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The Constitutional framework of Public
Administration in Bangladesh
Judge Azizur Rahman Dulu
Introductory:
This book
is nothing but a research made for the fulfillment of the M.Phil Degree in the
Department of Public Administration under University of Dhaka. Before joining
in Bangladesh Judicial Service, when I was taking my M.Phil education I did
this thesis. After joining in my service, I could not submit my thesis but I
thought that though this is not submitted in the aforesaid institution but can
be published for general reading of the people so that a person can get any
information of this book and help in respect of forming the opinion or policy
in order to eradicate the corruption from the society for the society which has
been mentioned in the preamble of our constitution.
I do
support and hold the notion that the lack of transparent activities is one of
the main reasons of corruption. For eradicating maximum corruption from the
society what we need, to my mind is discussed in this book. I am obliged to
give my heartiest thanks to Professor Dr. Aka Firwoz Ahmad who was my guide in
the M.Phil programme and my nephew Rezaul Karim who has given his intellectual
labour to form and publish this book here.
I must get
satisfaction by the grace of almighty Allah if this version of this book helps
any one for any purpose.
Judge Azizur Rahman
Dulu
Table of
contents:
Introduction
1.
Necessary
Definitive Information
1.1 Constitution
1.2 Framework
1.3 Public administration
1.4 Constitutional framework
2.
Constitutional framework
2.1 The Executive (articles
from 48 to 64)
2.2 The Legislature(articles
from 65 to 93)
2.3 The Judiciary(articles
from 94 to 117)
3.
Civil Service of Bangladesh
3.1 Legal framework
3.2 Recruitment procedure and
recommendations
3.3 Transfer procedure and
recommendations
3.4 Promotion procedure and recommendations
3.5 Training
3.6 Accountability
4.
Judicial Service of Bangladesh
4.1 Legal framework
4.2 Recruitment procedure and
recommendations
4.3 Transfer procedure and
recommendations
4.4 Promotion procedure and recommendations
4.5 Training
4.6 Accountability
5.
Way of maximum corruption free Bangladesh
5.1 Ethical education
5.2 Use of technology
5.3 Check and balance
Conclusion
Introduction: Bangladesh
being a state of pledging
of establishing a society free from exploitation has the responsibility to work
and for this, it is of course, necessary to find out the lacuna and taking the
measures so that no exploitation can be done either by the persons appointed in
the service of this Republic or non appointed exploiters.
1.1 Constitution:
‘By instinct
man is gregarious and lives in company of his fellow beings. This has led to
the emer4gence of society and rules to regulate the conduct of the members of
the society. The association was not, however, for mere companionship, but to
achieve various pbjecti8ves and purposes. Dealings between the individuals in
the society invariably resulted in disputes. The need to settle disputes gave
rise to leadership in the society and with the problem of protection of life and
property came the concepts of allegiance and obedience.
By a slow
and intermittent process of social, economic and political evolution the State
emerged as an indispensable institution rub by an agency called the government.
Constitutional law is a set of legal rules which regulate the structure of the
organs of government, their5 functions, and their relationship with each other
and with the citizens. Power has to be conceded to the State for the sake of
ordered society, but every power given to the State makes a corresponding
inroad into the bundle of rights and liberty of individuals. Gone is the day of
laissez-fair when the individuals hardly felt the existence of the government.
The vast explosion of population, the momentous advancement of technology and
the resulting perceived welfare needs of the complex modern society have mind
pervasive governmental control inevitable. In such a situation the life of
individuals is sure to become intolerable if the State can exercise unfettered
or arbitrary power. Hence, k the modern emphasis is on constitutionalism and constitutional
government which not only recognize the need for governmental power, but also
insist on limitations on the power of the government. “Western institutional
theorists have concerned themselves with the problems of ensuring that the
exercise of governmental power, which is essential to the realisation of the
values of their societies, should be controlled in order that it should no
itself be destructive of the values it was intended to promote”1
The said
word ‘constitution’ means “a constitution is a set of fundamental principles or
established precedents according to which a state or other organization is
governed. These rules together make up, i.e. constitute, what the entity is.
When these principles are written down into a single collection or set of legal
documents, those documents may be said to comprise a written constitution.” 2
Again constitution can be defined as “the
fundamental law, written or unwritten, that establishes the character of a
government by defining the basic principles to which a society must conform; by
describing the organization of the government and regulation, distribution, and
limitations on the functions of different government departments; and by
prescribing the extent and manner of the exercise of its sovereign powers. A
legislative charter by which a government or group derives its authority to act.” 3
1.2 Framework
The word
‘framework’ means a structure for supporting or enclosing something else,
especially a skeletal support used as the basis for something being
constructed.4 and the said term is defined as “a system of rules, laws, agreements etc that
establish the way that something operates in business, politics, or society”.5
1.3 PUBLIC ADMINISTRATION
DEFINED:
Public
Administration is a specialised academic field. It essentially deals with the
machinery and procedures of government activities. Administration has been
defined as a comparative human effort towards achieving some common goals. Thus
defined, administration can be found in various institutional settings such as
a business firm, a hospital, a university, a government department and so on.
As an aspect of this more generic concept, Public Administration is that
species of administration which operates within a specific political setting.
It is a means by which the policy decisions made by the political decision
makers are carried out. Public administration is decision making, planning the
work to be done, formulating objectives and goals, working with the legislature
and citizen organisations to gain public support and funds for government
programmes, establishing and revising organisation, directing and supervising
employees, providing leadership , communicating and receiving communications,
determining word methods and procedures, appraising performance, exercising
controls and other functions performed by government executives and
supervisors. Ti is the action part of government, the means by which the
purposes and goals of the government are realised.
Some well
known definitions of Public Administration are:
· “Public
Administration is detailed and systematic execution of public law. Every
particular application of law is an act of administration” _ L. D White.
· Public
Administration is “the art and science of management applied to affairs of the
State” – D. Waldo.
· “By Public
Administration is meant in common usage the activities of the executive
branches of the National. State and Local Government” – H. Simon.
The
‘Public’ aspect of public administration gives the discipline a special
character. It can be looked at formally to mean government. So, public
Administration is government administration, the focus being specifically on
public bureaucracy. This is the meaning commonly used in discussing Public
Administration. Public Administration, in a wider sense, has sought to expand
its ambit by including any administration that has considerable impact on the
public. From this standpoint, a private electricity undertaking like the Dhaka
City Corporation can be considered a fit subject of discussion under public
Administration. It is, however, in the first sense that Public Administration
is usually considered.6
1.4 Constitutional Framework:
Bangladesh attained independence in 1971, through a historic struggle for
national liberation, and the same established the independent, sovereign
People’s Republic of Bangladesh. It is according to article 28 of the
Constitution non-racial country and maintains freedom of speech, freedom of the
press and freedom of association, and affords all citizens equal rights within
the orbit of fundamental rights of the citizens. All these are enshrined in the
Constitution of Bangladesh. Members of the House of the Nations (Parliament)
are directly elected from the constituencies and themselves elect under article
74 of the Constitution a Speaker and a Deputy Speaker of the Parliament. The
President of Bangladesh shall be elected according to article 48 of the
Constitution, by the members of Parliament in accordance with law. The
President is the head of the State and he shall take precedence over all other
persons of the State and shall exercise the powers and perform the duties
conferred and imposed on him by this constitution and by any other law.
