The role of Attorney General and the rule of law
By Barrister Nazir Ahmed , UK
The term ˜rule of law is well placed in the Constitution of Bangladesh. Its Preamble states ˜rule of law as one of the objectives to be attained. In Anwar Hussain Chowdhury v Bangladesh 1989 BLD, the rule of law was said by the Supreme Court of Bangladesh as one of the basic features of the Constitution. To attain this fundamental aim of the State, the Constitution has made comprehensive and substantial provisions whereby any machinery of the State must justify its action with reference to the law (Article 7 and Article 31).
One of the basic characteristics of the rule of law is ˜equality before the law and this is ensured by Article 27 of the Constitution when it says All citizens are equal before law and are entitled to equal protection of law. The other characteristic of the rule of law is the ˜absence of arbitrary or discretionary power, that is no one is above the law (whatever rank he/she may be) and the persons in authority do not enjoy wide, arbitrary or discretionary powers. Our rich Constitution provides the concept of due process, both substantive and procedural, and thus prohibits arbitrary or unreasonable law or State action (Article 31). Individual liberties are also one characteristic of the rule of law and our Constitution guarantees this in the name of fundamental rights of the individuals in Part III.
The Attorney General is the highest law officer of the Republic appointed by the President. His position is a constitutional post. In order to be appointed as an Attorney General, a person must be qualified to be a Judge of the Supreme Court [Article 65(1) of the Constitution]. He performs such duties as may be assigned to him by the President [Article 65(2)]. He holds office during the pleasure of the President and receives such remuneration as the President may determine [Article 65(4)]. The office of the Attorney General is not an office of profit and therefore holding this office is not debarred from being elected as a Member of Parliament. However, unlike the British system, traditionally and historically Attorney Generals have not been Members of Parliament in Bangladesh.
Recent partial role played in and hostile attitudes shown towards the highest court by the current learned Attorney General have caused concerns to conscious citizens of the country. His aggressive remarks and dam care attitudes have led the Judges of the Supreme Court and senior lawyers of the country in making negative and alarming remarks/comments about him. For example, while a former Deputy Minister was tortured after taking in further remand in spite of the High Court ruling not to do so and not providing proper treatment despite High Court's directives, the High Court Judge said: “We are here to protect peoples’ liberties. You are more powerful. What is the necessity of keeping the High Court? Pull it out. Take us to the remand and torture.
In another Division Bench, the learned Attorney General's office aggressively pressured the Judges not to give the rule and then subsequently said they did not want the matter to be dealt with by that particular Bench. The matter was in the final stage but because of the Attorney General Office's persistent opposition and aggressive attitude, the Division Bench reluctantly sent the file to the Chief Justice for sending the matter to another Bench. In relation to this incident an eminent lawyer of the country Barrister Rafiqul Huq commented with regret “If Allah gives Attorney General long life, the High Court will automatically be vanished.
The concerned High Court Bench impliedly agreed with him. In another reaction in another matter Barrister Rafiqul Huq, who himself was an Attorney General in the past, said During my 50 years of advocacy life I have never seen an Attorney General like the present one. In another matter concerning bail and treatment of a former State Minister before the Chamber Judge in the Appellant Division of the Supreme Court, the learned Attorney General, in reply to the submission/argument of the State Minister's counsel, said: Let him die, then file a case against me! We are regularly seeing in newspapers how the current Attorney General is behaving with High Court Benches/Judges. When he fails to pursue a Bench with legal arguments and submission, he often threatens by saying ˜you cannot issue the rule in this matter. The above incidents are alarming and directly threaten the rule of law.
No doubt the Attorney General is a powerful position. In England, the mother place of the common law from where the laws of Bangladesh are predominantly derived from, the Attorney General is appointed from leading lawyers, loyal to the government of the day, who are Members of Parliament. The Attorney General is usually a Cabinet Member and hence attends at all cabinet meetings. Thus, the Attorney General is accountable to government through cabinet and to people through Parliament.
