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“All Citizens are Equal before Law and are Entitled to Equal Protection of Law”-Article 27 of the Constitution of the People’s Republic of Bangladesh

Issue No: 205
September 3, 2005

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Law alter views

Doctrine of incompatibility

Abu B. Siddque

Common law doctrine of incompatibility bars one person from holding two offices of a sovereign if the person is in a position "to promote the interests of one constituency at the expense of another". The incompatibility condition may arise in a number of different ways. As separation of 'judicial powers' is the distinction between exercise of judicial and non-judicial powers of a Judge. This allows a judge to be appointed as 'persona designata' to discharge his/her non-judicial power only. For example: Judges can be appointed to or as a 'head of a Commission' by the executive. By Bangladesh Constitution a Judge other than an additional judge after his retirement or removal (!!) can hold any office of profit which is judicial or quasi-judicial office or office of chief adviser or adviser.[Aricle:99] Does Election Commission is a Quasi-Judicial office? If not what is our practice then?

The 'persona designata' enables an individual as a person selected to perform a particular role. This power is also subject to limitations and conferral of such power upon a judge of the Supreme Court is not a conferral of power on the court itself. Therefore, a judge cannot be asked to perform any non-judicial tasks which are incompatible with judicial ones or which would interfere with the proper discharge of the judiciary's functions as an institution.

Other side of the coin is: such appointment should not be of 'conflicting loyalties'. 'Conflicting loyalties' exists if the duties of two offices are or may be inconsistent or in conflict. The conflict does not exist, however, if the duties are wholly unrelated, are not inconsistent, and are never in conflict. This type of in compatibility is generally present when one government body has the authority to impose its will on the other in any matter. For example, since a district judge could be in a position to render judgment against the school district where he also serves as trustee, the same person cannot hold those two incompatible offices.

Incompatibility might consist in so permanent and complete commitment to the performance of non-judicial functions by a judge is not practicable. It might consist in the performance of non-judicial functions of such a nature that the capacity of the judge to perform his or her judicial functions with integrity is compromised or impaired. Or it might consist in the performance of non-judicial functions of such a nature that public confidence in the integrity of the judiciary as an institutional or in the capacity of the individual judge to perform his/her judicial functions with integrity is diminished. Judges appointed to exercise the judicial power cannot be authorized to engage in the performance of non-judicial functions so as to prejudice the capacity either of the individual judge or of the judiciary as an institution to discharge effectively the responsibilities of exercising the judicial power.

Now, what are the consequences of such violation of the doctrine of incompatibility? If two offices are incompatible, a person is deemed to have relinquished the first office upon qualifying for and accepting the second. This may breached the doctrine of separation of powers because it involves a judge to get political advice from numerous political parties. This gives to a risk of diminution of public confidence in the judiciary through the involvement in pure political matters. 'Long arm of Law' considers such activity as a 'Contempt of court' even by a Judge.

Since incompatibility is a common-law doctrine, it may be over come by statute and constitutional provision can be change to make room for 'dual office holding'. It is necessary for justice. We should retreat form all the injustice and malpractices, to be honest. Another solution can be 'Automatic Resignation' or popularly know as resign to run. Therefore, a judge if appointed with other non-judicial office he may resign from the office of a Judge. In that case, alteration of the Constitution would not be necessary. Because, Article 99 puts conditions of 'retirement and removal' only; and the term 'resignation' is not covered there. To my understanding this would be a step forward towards 'Separation of Powers'.

The author is doing LL.B, Bond University, Australia .


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