An independent judiciary with a
Supreme Court is presided over by the Chief Justice of Bangladesh. Subordinate
courts are Judge Courts and Judicial Magistrates Courts, which have original jurisdiction
to try all civil disputes and offences.
Here a Chart of Bangladesh
Government Organization is given below:
Bangladesh Government Organisation Chart:
|
Head of the state President
|
|
The Executive
|
|
The Legislature
|
|
The Judiciary
|
|
Supreme Courts of
Bangladesh
|
|
Appellate
Division
|
|
High Court
Division
|
|
Judicial service
commission
|
|
Sub-ordinate Courts of Bangladesh
|
|
CJM
|
|
DJ
|
|
ADJ
|
|
ACJM
|
|
SJM
|
|
JDJ
|
|
House of the Nations (Parliament)
|
|
Prime Minister
|
|
Different Tribunals
|
|
Cabinet Ministers
|
|
Ministries
|
|
Permanent Secretaries
|
|
Cabinet
|
|
Ministries:
* Finance
* Law, Justice
and
Parliamentary
Affairs
* Agriculture
* Planning
* Post and Tele Communications
* etc.
|
|
Independent Departments
* Auditor General
* Attorney General
* Bangladesh Police
* Anti-Corruption
Commission
* Human rights Com
Commission
Election Commission
* etc.
|
|
Civil service commission
|
|
JM
|
|
AJ
|
|
Gram Adalat/Mimangsa
Board
|
|
Zila Parishad
|
|
Union Parishad
|
|
Tribal
Administration
|
|
Pourashava/Upazila
Porishad
|
|
Local Authorities
|
|
SAJ
|
Note: The Chief Judicial Magistrate’s equivalent
post is Chief Metropolitan Magistrate and in the same way, The Senior Judicial
Magistrate’s equivalent post is Metropolitan Magistrate in the Metropolitan
area. The aforesaid shortened terms stand for the following meanings.
DJ= District Judge
ADJ= Additional District Judge
CJM= Chief Judicial Magistrate
CMM=Chief Metropolitan Magistrate
ACJM= Additional Chief Judicial Magistrate
JDJ= Joint District Judge
SJM= Senior Judicial Magistrate
MM=Metropolitan Magistrate
SAJ= Senior Assistant Judge
AJ= Assistant Judge
JM= Judicial Magistrate
2.
Constitutional framework
2.1 The Executive (articles
from 48 to 64)
Articles
from 48 to 64 are connected with the term ‘the executive’ and the
constitutional framework of this is nothing but the structure of forming and
working of the said authority. `However, I am mentioning here the phase to
phase constitutionally executive framework:
Executive
under the 1972 Constitution
“The
executive adopted under the Constitution of 1972 was parliamentary executive
whose main feature was the fusion between the executive and the legislature.
Part IV of the Constitution dealt with the executive, the President, the Prime
Minister and the cabinet-encompassing issues such as the qualifications of the
President, his term of office, methods for the removal of the President, etc.
The executive consisted of two components: a ceremonial head of state in the
form of an indirectly elected President and an effective and elected Prime
Minister who with his cabinet was collectively responsible to the Jatiya Sangsad
as in the British parliamentary system.
Bangladesh
Constitution of 1972 had ensured that the President would not interfere with
the office of the Prime Minister. The selection and appointment of a Prime
Minister was made simple and straightforward. He/she had to be a leader of the
majority party in the Sangsad. The members of the cabinet were to be appointed
by the President on the advice of the Prime Minister. The real executive power
was to be exercised by the Prime Minister and he/she would be aided by a
council of ministers who would hold office during his/her pleasure. Similarly,
the power to dissolve the Jatiya Sangsad by the head of state rested on the
advice of the Prime Minister. Thus, the office of the President was relegated
to a mere constitutional head of state, like that of the British monarch. The
Prime Minister along with his cabinet was the real executive, collectively
responsible to the Sangsad. Subsequently, however, extraordinary constitutional
devices like preventive detention, emergency powers and a special power act,
through which the executive could dominate the Sangsad, were incorporated in
the Constitution.
Executive under Fourth Amendment
Drastic
transformation in the nature and type of the executive took place in Bangladesh
through the Fourth Amendment of the Constitution. It relegated the
parliamentary democracy to a constitutional one-party dictatorship in which all
powers were concentrated in the presidency, thus virtually abolishing the two
parts of the executive. A one-party presidential form of government was
introduced in which direct election was provided for the election of a
President. The President, with tenure of five years, was made independent of
the legislature.
An office
of Vice President was created he was to be appointed by the President and in
case of a vacancy in the presidency; the Vice President was to take over. All
executive authority was vested in the President and was to be directly
exercised by him. A council of ministers to aid and advise the President was
created, and its members, including the Prime Minister were to be appointed by
the President at his discretion. The council was to be presided over by the
President and would hold office during his/her pleasure. A new section, Part
VIA was added to the Constitution in which Article 117A empowered the President
to create a single party if needed in order to give full effect to the
fundamental principles of state policy set out in part II of the Constitution.
Once the President, by order, created such a national party, all political
parties were to stand dissolved. The nomenclature, programme, membership,
organisation, discipline, finance, and functions of the national party were to
be decided by Presidential order. The executive created under the Fourth
Amendment was not a genuine Presidential system. The parliament had no
authority to act as a watchdog for Presidential activities. The office of the
President was made all powerful and without any checks on his/her executive
authority.
Executive under the Fifth Amendment
The
executive under President ziaur rahman, who came to power after the
assassination of Sheikh Mujibur Rahman on 15 August 1975, once again was
modified through the Fifth Amendment of the Constitution. As the Chief Martial
Law Administrator of the country from the last half of 1976 until the
parliamentary election of 1979 Ziaur Rahman, through a number of Presidential
orders, brought a number of changes in the political order like the revival of
the multi-party system etc. The most important step, however, was the Second
Proclamation Order No. 4 issued, on 18 December 1978 and known as the Fifteenth
Amendment Order, which introduced constitutional reforms putting a formal end
to the political order of Sheikh Mujibur Rahman.
The
executive authority was still vested in the President who was directly elected
by the people for a period of five years, albeit without a limit to the number
of terms in office. He was the commander-in-chief of the armed forces, chief
executive and chief legislative initiator through his power to address the
Jatiya Sangsad and to dissolve it.
The
insertion of Article 92 (A) armed the President with financial powers through
which he could control the Sangsad. Further insertion of Article 142(1) (A)
provided for a referendum process, which allowed the executive to by-pass
Sangsad and appeal directly to the electorate on critical constitutional
issues. National and international policies formulated by him were to be laid
before Sangsad for their approval. Once elected he was likely to remain in
office till the end of his term, as the powers of the Sangsad to impeach or
remove the President were adequately restricted. Extraordinary constitutional
devices like preventive detention, emergency powers, as well as the special
powers act through which the executive could exercise almost dictatorial
powers, were all retained. The Proclamation further amended Article 58 under
the Fourth Amendment in the following manner: (i) there shall be a council of
ministers consisting of a Prime Minister and other ministers to aid and advise
the President in the exercise of functions; (ii) the question whether any, and
if so what, advice was tendered by the council of ministers or a minister to
the President shall not be inquired into in any court; (iii) the President
shall appoint as Prime Minister the member of Jatiya Sangsad who appears to him
to command the support of the majority of the members of Sangsad; (iv) the
President shall appoint the deputy Prime Minister and ministers from among the
members of Sangsad or from among persons qualified for election as members of
Sangsad; (v) the ministers shall hold office during the pleasure of the
President; (vi) the President shall preside over the meetings of the council of
ministers or may direct the Vice President or the Prime Minister to preside
over such meetings.
