114
Judge Azizur Rahman Dulu

The constitutional framework of public administration in bangladesh

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Page 1: The constitutional framework of public administration in bangladesh

Judge Azizur Rahman Dulu

2

Introductory

This book is nothing but a research made for the

fulfillment of the MPhil Degree in the Department of

Public Administration under University of Dhaka Before

joining in Bangladesh Judicial Service when I was

taking my MPhil 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

3

book I am obliged to give my heartiest thanks to

Professor Dr Aka Firwoz Ahmad who was my guide in the

MPhil programme and my nephew Rezaul Islam Reja 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

4

Table of contents

Introduction

1 Necessary Definitive Information

11 Constitution

12 Framework

13 Public administration

14 Constitutional framework

2 Constitutional framework

21 The Executive (articles from 48 to 64)

22 The Legislature(articles from 65 to 93)

23 The Judiciary(articles from 94 to 117)

3 Civil Service of Bangladesh

31 Legal framework

32 Recruitment procedure and recommendations

33 Transfer procedure and recommendations

5

34 Promotion procedure and recommendations

35 Training

36 Accountability

4 Judicial Service of Bangladesh

41 Legal framework

42 Recruitment procedure and recommendations

43 Transfer procedure and recommendations

44 Promotion procedure and recommendations

45 Training

46 Accountability

5 Way of maximum corruption free

Bangladesh

51 Ethical education

52 Use of technology

53 Check and balance

Conclusion

6

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

11 Constitution

lsquoBy 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

7

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

8

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

ldquoWestern 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

9

that it should no itself be destructive of the

values it was intended to promoterdquo1

The said word lsquoconstitutionrsquo means ldquoa

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 ie 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 constitutionrdquo 2

Again constitution can be defined as ldquothe

fundamental law written or unwritten that

establishes the character of a government by

defining the basic principles to which a society

10

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

actrdquo 3

12 Framework

The word lsquoframeworkrsquo means a structure for

supporting or enclosing something else

especially a skeletal support used as the basis

for something being constructed4 and the said

term is defined as ldquoa system of rules laws

agreements etc that establish the way that

11

something operates in business politics or

societyrdquo5

13 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

12

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

13

Some well known definitions of Public

Administration are

ldquoPublic Administration is detailed and

systematic execution of public law Every

particular application of law is an act of

administrationrdquo _ L D White

Public Administration is ldquothe art and

science of management applied to affairs of

the Staterdquo ndash D Waldo

ldquoBy Public Administration is meant in common

usage the activities of the executive

branches of the National State and Local

Governmentrdquo ndash H Simon

The lsquoPublicrsquo aspect of public administration

gives the discipline a special character It

can be looked at formally to mean government

So public Administration is government

14

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 considered6

14 Constitutional Framework

15

Bangladesh attained independence in 1971

through a historic struggle for national

liberation and the same established the

independent sovereign Peoplersquos 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

16

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

17

Bangladesh Government Organisation Chart

Head of the state President

The Executive The Legislature The Judiciary

Judicial service commission

18

Supreme Courts of Bangladesh

Appellate Division

High Court Division

Sub-ordinate Courts of Bangladesh

House of the Nations (Parliament) Prime Minister

Cabinet Ministers

Ministries

Permanent Secretaries

Cabinet

Civil service commission

19

CJM DJ

ADJ ACJM

SJM JDJ

JM SAJ

AJ

Gram AdalatMimangsa Board

Different Tribunals

Ministries

Finance

Law Justice

and

Parliamentary

Affairs

Agriculture

Planning

Post and Tele

Independent Departments

Auditor General

Attorney General

Bangladesh Police

Anti-Corruption

Commission

Human rights Com

Commission

20

Note The Chief Judicial Magistratersquos equivalent post is Chief

Metropolitan Magistrate and in the same way The Senior Judicial

Magistratersquos 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

Local Authorities

Zila Parishad

PourashavaUpazila Porishad

Union Parishad

Tribal Administration

21

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

21 The Executive (articles from 48 to 64)

Articles from 48 to 64 are connected with the

term lsquothe executiversquo and the constitutional

framework of this is nothing but the structure

of forming and working of the said authority

22

`However I am mentioning here the phase to

phase constitutionally executive framework

Executive under the 1972 Constitution

ldquoThe 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

23

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 Heshe 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 heshe would

be aided by a council of ministers who would

hold office during hisher pleasure Similarly

the power to dissolve the Jatiya Sangsad by the

head of state rested on the advice of the Prime

24

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

25

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

26

appointed by the President at his discretion

The council was to be presided over by the

President and would hold office during hisher

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

27

activities The office of the President was made

all powerful and without any checks on hisher

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

28

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

29

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

30

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

31

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

32

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

Presidents 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 parliaments powers as evidenced

through the addition of a new clause 72(A) made

the case perfectly clear

Executive under the Twelfth Amendment

33

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 Ministers 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

34

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

Ministerialrdquo7

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 Peoplersquos Republic of

Bangladesh has been substituted by the

35

Constitution (Fifth Amendment) Act 2011 (Act

XIV of 2011) section 22 which provides that-

lsquoThe supreme command of the defence services of

Bangladesh shall vest in the President and the

exercise thereof shall be regulated by lawrsquo

22 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

36

regulations bye-laws or other instruments

having legislative effect lsquoThe 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

37

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

38

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 presidents 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

39

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

40

affiliated with the president has been able to

command a solidmajorityrsquo8

23 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

41

the Supreme Court but litigation may be

very slow in 1987 there were 29 Supreme

Court judges dealing with 21600 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

42

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

43

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

44

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

45

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 government9

3 Civil Service of Bangladesh

31 Legal framework

46

Article 137 of the constitution of the Peoplersquos

Republic of Bangladesh deals with the term

lsquolegal frameworkrsquo of civil service of

Bangladesh lsquoThe implementation of government

policies and projects is the duty of the

Bangladesh Civil Service a corps of trained

administrators who form the nations 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

47

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

48

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

49

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 75 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

50

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 Bangladesh10

32 Recruitment procedure and

recommendations

The Bangladesh Public Service Commission (BPSC)

is a quasi judicial body established in 1972

under the Constitution of the Peoples Republic

51

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 Honble President

of the Republic11 Presidential Order No 34 (on

May 9 1972) PSC Ordinance No LVII of 1977 BCS

Recruitment Rules of 1981 PSC Officers amp

52

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 appointment12

The cadres and entry posts of the

Bangladesh Civil Service

General cadres

1 BCS (Administration) Assistant Commissioner)

53

2 BCS (Police) Assistant Superintendent of Police

3 BCS (Audit amp Accounts) Assistant Accountant General

4 BCS (Economic) Assistant Chief

5 BCS (Customs amp Excise) Assistant Commissioner

(Customs amp 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 amp

Export Equivalent Posts

11 BCS (Postal) Assistant Post Master General

Equivalent Posts

12 BCS (Railway Transportation amp Commercial)

Assistant Traffic Superintendent

54

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 amp Highways) Assistant Engineer

