Who will Bell the Cat?
Muhammad Muinul Islam analyses the anomalies in the existing warrant of precedence
In 763 A.D. Al-Mansur, the Abbasid monarch offered Imam Abu Hanifa the post of chief judge of the state. Abu Hanifa declined to accept the offer, choosing to remain independent. In his reply to Al-Mansur, Abu Hanifa recused himself by saying that he did not regard himself fit for the post. Al-Mansur, who had his own ideas and reasons for offering the post, lost his temper and accused Abu Hanifa of lying.
"If I am lying," said Abu Hanifa, "then my statement is doubly correct. How can you appoint a liar to the exalted post of a chief qadi (judge)?" Incensed by this reply, the ruler had Abu Hanifa arrested, locked in prison and tortured. He was never fed or cared for.
Now let me tell you another story. Do you remember Montesquieu -- the great French political thinker? Montesquieu often used to say, "government should be set up so that no man need be afraid of another." He was famous for the popularising the idea that a free and stable foundation of national government requires a clearly defined and balanced separation of powers.
Montesquieu's most influential work divided French society into three classes called trias politica: the monarchy, the aristocracy, and the commons. Montesquieu saw two types of governmental power: the sovereign and the administrative. The administrative powers were the executive, the legislative, and the judicial. Montesquieu proposed that these powers should be separate from and dependent upon each other so that the influence of any one power would not be able to exceed that of the other two, either singly or in combination.
These two stories epitomise two ideals of state systems: one, the supremacy of judiciary as testified by the stern stand of Abu Hanifa, and the other the independence as well as checks and balance among three organs of government as theorised by Montesquieu. The background to this writing is a recent divisive High Court (HC) verdict that created much backlash. I consider the verdict to be rational in two ways. To me, the verdict has both functional and substantive rationality, though the content of the verdict is debatable and should be set by the executive authority. The verdict, however, ignites a sensitive question: Who should retain and exercise sovereign power? Before I detail my arguments let's revisit the context and content of the verdict.
The Story Begins
On February 4 this year, the HC declared the present Warrant of Precedence (WoP) illegal and void and directed the government to issue a new WoP for the republic within 60 days, giving district judges and equivalent judicial officers, additional district judges, chief judicial magistrates and chief metropolitan magistrates precedence over the chiefs of armed forces, and government secretaries. The HC directive came as a part of its verdict in a writ petition filed in 2006 claiming that the cabinet division had framed the existing WoP in 1986 in an arbitrary manner, without evaluating the dignity and status of judicial officials. The petition was filed on behalf of Bangladesh Judicial Service Association by Md Ataur Rahman, a former secretary general of the association who was also the then district judge of the tribunal for prevention of repression on women and children, in Patuakhali.
In its reaction to the HC directive, the government on February 7, 2010, appealed against the order. The Attorney General's Office filed the petition with the court of the chamber judge of the Appellate Division on behalf of the government seeking a stay on the HC order given on February 4, 2010. In response, the chamber judge of the Appellate Division passed a stay order for six weeks on the HC verdict on February 8, 2010.
Are There Anomalies in the WoP?
As I pointed out earlier I think the verdict has a functional rationality and should be taken into consideration with a view to remove conspicuous discrepancies from the WoP. By saying so, I am not suggesting that the WoP should be amended to verdict of the court. I am just saying that anomalies exist in the WoP and they should be removed upon consultation with different legal and public administration experts. For example, the cabinet secretary ranked 12 has precedence over the attorney general, comptroller and auditor general, ombudsman, chairman of both public service commission and university grants commission in the WoP -- all of whom are ranked 15. Recently, the governor of Bangladesh Bank put in an application to the Prime Minister's Office to upgrade his ranking from 15 to 10, similar to the status of deputy ministers of the republic. I strongly believe these examples underscore the necessity to amend the current WoP.