Thus,
although the familiar parliamentary provision of a council of ministers headed
by a Prime Minister was incorporated, the cabinet, in view of the Presidential
powers and influence, was more like a Presidential cabinet than a parliamentary
one. The executive under the Fifth Amendment was a Presidential system without
having the usual features of a genuine presidential system like that of the
United States.
Executive under the Ninth Amendment
The type of
executive, with an all powerful presidency and a rubber-stamp legislature
established under the Fifth Amendment was retained by General HM Ershad. In
order to make it look more like the American Presidential system he brought
about the Ninth Amendment to the Constitution to democratise the system.
Article 52 (2) was amended to limit the President's tenure to two-terms;
whereas according to the amended Article 49, instead of the President
nominating the Vice President, the Vice President was to be directly elected as
a running mate of the President. The executive now bore more resemblance to
that of the US, but in the absence of a powerful and independent legislature
there were virtually no checks on the authority of the executive. A further
restriction on parliament's powers, as evidenced through the addition of a new
clause 72(A), made the case perfectly clear.
Executive under the Twelfth Amendment
The
executive that emerged in Bangladesh as a result of the acceptance of the
Twelfth Amendment is, once again, a parliamentary executive. It has retained
all the features of a parliamentary system, which had been there under the 1972
Constitution.
However,
constitutional provisions have been incorporated in order to ensure the
dominance of the Prime Minister. A new clause has been added to Article 70 in
order to further restrict the independence of the members of the Jatiya
Sangsad. This and the lack of democratisation within the major political
parties make the Prime Minister's position virtually unchallengable. Further,
the mode of election of the President has been made in such a way that unless a
person is nominated and approved by the Prime Minister he or she cannot be
elected, thus making the relationship between the President and the Prime
Minister not one of equals. It seems that the President is almost subordinate
to the Prime Minister. As such the executive in Bangladesh, at present, is
overridingly Prime Ministerial.”7
Executive under the fifteenth Amendment:
A major
change in respect of NON-PARTY CARE-TAKER GOVERNMENT has been done through the
aforesaid amendment. Article 58A which holds the NON-PARTY CARE-TAKER
GOVERNMENT has been omitted the Constitution (Fifteenth Amendment) Act 2011
(Act XIV of 2011), section 20. Article 61 of the Constitution of the People’s
Republic of Bangladesh has been substituted by the Constitution (Fifth
Amendment) Act, 2011 (Act XIV of 2011) section 22 which provides that-
‘The
supreme command of the defence services of Bangladesh shall vest in the
President and the exercise thereof shall be regulated by law.’
2.2 The Legislature(articles from 65 to 93)
Articles from 65 to 93 deals with term
legislature
and according to article 65 of the constitution the parliament (House of the
Nation) is the main constitutional body of legislating the law or legal
framework. This can also delegate any person or authority, by Act of Parliament,
power to make orders, rules, regulations, bye-laws or other instruments having
legislative effect. ‘The legislative branch of the government is a unicameral
Parliament, or Jatiyo Sangsad (House of the People), which makes the laws for
the nation. Members of Parliament, who must be at least twenty-five years old,
are directly elected from territorial constituencies. Parliament sits for a
maximum of five years, must meet at least twice a year, and must meet less than
thirty days after election results are declared. The president calls Parliament
into session. The assembly elects a speaker and a deputy speaker, who chair
parliamentary activities. Parliament also appoints a standing committee, a
special committee, a secretariat, and an ombudsman.
Parliament
debates and votes on legislative bills. Decisions are decided by a majority
vote of the 300 members, with the presiding officer abstaining from voting
except to break a tie. A quorum is sixty members. If Parliament passes a
nonmoney bill, it goes to the president; if he disapproves of the bill, he may
return it to Parliament within fifteen days for renewed debate. If Parliament
again passes the bill, it becomes law. If the president does not return a bill
to Parliament within fifteen days, it automatically becomes law. All money
bills require a presidential recommendation before they can be introduced for
debate in Parliament. Parliament has the ability to reject the national budget
or to delay implementation. It is therefore in the best interests of the
executive as well as the entire nation that budgets submitted to Parliament
should be designed to please the majority of its members. The legislature is
thus a potentially powerful force for enacting laws over the objections of the
president or for blocking presidential financial initiatives. In practice,
however, because most members of Parliament have been affiliated with the
president's party, the legislature has typically served the interests of the
president.
The
Bangladeshi and British parliaments have accommodated political parties in a
similar manner. After elections, a single political party or a coalition of
parties must form a government-- that is; they must form a block of votes
within Parliament that guarantees the passage of bills they may introduce. Once
a parliamentary majority is formed, the president chooses the majority leader
as prime minister and appoints other members of the majority as cabinet
ministers. Parliament can function for a full five-year term if a single party
or coalition can continue to guarantee a majority. If, however, opposition
members attract enough votes to block a bill, the president can dissolve
Parliament and call for new elections. In order to prevent widespread bribing of
members, or the constant defection of members from one party to another, the
Constitution declares that party members who abstain, vote against their party,
or absent themselves lose their seats immediately. In practice, whenever
Parliament has been in session, a single party affiliated with the president has
been able to command a solidmajority.’8
2.3 The Judiciary(articles from 94 to 117)
The
government operates courts in the regions, districts, and sub-districts that
make up the local administrative system. The judges in these courts are
appointed by the president through the Ministry of Law and Justice or the
Ministry of Home Affairs. Most cases heard by the court system originate at the
district level, although the newer sub-district courts experienced an increased
caseload in the late 1980s. Upon appeal, cases may go up to the Supreme Court,
but litigation may be very slow; in 1987 there were 29 Supreme Court judges
dealing with 21,600 pending cases. The Supreme Court, as of June 1988, had
permanent benches--called the High Court Division-- in Dhaka, Comilla, Rangpur,
Barisal, Sylhet, Chittagong, and Jessore. It hears appeals from district courts
and may also judge original cases. The Appellate Division of the Supreme Court
in Dhaka reviews appeals of judgment by the High Court Division. The judges of
both divisions are appointed by the president.