4 BCS (Telecommunications) Assistant Divisional

Engineer

5 BCS (Public Health Engineering) Assistant Engineer

55

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

Officer13

Recruitment

56

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 amp 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 appointment14

lsquoRecruitment is the process of searching for

prospective employees and stimulating them to

apply for jobs in the organization (Flippo and

57

Edwin 1984 141) No element of the career

service system is more important than the

recruitment policyrdquo (Commission of

Inquiry on Public Service Personnel 193537

quoted in Stall 196251) 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)

58

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 partymdashas opposed to a system of awarding

offices on the basis of merit independent of

political activityrsquo15

Legal Basis for BCS Recruitment Policy

lsquoThe constitution of Bangladesh has granted

equal employment opportunities for citizens The

constitution declares ldquoThere shall be equality

of opportunity for all citizens in respect of

employment or office in the service of the

Republicrdquo (Article 29 [1]) ldquoNo citizen shall

on the grounds only of religion race caste

59

sex or place of birth be ineligible for or

discriminated against in respect of any

employment or office in the service of the

Republicrdquo (Article 29 [2]) However under clause

(3) of the same Article the constitution has

provided certain exceptions that read ldquoNothing

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

60

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 servicesrsquo 16

61

Recommendations Julian Paul Assange an

Australian computer programmer

politicalinternet activist publisher and

journalist and founder of WikiLeaks supports

the free dissemination of government data17 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

62

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

Thatrsquos 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

63

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 abolished18

64

Besides these quota system should be abolished

as our Constitution or any law has not given the

definition and the factors of opting lsquobackward

sectionrsquo of the citizens Article 29(3)(a) of

our constitution though provides the quota

system for lsquobackward sectionrsquo 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 sonsrsquo being poor are not getting the said

benefit and hence Professor M Abdul Wahhab

65

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

ordersrules 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

66

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

67

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 ldquothough 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 art29 (1) amp29(2) it merely confers an

enabling power But as it an exception to the

guarantee of art29 (1) amp29(2) it should not be

68

interpreted or given effect to in such a way as

to nullify the guarantee under art29 (1)

amp29(2) The Indian Supreme Court held that

reservation in excess of 50 would be

unconstitutional20

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 lsquonotrsquo and hence ldquowe are to consider

the meaning of lsquobackward sectionrsquo Art 29 is

comparable with art16 of the Indian

Constitution which uses the expression lsquobackward

classrsquo where as the expression used in art

29(3) is backward section The Indian Supreme

Court has interpreted the expression lsquobackward

classrsquo in several decisions Those decisions may

69

be helpful but not decisive in interpreting

lsquobackward sectionrsquo 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

70

33 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 statusetc)22

But unfortunately

there is no hard and fast and transparent

principle for doing the transfer of the civil

71

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 workplace23

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 ie what quality is considered is to

72

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

73

determined and if it is taken or done there

will be no request or lobby for the transfer and

harassment

34 Promotion procedure and

recommendation

The word lsquopromotionrsquo 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

Bangladesh24

74

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

75

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

76

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

77

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

35 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

Itrsquos not what you want in life but itrsquos

knowing how to reach it

78

Itrsquos not where you want to go but itrsquos knowing

how to get there

Itrsquos not how high you want to rise but itrsquos

knowing how to take off

It may not be quite the outcome you were aiming

for but it will be an outcome

Itrsquos not what you dream of doing but itrsquos

having the knowledge to do it

Its not a set of goals but itrsquos more like a

vision

79

Itrsquos not the goal you set but itrsquos 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 Departments26

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

80

Recommendation

Training should be given to the civil servants

for realizing the matter that embodied in art21

(2) of the Constitution of the Peoplersquos 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

36 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

81

said word lsquoaccountability 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 ldquowatchdogrdquo units to scrutinize

and hold departments accountable legitimacy of

82

these commissions is built upon their

independence as it avoids any conflicts of

interests27

There are various types of accountability ie

(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

lsquoParliaments are key actors in what has

been termed the lsquochain of

83

accountabilityrsquo 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 lsquosociety driven horizontal

84

accountabilityrsquo 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 ndashno

matter how defined ndash parliaments are one

of the institutions through which

diagonal accountability can be

exercisedrsquo27

However the civil servants should be

accountable by any or all means of

accountability

85

4 Judicial Service of Bangladesh

41 Legal framework

Article 137 of the Constitution also deals with

the term lsquolegal frameworkrsquo 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

itsrsquo judgment passed in Civil Appeal no79 of

1999 commonly known in the Masder Hossainrsquos case

that-

ldquoIt is declared that the word ldquoappointmentsrdquo 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

86

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

ldquoBangladesh Judicial Service Commission has been

established in 2007 by the rule lsquo বাংলােদশ

জিডিসয়াল সািভস কিমশন িবিধমালা ২০০৭ rsquo ie

87

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

88

Law Faculty of any one of three leading public

university ie 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 Secretariatrdquo 28

42 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

89

voice According to Rule 5 of OgraveevsjvDagger`k RywWwmqvj

mvwfcopyDaggermi cOumlDaggerek cDagger` wbDaggerqvM welqK AvDagger`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

90

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 32 are applicable with equitable

equality

43 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

91

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 33 is

applicable with equitable equality

44 Promotion procedure and recommendations

The promotion of sub-ordinate Courtrsquos judges are

in fact depended on the Annual Confidential

92

Reports (ACRs) There is no examination system

for getting the promotion in the sub-

ordinate judiciary

lsquoPresently 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

93

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 linersquo29

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-

ldquoConfidential reports should set out distinctly

and tersely sufficient particulars and it is

essential that they should be clear and definite

94

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 Divisionrdquo 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

95

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 34 is

applicable with equitable equality

45 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

96

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 skills30

Recommendation

The quality of training provided by JATI should

be improved A training need- assessment of the

subordinate court judges could be undertaken

97

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

98

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

subordinatecourts31

99

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

51 Ethical education

100

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 publics trust

and confidence in government by demonstrating

the highest standards of professional

competence efficiency and effectiveness

101

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

102

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

103

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

104

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 assets32 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

52 Use of technology

105

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 peoplersquos 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 lsquoThe Law of

Civil Procedurersquo first edition 2006 volume 1

page iii that

106

ldquoFor 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 lawyerrdquo However

the corruption of the court staff and the

offices of the civil servants can be controlled

easily by using technology ie 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

