Reviewing the views
Unprecedented warrant of precedence
|Warrant of precedence is sometimes a factor for checks and balances of power
THAT district judges should be placed above the secretaries and chiefs of three services in the Warrant of Precedence is something unprecedented. No offence meant, and in the words of former Indian Supreme Court Justice V.K. Krishna Iyer, it is "grave goof up, made unwittingly."
Conceivably, the logic behind is an over-zealous interpretation of the Constitution. True, judges of the Supreme Court are constitutional position-holders, but their brethren in lower judiciary are not, explained in whichever fashion. Like their counterparts in the BCS Administration and similar cadres, they are simply "public servants." Hence, unlike judges of the apex court who receive "remuneration," they receive "salary." Be that the lower court judges enjoy the same judicial independence the Constitution accords them, they are still "government employees." It is not rocket science!
That is not to argue that our warrant of precedence in its present form is perfect. Perhaps it cannot be perfect anywhere. For example, in India, the Chief Justice and Speaker of the Lok Sabha occupy the same position (6th), while in Bangladesh the Chief Justice is placed a step below the Speaker of the Parliament. This is a contravention to the concept of equality of the three organs of the government. Likewise in Pakistan, the position of the Chief Justice is not as exalted as it should be. He ranks below the Chairman of the Senate and the Speaker. In India again judges of the Supreme Court rank one step below the Union Cabinet Ministers but two steps above Union Ministers of State. However, in Bangladesh, judges of the Supreme Court (Appellate Division) and Ministers of State occupy the same spot (8th). Our Cabinet Secretary, Principal Secretary, and Chief of Staff of the Army, Navy and Air Force regardless of their military rank are placed in the same category (12th), above the Attorney General and Comptroller and Auditor General (15th). The Indian warrant of precedence on the other places the Attorney General and Cabinet Secretary at the 11th position, a step above the Chiefs of Staff (12th), while Secretaries to the Government of India, President and Prime Minister and officers of the rank of full General occupy 23rd position. Deputy Commissioner/District Magistrate and District Judges in states across India are almost uniformly placed in the same bracket. In Sri Lanka, Permanent Secretaries to the Ministries and Attorney General precedes the Chief of Defence Staff. Needless to say, there are variances in warrants of precedence in countries around the world.
The argument that the position of district judge is the highest in the country's career judicial service and hence merits highest pay similar to other sister services is quite sound. The latest pay-scale for district judges attempts to bring about some parity in this regard. It is utterly unsound to reason however that salary equates position and thus district judges and secretaries should occupy the same spot in warrant of precedence, in this case even above the secretaries who control them administratively in consultation with the Supreme Court. "State Protocol" for district judges is an overly large claim, but a seat in the VIP enclosure in official functions within their respective jurisdiction would be just fine.
The debate and tension over warrant of precedence involving particularly the judiciary and the administration is uncalled for and rather juvenile. Much-warranted quality and competence should precede the warrant of precedence. Reality is that our bureaucrats are not the rightful heirs of their CSP and the lesser EPCS predecessors. They are a sorry bunch. The crudity and lack of intellectual depth and social grace is abysmal. A former top dog in the bureaucracy confined that there are perhaps only five secretaries in the entire government who can meaningfully conduct negotiations in English with their foreign counterparts. Our judges are in an equal sorry state. We are no more endowed with the likes of ICS district judge Annada Shanker Roy or Ahsanuddin Chowdhury (later President) of the Bengal Civil Service. Now it is ordinary men and women, coping fitfully with their own failings. Their craving for "status" in warrant of precedence, as opposed to the judicial distance that they are required to maintain with public and administration in particular, is a display of their vainglorious mediocrity. Officers in defence forces are no exception.
The fracas over the warrant of precedence has now reached the Supreme Court. Let's not pretend that the court is a panacea for all menace. We do hope however that it would re-look into the issue in a holistic fashion, and produce an outcome that is reasonable, if not entirely satisfactory.
The writer is a freelance contributor to the Daily Star.