At the
grass-roots level, the judicial system begins with village courts. An aggrieved
party may make an official petition, which requires a fee, to the chairman of
the union council (the administrative division above the village), who may call
a session of the village court with himself as chairman and two other judges
nominated by each of the parties to the dispute. The parties may question the
impartiality of the chairman and have him replaced. The majority of cases end
at the village court level, which is inexpensive and which hands down judgments
that reflect local opinion and power alignments. There are occasions, however,
when the union council chairman may reject an official petition to constitute a
village court or when one party desires a higher opinion. In these cases, the
dispute goes to a government court at the sub-district level. Cases may wind
their way up from district courts to permanent benches of the High Court
Division. Once cases leave the village courts, they become expensive affairs
that may last for years, and few citizens have the financial resources to fund
a lengthy court battle. Rapid political changes in independent Bangladesh have
compromised the court system. The Constitution originally stated that the
president could remove members of the Supreme Court only if two-thirds of
Parliament approved, but the Proclamation (Amendment) Order of 1977 included a
clause that eliminated the need for parliamentary involvement. The clause set
up the Supreme Judicial Council, consisting of the chief justice and the next
two senior judges. The council may determine that a judge is not "capable
of properly performing the functions of his office" or is "guilty of
gross misconduct." On their advice, the president may remove any judge. In
addition, executive action has completely eliminated judicial authority for
long periods. For example, under martial law regulations enacted in 1982, the
Supreme Court lost jurisdiction over the protection of fundamental rights, and
all courts operated under provisions of law promulgated by the chief martial
law administrator; special and summary martial law courts handed down judgments
that were not subject to review by the Supreme Court or any other court.
Furthermore, the Fifth Amendment and the Seventh Amendment placed martial law
proclamations and judgments outside the review of the court system. In these
ways, the courts have been forced to serve the interests of the ruling regime,
rather than standing as an independent branch of government.9
3.
Civil Service of Bangladesh
3.1 Legal framework
Article 137 of the constitution of the People’s Republic of Bangladesh
deals with the term ‘legal framework’ of civil service of Bangladesh. ‘The
implementation of government policies and projects is the duty of the
Bangladesh Civil Service, a corps of trained administrators who form the
nation's most influential group of civilians. The importance of the bureaucracy
dates back to the colonial period, when the Indian Civil Service provided elite,
educated, and dedicated body of professional administrators. After the
partition of India in 1947, when almost all administrative organs had to be
created afresh, both East Pakistan and West Pakistan heavily relied on the
managerial expertise of professional managers from the old Indian Civil
Service. When Bangladesh became independent in 1971, the members of the civil
service who joined the new nation brought with them the heritage of the
colonial system. This heritage included administrative competence, which proved
invaluable in running a young Bangladesh and an expectation by the elite of
benefits and power.
In mid-1988 the civil service was composed of twenty-eight
separate services. There were twenty grades, with promotion to higher grades
based on merit and seniority, dependent on annual confidential reports filed by
the individuals' supervisors. Recruitment to the civil service occurred through
open competition within a quota system. Forty percent of all new positions were
allotted on the basis of merit; 30 percent were reserved for former freedom
fighters (Mukti Bahini), and 20 percent were allotted to women. The quotas were
distributed among districts on the basis of population. Eligibility depended on
an entrance examination, which included English, Bangla, and mathematics
sections, plus a personal interview. The Public Services Commission, as
mandated by the Constitution, conducted the examinations for the civil service.
The recruitment system attempted to eliminate the entrenched power of the old
elites and to decrease the bias that favored candidates from wealthy, urban
families. Although in the late 1980s it appeared that the new rules for
recruitment and promotion might widen the backgrounds of civil service
personnel and their supervisors, the older, senior members of the service
continued to dominate the administration.
Since independence, membership in the civil service has been one
of the most desirable careers in the country. For senior civil servants,
benefits included government housing at a standard rate of 7.5 percent of base
salary, transportation, medical care, and a pension. Equally important were the
prestige and influence that accompanied an administrative career. For example, there
was great power in directing a division of a ministerial secretariat in Dhaka,
or one of its attached departments, subordinate offices, or autonomous bodies.
Positions in the countryside were less popular, but the long tradition of
bureaucratic elitism and subservience to government officials made the local
administrator of the civil service an influential person in the community. In
the late 1980s, the centralization of power and influence within the civil
service remained one of the prime targets of administrative changes designed to
decentralize politics and economic development throughout Bangladesh.10
3.2 Recruitment procedure and
recommendations:
The
Bangladesh Public Service Commission (BPSC) is a quasi judicial body
established in 1972 under the Constitution of the People's Republic of
Bangladesh. It works under the provisions of the Article 137 - 141 of the
Constitution of Bangladesh and certain other rules and regulations made by the
government from time to time. The Chairman and such other members as shall be
prescribed constitute the commission. There is also a full fledged Secretariat
to assist the Commission. The Chief Justice of the country administers the oath
for Chairman and the members of the commission. The tenure of the Chairman and
members of the commission is 5 (five) years or 65 years of age whichever comes
earlier. If the age permits the tenure can be renewed for one more term. The
chairman and the members are appointed by the Hon'ble President of the
Republic.11 Presidential
Order No. 34 (on May 9, 1972), PSC Ordinance No LVII of 1977, BCS Recruitment
Rules of 1981, PSC Officers & Employees Recruitment Rules, 1990 are also
connected legal mandate giving statutes.
Bangladesh
Civil Service, more popularly known by its acronym BCS, is the elite civil
service of the Government of Bangladesh. It originated from the Central
Superior Services of Pakistan. Since independence it has been known by Act as
Bangladesh Civil Service. The Bangladesh Public Service Commission (BPSC) is
the main policy setting and recruitment body of BCS. BCS has 28 cader services.
BCS recruitment system consists of - preliminary MCQ test, written test,
viva-voce, final result publication, medical test, police verification and
finally appointment.12
The cadres and entry posts of the Bangladesh
Civil Service:
General
cadres
1. BCS
(Administration): Assistant Commissioner.)
2. BCS
(Police): Assistant Superintendent of Police
3. BCS
(Audit & Accounts): Assistant Accountant General
4. BCS
(Economic): Assistant Chief
5. BCS
(Customs & Excise): Assistant Commissioner (Customs & Excise)
6. BCS
(Taxation): Assistant Commissioner of Taxes
7. BCS
(Foreign Affairs): Assistant Secretary
8. BCS
(Food): Assistant Controller of Food / Equivalent Posts
9. BCS
(Cooperatives): Assistant Registrar
10. BCS
(Trade): Assistant Controller of Import & Export / Equivalent Posts
11. BCS
(Postal): Assistant Post Master General / Equivalent Posts
12. BCS
(Railway Transportation & Commercial): Assistant Traffic Superintendent
13. BCS
(Ansar): Assistant District Commandant / Equivalent Posts
14. BCS
(Information): Information Officer / Equivalent Posts
15. BCS
(Family Planning): Family Planning Officer
The
professional cadres are:
1. BCS
(Judicial: Assistant Judge ( Note, following the separation of Judiciary from
Executive organ of the Government since 2007 BCS Judicial officers are enjoying
a separate service denomination that entails them to be known as belonging to
newly established 'Bangladesh Judicial Service'.