107

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

108

53 Check and balance

The theory of separation of powers was given by

the Charles-Louis de Secondat baron de La Bregravede

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 lsquothe spirit of

lawsrsquo that

lsquoI have not drawn my principles from my

prejudices but from the nature of thingsrdquo 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

109

Conclusion

In conclusion it can be reminded that 3rd

paragraph of the preamble of our constitution

provides that

lsquoFurther 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 citizensrsquo

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

110

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 p1 see also Mahmudul Islam-

Constitutional law of Bangladesh second edition

p1

2 httpenwikipediaorgwikiConstitution

111

3 httplegal-

dictionarythefreedictionarycomconstitution

4 httpwwwthefreedictionarycomframework

5 httpwwwmacmillandictionarycomdictionarybri

tishframework

6 httpwwwegyankoshacinbitstream

7 httpwwwbanglapediaorghttpdocsHTE_0079HTM

8 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

9 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

10 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

11 httpwwwbpscgovbd2011

12 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

13 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

14 httpwwwrhdgovbdRulesAndRegulationsView_Ov

erviewaspRef=A

112

15 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

16 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

17 wwwforbescomprofilejulian-assange

18 httpwwwti-bangladeshorgresearchES_PSCpdf

19 httpwwwnapsipagorgPDFABDUL_WAHHABpdf see

also Khan Akbar Ali and Kazi Rakibuddin Ahmad

March 2008 ldquoQuota System for Civil Service

Recruitment in Bangladesh An Exploratory

Analysisrdquo 2008 available at http

wwwbpscgovbddocuments news25906 newsdoc

20 Mahmudul Islam- Constitutional law of Bangladesh

second edition p171 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 p171 see also Indra Sawhney v

India AIR 1993 SC 477

113

22 httpwwwmopagovbdindexphpoption=com_conte

ntamptask=viewampid=377ampItemid=419

23 httpwwwvsrhhrCustomPagesStaticHRVFilesL

egislation__Civil-Servants-Actpdf

24 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

25 httptraininganddevelopmentnaukrihubcomtrain

inghtml

26 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

27 httpsiteresourcesworldbankorgPUBLICSECTORAN

DGOVERNANCEResourcesAccountabilityGovernancepd

f

28 httpwwwjscbdorgbdb_functionphp

29 httpwwwigsbracuacbdUserFilesFilearchive

_fileJudiciary_Policy_Notepdf

30 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

114

31 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

32 httpwwwoecdorgdataoecd625735521740pdf

Page 2: The constitutional framework of public administration in bangladesh

2

Introductory

This book is nothing but a research made for the

fulfillment of the MPhil Degree in the Department of

Public Administration under University of Dhaka Before

joining in Bangladesh Judicial Service when I was

taking my MPhil 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

3

book I am obliged to give my heartiest thanks to

Professor Dr Aka Firwoz Ahmad who was my guide in the

MPhil programme and my nephew Rezaul Islam Reja 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

4

Table of contents

Introduction

1 Necessary Definitive Information

11 Constitution

12 Framework

13 Public administration

14 Constitutional framework

2 Constitutional framework

21 The Executive (articles from 48 to 64)

22 The Legislature(articles from 65 to 93)

23 The Judiciary(articles from 94 to 117)

3 Civil Service of Bangladesh

31 Legal framework

32 Recruitment procedure and recommendations

33 Transfer procedure and recommendations

5

34 Promotion procedure and recommendations

35 Training

36 Accountability

4 Judicial Service of Bangladesh

41 Legal framework

42 Recruitment procedure and recommendations

43 Transfer procedure and recommendations

44 Promotion procedure and recommendations

45 Training

46 Accountability

5 Way of maximum corruption free

Bangladesh

51 Ethical education

52 Use of technology

53 Check and balance

Conclusion

6

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

11 Constitution

lsquoBy 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

7

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

8

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

ldquoWestern 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

9

that it should no itself be destructive of the

values it was intended to promoterdquo1

The said word lsquoconstitutionrsquo means ldquoa

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 ie 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 constitutionrdquo 2

Again constitution can be defined as ldquothe

fundamental law written or unwritten that

establishes the character of a government by

defining the basic principles to which a society

10

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

actrdquo 3

12 Framework

The word lsquoframeworkrsquo means a structure for

supporting or enclosing something else

especially a skeletal support used as the basis

for something being constructed4 and the said

term is defined as ldquoa system of rules laws

agreements etc that establish the way that

11

something operates in business politics or

societyrdquo5

13 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

12

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

13

Some well known definitions of Public

Administration are

ldquoPublic Administration is detailed and

systematic execution of public law Every

particular application of law is an act of

administrationrdquo _ L D White

Public Administration is ldquothe art and

science of management applied to affairs of

the Staterdquo ndash D Waldo

ldquoBy Public Administration is meant in common

usage the activities of the executive

branches of the National State and Local

Governmentrdquo ndash H Simon

The lsquoPublicrsquo aspect of public administration

gives the discipline a special character It

can be looked at formally to mean government

So public Administration is government

14

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 considered6

14 Constitutional Framework

15

Bangladesh attained independence in 1971

through a historic struggle for national

liberation and the same established the

independent sovereign Peoplersquos 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

16

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

17

Bangladesh Government Organisation Chart

Head of the state President

The Executive The Legislature The Judiciary

Judicial service commission

18

Supreme Courts of Bangladesh

Appellate Division

High Court Division

Sub-ordinate Courts of Bangladesh

House of the Nations (Parliament) Prime Minister

Cabinet Ministers

Ministries

Permanent Secretaries

Cabinet

Civil service commission

19

CJM DJ

ADJ ACJM

SJM JDJ

JM SAJ

AJ

Gram AdalatMimangsa Board

Different Tribunals

Ministries

Finance

Law Justice

and

Parliamentary

Affairs

Agriculture

Planning

Post and Tele

Independent Departments

Auditor General

Attorney General

Bangladesh Police

Anti-Corruption

Commission

Human rights Com

Commission

20

Note The Chief Judicial Magistratersquos equivalent post is Chief

Metropolitan Magistrate and in the same way The Senior Judicial

Magistratersquos 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

Local Authorities

Zila Parishad

PourashavaUpazila Porishad

Union Parishad

Tribal Administration

21

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

21 The Executive (articles from 48 to 64)

Articles from 48 to 64 are connected with the

term lsquothe executiversquo and the constitutional

framework of this is nothing but the structure

of forming and working of the said authority

22

`However I am mentioning here the phase to

phase constitutionally executive framework

Executive under the 1972 Constitution

ldquoThe 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

23

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 Heshe 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 heshe would

be aided by a council of ministers who would

hold office during hisher pleasure Similarly

the power to dissolve the Jatiya Sangsad by the

head of state rested on the advice of the Prime

24

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

25

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

26

appointed by the President at his discretion

The council was to be presided over by the

President and would hold office during hisher

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

27

activities The office of the President was made

all powerful and without any checks on hisher

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

28

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

29

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

30

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

31

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

32

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

Presidents 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 parliaments powers as evidenced

through the addition of a new clause 72(A) made

the case perfectly clear

Executive under the Twelfth Amendment

33

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 Ministers 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