It needs to be mentioned that the debate over anomalies in the WoP is not new. In the early British period, men in the judiciary took precedence over those in the executive. The order was, however, reversed after 1861 when the executive branch took precedence over the judicial branch of the state. The military, in those days, occupied the third position, and this trend continued throughout the colonial period. Throughout the British Raj, for the locals, the priority in position was determined according to the weight of the titles conferred upon them by the British government, such as Maharaja, Raja, Nawab, Sir, Sultan, Roy Bahadur, Khan Bahadur, etc.
In independent Bangladesh, the WoP has been amended several times since 1972. On October 16, 1975, the Cabinet Division of the government of Bangladesh issued a warrant of precedence superceding all previous notifications on the subject. Further amendments were made on November 22, 1983, and December 1, 1984. In September 1986, the cabinet division issued a new WoP superceding all previous notifications. This is still in use with some amendments made in October 1987, March 1988, December1991 and again in March 2000. The major amendments in the warrant of precedence were however made in December 1991 when the country switched over from presidential to a parliamentary form of government. Under this particular amendment, the prime minister has been placed second in order of precedence next to the president whereas in an earlier order issued in 1986, the prime minister was placed fourth after the president, the vice president, and the speaker.
Judges vs. Secretaries: Whither Teachers and Business Leaders?
It seems the HC verdict deals with a sensitive issue that stems from an apparent conflict between the status of the executive and that of the judiciary. We understand and believe in the supremacy of law, but the question is: Does the existing WoP violate the principle of the supremacy of law? It needs to be mentioned that chief justice of Bangladesh is placed 4th after the rank of the president, the prime minister and the Sspeaker of the parliament. So, to me, judicial supremacy is duly upheld, of course, above the bureaucracy in the current WoP.
But here I want to pose a different question: Where did we place teachers and business community in the WoP? Are university teachers less important in the eyes of nation even though they border on the same pay structure of the judicial and executive branch? Bureaucrats serve the state and judges ensure justice within the state. So, it is necessary to give them their due status. But we should not forget the contribution of teachers who educate our citizens and install a sense of civic pride and cohesion. And what about the business community which is relentlessly trying to bring economic development to the country. Where do we rank them in the current WoP? There is no place, unfortunately, for business leaders or commercially important persons (CIP) in the WoP.
For university teachers, professors of selection grade ranked 19th out of twenty-five under the current WoP, and professors of universities were 22nd similar to the status of joint secretaries and much below the level of a full secretary who is ranked 16th. Additional secretaries are placed 20th and if additional secretaries and joint secretaries can make find place in the WoP, why can't associate and assistant professors get their due place in the WoP?
SHAFIQUL ISLAM KAJOL/DRIKNEWS
Who will Exercise Sovereign Power?
This is a million dollar question and political scientists have dissented on the issue of the location of sovereignty. In a democratic system it is especially difficult to locate sovereignty. Three organs habitually work in unison and avoid undue intervention. Whatever it may be, whether it is parliamentary or presidential form of government, the president is the ultimate guardian of the state; he has the highest executive authority and exercises much of its sovereign power.
The work of the definition of the WoP falls within the periphery of the executive branch of the state. Ideally the HC should not interfere in the issue, which lies exclusively within the spheres of the executive. The verdict thus brings the judiciary and administration to a loggerhead. Experts of public administration believe that the reconfiguration of the WoP should not take effect with the iron hand of high court ruling which would probably lead to resentment between two important organs of government. If necessary, the parliament should amend the WoP and not the president.
In a recent study, the Institute of Government Studies recommends a change in the WoP. It writes: "Changing the rank status in warrant of precedence may be done by the Cabinet Division of the government by issuing an executive order." (The Public Service Commission: Policy Note, January, 2008). We hope the organs of the state will function in a cooperative manner and the judiciary should enjoy supremacy over all organs in terms of status while the executive should possess the sovereign power in its ultimate sense.
Muhammad Muinul Islam is a Lecturer in the Department of Public Administration, Jahangirnagar University. He can be reached at firstname.lastname@example.org.