2. BCS
(Public Works): Assistant Engineer
3. BCS
(Roads & Highways): Assistant Engineer
4. BCS
(Telecommunications): Assistant Divisional Engineer
5. BCS
(Public Health Engineering): Assistant Engineer
6. BCS
(Forest): Assistant Conservator of Forest
7. BCS
(Health): Assistant Surgeon / Medical Officer
8. BCS
(Railway Engineering): Assistant Engineer
9. BCS
(Livestock): Veterinary Assistant Surgeon / Upazilla Livestock Officer
10. BCS
(Fisheries): Upazilla Fisheries Officer
11. BCS
(Statistics): Statistical Officer
12. BCS
(General Education): Lecturer
13. BCS
(Technical Education): Lecturer
14. BCS
(Information), Technical: Assistant Radio Engineer (This cadre has both general
and technical category posts)
15. BCS
(Agriculture): Agricultural Extension Officer.13
Recruitment
Recruitment
into different Cadres of the Bangladesh Civil Service (BCS) is in accordance
with the provisions of this rule. No direct appointment can be given in BCS
Cadre Service without the recommendation of the Public Service Commission, and
examinations are held (both written & viva-voce).
A person
should be a Bangladeshi national and a permanent resident in Bangladesh to be
appointed to the Cadre Service. Any national married or promised to be married
to a foreign national will not be eligible for such an appointment.14
‘Recruitment is the process of searching for prospective employees
and stimulating them to apply for jobs in the organization (Flippo and Edwin
1984: 141). No element of the career service system is more important than the
recruitment policy” (Commission of
Inquiry on Public Service Personnel, 1935:37, quoted in Stall
1962:51). Recruitment is the cornerstone of the whole personnel structure.
Unless recruitment policy is soundly conceived, there can be of little hope of
building a first rate staff (Stall, 1962: 51).
Broadly, there are two major methods for recruitment to civil
service: (a) merit system through competitive examination and (b) spoils
system. Under the typical civil service law, the central personnel agency
commonly called Public Service Commission is
responsible to conduct competitive examination. Spoils system
(also known as a patronage system) is an informal practice where a political
party, after winning an election, gives government jobs to its voters as a
reward for working towards victory, and as an incentive to keep working for the
party—as opposed to a system of awarding offices on the basis of merit,
independent of political activity.’15
Legal Basis for BCS Recruitment Policy
‘The constitution of Bangladesh has granted equal employment
opportunities for citizens. The constitution declares “There shall be equality
of opportunity for all citizens in respect of employment or office in the
service of the Republic” (Article 29 [1]). “No citizen shall, on the grounds
only of religion, race, caste, sex or place of birth be ineligible for, or discriminated against in respect of any
employment or office in the service of the Republic” (Article 29 [2]). However
under clause (3) of the same Article, the constitution has provided certain
exceptions that read: “Nothing in this article shall prevent the state from (a)
making special provision, in favor of any backward section of citizens for the
purpose of securing their adequate representation in the service of the
Republic; (b) giving effect to any law which makes provision for reserving
appointments relating to any religious or denominational institution to person
of that religion or denomination; (c)
reserving for members of one sex any class of employment or office on
the ground that it is considered by its nature to be unsuited to members of the
opposite sex (Article 29 [3]). The above
constitutional provisions indicate that civil service recruitment policy in
Bangladesh is the admixture of merit and quota. It should be noted here that
recruitment policy was first introduced in Bangladesh by an executive order in
September 1972 called Interim Recruitment Rules 1972 before the constitution
came into operation in December 5 of that year. The recruitment to civil
service in Bangladesh may be of various natures. They are: direct appointment
through competitive examination, appointments by promotion, appointments by
transfer and appointments on ad hoc basis and then regularization. Here we
shall deal with direct recruitment to the officers giving emphasis to cadre
services.’ 16
Recommendations: Julian Paul Assange, an Australian computer
programmer, political/internet activist, publisher, and journalist and founder
of WikiLeaks, supports the free dissemination of government data.17 My
recommendation for better recruitment is to take the technological help in
respect of recording the recruitment procedure and to show the recorded video particularly
the viva voice phase so that the people can understand at least that the
recruitment is fair and reasonable. Almost, all the time, it is beyond the
capacity of the common citizens to understand as to the viva voice procedure
and their markings. I am telling to remove the lacuna of not understanding the
quality assessment procedure. For example, when a Judge presides his Court and
after both the parties delivers his judgment in a disputed matter, both
parties, their legal practitioners all other connected and non connected
persons being present can observe the entire procedure and the judgment based
on the findings or reasons but the same is not possible in a process of
recruiting the persons to be appointed in the Civil Service of Bangladesh. That’s
why, the entire recruiting procedure should be recorded and viewed to the
citizens of the State. It is necessary to mention that, a Judge pressing a
Court openly having the access to all to know and observe can understand the
weak points and strong points as to the disputed matter and even the
correctness or the incorrectness of the findings or reasons given by the said
Judge. For this open functioning of a Judge, it is very ascertainable whether a
Judge gives his judgment either correctly or incorrectly and the word incorrect
includes also the corruption. According to Transparency International the
following things should be done; (1). The mark sheet of the successful
candidates should be given to the examinees on compulsory basis immediately
after the result is published ;(2). The result sheet of all examinees (both
successful and unsuccessful) must be published on the website. (3). Existing
restrictions against challenging the result of examinations should be
immediately abolished.18
Besides these, quota system should be abolished as our
Constitution or any law has not given the definition and the factors of opting
‘backward section’ of the citizens.
Article 29(3)(a) of our constitution though provides the quota system
for ‘backward section’ of the citizens
for the purpose of securing their
adequate representation in the service
of the Republic but there is no mechanism or procedure for determining the
necessity and time frame of the said quota system. As for example, A man in our
village had seven sons and two of them are freedom fighters and government
servants and financially solvent. If their children get the benefit of quota
system, how can we determine them as backward section of the citizens while
other sons’ being poor are not getting the said benefit and hence Professor M.
Abdul Wahhab Dept. of Public Administration, University
of Chittagong, Bangladesh has re uttered correctly that The quota policy as
enshrined in the constitution is an exception for the advancement of backward
sections in the society. Hence quota in no way can supersede the universal
principle of merit for ensuring equal employment opportunities for all citizens
without any discrimination. So quota of 80-55 percent as practiced in
Bangladesh with different executive orders/rules is against the spirit of constitution.
Since after liberation in 1971 till date majority posts of the civil services have
reserved for the people of preferred groups under quota. Moreover, quota has always
been implemented without transparency. It is surprising that that the
appointments under quota have never made public either by PSC or by MOE in
official
document or gazette. The PSC annual reports
do not provide adequate information on the appointments under quota.
Quota may be necessary for the advancement
of backward sections in the society, but it
can never continue for indefinite period as
is going on in Bangladesh. Due to quota policy relatively poor caliber
officials get entry into the civil service and long term bad impact of quota
system is evident in the civil service of Bangladesh. So we propose to abolish quota
in civil service recruitment excepting for tribal people (5%) but not for
Chakmas who on the average are financially better off than the general people
of Bangladesh; and also their literacy is higher around 75 percent and literacy
in Bangladesh is 63 percent.