34

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

Ministerialrdquo7

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 Peoplersquos Republic of

Bangladesh has been substituted by the

35

Constitution (Fifth Amendment) Act 2011 (Act

XIV of 2011) section 22 which provides that-

lsquoThe supreme command of the defence services of

Bangladesh shall vest in the President and the

exercise thereof shall be regulated by lawrsquo

22 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

36

regulations bye-laws or other instruments

having legislative effect lsquoThe 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

37

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

38

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 presidents 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

39

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

40

affiliated with the president has been able to

command a solidmajorityrsquo8

23 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

41

the Supreme Court but litigation may be

very slow in 1987 there were 29 Supreme

Court judges dealing with 21600 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

42

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

43

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

44

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

45

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 government9

3 Civil Service of Bangladesh

31 Legal framework

46

Article 137 of the constitution of the Peoplersquos

Republic of Bangladesh deals with the term

lsquolegal frameworkrsquo of civil service of

Bangladesh lsquoThe implementation of government

policies and projects is the duty of the

Bangladesh Civil Service a corps of trained

administrators who form the nations 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

47

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

48

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

49

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 75 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

50

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 Bangladesh10

32 Recruitment procedure and

recommendations

The Bangladesh Public Service Commission (BPSC)

is a quasi judicial body established in 1972

under the Constitution of the Peoples Republic

51

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 Honble President

of the Republic11 Presidential Order No 34 (on

May 9 1972) PSC Ordinance No LVII of 1977 BCS

Recruitment Rules of 1981 PSC Officers amp

52

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 appointment12

The cadres and entry posts of the

Bangladesh Civil Service

General cadres

1 BCS (Administration) Assistant Commissioner)

53

2 BCS (Police) Assistant Superintendent of Police

3 BCS (Audit amp Accounts) Assistant Accountant General

4 BCS (Economic) Assistant Chief

5 BCS (Customs amp Excise) Assistant Commissioner

(Customs amp 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 amp

Export Equivalent Posts

11 BCS (Postal) Assistant Post Master General

Equivalent Posts

12 BCS (Railway Transportation amp Commercial)

Assistant Traffic Superintendent

54

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 amp Highways) Assistant Engineer

4 BCS (Telecommunications) Assistant Divisional

Engineer

5 BCS (Public Health Engineering) Assistant Engineer

55

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

Officer13

Recruitment

56

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 amp 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 appointment14

lsquoRecruitment is the process of searching for

prospective employees and stimulating them to

apply for jobs in the organization (Flippo and

57

Edwin 1984 141) No element of the career

service system is more important than the

recruitment policyrdquo (Commission of

Inquiry on Public Service Personnel 193537

quoted in Stall 196251) 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)

58

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 partymdashas opposed to a system of awarding

offices on the basis of merit independent of

political activityrsquo15

Legal Basis for BCS Recruitment Policy

lsquoThe constitution of Bangladesh has granted

equal employment opportunities for citizens The

constitution declares ldquoThere shall be equality

of opportunity for all citizens in respect of

employment or office in the service of the

Republicrdquo (Article 29 [1]) ldquoNo citizen shall

on the grounds only of religion race caste

59

sex or place of birth be ineligible for or

discriminated against in respect of any

employment or office in the service of the

Republicrdquo (Article 29 [2]) However under clause

(3) of the same Article the constitution has

provided certain exceptions that read ldquoNothing

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

60

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 servicesrsquo 16

61

Recommendations Julian Paul Assange an

Australian computer programmer

politicalinternet activist publisher and

journalist and founder of WikiLeaks supports

the free dissemination of government data17 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

62

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

Thatrsquos 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

63

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 abolished18

64

Besides these quota system should be abolished

as our Constitution or any law has not given the

definition and the factors of opting lsquobackward

sectionrsquo of the citizens Article 29(3)(a) of

our constitution though provides the quota

system for lsquobackward sectionrsquo 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 sonsrsquo being poor are not getting the said

benefit and hence Professor M Abdul Wahhab

65

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

ordersrules 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

66

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

67

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 ldquothough 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 art29 (1) amp29(2) it merely confers an

enabling power But as it an exception to the

guarantee of art29 (1) amp29(2) it should not be

68

interpreted or given effect to in such a way as

to nullify the guarantee under art29 (1)

amp29(2) The Indian Supreme Court held that

reservation in excess of 50 would be

unconstitutional20

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 lsquonotrsquo and hence ldquowe are to consider

the meaning of lsquobackward sectionrsquo Art 29 is

comparable with art16 of the Indian

Constitution which uses the expression lsquobackward

classrsquo where as the expression used in art

29(3) is backward section The Indian Supreme

Court has interpreted the expression lsquobackward

classrsquo in several decisions Those decisions may

69

be helpful but not decisive in interpreting

lsquobackward sectionrsquo 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

70

33 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 statusetc)22

But unfortunately

there is no hard and fast and transparent

principle for doing the transfer of the civil

71

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 workplace23

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 ie what quality is considered is to

72

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

73

determined and if it is taken or done there

will be no request or lobby for the transfer and

harassment

34 Promotion procedure and

recommendation

The word lsquopromotionrsquo 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

Bangladesh24

74

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

75

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

76

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

77

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

35 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

Itrsquos not what you want in life but itrsquos

knowing how to reach it

78

Itrsquos not where you want to go but itrsquos knowing

how to get there

Itrsquos not how high you want to rise but itrsquos

knowing how to take off

It may not be quite the outcome you were aiming

for but it will be an outcome

Itrsquos not what you dream of doing but itrsquos

having the knowledge to do it

Its not a set of goals but itrsquos more like a

vision

79

Itrsquos not the goal you set but itrsquos 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 Departments26

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

80

Recommendation

Training should be given to the civil servants

for realizing the matter that embodied in art21

(2) of the Constitution of the Peoplersquos 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

36 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

81

said word lsquoaccountability 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 ldquowatchdogrdquo units to scrutinize

and hold departments accountable legitimacy of

82

these commissions is built upon their

independence as it avoids any conflicts of

interests27

There are various types of accountability ie

(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

lsquoParliaments are key actors in what has

been termed the lsquochain of

83

accountabilityrsquo 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 lsquosociety driven horizontal

