The New Nation - Internet Edition

Dr. Belal Husain Joy

A news caption under the title govt attorney service ordinance - sc law officers demand amendment, published in the Daily Star on June 3, 2008, inspired me to undertake the venture of writing this article; evaluating the government attorney service ordinance 2008, which came into being on 18 May 2008. Such an initiative, approach and action was a long due to increase efficiency and productivity of the law officers, hence, this Ordinance 2008 deserves wide-appreciation from the legal professionals, judiciary, law officers themselves and the litigants in general.

The whole purpose of this ordinance is to appoint, train, retain and administer the Government Law Officers to ensure effective representation of the Government in the judicial process in all over Bangladesh under two units namely (i) Supreme Court and (ii) District Courts including civil and criminal cases in the Upazilla level.

The first and foremost important change was brought about by putting double instead of single administrator, namely, the Attorney General of Bangladesh only to supervision the judicial works of the Supreme Court Attorneys and the Director General to supervise, control and administer the whole Directorate formed under the Ordinance, of course, excluding the Attorney-General himself.

Under s.2 of the Bangladesh Law Officers Order 1972 (President's Order No. 6 of 1972); Law Officers meant the Attorney General of Bangladesh, Additional Attorney General, Deputy Attorney General and Assistant Attorney General for Bangladesh, although the Order was extended to the Whole of Bangladesh and which was also confirmed under Article 64(3) of the Constitution: giving the Attorney General the right of audience in all courts of Bangladesh. And that was without any supervising authority of the District level Government Law Officers.

The Attorney General of Bangladesh is appointed by the President, to a person who is qualified to be appointed as a judge of the Supreme Court under the Article 64(1) similarly like the appointments of the Auditor-General under Art. 127(2) and the Chairman of the Public Service Commission under Art.138 (1) of the Constitution; with the exception that the later two are obliged to take Oath but not the Attorney-General.

Because of extraordinary specialisation, the Attorney-General also could have been up-graded in line with the Auditor-General and Chairman of the Public Service Commission, and made the Attorney-General the Chief Executive and oath bound under whose supervision a Director General could have been appointed for caretaking, controlling and administering all the Attorneys of the Supreme Court and District Courts. And for more effectiveness six Directors for six Divisions to supervise the District Attorneys under the respective Divisions also could have been appointed to assist the Director-General.

Recently established Separation of Judiciary gave required powers and authorities to the Hon'ble Chief Justice of Bangladesh making him the Chief Executive of the whole Judiciary of Bangladesh. Likewise, the Attorney-General of Bangladesh also could have all required powers and authorities over all government law officers from all over Bangladesh, to bring uniformity in discharging the Attorney's services for effective justice system.

This approach could easily avoid the confusion already created among the attorneys and save any potential conflict between the attorneys and newly appointed Director-General. The management principles and line of authority and functional responsibilities are found to be so overlapping and that could lead to further chaos within the organisation even before the Directorate come into fully operational. Installing an appropriate modern management system, replacing the traditional administrative approach, is the cure of all such chaos, confusion and conflicts.

By introducing dual administration in the Ordinance 2008, an obvious conflict between the line and functional management has now been created. Resulting to this, the above news caption appeared saying that the Ordinance needs to be amended or otherwise the Supreme Court Law Officers may have to resign.

The above conflict was obvious because the Additional Attorney Generals are in higher positions, equivalent to the Additional Secretaries to the Government as per no.19 of the Warrant of Precedence 1986 as revised up to 7 January 2008 than the newly created Director-General who is only a Joint Secretary; they are obviously reluctant to serve under an officer of a lower position, not to mention the specialisation of the Attorneys' duties and responsibilities.

On the other hand, in the Warrant of precedence, Attorney-General comes to no.15, after who the Comptroller and Auditor-General appeared and in case of the Chairman of the Public Service Commission, he comes to no. 16, one step down. Considering the protocol, the Attorney - General of Bangladesh has been respected well considering the Auditor-General and the Chairman, PSC. But effectively, under the new Ordinance, Attorney-General's position appears to be in the same level with the Director-General of the newly formed Directorate of Attorney Service, although the primary qualification of the Attorney-General is to have the qualification to be a Judge in the High Court Division of the Supreme Court of Bangladesh who comes to no.9 in the Warrant of Precedence. Moreover, the Constitutional post of the Attorney-General cannot be equated with any of the executive posts of the Government.

Considering the above arguments and propositions, the Attorney-General also can be appointed for a term of five years and should have been at liberty to exercise his functions and shall not be subject to the direction or control of the other person or authority as applicable for Auditor-General under Art. 128(4) of the Constitution, to be more effective and transparent in rendering government legal service to the citizens.

And such liberty and independent authority of the Attorney General could reconfirm the commitment of the Government made through the Separation of Judiciary.

The responsibility of appointing new attorneys in Supreme Court and District Court levels is vested upon the Public Service Commission (PSC). Some politician-cum-professionals have already commented that the service should have come under the Judicial Service Commission (JSC). Arguments are there for and against, but reality of life is different. No one knows yet as the Rules are not yet even drafted, the whole process may take years in deciding whether the service will be under cadre or non-cadre and in drafting, correcting, commenting, recommending and approving through all concerning ministries and public authorities.

But in the mean time, the Ordinance 2008, allowed the existing law officers to continue their services for two years to facilitate the Directorate to complete its recruitment, selection and appointment process including installing appropriate training programs. Otherwise, because of sudden desperate shortage of government law officers, once again, like the appointment of judicial Magistrates, the government law officers will have to be put into action either with short training programs or none. Legal Training Experts with Management competence is very rare in our country, because only years of legal experience is not good enough to design delivery and review such giant training programs.

The section 3(b) in part III of the Ordinance is found to be contradicting with the recent law passed by the present Caretaker Government allowing government diplomats marrying foreign citizens.

The principle should be same, the security of the government and state sovereignty are at large in the hand of the government officers, no exception to the diplomats, as their individual good offices abroad are individual 'Bangladesh' in foreign lands. If the government allows the diplomats to marry foreign citizens, the in-land government officers may not necessarily be as sensitive as diplomats.

Going through the Government Law Officers Ordinance 2008, it is appreciable that appropriate provisions are made available with regard to promotion and transfer of the law officers and in need appointment of non-government lawyers on case to case basis. The retirement age varied in the Ordinance, which should be uniformed to 65 years, as most of the lawyers usually continue their legal services to such age.

Finally, under schedule 1 of the Ordinance it is apparent that there are potential discrepancies which may arise in appointing Additional Attorney Generals and Deputy Attorney Generals through promotions and contracts. With regard to recruitment and appointment of the Assistant Attorney Generals, the entry qualifications demanded in the Ordinance are highly discriminatory, as there is no provision for the general law graduates to compete in the recruitment and selection process, which again may not comply with the PSC's existing requirements in cadre and non-cadre services. This may even contradict the Article 40 of the Constitution with regard to right to employment, specified under freedom of profession or occupation.

In the light of the above propositions, the government may consider required amendments to the Government Attorney Service Ordinance 2008 to minimise existing differences and potential disputes between the Attorneys and newly established Directorate of Attorney Services.

To be more democratic in the amending process, the government may ask the former Attorney-Generals, Attorney-General's Office and the Solicitor's office for collective in-puts and suggestions through well-designed consultative process by means of seminars and invitation of opinions etc. We hope the amended version, if undertaken, of the Ordinance will be more substantial, operational and acceptable to all concerns working towards increase productivity of the law officers and for better effectiveness of the recently established Independent Judiciary and finally for greater interest of the nation as whole.