Thus Chakmas in no criterion belong to
backward section in Bangladesh. The 30 percent quota for the wards of freedom
fighters “though sanctioned by a wave of
sympathy and gratitude has not a legal leg
to stand on unless the beneficiaries proved to be disadvantageous (Khan and
Kazi 2008: i).19
However, art. 29(3), does not, confer any
right on any one, nor impose any constitutional duty on the State to make the
reservation. In the face of art.29 (1) &29(2), it merely confers an
enabling power. But as it an exception to the guarantee of art.29 (1)
&29(2) it should not be interpreted or given effect to in such a way as to
nullify the guarantee under art.29 (1)
&29(2). The Indian Supreme Court held that reservation in excess of 50%
would be unconstitutional.20
Another question comes generally whether
all the member citizens of a backward section of the entire citizens are
backward equally? The answer is of course ‘not’ and hence “we are to consider
the meaning of ‘backward section’. Art. 29 is comparable with art.16 of the
Indian Constitution which uses the expression ‘backward class’ where as the
expression used in art. 29(3) is backward section. The Indian Supreme Court has
interpreted the expression ‘backward class’ in several decisions. Those
decisions may be helpful, but not decisive, in interpreting ‘backward section.’
This expression has no reference to race, caste, and there may be backward
section within a race or caste which as a whole may not be backward. 21
My ultimate recommendation is to abolish all kinds of
quota and
to provide all kinds of facilities to all kinds of backward citizens of
the backward section of the entire citizens so that they can sharpen and
enhance their abilities to make competition and have success with equitable
equality.
3.3 Transfer procedure and
recommendations
One of the responsibilities of the Ministry of Public
Administration (MOPA) as per the Rules of Business, 1996 is the Formulation of
policy on regulation of services and determination of their terms and
conditions (policy on method of recruitment, age limit, qualification,
reservation of posts for certain areas and sex, medical fitness, examinations,
appointment, posting, transfer, deputation, leave, travel, seniority,
promotion, selection, supersession, retirement, superannuation, re-employment,
appointment on contract, conditions of pensions, determination of status,etc.)22
But
unfortunately there is no hard and fast and transparent principle for doing the
transfer of the civil servants. According to article 12(1) of the Civil
Servants Act of Republic of Croatia-
Civil servants shall be protected from any
and all unjustified or unnecessary transfer or removal from the workplace.23
The existing transfer procedure should be transparent. All the
civil servants are equally considered and transferred in their entire service
life. The statistics of the civil servants who worked and are working in Dhaka
will tell this matter and no more information is necessary. The citizens and
the almost all the civil servants are awakened as to reason why a civil servant
is transferred in a particular place i.e. what quality is considered is to
viewed so that other officers can try to attain the same.
Recommendations:
Without any more discussion, to my mind, the lottery system of
transfer is the only way to remove any kind of unfair or unreasonable transfer.
How, having some exceptional measures, every after, a particular period of
time, that may be 3 years or any reasonable portion of time fixed by law, an
open lottery should be held which will be viewed by all the civil servants and
the citizens of the State and according to that lottery, their new stations
will be determined and if it is taken or done, there will be no request or
lobby for the transfer and harassment.
3.4 Promotion procedure and recommendation:
The word ‘promotion’ is a very
lucrative word among the civil servants and hence in order to get good numbers
in the Annual Confidential Report, the civil servants do many things which are
not lawful and broadly viewed before the public or any Court or any higher
authority. This is equally applicable in respect of the Judicial Officer of the
sub-ordinate Courts of Bangladesh.24
In Bangladesh, as in most other developing countries, the Civil
Service rules require
that promotions be on the basis of both merit and seniority.
However, it tends to attach a greater weight to seniority. Some reforming
countries are trying to link salaries and promotions to performance, but they
face stiff socio-cultural resistance. And the more tradition-bound countries
like Korea, Japan, and Thailand, have largely stuck to seniority. Bangladesh
does, in a formal sense, have an 'efficiency bar' which civil servants must
cross to ascend the salary ladder, but this is treated more as a matter of
routine. In Singapore, for example, the efficiency bar can only be crossed after
passing a strict examination. The sole authority dealing with promotions of
civil servants, used to be the Senior Services Selection Board (SSSB), headed
by the Cabinet Secretary. However, in 1987 the ruling Government introduced the
Cabinet Sub-committee on Promotions.
Recommendation:
1. Annual Confidential Report system should be abolished and only
merit through examination should be basis of promotion. Before taking part in
the examination, there must have a time frame of working experience.
2. A Committee composed of well
experienced based persons concerned shall be formed for every department which
will review the aforesaid time frame based works and give the report to the
promotion giving authority.
3. The committee may do mistake and hence there
should have an opportunity that if a civil servant obtains good marks in the
examination and the committee review report is against him, the basis of the
said review report must be checked by another similar committee.
4. All the performance reviewed by the
committee must be publicly viewed either by website with their consideration.
3.5 Training
It is a learning process that involves the acquisition of
knowledge, sharpening of skills, concepts, rules, or changing of attitudes and
behaviours to enhance the performance of employees. Training is activity leading to skilled behavior.
*It’s not what you want in life, but it’s
knowing how to reach it
*It’s not where you want to go, but it’s
knowing how to get there
*It’s not how high you want to rise, but it’s
knowing how to take off
*It may not be quite the outcome you were
aiming for, but it will be an outcome
*It’s not what you dream of doing, but it’s
having the knowledge to do it
*It's not a set of goals, but it’s more like a
vision
*It’s not the goal you set, but it’s what you
need to achieve it. 25
Bangladesh has a fairly
elaborate civil servant training system. This includes the
Public Administration Training Centre (BPATC), the Regional Civil
Service Training
Centers, and the specialized training institutes
managed by ministries and Departments.26
National School of Public Administration (NSPA) should
be established
for like Brazil and it should be opened for all the civil servants like
National Defence College of Bangladesh and there should have an opportunity of
taking education with the foreign participants.
Recommendation:
Training should be given to the civil servants for realizing the
matter that embodied in art.21 (2) of the Constitution of the People’s Republic
of Bangladesh that all the civil servants are duty bound to strive at all times
to serve the people. They ought to be trained that they are paid by the taxes of
the common people of the country.
3.6 Accountability
The accountability of civil servants of the
State must be ensured so that the people of the State can get an accountable
service oriented outcome and the said word ‘accountability is a concept in ethics and
governance with several meanings. It is often used synonymously with such
concepts as [1] answerability, blameworthiness, liability, and other terms
associated with the expectation of account-giving. As an aspect of governance,
it has been central to discussions related to problems in the public sector,
nonprofit and private (corporate) worlds. Internal rules and norms as well as some
independent commission are mechanisms to hold civil servant within the
administration of government accountable. Within department or ministry,
firstly, behavior is bounded by rules and regulations; secondly, civil servants
are subordinates in a hierarchy and accountable to superiors. Nonetheless,
there are independent “watchdog” units to scrutinize and hold departments accountable;
legitimacy of these commissions is built upon their independence, as it avoids
any conflicts of interests.27
There are various types of accountability i.e.
(1)
Horizontal vs.