84

accountabilityrsquo 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 ndashno

matter how defined ndash parliaments are one

of the institutions through which

diagonal accountability can be

exercisedrsquo27

However the civil servants should be

accountable by any or all means of

accountability

85

4 Judicial Service of Bangladesh

41 Legal framework

Article 137 of the Constitution also deals with

the term lsquolegal frameworkrsquo 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

itsrsquo judgment passed in Civil Appeal no79 of

1999 commonly known in the Masder Hossainrsquos case

that-

ldquoIt is declared that the word ldquoappointmentsrdquo 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

86

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

ldquoBangladesh Judicial Service Commission has been

established in 2007 by the rule lsquo বাংলােদশ

জিডিসয়াল সািভস কিমশন িবিধমালা ২০০৭ rsquo ie

87

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

88

Law Faculty of any one of three leading public

university ie 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 Secretariatrdquo 28

42 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

89

voice According to Rule 5 of OgraveevsjvDagger`k RywWwmqvj

mvwfcopyDaggermi cOumlDaggerek cDagger` wbDaggerqvM welqK AvDagger`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

90

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 32 are applicable with equitable

equality

43 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

91

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 33 is

applicable with equitable equality

44 Promotion procedure and recommendations

The promotion of sub-ordinate Courtrsquos judges are

in fact depended on the Annual Confidential

92

Reports (ACRs) There is no examination system

for getting the promotion in the sub-

ordinate judiciary

lsquoPresently 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

93

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 linersquo29

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-

ldquoConfidential reports should set out distinctly

and tersely sufficient particulars and it is

essential that they should be clear and definite

94

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 Divisionrdquo 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

95

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 34 is

applicable with equitable equality

45 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

96

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 skills30

Recommendation

The quality of training provided by JATI should

be improved A training need- assessment of the

subordinate court judges could be undertaken

97

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

98

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

subordinatecourts31

99

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

51 Ethical education

100

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 publics trust

and confidence in government by demonstrating

the highest standards of professional

competence efficiency and effectiveness

101

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

102

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

103

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

104

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 assets32 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

52 Use of technology

105

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 peoplersquos 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 lsquoThe Law of

Civil Procedurersquo first edition 2006 volume 1

page iii that

106

ldquoFor 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 lawyerrdquo However

the corruption of the court staff and the

offices of the civil servants can be controlled

easily by using technology ie 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

107

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

108

53 Check and balance

The theory of separation of powers was given by

the Charles-Louis de Secondat baron de La Bregravede

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 lsquothe spirit of

lawsrsquo that

lsquoI have not drawn my principles from my

prejudices but from the nature of thingsrdquo 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

109

Conclusion

In conclusion it can be reminded that 3rd

paragraph of the preamble of our constitution

provides that

lsquoFurther 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 citizensrsquo

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

110

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 p1 see also Mahmudul Islam-

Constitutional law of Bangladesh second edition

p1

2 httpenwikipediaorgwikiConstitution

111

3 httplegal-

dictionarythefreedictionarycomconstitution

4 httpwwwthefreedictionarycomframework

5 httpwwwmacmillandictionarycomdictionarybri

tishframework

6 httpwwwegyankoshacinbitstream

7 httpwwwbanglapediaorghttpdocsHTE_0079HTM

8 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

9 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

10 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

11 httpwwwbpscgovbd2011

12 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

13 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

14 httpwwwrhdgovbdRulesAndRegulationsView_Ov

erviewaspRef=A

112

15 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

16 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

17 wwwforbescomprofilejulian-assange

18 httpwwwti-bangladeshorgresearchES_PSCpdf

19 httpwwwnapsipagorgPDFABDUL_WAHHABpdf see

also Khan Akbar Ali and Kazi Rakibuddin Ahmad

March 2008 ldquoQuota System for Civil Service

Recruitment in Bangladesh An Exploratory

Analysisrdquo 2008 available at http

wwwbpscgovbddocuments news25906 newsdoc

20 Mahmudul Islam- Constitutional law of Bangladesh

second edition p171 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 p171 see also Indra Sawhney v

India AIR 1993 SC 477

113

22 httpwwwmopagovbdindexphpoption=com_conte

ntamptask=viewampid=377ampItemid=419

23 httpwwwvsrhhrCustomPagesStaticHRVFilesL

egislation__Civil-Servants-Actpdf

24 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

25 httptraininganddevelopmentnaukrihubcomtrain

inghtml

26 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

27 httpsiteresourcesworldbankorgPUBLICSECTORAN

DGOVERNANCEResourcesAccountabilityGovernancepd

f

28 httpwwwjscbdorgbdb_functionphp

29 httpwwwigsbracuacbdUserFilesFilearchive

_fileJudiciary_Policy_Notepdf

30 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

114

31 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

32 httpwwwoecdorgdataoecd625735521740pdf

Page 3: The constitutional framework of public administration in bangladesh

3

book I am obliged to give my heartiest thanks to

Professor Dr Aka Firwoz Ahmad who was my guide in the

MPhil programme and my nephew Rezaul Islam Reja 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

4

Table of contents

Introduction

1 Necessary Definitive Information

11 Constitution

12 Framework

13 Public administration

14 Constitutional framework

2 Constitutional framework

21 The Executive (articles from 48 to 64)

22 The Legislature(articles from 65 to 93)

23 The Judiciary(articles from 94 to 117)

3 Civil Service of Bangladesh

31 Legal framework

32 Recruitment procedure and recommendations

33 Transfer procedure and recommendations

5

34 Promotion procedure and recommendations

35 Training

36 Accountability

4 Judicial Service of Bangladesh

41 Legal framework

42 Recruitment procedure and recommendations

43 Transfer procedure and recommendations

44 Promotion procedure and recommendations

45 Training

46 Accountability

5 Way of maximum corruption free

Bangladesh

51 Ethical education

52 Use of technology

53 Check and balance

Conclusion

6

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

11 Constitution

lsquoBy 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

7

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

8

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

ldquoWestern 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

9

that it should no itself be destructive of the

values it was intended to promoterdquo1

The said word lsquoconstitutionrsquo means ldquoa

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 ie 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 constitutionrdquo 2

Again constitution can be defined as ldquothe

fundamental law written or unwritten that

establishes the character of a government by

defining the basic principles to which a society

10

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

actrdquo 3

12 Framework

The word lsquoframeworkrsquo means a structure for

supporting or enclosing something else

especially a skeletal support used as the basis

for something being constructed4 and the said

term is defined as ldquoa system of rules laws

agreements etc that establish the way that

11

something operates in business politics or

societyrdquo5

13 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

12

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

13

Some well known definitions of Public

Administration are

ldquoPublic Administration is detailed and

systematic execution of public law Every

particular application of law is an act of

administrationrdquo _ L D White

Public Administration is ldquothe art and

science of management applied to affairs of

the Staterdquo ndash D Waldo

ldquoBy Public Administration is meant in common

usage the activities of the executive

branches of the National State and Local

Governmentrdquo ndash H Simon

The lsquoPublicrsquo aspect of public administration

gives the discipline a special character It

can be looked at formally to mean government

So public Administration is government

14

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 considered6

14 Constitutional Framework

15

Bangladesh attained independence in 1971

through a historic struggle for national

liberation and the same established the

independent sovereign Peoplersquos 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

