Questions about new appointment of former chief justice

The government has appointed the former chief justice Hasan Foez Siddique as director general of the Judicial Administration Training Institute. Upon presidential order, the law, justice and parliamentary affairs ministry on 9 June issued a circular in this regard. This appointment of the former chief justice has brought forward certain questions and incongruities.

This appointment was made in accordance to Section 11 (2) of the Judicial Administration Training Institute Act, 1995. According to this section, the government can appoint any “qualified” persons to as the director general of the Judicial Administration Training Institute. Concerning the qualifications for being the director general of this institute, Section 11 (1a) states, “A person who is or has been or is qualified to be a judge of the Supreme Court shall be Director General.”

The question is, in keeping with this section, is there any obstacle to Hasan Foez Siddique being director general? A former judge of the Supreme Court, a senior lawyer and a constitutional expert were asked about the matter. They say that this is not just a legal matter, but an ethical one too.

According to the constitution, “Bangladesh’s Chief Justice” and “a judge of the Supreme Court” is not one and the same thing. There are two entirely different posts. The rank, warrant of precedence and importance of the two posts are different.

It is to be noted that the qualifications to be director general of the Judicial Administration Training Institute have been specified and restricted by the words “A person who is or has been or is qualified to be a judge of the Supreme Court.” Hasan Foez Siddique has been judge of the Supreme Court and from there he was made chief justice. That is why the question has arisen as to whether or not it is lawful to appoint him to the post.

Former judge of the Appellate Division Md Abdul Matin, speaking to Prothom Alo, said the judiciary is one of the three organs of the state. The chief justice is the person in the highest position of the judiciary. So a former chief justice cannot be appointed to such an office that will be inappropriate for him. At the same time, the person who had been chief justice should maintain the dignity and honour of his office.

According to the Judicial Administration Training Institute Act, 1995, this institution is run by a board of directors. Officially the chairman is the head of the board. The incumbent chief justice by virtue of office is the chairman of the board. Chief Justice Obaidul Hassan is now the chairman of the board.

The director general is the chief executive officer of the institution. By placing the former chief justice Hasan Foez Siddique in this post, he will have to work under his successor Chief Justice Obaidul Hassan. In other words, in the Judicial Administration Training Institute he will be subordinate to the person who had been a senior judge of the Supreme Court.

Speaking to Prothom Alo on condition of anonymity about this incongruity, a senior lawyer and constitutional expert said the various sections of the Judicial Administration Training Institute Act, 1995 make it clear that there is no scope for a former chief justice to be appointed as director general of the institute. Had there been any such intention, it would have been clearly specified in the law.

There is hardly any precedence at all of a former chief justice being appointed to any other post. The Law Commission is an exception. Quite a few former chief justices were appointed as chairman of the Law Commission once it was formed. This commission is, purportedly, independent and the chairman is the top post.

Speaking to Prothom Alo about the appointment of the new director general to the Judicial Administration Training Institute, the executive director of Transparency International Bangladesh, Iftekharuzzaman, said the former chief justice had been the head of the judiciary. Taking the dignity and importance of that office, it is not dignified for him to become the director general of the Judicial Administration Training Institute. Such an incongruous appointment by the government is bound to give rise to questions in the public mind.

In Article 99 of the constitution of 1972 it was stated that other than an additional (temporary) judge, a person who had held office of Supreme Court judge, after retirement or removal from the office, shall not hold any judicial or quasi-judicial office of profit.

This was amended during the rule of Ziaur Rahman by means of the fifth amendment, giving scope to retired Supreme Court judges taking up judicial or quasi judicial offices.

On 29 August 2005 the High Court declared the fifth amendment to the constitution void. On 2 February 2020 the Appellate Division upheld the High Court ruling, along with certain observations. With the Supreme Court scrapping the fifth amendment, questions arose concerning the appointment of retired judges to judicial and quasi judicial offices. Later the court, in a separate ruling, made concessions in Article 99 with conditions, as in some other articles.

As a result, the scope remained open for former judges of the Supreme Court to be appointed to judicial offices or quasi judicial offices. By virtue of the fifth amendment of the constitution, in 2011 former judges of the High Court were given scope to conduct judicial services in the Appellate Division.

* Monzurul Islam is a senior sub-editor at Prothom Alo

* This column appeared in the print and online edition of Prothom Alo and has been rewritten for the English edition by Ayesha Kabir