Vertical Accountability
(2)
Another School of
Thought: Horizontal
versus Vertical Accountability
(3)
Political versus
Legal Accountability
(4)
Social
Accountability
(5)
Diagonal Accountability
(6)
Social
Accountability versus Diagonal
Accountability
‘Parliaments are key actors in what has
been termed the ‘chain of accountability’. They are, along with the judiciary,
the key institution of horizontal accountability, not only in their own right
but also as the institution to which many autonomous
accountability institutions report. They
are the vehicle through which political
accountability is exercised. Along with civil
society organizations and the mass media,
they are also important institutions in
vertical accountability. Newer
concepts of accountability have emerged:
social accountability and diagonal
accountability. The former, defined as
‘society driven horizontal accountability’
seeks to provide direct answerability from
government to citizens; parliaments and
elected representatives are important
vehicles through which citizens and civic
groups can also extract enforcement. And –no matter how defined –
parliaments are one
of the institutions through which diagonal accountability
can be exercised.’27
However, the civil servants should be accountable by any or all
means of accountability.
4. Judicial Service of Bangladesh
4.1 Legal framework
Article 137 of the
Constitution, also deals with the term ‘legal framework’ of Judicial Service of
Bangladesh as the said article provides the scope of establishing one or more
public service commission for Bangladesh. The Appellate Division of the Supreme Court
of Bangladesh in its’ judgment passed in Civil Appeal no.79 of 1999 commonly
known in the Masder Hossain’s case that-
“It is declared that the
word “appointments” in Article 115 means that it is the president who under
Article 115 can create and establish a judicial service and also a magistracy
exercising judicial functions, make recruitment rules and all pre-appointment
rules in that behalf, make rules regulating their suspension and dismissal but
Article 115 does not contain any rule-making authority with regard to other
terms and conditions of service and that Article 133 and Article 136 of the
Constitution and the Services (Reorganization and condition) Act, 1975 have no
application to the above matters in respect of the Judicial service and
magistrates exercising judicial functions and for this declared law of the apex Court, the
establishment of judicial service commission of Bangladesh was done.
“Bangladesh Judicial Service
Commission has been established in 2007 by the rule ‘ বাংলাদেশ জুডিসিয়াল সার্ভিস কমিশন বিধিমালা, ২০০৭ ’ i.e.
Bangladesh Judicial Service Commission Rule, 2007. According to rule 3(2) of
the Bangladesh Judicial Service Commission Rule, 2007, the Commission consists
of 11 members headed by its Chairman who is to be a Judge of the Appellate
Division of the Supreme Court nominated by the Hon. President in consultation
with Chief Justice. Other members of the Commission includes- (a) two judges of
the High Court Division nominated by the President in consultation with the
Chief Justice (b) a member of the Law Commission nominated by the President (c)
Attorney General as ex-officio member (d) the Secretary of Ministry of
Establishment as ex-officio member (e) the Secretary of Finance as ex-officio
member (f) the Secretary of the Ministry of Law, Justice and Parliamentary
Affairs as ex-officio member (f) the Dean of the Law Faculty of any one of
three leading public university i.e. Dhaka or Rajshahi or Chittagong University
nominated by the President (g) the Registrar, Supreme Court as ex-officio
member and (h) the District Judge, Dhaka as ex-officio member. There is also a
full fledged Secretariat to assist the Commission. A District Judge of the
service functions on deputation as the Secretary of the Commission Secretariat.” 28
4.2 Recruitment procedure and
recommendation:
The recruitment of process
Bangladesh Judicial Service Commission is almost same of Bangladesh Public
Service Commission. It takes a preliminary (multiple choice question formats)
examination, Written examination and then viva voice. According to Rule 5 of Òevsjv‡`k RywWwmqvj
mvwf©‡mi cÖ‡ek c‡` wb‡qvM welqK Av‡`k, 2007 Judicial
Service Commission conducts the said preliminary examination and the applicants
having 45% marks in said examination will be qualified for written examination
and viva voice of 1100 marks. Among these
1100 marks, 400 marks will be from the compulsory general subjects and another
400 marks will be from compulsory law subjects and 200 marks will be from
optional law subjects and 100 marks will be from viva voice. According to rule
6 of the said Order 2007, the said Commission can conduct total 500 marks
examination including viva voice. On an
average, one applicant will have to have 45% marks of the written examination
and separately he will have to have 45% marks in the viva voice and any
applicant gets below 25% marks in a subject, it will be deemed that he has not
got any marks in that subject. The successful applicants in written examination
and viva voice will have to appear for health test. Thus the recruitment
process is conducted by the said Commission.
Recommendations: The
recommendations made in chapter 3.2 are applicable with equitable equality.
4.3. Transfer procedure
and recommendations:
The transfer procedures of the Judges of the sub-ordinate Courts
of Bangladesh are not transparent and there is no transparent guiding factor of
this transfer procedure. The statistics of the judicial officers who gets transfer
in Dhaka and around Dhaka will make the question that under what qualities or
factors they have got their transfers therein and thus we need to think and
rethink as to this matter.
Recommendation:
The recommendation made in
chapter 3.3 is applicable with equitable equality.
4.4 Promotion procedure and recommendations:
The promotion of sub-ordinate Court’s judges are in fact, depended
on the Annual Confidential Reports
(ACRs). There is no examination system for
getting the promotion in the sub-ordinate judiciary.
‘Presently, the performance
of subordinate court judges is evaluated by way of Annual Confidential Reports
(ACRs). It is commonly held that the process has failed to encourage
accountability and is not considered to be an effective supervision mechanism.
ACRs encourage tadbir (lobbying) with subordinate judges being
over-cautious and meek in the hope of receiving glowing reviews from senior
judges. ACRs are also susceptible to political interference as subordinate
court judges feel that their ACRs would contain negative remarks if they fail
to tow a particular political line.’29
In our sub-ordinate
judiciary, the rule of Annual Confidential Reports is not strictly followed.
Particularly rule 420 of Criminal Rules and Orders-2009 is not complied and
sub-rule 5 of the said rule 420 provides that-
“Confidential reports should
set out distinctly and tersely sufficient particulars and it is essential that
they should be clear and definite so that the High Court Division may form a
correct opinion on the merits of the officer. In the case of a very bad report,
it is necessary that the unfavourable traits should be briefly illustrated. No
adverse remarks should be made which cannot be supported by precise data, which
are liable, specially in the case of a very bad report of an officer who had
hitherto a good or average record, to be called for by the High Court
Division.” But it is not seen that the precise data are called for by the High
Court Division in a case of a Judge who is closely known to me and this is
surprising that the rule made by the Supreme Court of Bangladesh is not
complied with by the General Administration Committee of the Supreme Court of
Bangladesh.
Recommendation:
The recommendation made in
chapter 3.4 is applicable with equitable equality.
4.5 Training and recommendation:
The Government of Bangladesh
has established
the Judicial Administration
Training Institute (JATI) in accordance with the Judicial Administration Training
Institute Act 1995. Under the current training policy, JATI runs a 60-day basic
course for newly appointed Assistant Judges, 21-day courses
(and at times, 3-day short courses)
for Senior Assistant Judges, Joint District Judges and District Judges.
However, the quality of training is not satisfactory as it lacks dynamism and
fails to provide the judges with a broader outlook including
Knowledge of contemporary
international legal issues and necessary social skills.30
Recommendation:
The quality of training
provided by JATI should be improved. A training need- assessment of the subordinate
court judges could be undertaken immediately, which will identify the areas of
laws (such as, cyber space, money laundering, ethics, arbitration and
conciliation) for curriculum development and training. JATI should also plan and
implement a continuous point-based training
programme for the subordinate
court judges.