16

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

17

Bangladesh Government Organisation Chart

Head of the state President

The Executive The Legislature The Judiciary

Judicial service commission

18

Supreme Courts of Bangladesh

Appellate Division

High Court Division

Sub-ordinate Courts of Bangladesh

House of the Nations (Parliament) Prime Minister

Cabinet Ministers

Ministries

Permanent Secretaries

Cabinet

Civil service commission

19

CJM DJ

ADJ ACJM

SJM JDJ

JM SAJ

AJ

Gram AdalatMimangsa Board

Different Tribunals

Ministries

Finance

Law Justice

and

Parliamentary

Affairs

Agriculture

Planning

Post and Tele

Independent Departments

Auditor General

Attorney General

Bangladesh Police

Anti-Corruption

Commission

Human rights Com

Commission

20

Note The Chief Judicial Magistratersquos equivalent post is Chief

Metropolitan Magistrate and in the same way The Senior Judicial

Magistratersquos 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

Local Authorities

Zila Parishad

PourashavaUpazila Porishad

Union Parishad

Tribal Administration

21

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

21 The Executive (articles from 48 to 64)

Articles from 48 to 64 are connected with the

term lsquothe executiversquo and the constitutional

framework of this is nothing but the structure

of forming and working of the said authority

22

`However I am mentioning here the phase to

phase constitutionally executive framework

Executive under the 1972 Constitution

ldquoThe 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

23

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 Heshe 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 heshe would

be aided by a council of ministers who would

hold office during hisher pleasure Similarly

the power to dissolve the Jatiya Sangsad by the

head of state rested on the advice of the Prime

24

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

25

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

26

appointed by the President at his discretion

The council was to be presided over by the

President and would hold office during hisher

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

27

activities The office of the President was made

all powerful and without any checks on hisher

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

28

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

29

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

30

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

31

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

32

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

Presidents 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 parliaments powers as evidenced

through the addition of a new clause 72(A) made

the case perfectly clear

Executive under the Twelfth Amendment

33

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 Ministers 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

34

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

Ministerialrdquo7

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 Peoplersquos Republic of

Bangladesh has been substituted by the

35

Constitution (Fifth Amendment) Act 2011 (Act

XIV of 2011) section 22 which provides that-

lsquoThe supreme command of the defence services of

Bangladesh shall vest in the President and the

exercise thereof shall be regulated by lawrsquo

22 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

36

regulations bye-laws or other instruments

having legislative effect lsquoThe 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

37

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

38

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 presidents 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

39

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

40

affiliated with the president has been able to

command a solidmajorityrsquo8

23 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

41

the Supreme Court but litigation may be

very slow in 1987 there were 29 Supreme

Court judges dealing with 21600 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

42

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

43

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

44

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

45

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 government9

3 Civil Service of Bangladesh

31 Legal framework

46

Article 137 of the constitution of the Peoplersquos

Republic of Bangladesh deals with the term

lsquolegal frameworkrsquo of civil service of

Bangladesh lsquoThe implementation of government

policies and projects is the duty of the

Bangladesh Civil Service a corps of trained

administrators who form the nations 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

47

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

48

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

49

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 75 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

50

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 Bangladesh10

32 Recruitment procedure and

recommendations

The Bangladesh Public Service Commission (BPSC)

is a quasi judicial body established in 1972

under the Constitution of the Peoples Republic

51

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 Honble President

of the Republic11 Presidential Order No 34 (on

May 9 1972) PSC Ordinance No LVII of 1977 BCS

Recruitment Rules of 1981 PSC Officers amp

52

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 appointment12

The cadres and entry posts of the

Bangladesh Civil Service

General cadres

1 BCS (Administration) Assistant Commissioner)

53

2 BCS (Police) Assistant Superintendent of Police

3 BCS (Audit amp Accounts) Assistant Accountant General

4 BCS (Economic) Assistant Chief

5 BCS (Customs amp Excise) Assistant Commissioner

(Customs amp 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 amp

Export Equivalent Posts

11 BCS (Postal) Assistant Post Master General

Equivalent Posts

12 BCS (Railway Transportation amp Commercial)

Assistant Traffic Superintendent

54

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 amp Highways) Assistant Engineer

4 BCS (Telecommunications) Assistant Divisional

Engineer

5 BCS (Public Health Engineering) Assistant Engineer

55

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

Officer13

Recruitment

56

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 amp 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 appointment14

lsquoRecruitment is the process of searching for

prospective employees and stimulating them to

apply for jobs in the organization (Flippo and

57

Edwin 1984 141) No element of the career

service system is more important than the

recruitment policyrdquo (Commission of

Inquiry on Public Service Personnel 193537

quoted in Stall 196251) 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)

58

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 partymdashas opposed to a system of awarding

offices on the basis of merit independent of

political activityrsquo15

Legal Basis for BCS Recruitment Policy

lsquoThe constitution of Bangladesh has granted

equal employment opportunities for citizens The

constitution declares ldquoThere shall be equality

of opportunity for all citizens in respect of

employment or office in the service of the

Republicrdquo (Article 29 [1]) ldquoNo citizen shall

on the grounds only of religion race caste

59

sex or place of birth be ineligible for or

discriminated against in respect of any

employment or office in the service of the

Republicrdquo (Article 29 [2]) However under clause

(3) of the same Article the constitution has

provided certain exceptions that read ldquoNothing

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

60

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 servicesrsquo 16

61

Recommendations Julian Paul Assange an

Australian computer programmer

politicalinternet activist publisher and

journalist and founder of WikiLeaks supports

the free dissemination of government data17 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

62

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

Thatrsquos 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

63

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 abolished18

64

Besides these quota system should be abolished

as our Constitution or any law has not given the

definition and the factors of opting lsquobackward

sectionrsquo of the citizens Article 29(3)(a) of

our constitution though provides the quota

system for lsquobackward sectionrsquo 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 sonsrsquo being poor are not getting the said

benefit and hence Professor M Abdul Wahhab

65

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

ordersrules 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

66

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

67

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 ldquothough 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 art29 (1) amp29(2) it merely confers an

enabling power But as it an exception to the

guarantee of art29 (1) amp29(2) it should not be

68

interpreted or given effect to in such a way as

to nullify the guarantee under art29 (1)

amp29(2) The Indian Supreme Court held that

reservation in excess of 50 would be

unconstitutional20

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 lsquonotrsquo and hence ldquowe are to consider

the meaning of lsquobackward sectionrsquo Art 29 is

comparable with art16 of the Indian

Constitution which uses the expression lsquobackward

classrsquo where as the expression used in art

29(3) is backward section The Indian Supreme

Court has interpreted the expression lsquobackward

classrsquo in several decisions Those decisions may

69

be helpful but not decisive in interpreting

lsquobackward sectionrsquo 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

70

33 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 statusetc)22

But unfortunately

there is no hard and fast and transparent

principle for doing the transfer of the civil

71

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 workplace23

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 ie what quality is considered is to