The power and position of British Attorney General is proved by the fact that on the legal advice of the former Attorney General Lord Goldsmith alone as to the legality and necessity of the second UN resolution, the British government along with the US government went on war and invaded Iraq. Although the learned Attorney General of Bangladesh may have the same power as the British Attorney General, certainly he does not have the same status and prestige as his British counterpart. He is neither a Member of Parliament nor a Member of the Cabinet or equivalent to it (even by virtue of warrant of precedence). There is no mechanism in place of holding him accountable to people for his actions. However, his special position is ensured in the very Constitution. Ultimately, he is the highest law officer of the Republic.
No matter how powerful an Attorney General may be, when representing a case in the higher court he is nothing but an Advocate representing the State (one party in dispute/litigation, probably the stronger party) and the State is represented by the government of the day. In resolving legal disputes, he is neither equivalent nor above the Supreme Court Judges, who perform constitutional tasks to adjudicate between the parties, be it between strong and weak, strong and strong or weak and weak parties. Supreme Court is the last and final hope and expectation of the people. The Supreme Court Judges are the guardians of the Constitution and upholders of the fundamental rights of the ordinary citizens guaranteed by the Constitution. Threatening the Supreme Court Judges with aggressive languages, dictating the Judges to do this or not to do that and getting agitated with political ill motives are contradictory to the principles of the rule of law. To some extent, these behaviours/attitudes are tantamount to the contempt of the Supreme Court.
The learned Attorney General is the highest law officer of the Republic (Article 65) as opposed to a political party or narrow government party. As such, his priority should be the interests of the Republic, not of the political party or of the narrow vision of the government party. This is his constitutional obligation to ensure this. He is expected to play a universal role ensuring rule of law and promoting fairness and justice. It looks odds when we see the learned Attorney General appeared before the High Court on behalf of the government and strongly opposed a bail when lower courts issued summons upon cases of individuals, who apparently did not have locus standi and who were not even remotely aggrieved, in defamation cases/suits (25 cases in number) against a journalist and editor of a national daily and then that journalist/editor had no other option but to go to the High Court for ad interim bail. Can the learned Attorney General appear in cases where individuals filed cases against another individual or where the State or government is not even a party? Whose interest the learned Attorney General has gone to serve?
As the Constitutional position holder and the highest law officer, the learned Attorney General is expected to act with fairness, authority and transparency. From him we expect high standard of wisdom, juristic view and integrity. Of course, he will represent the government of the day (in fact, he has been appointed for doing so), but he should not forget that if his role and attitudes are seen as obstructions to the delivery of justice in the higher court, public confidence will gradually be lost on the higher court and its justice delivery system. That would ultimately damage our basic features of the Constitution: supremacy of the constitution, democracy, independency of the judiciary, fundamental rights and rule of law.
The Attorney General and his office have key role to play. His constructive and positive role can ensure promoting good governance, human rights and smooth delivery of justice. However, his hostile attitudes with highest judiciary and partial role with narrow political motives can damage the judicial institution, create confusion and suspicion on the justice delivery system. This can in the long run lead to anarchy resulted in rule of other than by law. Whatever course he takes, other law officers of the State (i.e., Additional Attorney General, Deputy Attorney Generals, Assistant Attorney Generals, Pubic Prosecutors, Government Pleaders, so on and so forth) would follow him. Water drops from the top of the mountain and not the vice versa.
I have had the opportunity of seeing the current Attorney General on few occasions. I met him twice in the UK and seen him once in Bangladesh appearing as an Additional Attorney General before the High Court Division during the last Awami League government. Personally learned Attorney General Mahbubey Alom is a gentle, polite and well spoken person. I do not know why he becomes agitated and aggressive before the High Court Judges/Division Benches of the High Court. He was Additional Attorney General during 1996-2001 of the last Awami League government, but he was not then seen behaving aggressively before the High Court Judges. What does prompt him to be so? Is it the present government policy or instruction on him to do so?
If it was a government tactic, technique or direction, we can say in confidence that these are bound to be failed and counterproductive. Power is not forever. No one can remain on power for good. The last BNP government tried to do a lot of things with the higher judiciary. Did those go in their favour? Their once appointed Attorney General Advocate Hasan Arif acted against them as an Advisor during the last caretaker government. Increasing the ages of the Judges of the Supreme Court could the BNP do what they had arguably wanted to do! Various examples in such line can be given. Soon the government realises this, the better for them, the better for the country and the better for the democracy. Delay in realising this can threatens the rule of law.