Another interesting and
innovative mode of
orientation for the judges of
the subordinate courts could be a form of 'apprenticeship' for the newly recruited
by placing them with the
judges of the Supreme Court for a designated period of time. Similar to the system
of 'pupillage' for newly qualified lawyers when they spend a period of time with
senior lawyers the newly recruited subordinate judges could be assigned to
different High Court judges. They could work as 'Research Assistants' of the
judges and help them with academic research, drafting of legal instruments, and
writing of judgments. After this initial phase of 'apprenticeship', they can
then receive further training at JATI. If this particular form of training is allowed,
the new recruits will get to learn about the different legal issues and how
judgments are written and generally increase their confidence and competence in
matters related to law. On the other hand, the judges of the High Court
Division, who are severely in need of skilled human resource, could benefit
tremendously from the service of the newly recruited judges. This would also
develop a working relationship between the judges of the Supreme and the
subordinatecourts.31
Accountability
The accountability of the
judges of the sub-ordinate Courts depends upon for the first time towards the
law and conscience as embodied in rule 667 of the Criminal Rules and
Orders-2009. The function of the judges of the sub-ordinate Courts are also
accounted by their appellate Courts.
5.
Way of maximum corruption free Bangladesh
5.1 Ethical education
Ethical education of the civil servants of the State is very
much needed in respect of maintaining the standards and values of them in
serving the needs of the people.
Most modern Civil Service Ethics laws, and Codes of Ethics for
civil servants and public officials, endorse the following minimum set of
principles:
Serving the Public Interest
Civil servants and public officials are expected to maintain and
strengthen the public's trust and confidence in government, by demonstrating
the highest standards of professional competence, efficiency and effectiveness,
upholding the Constitution and the laws, and seeking to advance the public good
at all times.
Transparency
Civil servants and public officials are expected to use powers and
resources for public good, under government policy. They should be accountable
for the decisions they make, and prepared to justify their actions.
Integrity
Civil servants and public officials are expected to make decisions
and act solely in the public interest, without consideration of their private
interests. Public employment being a public trust, the improper use of a public
service position for private advantage is regarded as a serious breach of duty.
Legitimacy
Civil servants and public officials are required to administer the
laws, and to exercise administrative power on behalf of the Government, or the
Parliament, or other such authority. That power and authority should be
exercised legitimately, impartially and without fear or favour, for its proper public
purpose as determined by the Parliament or their employer.
Fairness
Civil servants and public officials should make decisions and act
in a fair and equitable manner, without bias or prejudice, taking into account
only the merits of the matter, and respecting the rights of affected citizens.
Responsiveness
As agents and employees of the elected Government, Civil servants
and public officials are required to serve the legitimate interests and needs
of the Government, other civil servants, and all citizens, in a timely manner,
with care, respect and courtesy.
Efficiency and Effectiveness
Civil servants and public officials are required to obtain best
value for public assets deployed in or through public management, and to avoid
waste and extravagance in expenditure and the use of public assets.32 Besides these, the religious education must be
enlightened in both civil servants and the judicial officers or the judges of
the sub-ordinate Courts so that they can control themselves from doing any kind
of corruption.
5.2 Use of technology
The technology is the best neutral witness or evidence as I
understand that a person may be perverted at any time but there is no scope of
any perversion of technology unless it works defectively. If the function of
the civil servants or the judges of the sub-ordinate Courts are recorded and
viewed to the people, there will be the situation for which the society will be
maximum corruption free society. As for example, there are people’s perception
as to the corruption of the staff of the Court and other persons connected to
the Court and sometimes even the judge himself. This fact has been stated by
Mr. Mahmudul Islam, Senior Advocate of the Supreme Court of Bangladesh and
former attorney-general in his book ‘The Law of Civil Procedure’ first edition
2006, volume 1, page iii that
“For almost every act from instituting a case to the delivery of
the certified copy of the judgment or order one has to grease the palm of the
court staff. Few of the judges make any effort to control the diary as a result
of which the bench officer exacts substantial amount of money simply to place a
case in the daily cause list. Once there was a row over the matter and there
was serious altercation between a bench officer and a concerned lawyer, but
learned Chief Justice without applying his mind to the problem put the blame on
the lawyer.” However, the corruption of the court staff and the offices of the
civil servants can be controlled easily by using technology i.e. by recording
all the function of them and viewing to the people. For example, a court of subordinate
judiciary has generally two or three rooms. One room is for the judge, another
one room or other two rooms is for the staff of the said court and if secret
camera is set up and the judge can observe all the functions of the court
staff, he can easily catch the corruption and take necessary steps and the
entire function including the function of the judge should be recorded and
viewed to the people. There will be a screen on the road side of the office of
the civil servants and the court from which any person of the State can see and
observe their function easily. There must have a link through which the
appellate or higher authority of the office or court can also observe the
entire function and if it can be established, there will a maximum corruption
free society.
5.3 Check and balance
The theory of separation of powers was given by the
Charles-Louis de Secondat, baron de La Brède et de Montesquieu, generally
referred to as simply Montesquieu, indicates that there must have the check and
balance between and among powers. The
said profounder of this theory stated clearly in his famous book ‘the spirit of
laws’ that
‘I have not drawn my principles from my prejudices, but from the
nature of things.” The things are neutral and hence the use of technology must
also be neutral and hence by using the technology we can get a neutral result
which will establish a maximum corruption free society.
Conclusion
In conclusion, it can be
reminded that 3rd paragraph of the preamble of our constitution
provides that
‘Further pledging that it
shall be a fundamental aim of the State to realise through the democratic
process a socialist society, free from exploitation-a society in which the rule
of law, fundamental human rights and freedom, equality and justice, political,
economic and social, will be secured for all citizens.’
We need to remove all kinds
of exploitable scopes from the office of the civil servants and the judges of
the sub-ordinate courts and the apex court of Bangladesh by adopting the
technology which will work of course, as the best neutral evidence so that we
can see our society as a society at least free from exploitation.
References:
1.
M. J. Vile-
Constitutionalism and separation of powers, p.1; see also Mahmudul Islam-
Constitutional law of Bangladesh, second edition, p.1
19. http://www.napsipag.org/PDF/ABDUL_WAHHAB.pdf; see also Khan, Akbar Ali and Kazi Rakibuddin Ahmad March 2008. “Quota
System for Civil Service Recruitment in Bangladesh: An Exploratory Analysis”
2008 available at http:// www.bpsc,gov.bd/documents/ news/25906 news.doc
20. Mahmudul Islam- Constitutional law of Bangladesh,
second edition, p.171; see also Devadason v. India, AIR 1964 SC
179; In Indra Sawhney v. India AIR 1993
SC 477, it was held that a year should be taken as a unit or basis for applying
the rule of 50% and not the entire cadre strength.
21. Mahmudul Islam- Constitutional law of
Bangladesh, second edition, p.171; see also Indra
Sawhney v. India AIR 1993 SC 477
27. http://siteresources.worldbank.org/PUBLICSECTORANDGOVERNANCE/Resources/AccountabilityGovernance.pdf
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