72

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

73

determined and if it is taken or done there

will be no request or lobby for the transfer and

harassment

34 Promotion procedure and

recommendation

The word lsquopromotionrsquo 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

Bangladesh24

74

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

75

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

76

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

77

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

35 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

Itrsquos not what you want in life but itrsquos

knowing how to reach it

78

Itrsquos not where you want to go but itrsquos knowing

how to get there

Itrsquos not how high you want to rise but itrsquos

knowing how to take off

It may not be quite the outcome you were aiming

for but it will be an outcome

Itrsquos not what you dream of doing but itrsquos

having the knowledge to do it

Its not a set of goals but itrsquos more like a

vision

79

Itrsquos not the goal you set but itrsquos 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 Departments26

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

80

Recommendation

Training should be given to the civil servants

for realizing the matter that embodied in art21

(2) of the Constitution of the Peoplersquos 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

36 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

81

said word lsquoaccountability 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 ldquowatchdogrdquo units to scrutinize

and hold departments accountable legitimacy of

82

these commissions is built upon their

independence as it avoids any conflicts of

interests27

There are various types of accountability ie

(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

lsquoParliaments are key actors in what has

been termed the lsquochain of

83

accountabilityrsquo 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 lsquosociety driven horizontal

84

accountabilityrsquo 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 ndashno

matter how defined ndash parliaments are one

of the institutions through which

diagonal accountability can be

exercisedrsquo27

However the civil servants should be

accountable by any or all means of

accountability

85

4 Judicial Service of Bangladesh

41 Legal framework

Article 137 of the Constitution also deals with

the term lsquolegal frameworkrsquo 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

itsrsquo judgment passed in Civil Appeal no79 of

1999 commonly known in the Masder Hossainrsquos case

that-

ldquoIt is declared that the word ldquoappointmentsrdquo 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

86

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

ldquoBangladesh Judicial Service Commission has been

established in 2007 by the rule lsquo বাংলােদশ

জিডিসয়াল সািভস কিমশন িবিধমালা ২০০৭ rsquo ie

87

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

88

Law Faculty of any one of three leading public

university ie 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 Secretariatrdquo 28

42 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

89

voice According to Rule 5 of OgraveevsjvDagger`k RywWwmqvj

mvwfcopyDaggermi cOumlDaggerek cDagger` wbDaggerqvM welqK AvDagger`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

90

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 32 are applicable with equitable

equality

43 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

91

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 33 is

applicable with equitable equality

44 Promotion procedure and recommendations

The promotion of sub-ordinate Courtrsquos judges are

in fact depended on the Annual Confidential

92

Reports (ACRs) There is no examination system

for getting the promotion in the sub-

ordinate judiciary

lsquoPresently 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

93

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 linersquo29

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-

ldquoConfidential reports should set out distinctly

and tersely sufficient particulars and it is

essential that they should be clear and definite

94

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 Divisionrdquo 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

95

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 34 is

applicable with equitable equality

45 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

96

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 skills30

Recommendation

The quality of training provided by JATI should

be improved A training need- assessment of the

subordinate court judges could be undertaken

97

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

98

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

subordinatecourts31

99

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

51 Ethical education

100

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 publics trust

and confidence in government by demonstrating

the highest standards of professional

competence efficiency and effectiveness

101

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

102

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

103

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

104

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 assets32 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

52 Use of technology

105

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 peoplersquos 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 lsquoThe Law of

Civil Procedurersquo first edition 2006 volume 1

page iii that

106

ldquoFor 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 lawyerrdquo However

the corruption of the court staff and the

offices of the civil servants can be controlled

easily by using technology ie 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

107

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

108

53 Check and balance

The theory of separation of powers was given by

the Charles-Louis de Secondat baron de La Bregravede

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 lsquothe spirit of

lawsrsquo that

lsquoI have not drawn my principles from my

prejudices but from the nature of thingsrdquo 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

109

Conclusion

In conclusion it can be reminded that 3rd

paragraph of the preamble of our constitution

provides that

lsquoFurther 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 citizensrsquo

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

110

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 p1 see also Mahmudul Islam-

Constitutional law of Bangladesh second edition

p1

2 httpenwikipediaorgwikiConstitution

111

3 httplegal-

dictionarythefreedictionarycomconstitution

4 httpwwwthefreedictionarycomframework

5 httpwwwmacmillandictionarycomdictionarybri

tishframework

6 httpwwwegyankoshacinbitstream

7 httpwwwbanglapediaorghttpdocsHTE_0079HTM

8 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

9 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

10 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

11 httpwwwbpscgovbd2011

12 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

13 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

14 httpwwwrhdgovbdRulesAndRegulationsView_Ov

erviewaspRef=A

112

15 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

16 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

17 wwwforbescomprofilejulian-assange

18 httpwwwti-bangladeshorgresearchES_PSCpdf

19 httpwwwnapsipagorgPDFABDUL_WAHHABpdf see

also Khan Akbar Ali and Kazi Rakibuddin Ahmad

March 2008 ldquoQuota System for Civil Service

Recruitment in Bangladesh An Exploratory

Analysisrdquo 2008 available at http

wwwbpscgovbddocuments news25906 newsdoc

20 Mahmudul Islam- Constitutional law of Bangladesh

second edition p171 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 p171 see also Indra Sawhney v