----------------------------
Nazir Ahmed FRSA FCMI
LLB Hons (London), LLM (London), FRSPH (London), FCIArb (London), Barrister-at-Law (Lincoln's Inn)
E Mail : ahmedlaw2002@yahoo.co.uk
http://newsfrombangladesh.net/view.php?hidRecord=305394
One of the basic characteristics of the rule of law is ˜equality before the law and this is ensured by Article 27 of the Constitution when it says All citizens are equal before law and are entitled to equal protection of law. The other characteristic of the rule of law is the ˜absence of arbitrary or discretionary power, that is no one is above the law (whatever rank he/she may be) and the persons in authority do not enjoy wide, arbitrary or discretionary powers. Our rich Constitution provides the concept of due process, both substantive and procedural, and thus prohibits arbitrary or unreasonable law or State action (Article 31). Individual liberties are also one characteristic of the rule of law and our Constitution guarantees this in the name of fundamental rights of the individuals in Part III.
The Attorney General is the highest law officer of the Republic appointed by the President. His position is a constitutional post. In order to be appointed as an Attorney General, a person must be qualified to be a Judge of the Supreme Court [Article 65(1) of the Constitution]. He performs such duties as may be assigned to him by the President [Article 65(2)]. He holds office during the pleasure of the President and receives such remuneration as the President may determine [Article 65(4)]. The office of the Attorney General is not an office of profit and therefore holding this office is not debarred from being elected as a Member of Parliament. However, unlike the British system, traditionally and historically Attorney Generals have not been Members of Parliament in Bangladesh.
Recent partial role played in and hostile attitudes shown towards the highest court by the current learned Attorney General have caused concerns to conscious citizens of the country. His aggressive remarks and dam care attitudes have led the Judges of the Supreme Court and senior lawyers of the country in making negative and alarming remarks/comments about him. For example, while a former Deputy Minister was tortured after taking in further remand in spite of the High Court ruling not to do so and not providing proper treatment despite High Court's directives, the High Court Judge said: “We are here to protect peoples’ liberties. You are more powerful. What is the necessity of keeping the High Court? Pull it out. Take us to the remand and torture.
In another Division Bench, the learned Attorney General's office aggressively pressured the Judges not to give the rule and then subsequently said they did not want the matter to be dealt with by that particular Bench. The matter was in the final stage but because of the Attorney General Office's persistent opposition and aggressive attitude, the Division Bench reluctantly sent the file to the Chief Justice for sending the matter to another Bench. In relation to this incident an eminent lawyer of the country Barrister Rafiqul Huq commented with regret “If Allah gives Attorney General long life, the High Court will automatically be vanished.
The concerned High Court Bench impliedly agreed with him. In another reaction in another matter Barrister Rafiqul Huq, who himself was an Attorney General in the past, said During my 50 years of advocacy life I have never seen an Attorney General like the present one. In another matter concerning bail and treatment of a former State Minister before the Chamber Judge in the Appellant Division of the Supreme Court, the learned Attorney General, in reply to the submission/argument of the State Minister's counsel, said: Let him die, then file a case against me! We are regularly seeing in newspapers how the current Attorney General is behaving with High Court Benches/Judges. When he fails to pursue a Bench with legal arguments and submission, he often threatens by saying ˜you cannot issue the rule in this matter. The above incidents are alarming and directly threaten the rule of law.
No doubt the Attorney General is a powerful position. In England, the mother place of the common law from where the laws of Bangladesh are predominantly derived from, the Attorney General is appointed from leading lawyers, loyal to the government of the day, who are Members of Parliament. The Attorney General is usually a Cabinet Member and hence attends at all cabinet meetings. Thus, the Attorney General is accountable to government through cabinet and to people through Parliament.
The power and position of British Attorney General is proved by the fact that on the legal advice of the former Attorney General Lord Goldsmith alone as to the legality and necessity of the second UN resolution, the British government along with the US government went on war and invaded Iraq. Although the learned Attorney General of Bangladesh may have the same power as the British Attorney General, certainly he does not have the same status and prestige as his British counterpart. He is neither a Member of Parliament nor a Member of the Cabinet or equivalent to it (even by virtue of warrant of precedence). There is no mechanism in place of holding him accountable to people for his actions. However, his special position is ensured in the very Constitution. Ultimately, he is the highest law officer of the Republic.