Manifestation of judicial activism
FOR many days there have been a question in my mind that why our Supreme Court played submissive role during different crisis (particularly during the military regime) of the nation. Especially, turning down the 8th amendment of the constitution (relating to establishment of High Court Division benches in the divisional cities) as well as the Upazila Parishad (Kudrat-E-Elahi Panir case) caused heavily my mind and raised a question whether judicial activism in Bangladesh is pro-people. Recently two decisions of the High Court Division, the 5th amendment case and the decision relating to warrant of precedence wake me up. The golden age of judicial activism begins!
There is no doubt that the 5th amendment of the constitution destroyed the spirit of our war of struggle wholly as well as changed the nature of our state, our identity as a whole. Unfortunately we the mass had to bear it until the verdict came from the court. One might say that there was none to challenge the 5th amendment in the court. I would, gently, argue that it is the Supreme Court who is the sole protector of the constitution and it is the judges of the Supreme Court who have to take oath to protect and to defend the constitution before their coming into the office. Therefore their failure to protect and to defend the constitution cannot be simply ruled out. I would agree that there was no democratic government in true sense until 1991 in Bangladesh. But we did not see any such move from the Supreme Court as a whole to come forward during the last three consecutive democratic governments.
The tension between the judicial service and the administrative service in Bangladesh is not new one or one might say not unexpected. We inherited a hybridised colonial judicial system where the prosecutor and the judge was the same person (magistrate) in criminal trial. Despite the constitutional guarantee for separation of judiciary from executive (that means the prosecutor and the judge should not be the same person) no successive governments pay any head to it.
Therefore civil servants were enjoying the judicial power until the Supreme Court's historic verdict on the Masder Hossain case. The verdict made the civil servants apparently unhappy as they thought that their judicial power has been taken away. As a result the tension comes to the forefront. We may recall the address of the Rokon-Ud-Doula one of the civil servants who was enjoying judicial power for a long time. He challenged the government when it went on to legislate to accomplish the separation. We were taken aback that how come a civil servant could challenge the government under the banner of an association.
Since the civil servants are historically nearer to the government (for legitimate purposes) they always deprive the judicial personnel (I do not want to call them officer) by various ways. Warrant of precedence is one of them. No successive governments took initiative to re-adjust the warrant of precedence of the judicial personnel especially the district judge. Therefore they took up the matter to the court as a last resort, which declared the previous warrant of precedence illegal since it is discriminatory to the judicial personnel especially to the district judge. Mizanur Rahman Khan has pointedly mentioned that the High Court judges perhaps considered the constitutional position and the position mentioned in the constitution and defended by the constitution over the position, which is mentioned in the constitution but does not defend by it (See Prothom Alo, February 8).
Without going into detail of the verdict I would just like to say that the highest position of the judicial cadre service is the district judge. In other words district judge court is the highest trial court, which can pronounce death penalty, the highest criminal punishment of the land. The irony of fate is that the position of this office holder of this important office is below the Secretary, the highest position in the civil service.
Does not the district judge deserve the same position with a secretary at least in the warrant of precedence? Many opined that it will create a hazard in the working of the different ministries since many district judges are working there which made me anxious about the outcome of the separation of judiciary. Therefore re-arrangement of warrant of precedence will not create any problem for the working of other government officials. If there is any district judge working in other ministry he/she should send back to the native place immediately to honour the Masder Hossain case verdict.
Efficient civil administration is a key to effective service delivery and a government cannot run without an efficient civil administration. Besides, coordination among the three wings of the government is a must to effective governance. But we should not forget the status of the judiciary. Though it is one of the wings of the state it's status is not similar to the civil administration. We should not forget also that a judge is not a servant of the state, which makes the fundamental difference between a civil servant and judicial personnel. This distinction is not personal rather their nature of job makes the difference.
The duty of a civil servant is to obey or follow the government's agenda while the sole duty of a judge is to follow the law and only the law. Therefore the dignity of the judiciary must be protected and it is the holy duty of the civil servants to protect the dignity of the judiciary. Unfortunately the way they reacted to the verdict of the High Court Division is unexpected (according to reports of the different dailies top civil servants had several meetings and expressed their dissatisfaction over the verdict). After all the matter is not going out of their hand since there is another highest forum to be exhausted.
The writer is a Research Scholar at the Centre for the Study of Law and Governance, Jawaharlal Nehru University, New Delhi, India.