promotion etc and as such to carry into effect of the actual spirit of article 22 of the Constitution of Bangladesh.
By the way, the existing Law “The Law officers order, 1972 amended as the Bangladesh Officers (Amendment) Act, 2001 is not good enough rather it is being used by the politically motivated persons and authority with malafide, malice and ulterior motive which is completely contradictory with the spirit of Article 19(1), 22, 27, 28, 29 & 31 of the Constitution of the People’s Republic of Bangladesh. We know in article 29(1) there is clear provision that “there shall be equality of opportunity for all citizens in respect of employment or office in the service of the Republic”. Since the law officers hold the public office and thus the way they get appointment does not meet the equality of opportunity of all the Learned Lawyers having the similar or more than this qualifications or prescribed in the Law officers order 1972 amended as the Bangladesh Law Officers (amendment) Act, 2001 on the law Officers as the Law Officers are appointed only on political consideration; even the thousands of competent lawyers aspiring to be law officers can not get the opportunity to prove their competence by any reasonable way or competitive assessments process which completely vitiates and tweaks the actual spirit of Article 29(1) where for all citizens equality opportunity in employment or office in the service of the Republic has been guaranteed and as such the existing law is contradictory with the spirit of Article 29(1) of the constitution.
Moreover, there is clear provision in Article 19(1) of the Constitution of the People’s Republic of Bangladesh that-“The State shall endeavor to ensure equality of opportunity to all citizens” but the authority willfully depriving the Constitutional Rights of all the Learned Advocates having quality and qualifications to be appointed as Law officers of Bangladesh; since having the qualification as required in the Law for being appointed as Law officers of Bangladesh thousands of highly competent Learned Advocates are not being treated with spirit of the Article 19(1) “Equality of opportunity” giving them no space to prove their competency in any form of assessment. In Article 29(2) of the Constitution of the Republic of Bangladesh it has been clearly stated that-“No citizen shall, on grounds only of religion, race, caste, sex or place of birth, be ineligible for, or discriminated against in respect of, any employment, or office in the service of the Republic”.
But it is matter of great regret that the appointing authorities are not caring for and taking into account the spirit of Article 29(2) of the Constitution of the People’s Republic of Bangladesh rather they have been appointing Law officers showing thumb to the Constitutional provisions and spirit as well; the literary meaning of the word race is community, group of people, class of people etc. which illustrates and hit the right of the Lawyers who are not actually follower of any political party/community and those belong to political community are being discriminately appointed and given privilege of political tag and as such the spirit of Article 29(2) of the Constitutional of the People’s Republic of Bangladesh simply does not mean “race’ alone rather “race’ includes political activists/community/supporters .If an Independent Prosecution services commission is established to regulate all affairs of the law officers of Bangladesh, then the following outcomes will come to light in the legal fraternity to have the actual taste of independence of judiciary and the rule of law.
Firstly, Law officers will be appointed on the parameters of their professional skills, expertise, knowledge, honesty competence on legal field with utmost respect and dedication to the assigned task(s) or case (s) to make out the state prosecution cases having no fear or pressure from the ruling government.
Secondly, Learned Advocate(s) will take a u-turn to professional study and research to prove the professional competence to face the competitive selection and/or appointment process of law officers of Bangladesh and the learned advocate (s) will not run after the shadow of political leaders to get illegal benefits.
Thirdly, learned Advocate (s) having all required outstanding professional skills and qualifications with high standing honesty and morality will be able to prove their competence to be appointed as law officer(s) of Bangladesh by which the state prosecution services will have the exact outcome of independent judiciary.
Fourthly, political influence on state prosecution services and/or law officers will die out and the law officers will be able to dedicate their passion and utilize their honesty the way they want to bring to light the end products of justice and rule of law.
After that, since competent law officers will be appointed by the independent prosecution services commission, they will not surrender their self esteem and dignity to the political pressure or influence for illegal gain or interest. Thereby, sustainable, praiseworthy and honest prosecution services to ensure rule of law and justice for all the citizens will be possible.