No matter how powerful an Attorney General may be, when representing a case in the higher court he is nothing but an Advocate representing the State (one party in dispute/litigation, probably the stronger party) and the State is represented by the government of the day. In resolving legal disputes, he is neither equivalent nor above the Supreme Court Judges, who perform constitutional tasks to adjudicate between the parties, be it between strong and weak, strong and strong or weak and weak parties. Supreme Court is the last and final hope and expectation of the people. The Supreme Court Judges are the guardians of the Constitution and upholders of the fundamental rights of the ordinary citizens guaranteed by the Constitution. Threatening the Supreme Court Judges with aggressive languages, dictating the Judges to do this or not to do that and getting agitated with political ill motives are contradictory to the principles of the rule of law. To some extent, these behaviours/attitudes are tantamount to the contempt of the Supreme Court.
The learned Attorney General is the highest law officer of the Republic (Article 65) as opposed to a political party or narrow government party. As such, his priority should be the interests of the Republic, not of the political party or of the narrow vision of the government party. This is his constitutional obligation to ensure this. He is expected to play a universal role ensuring rule of law and promoting fairness and justice. It looks odds when we see the learned Attorney General appeared before the High Court on behalf of the government and strongly opposed a bail when lower courts issued summons upon cases of individuals, who apparently did not have locus standi and who were not even remotely aggrieved, in defamation cases/suits (25 cases in number) against a journalist and editor of a national daily and then that journalist/editor had no other option but to go to the High Court for ad interim bail. Can the learned Attorney General appear in cases where individuals filed cases against another individual or where the State or government is not even a party? Whose interest the learned Attorney General has gone to serve?
As the Constitutional position holder and the highest law officer, the learned Attorney General is expected to act with fairness, authority and transparency. From him we expect high standard of wisdom, juristic view and integrity. Of course, he will represent the government of the day (in fact, he has been appointed for doing so), but he should not forget that if his role and attitudes are seen as obstructions to the delivery of justice in the higher court, public confidence will gradually be lost on the higher court and its justice delivery system. That would ultimately damage our basic features of the Constitution: supremacy of the constitution, democracy, independency of the judiciary, fundamental rights and rule of law.
The Attorney General and his office have key role to play. His constructive and positive role can ensure promoting good governance, human rights and smooth delivery of justice. However, his hostile attitudes with highest judiciary and partial role with narrow political motives can damage the judicial institution, create confusion and suspicion on the justice delivery system. This can in the long run lead to anarchy resulted in rule of other than by law. Whatever course he takes, other law officers of the State (i.e., Additional Attorney General, Deputy Attorney Generals, Assistant Attorney Generals, Pubic Prosecutors, Government Pleaders, so on and so forth) would follow him. Water drops from the top of the mountain and not the vice versa.
I have had the opportunity of seeing the current Attorney General on few occasions. I met him twice in the UK and seen him once in Bangladesh appearing as an Additional Attorney General before the High Court Division during the last Awami League government. Personally learned Attorney General Mahbubey Alom is a gentle, polite and well spoken person. I do not know why he becomes agitated and aggressive before the High Court Judges/Division Benches of the High Court. He was Additional Attorney General during 1996-2001 of the last Awami League government, but he was not then seen behaving aggressively before the High Court Judges. What does prompt him to be so? Is it the present government policy or instruction on him to do so?
If it was a government tactic, technique or direction, we can say in confidence that these are bound to be failed and counterproductive. Power is not forever. No one can remain on power for good. The last BNP government tried to do a lot of things with the higher judiciary. Did those go in their favour? Their once appointed Attorney General Advocate Hasan Arif acted against them as an Advisor during the last caretaker government. Increasing the ages of the Judges of the Supreme Court could the BNP do what they had arguably wanted to do! Various examples in such line can be given. Soon the government realises this, the better for them, the better for the country and the better for the democracy. Delay in realising this can threatens the rule of law.
----------------------------
Nazir Ahmed FRSA FCMI
LLB Hons (London), LLM (London), FRSPH (London), FCIArb (London), Barrister-at-Law (Lincoln's Inn)
E Mail : ahmedlaw2002@yahoo.co.uk
http://newsfrombangladesh.net/view.php?hidRecord=305394
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