After the posts of chairman and commissioners at the Anti-Corruption Commission (ACC) remained vacant for five and a half months, the BNP government has appointed new officials to the positions.
Retired Justice AKM Asaduzzaman was appointed ACC chairman on Monday night.
Jahangir Alam Khan and Md Sajjad Hossain Bhuiyan were appointed commissioners.
The appointment of a retired judge as ACC chairman has raised questions. Some constitutional experts say the appointment is not consistent with the Constitution, as it imposes constitutional restrictions on the appointment of retired judges to lucrative positions in the service of the Republic.
Ridwanul Hoque, a former professor of law at the University of Dhaka and a constitutional expert, posted a comment in English on Facebook on Tuesday.
Under the headline “Judicial independence breached,” he wrote, “Appointment of an ex-judge of the Supreme Court as the Chief of Anti-Corruption Commission is an unconstitutional move, as it directly breaches judicial independence. Note: I am aware of a similar appointment several years ago. The present government is clearly in the path opposite to democracy.”
Contacted by Prothom Alo, Ridwanul Hoque confirmed that the comment was his.
The Constitution, under Articles 99(1) and 99(2), lays down restrictions on the types of employment that judges of the higher judiciary may take up after retirement, under the subheading “Incapacity of judges after retirement.”
Article 99(1) states that, except for additional (temporary) judges, judges of the Supreme Court, after retirement or removal, cannot practise law and cannot be appointed to any lucrative office in the service of the Republic, except judicial or quasi-judicial offices.
Article 99(2) states that, notwithstanding anything contained in clause (1), a person who has held office as a judge of the High Court Division may, after retirement from that office, practise as an advocate before the Appellate Division.
This means that under the Constitution, a retired judge of the Appellate Division cannot be appointed to any lucrative office in the service of the Republic other than a judicial or quasi-judicial position.
Legal experts say the ACC is neither a judicial nor a quasi-judicial institution. Similarly, the position of ACC chairman is neither a judicial nor a quasi-judicial office. This is why the appointment of retired Justice AKM Asaduzzaman as ACC chairman has sparked questions and controversy.
Justice AKM Asaduzzaman was appointed an additional judge of the High Court Division on 27 August 2003. He was made a permanent judge of the High Court on 27 August 2005.
He was sworn in as a judge of the Appellate Division on 25 March last year and retired on 28 February this year.
Asked about the appointment of a former judge as ACC chairman, Supreme Court senior lawyer Sharif Bhuiyan told Prothom Alo that the post of ACC chairman is clearly a lucrative office. It is neither a judicial nor a quasi-judicial position. Therefore, appointing a retired judge of the Appellate Division as ACC chairman is inconsistent with the spirit of Article 99 of the Constitution.
Sharif Bhuiyan said a similar appointment had been made in the past. A writ petition was filed before the High Court seeking a declaration that the appointment was unconstitutional or unlawful. The court dismissed the writ in 2006.
He said that if the aspiration for reforms is to be realised in the changed circumstances, the court should reconsider that decision.
During its previous term in office (2001–06), the BNP government appointed former High Court judge Sultan Hossain Khan as the first chairman of the ACC.
That appointment also sparked controversy, and a writ petition was filed challenging it.
Meanwhile, the ACC law states that “a person having at least 20 years of experience in law, education, administration, judiciary or disciplinary forces shall be eligible to become a commissioner.” This means former judges can be appointed to the ACC. However, the Constitution is the supreme law of the country. Where the Constitution imposes restrictions, the ACC law cannot override them.
On 22 June, a five-member search committee was formed, headed by Appellate Division Justice Md Rezaul Haque, to recommend candidates for appointment to the ACC. Sources said in mid-July that 40 applications had been submitted. However, no information has been disclosed on the final number of applications, where the names of the three appointees came from, or what criteria were considered in selecting them. Some have said the appointments to the ACC are not encouraging.
Iftekharuzzaman, executive director of Transparency International Bangladesh (TIB), who headed the ACC Reform Commission formed during the interim government, believes a retired judge of the Appellate Division should not take up the top position at the ACC.
He told Prothom Alo that the ACC is neither a judicial nor a quasi-judicial body; it is an investigative agency. If a retired Appellate Division judge heads the ACC, it would create a “conflict of interest.” He said questions would arise as to whether accepting the ACC chairman’s post is compatible with the values and integrity expected of a former judge.