Enacting laws for constitutional posts: Mandates unfulfilled
The country's constitution stipulates that there should be specific laws to appoint Supreme Court judges and regulate the appointments of the chiefs of staff of the defence services.
It also states that an auditor general and an ombudsman should be appointed under relevant laws.
But most of the related laws are yet to be enacted or executed five decades after the adoption of the charter.
Legal experts say these laws are necessary for ensuring good governance and transparency in the republic.
According to them, successive governments did not feel it necessary to enact laws to meet the constitutional obligation.
If the laws are enacted specifying the procedure and criteria for the appointments, the government will not be able to exercise absolute power to pick its favourites for the key positions, the experts point out.
Parliament on January 27 passed a law on the appointment of the chief election commissioner and other election commissioners amid objections from opposition lawmakers and criticism from civil society members.
After the hasty enactment of the law, the issue of the constitutional obligation to the appointments to these posts came to the fore.
Law Minister Anisul Huq said the present government is attaching the utmost importance to the issues regarding formulation of laws in line with constitutional provisions.
"I hope we can formulate a specific law for the appointment of High Court judges within this year, as it is the job of my ministry. The ministries concerned will take steps to enact laws on other related issues, as mandated by the constitution," he told The Daily Star.
The minister, however, said the government was being run in line with constitutional provisions and there was "no violation of the provisions".
The constitution, the supreme law of the land, containing 153 articles was adopted by the Constituent Assembly of Bangladesh on November 4, 1972. It became effective on December 16, 1972.
Speaking to this correspondent, eminent jurist Dr Shahdeen Malik said the constitution mandated parliament to enact laws to ensure transparency in the process of appointments to constitutional posts.
"But from the experience of the formulation of the law on the appointment of the chief election commissioner and other election commissioners, we feel that it would be better if the present government does not enact any other law as it is not ready to make such laws to ensure transparency. It would better not formulate such a law which might make things worse than better," he said.
The lawyer said no government showed interest in formulating laws as mandated by the constitution as the laws would ensure that the government cannot appoint people of its own choice.
"We will hope for enactment of good laws if any accountable and responsible government takes office in future," Shahdeen added.
Supreme Court lawyer Mohammad Shishir Manir said, "The absence of a law for the appointment of Supreme Court judges has led to a massive politicisation of the highest judiciary as judges meeting only one requirement, 10 years' experience as lawyer, are appointed to the High Court Division."
The article 95 (2) of the constitution say, "A person shall not be qualified for appointment as a judge unless he is a citizen of Bangladesh and -- (a) has, for not less than ten years, been an advocate of the Supreme Court; or (b) has, for not less than ten years, held judicial office in the territory of Bangladesh; or (c) has such qualifications as may be prescribed by law for appointment as a judge of the Supreme Court."
Shishir, head of Law Lab which conducts research on laws and constitutional issues, said article 62 (1) of the constitution deals with enactment of a law regarding recruitment, etc in the defence services, but no law was formulated yet.
The article says, "Parliament shall by law provide for regulating -- (a) the raising and maintaining of the defence services of Bangladesh and of their reserves; (b) the grant of commissions therein; (c) the appointment of chiefs of staff of the defence services, and their salaries and allowances; and (d) the discipline and other matters relating to those services and reserves."
The second clause of the article says until parliament by law provides for the matters specified in clause (1), the "president may, by order, provide for such of them as are not already subject to existing law".
According to the constitution, a comptroller and auditor general shall be appointed by the president.
The article 127 (2) says, "Subject to the provisions of this constitution and of any law made by parliament, the conditions of service of the auditor general shall be such as the president may, by order, determine."
Supreme Court lawyer Md Eunus Ali Akond said the then government in 1980 enacted a law for the appointment of an ombudsman under article 77 of the charter in order to investigate any action taken by a ministry, a public officer, or a statutory public authority.
But the law has not been executed, and therefore, the country has not seen any ombudsman, he added.
The constitution's article 77 (1) says, "Parliament may, by law, provide for the establishment of the office of Ombudsman."
The ombudsman shall exercise such powers and perform such functions as parliament may, by law, determine, including the power to investigate any action taken by a ministry, a public officer or a statutory public authority, says the charter.
AM Mahbub Uddin Khokon, former secretary of the Supreme Court Bar Association, said formulation of laws in line with the constitutional provisions is now a need of the time.
"The provision for formulating the laws is in the constitution to ensure good governance and transparency in the republic," he told this correspondent.
He said ensuring transparency in the state revenue and expenses and independence of the judiciary is urgent.
Supreme Court lawyer Khurshid Alam Khan, however, said there had been no major legal obstacles to running the state over the years due to the absence of such laws.
The state is being run in line with constitutional provisions, said Khurshid, also the editor of Dhaka Law Reports, a publication on compilation of SC judgments.
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