Thus, the spirit of the article 22 of the constitution of Bangladesh will be about to implement.
More so, huge expenses of govt. treasure in order to maintain the politically appointed law officers will be saved and on the other hand, through the appointment process by an independent prosecution services commission, the expenses of government in this purpose will be justified and appropriate. Likewise, non-political lawyers will not be deprived from the constitutional right “equal opportunity” as guaranteed by the article 19 of the constitution of Bangladesh.
In like manner, political parties will not have opportunity to utilize the learned advocates as their tool. Regular practicing learned advocates will not be deprived, if independent prosecution services commission is established.
Apart from this, appointment of law officers having malafide and malice intention will be zero down when an independent prosecution services commission will be established.
Following this, back-logs of cases will be reduced and number of the cases of disposal will increase if and when an independent prosecution services commission will be established.
It is a matter of wonder that the most deserving and competent learned regular practicing lawyers have been kept leg-behind by the respondents from the equal treatment to get the constitutional right “equal opportunity” as guaranteed under article 19 of the constitution of Bangladesh and as such your lordships may kindly pass an order of direction to establish an independent prosecution services commission. In Government of Bangladesh Versus B.M. Mohibur Rahman and others reported in 29 BLD (AD) at page-15 the Hon’ble Appellate Division held that-
“17. Equal protection of law is a guarantee that similar people should be dealt with in a similar way and that people of different circumstances will not be treated as if they were the same. A single law therefore can not be applied uniformly to all persons disregarding the basic differences among them and if these differences are identified, then the persons may be classified into different groups or categories according to those distinctions. Therefore, a classification is reasonable if it is made to give special treatment to a backward and handicap section of the people. It is also permissible to dole out distributive justice by taxing the privilege class and subsidizing the poor section of the people. A classification based on district characteristics can not be assailed as arbitrary, secondly a classification to be reasonable it must have direct nexus to the object which the classification seeks to achieve.”
So needless to say that , the appointment of law officers from the political activist by political consideration is clearly classification from those Learned Advocates, having the same status & qualifications, do not have any political tag and the spirit of Article 27 & 31 of the Constitution of Bangladesh is being violated by the appointing authority. In state of Kerala Versus N.M. Thomas reported in 25CC 1976 at page 310, the Supreme Court of India held that-” 24. Discrimination is the essence of classification. Equality is violated if it rests on unreasonable basis. The concept of quality her an inherent limitation arising from the very nature of the constitutional guarantee. Those who are similarly circumstanced are entitled to an equal treatment. Equality is amongst equals, classifications, therefore, to be founded on substantial differences which distinguish persons grouped together from those left out of the groups and such different attributes must bear a just and national relation to the object sought to be achieved”.
In K.R. Lakshman Versus Karnataka Electricity Board reported in 1 SCC 2001 at page442, it was held by the Hon’ble Court that- “4. The concept of equality before law means that among equals the law should be equal and should be equally administered and that the likes should be treated alike.”
But the appointing authority does not give value to article 27 of the Constitution of Bangladesh which guarantees equality before Law when giving appointment of the Law officers of Bangladesh. Establishment an independent Prosecution/Attorney Services Commission by making new law and/or Rules to regulate and control all affairs including appointment, protocol, removal, promotion, training etc of the law officers of Bangladesh to ensure transparent and political consideration-free appointment process. The appointment of Law officers, more particularly, Attorney General, Additional Attorney General, Deputy Attorney Generals, Assistant Attorney Generals etc. has been given decade after decade only on consideration of political belief and background; kicking out the existing law and constitutional bindings only to avail and implement the political interest by every past and present government; resulting hatred and unsatisfactory services by the politically appointed incompetent and ineligible law officers.
We are worried that the appointment of Law officers on political consideration has been destroying the appropriate framework of the state prosecution services.
