On August 17, pursuant to an order of the President, the Cabinet Secretary issued a notification appointing Justice (Retd) AKM Asaduzzaman as the chairman of the Anti-Corruption Commission (ACC). Many people have expressed opinions for and against the appointment on social media, and questions have been raised as to whether the appointment is legally valid.
Bangladesh exercises its constitutional supremacy. Article 99(1) deals with the disabilities of the judges after retirement. It says, "a person who has held office as a judge (otherwise than as an additional judge pursuant to the provisions of article 98), shall not, after his retirement or removal therefrom, plead or act before any court or authority or hold any office of profit in the service of the republic not being a judicial or quasi-judicial office.”
Let us pay particular attention to the latter part. It clearly states that such a person shall not be eligible for appointment to any office of profit in the service of the republic. However, he or she may be appointed to a judicial or quasi-judicial office.
This provision raises several questions. First, do the duties and functions of the chairman of the ACC fall within the “service of the republic”? Second, is the position an “office of profit?” And finally, is the ACC a judicial or quasi-judicial institution?
Article 152 of the Constitution defines the term “the service of the republic” as "any service, post or office whether in a civil or military capacity, in respect of the government of Bangladesh, and any other service declared by law to be a service of the republic."
The next question, therefore, is whether the functions of the chairman of the ACC fall within the “service of the Republic” and whether the position constitutes an office of profit. To find the answer, it is necessary to take a look at the Anti-Corruption Commission Act, 2004. Under section 2(b) of the Act, the chairman and every other commissioner of the commission are collectively referred to as “commissioner.”
At this point, reference should be made to a judgment of the High Court Division. The court held that the ACC is an independent statutory body governed by the Anti-Corruption Commission Act, 2004, and that the functions of its commissioners constitute service of the republic and the office of commissioner is an office of profit.
The decision of the High Court Division was subsequently challenged before the Appellate Division. A Full Bench of the Appellate Division affirm the decision of the High Court Division. The Appellate Division, most importantly, also made no exception regarding the office or functions of the chairman.
Since, under the ACC Act, the chairman is also deemed to be a commissioner, and since the decision reported does not distinguish the chairman from the other commissioners or create any exception in this regard, every word of that decision is equally applicable to the chairman.
In other words, the office of chairman of the ACC is an office of profit in the service of the republic, and the functions performed by the chairman constitute service of the republic.
Now let us turn to the final question: Is the ACC a judicial or quasi-judicial institution?
To answer this question, we must first understand what is meant by “judicial” and “quasi-judicial.”
Neither the Constitution of Bangladesh nor any other prevailing law provides a specific definition of these two terms.
However, an analysis of the judicial and administrative structures gives us a basic understanding of the concepts. Whether an institution is judicial or quasi-judicial depends, among other things, on whether it possesses the authority to adjudicate matters.
Under the Anti-Corruption Commission Act, 2004, the ACC may receive complaints, conduct inquiries and investigations, exercise powers of arrest in cases provided by law, and even conduct hearings.
However, the power to investigate, inquire, arrest or conduct a hearing is not the same as judicial power. The ACC does not have the authority to finally adjudicate an allegation and deliver a judgment. Therefore, the ACC cannot, in any sense, be regarded as a judicial institution.
Then, is the ACC a quasi-judicial institution? Neither the ACC Act nor its rules expressly characterize the commission as quasi-judicial. Therefore, unless the Supreme Court provides a different interpretation, there appears to be little scope for treating the ACC as a quasi-judicial institution.
Furthermore, section 5 of the ACC Act expressly provides that, whether the appointment is valid or not, no question may be raised regarding the validity of any act done by the chairman while holding office.
On the other hand, Article 134 of the Constitution provides that, except as otherwise provided by the Constitution, every individual in the service of the republic shall remain in office so long as the President so desires.
Therefore, the office of the ACC chairman, the tenure of the office, and the constitutional role of the President all require consideration together.
Thus, the appointment of the chairman of the ACC is not merely a matter of political controversy; it is also an important question of constitutional and legal interpretation.
If the ACC is neither a judicial nor a quasi-judicial institution, and if the office of chairman is regarded as an office of profit in the service of the republic, then it is only natural to question whether the appointment of a retired Supreme Court judge to that position is compatible with Article 99(1) of the Constitution.
For the past 17 years, the fallen authoritarian government gradually turned each and every sector of the state into an instrument of fascism, not merely crippling the state machinery but effectively crushing it under the weight of fascism.
Restoring the country and the state from such a fragile condition is a major challenge for this government.
It is a political culture of this subcontinent that governments appoint persons of their choice to important positions in important institutions. Moreover, since every human being is political to some extent, it is natural that an appointee may have a political ideology.
But appointments must be made on the basis of competence. Appointments must be transparent, lawful, and valid.
If an opportunity arises to question the legality of an appointment made by a government formed with the mandate of the people, it is natural that doubts may arise in the public mind regarding the government's belief in and sincerity toward its slogan: “Bangladesh first.”
I hope and believe that this government will move toward a balanced and lawful resolution of this complex situation involving law, politics, and bureaucracy.
Because, ultimately, the state is greater than any individual; institutions are greater than any position or rank.
Saffat Homayra is an Advocate, Supreme Court of Bangladesh.
