by Anisur Rahman* 16 October 2020
Bangladesh has got a new Attorney General. President Md. Abdul Hamid has appointed Advocate A M Amin Uddin as the new attorney general since the post was vacated due to the death of former attorney general Mahbubey Alam a few weeks back. Amin Uddin, a senior lawyer and the present president of the Supreme Court Bar Association has already assumed his duty as the highest law officer of the country. It is a very important job and a constitutional post. As per our constitution, in order to be appointed as the attorney general, a person must be qualified to be a judge of the highest court of the country. But this news did not get the attention that it deserved as if it was a routine appointment with no special significance. Due scrutiny was not made in the media. It is the continuation of the same trend. 9 additional judges were appointed to the High Court Division in October 2019, 18 additional judges of the High Court Division were made permanent in May 2020 and 2 new judges were appointed to the Appellate Division of the Supreme Court only a month back i.e. in September 2020. Proper attention was not given to those news/appointments either. We see a contrasting picture in the USA. During the present covid-19 pandemic and presidential election high-time, the US Senate and the media are equally engaged in a debate regarding the appointment of a judge to the Supreme Court. It is the prerogative of the president to nominate among others, the judges of the Supreme Court. But before their confirmations, hearings are held in the senate where they are scrutinized both extensively and intensively. President Donald Trump´s decision to nominate Amy Coney Barrett as a judge to the Supreme Court during election time itself created controversy and debate because the Republican senators blocked a nominee of the then president Barak Obama during the last year of his presidential term. That controversy is a separate issue. Now, the Senate is controlled by the Republican since they are the majority in the upper chamber of the Congress. They have adopted a policy of double standard and opportunism on the issue.
On the one hand, the Democrats expose the opportunism of the Republicans and on the other hand, they are scrutinizing the eligibility, competence and above all the impartiality of the nominee Amy Coney Barrett in the senate hearing. If one looks to her CV one will be impressed by her excellent academic career. She was a brilliant student all along. She became a renowned teacher of her alma mater – University of Notre Dame´s Law School. She was voted as the “Professor of the Year” several times of this distinguished university. Besides, she is now serving as a judge in an `appeals court`. The Democrats know very well that the Republican-led Senate will confirm her nomination. Still, they are scrutinizing her in the senate to show if she can work independently, without any party-bias. She is conservative. They want to show what might happen if cases on issues related to conservatism and liberalism and so on, comes to her bench after she gets confirmation. Critical excerpts from her judgements, opinion, dissenting notes etc. have already been placed in the Senate by the Democratic senators. They know, they can not prevent or block her confirmation. But they hope by showing her “partisan” views they will be able to restrain her in the Supreme Court. Hearing in the Congress is meant to see the qualifications, competence and impartiality of the nominees. It is not only the senators and representatives who watch and scrutinize the president-nominated candidates but at the same time, the whole nation watches the hearings and forms their opinions. And the media play an important role too.
Unfortunately, it is not the case in Bangladesh. That is why several lawyers with more than one-third classes could get a direct appointment as judges in the High Court Division. It is possible when partisan politics crosses all limits and even infects the constitutional bodies. When this question was raised a few years back, the then justice minister replied that it was not forbidden in the law that a lawyer with one or more third classes could not be appointed as a judge to the Supreme Court. What an answer! As if there were no sufficient lawyers with good academic career particularly in the party in power.
Other constitutional or quasi-constitutional bodies such as Election Commission, Public Service Commission, Anti-Corruption Commission, Human Rights Commission have also been made largely partisan. There is no scope to discuss elaborately on each of them here. Just one point can be mentioned here. If the then governments constituted competent Election Commissions and they could function independently, the farcical elections of 2014 and 2018 could have been avoided and democracy could be saved. Similarly, if the Caretaker Government system was not abolished with ulterior motives, elections would be generally free and fair and the legitimacy of the government could not be questioned. The history may not spare Justice ABM Khairul Haque and the likes for their disservice to the nation. Mr Haque was so biased that when his name was proposed for appointment as a judge of the International Criminal Court (ICC) The Asian Human Rights Commission on its home page wrote “ The decisions of ABM Khairul Haque have been widely criticized for failure to adhere to judicial ethics, efficiency, and moral standards during his tenure as Chief Justice of the Supreme Court of Bangladesh. He is widely seen as the highly politically biased judge who made decisions in favour of the Executive and contributed to the nation´s drift towards authoritarianism in Bangladesh”. Ultimately Bangladesh was forced to withdraw his nomination. What a shame on the country! No doubt, a partisan appointment to the constitutional bodies is bad for democracy and good governance in Bangladesh.
To make our constitutional bodies more effective and less controversial the following measures may be considered.
- First of all, a preliminary selection committee should be constituted which must be acceptable to more or less all and which can work beyond party or sectarian interest. This committee after thoroughly considering candidates´ educational qualifications, individual images, honesty, efficiency, personalities, knowledge etc. will select and submit a list of names. Before they are finally selected by the president with the suggestion of prime minister, the list should be sent to the concerned standing committee of the parliament.
- Standing committees of the parliament will then arrange a hearing on it. In the hearing, besides MPs, experts from outside like university professors, eminent lawyers, members of the civil societies will give their judgements about the candidates.
- At the same time, there should be scope for honest, serious and transparent discussion in the media and other forums. One should, however, be careful that in the name of discussion and criticism none should be a victim of character assassination which has become a very common phenomenon nowadays.
- To see only the educational qualifications is not enough. It has been seen that many people with good educational backgrounds can not prove efficiency in practical fields. One can serve as an honest officer and retire as a secretary. It does not guarantee that he or she will be an efficient chief election commissioner or chief anti-corruption officer. At the same time, he or she must have a strong personality and backbone to withstand pressure from any quarter. If the chief anti-corruption commissioner becomes helpless, he can at least resign and such a resignation can play a big role in the fight against corruption.
One main reason for the failure and shortcomings of our constitutional bodies is non-accountability of the holders of constitutional positions. The procedure of accountability is so complex and difficult that it becomes almost impossible to make them liable for their misdeeds. We must think seriously about it.
- Anisur Rahman is a senior Bangladeshi journalist now living in Sweden.