More or less we are agreed that the appointment process of law officers in Bangladesh has, in fact, been markedly paddled because of the naked political interference and consideration which actually vitiates the spirit of article 22 of the Constitution of the People’s Republic of Bangladesh. If the tradition of politically motivated appointment of law officers of Bangladesh runs, then in no time the state prosecution will have to encounter a serious and detrimental consequences and scarcity of competent law officers. Due to the appointment of comparatively incompetent and ineligible law officers, the state has not been able to ensure & gear up the proper prosecution services from such politically appointed law officers to win & establish the prosecution case for ensuring the impartial and the best Prosecution services for the state.
Without considering those learned advocates who have dedication, absolute legal knowledge, skills on legal research and verbal submission, appreciable capacity of statute interpretation and legal literature drafting having high standing morality and honesty rather the appointing authority has been giving the said appointment from those who have the political identity; ignoring the concept whether they are competent to be appointed for the post or not raising a question of serious uncertainly of the fate of the state prosecution services and realize the future consequence of such politically motivated appointment tradition.
The existing Law “The Law officers order, 1972 amended as the Bangladesh Officers (Amendment) Act, 2001 is not good enough rather it is being used by the government with malafide, malice and ulterior motive which is completely contradictory with the spirit of Article 19(1), 22, 27, 28, 29 & 31 of the Constitution of the People’s Republic of Bangladesh. In Article 29(1) there is clear provision that “there shall be equality of opportunity for all citizens in respect of employment or office in the service of the Republic”. Since the law officers hold the public office and thus the way they got appointment does not meet the equality of opportunity of all the Learned Lawyers having the similar or more than this qualifications or prescribed in the Law officers order 1972 amended as the Bangladesh Law Officers (amendment) Act, 2001 on the law Officers as the Law Officers are appointed only on political consideration; even the thousands of competent lawyers aspiring to be law offices can not get the opportunity to prove their competence by any reasonable way or competitive assessments process which completely vitiates and tweaks the actual spirit of Article 29(1) where for all citizens equality opportunity in employment or office in the service of the Republic has been guaranteed and as such the existing law is contradictory with the spirit of Article 29(1) of the constitution.
So, the appointment of law officers from the political activist by political consideration is clearly classification from those Learned Advocates, having the same status & qualifications, do not have any political tag and the spirit of Article 27 & 31 of the Constitution of Bangladesh is being violated by the government.
In state of Kerala Versus N.M. Thomas reported in 25CC 1976 at page 310, the Supreme Court of India held that-“24. Discrimination is the essence of classification. Equality is violated if it rests on unreasonable basis. The concept of quality her an inherent limitation arising from the very nature of the constitutional guarantee. Those who are similarly circumstanced are entitled to an equal treatment. Equality is amongst equals, classifications, therefore, to be founded on substantial differences which distinguish persons grouped together from those left out of the groups and such different attributes must bear a just and national relation to the object sought to be achieved” .
Hence, for the greater interest of saving our judiciary and to ensure the actual independence of judiciary government and concerned authority should comply with Rule Nisi issued by the Hon’ble High Court Division of the Supreme Court of Bangladesh to show cause as to why the respondents should not be directed to establish an independent Prosecution/ Attorney Services Commission by making new law and/or Rules to regulate, and control all affairs including appointment, protocol, removal, promotion, training etc of the law officers of Bangladesh to ensure transparent appointment process.
I am sanguine to see the positive steps of the govt. and other respondents to establish an Independent Prosecution Services/ Attorney Services Commission in Bangladesh to regulate and control all affairs of the law officers of Bangladesh.
It will be a milestone for our judiciary to get an independent Prosecution /Attorney Services Commission in our country.
At the edge of my write-up, I feel like to express my hope and desire that the concerned authority and the govt. having paid much priority on this issue will carry into effect for the large scale sustainable benefits of ensuring justice and equity in the country.
The write is an advocate of the Supreme Court of Bangladesh who can be reached at supremecourtlawyer.bd.uk@gmail.com or 01715819457
The writer is responsible for his own opinion.