India AIR 1993 SC 477

113

22 httpwwwmopagovbdindexphpoption=com_conte

ntamptask=viewampid=377ampItemid=419

23 httpwwwvsrhhrCustomPagesStaticHRVFilesL

egislation__Civil-Servants-Actpdf

24 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

25 httptraininganddevelopmentnaukrihubcomtrain

inghtml

26 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

27 httpsiteresourcesworldbankorgPUBLICSECTORAN

DGOVERNANCEResourcesAccountabilityGovernancepd

f

28 httpwwwjscbdorgbdb_functionphp

29 httpwwwigsbracuacbdUserFilesFilearchive

_fileJudiciary_Policy_Notepdf

30 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

114

31 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

32 httpwwwoecdorgdataoecd625735521740pdf

Page 4: The constitutional framework of public administration in bangladesh

4

Table of contents

Introduction

1 Necessary Definitive Information

11 Constitution

12 Framework

13 Public administration

14 Constitutional framework

2 Constitutional framework

21 The Executive (articles from 48 to 64)

22 The Legislature(articles from 65 to 93)

23 The Judiciary(articles from 94 to 117)

3 Civil Service of Bangladesh

31 Legal framework

32 Recruitment procedure and recommendations

33 Transfer procedure and recommendations

5

34 Promotion procedure and recommendations

35 Training

36 Accountability

4 Judicial Service of Bangladesh

41 Legal framework

42 Recruitment procedure and recommendations

43 Transfer procedure and recommendations

44 Promotion procedure and recommendations

45 Training

46 Accountability

5 Way of maximum corruption free

Bangladesh

51 Ethical education

52 Use of technology

53 Check and balance

Conclusion

6

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

11 Constitution

lsquoBy 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

7

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

8

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

ldquoWestern 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

9

that it should no itself be destructive of the

values it was intended to promoterdquo1

The said word lsquoconstitutionrsquo means ldquoa

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 ie 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 constitutionrdquo 2

Again constitution can be defined as ldquothe

fundamental law written or unwritten that

establishes the character of a government by

defining the basic principles to which a society

10

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

actrdquo 3

12 Framework

The word lsquoframeworkrsquo means a structure for

supporting or enclosing something else

especially a skeletal support used as the basis

for something being constructed4 and the said

term is defined as ldquoa system of rules laws

agreements etc that establish the way that

11

something operates in business politics or

societyrdquo5

13 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

12

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

13

Some well known definitions of Public

Administration are

ldquoPublic Administration is detailed and

systematic execution of public law Every

particular application of law is an act of

administrationrdquo _ L D White

Public Administration is ldquothe art and

science of management applied to affairs of

the Staterdquo ndash D Waldo

ldquoBy Public Administration is meant in common

usage the activities of the executive

branches of the National State and Local

Governmentrdquo ndash H Simon

The lsquoPublicrsquo aspect of public administration

gives the discipline a special character It

can be looked at formally to mean government

So public Administration is government

14

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 considered6

14 Constitutional Framework

15

Bangladesh attained independence in 1971

through a historic struggle for national

liberation and the same established the

independent sovereign Peoplersquos 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

16

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

17

Bangladesh Government Organisation Chart

Head of the state President

The Executive The Legislature The Judiciary

Judicial service commission

18

Supreme Courts of Bangladesh

Appellate Division

High Court Division

Sub-ordinate Courts of Bangladesh

House of the Nations (Parliament) Prime Minister

Cabinet Ministers

Ministries

Permanent Secretaries

Cabinet

Civil service commission

19

CJM DJ

ADJ ACJM

SJM JDJ

JM SAJ

AJ

Gram AdalatMimangsa Board

Different Tribunals

Ministries

Finance

Law Justice

and

Parliamentary

Affairs

Agriculture

Planning

Post and Tele

Independent Departments

Auditor General

Attorney General

Bangladesh Police

Anti-Corruption

Commission

Human rights Com

Commission

20

Note The Chief Judicial Magistratersquos equivalent post is Chief

Metropolitan Magistrate and in the same way The Senior Judicial

Magistratersquos 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

Local Authorities

Zila Parishad

PourashavaUpazila Porishad

Union Parishad

Tribal Administration

21

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

21 The Executive (articles from 48 to 64)

Articles from 48 to 64 are connected with the

term lsquothe executiversquo and the constitutional

framework of this is nothing but the structure

of forming and working of the said authority

22

`However I am mentioning here the phase to

phase constitutionally executive framework

Executive under the 1972 Constitution

ldquoThe 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

23

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 Heshe 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 heshe would

be aided by a council of ministers who would

hold office during hisher pleasure Similarly

the power to dissolve the Jatiya Sangsad by the

head of state rested on the advice of the Prime

24

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

25

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

26

appointed by the President at his discretion

The council was to be presided over by the

President and would hold office during hisher

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

27

activities The office of the President was made

all powerful and without any checks on hisher

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

28

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

29

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

30

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

31

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

32

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

Presidents 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 parliaments powers as evidenced

through the addition of a new clause 72(A) made

the case perfectly clear

Executive under the Twelfth Amendment

33

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 Ministers 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

34

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

Ministerialrdquo7

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 Peoplersquos Republic of

Bangladesh has been substituted by the

35

Constitution (Fifth Amendment) Act 2011 (Act

XIV of 2011) section 22 which provides that-

lsquoThe supreme command of the defence services of

Bangladesh shall vest in the President and the

exercise thereof shall be regulated by lawrsquo

22 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

36

regulations bye-laws or other instruments

having legislative effect lsquoThe 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

37

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

38

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 presidents 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

39

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

40

affiliated with the president has been able to

command a solidmajorityrsquo8

23 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

41

the Supreme Court but litigation may be

very slow in 1987 there were 29 Supreme

Court judges dealing with 21600 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

42

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

43

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

44

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

45

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 government9

3 Civil Service of Bangladesh

31 Legal framework

46

Article 137 of the constitution of the Peoplersquos

Republic of Bangladesh deals with the term

lsquolegal frameworkrsquo of civil service of

Bangladesh lsquoThe implementation of government

policies and projects is the duty of the

Bangladesh Civil Service a corps of trained

administrators who form the nations 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

47

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

48

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

49

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 75 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

50

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 Bangladesh10

32 Recruitment procedure and

recommendations

The Bangladesh Public Service Commission (BPSC)

is a quasi judicial body established in 1972

under the Constitution of the Peoples Republic

51

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 Honble President

of the Republic11 Presidential Order No 34 (on

May 9 1972) PSC Ordinance No LVII of 1977 BCS

Recruitment Rules of 1981 PSC Officers amp

52

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 appointment12

The cadres and entry posts of the

Bangladesh Civil Service

General cadres

1 BCS (Administration) Assistant Commissioner)

53

2 BCS (Police) Assistant Superintendent of Police

3 BCS (Audit amp Accounts) Assistant Accountant General

4 BCS (Economic) Assistant Chief

5 BCS (Customs amp Excise) Assistant Commissioner

(Customs amp 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 amp

Export Equivalent Posts

11 BCS (Postal) Assistant Post Master General

Equivalent Posts

12 BCS (Railway Transportation amp Commercial)

Assistant Traffic Superintendent

54

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 amp Highways) Assistant Engineer

4 BCS (Telecommunications) Assistant Divisional

Engineer

5 BCS (Public Health Engineering) Assistant Engineer

55

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

Officer13

Recruitment

56

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 amp 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 appointment14

lsquoRecruitment is the process of searching for

prospective employees and stimulating them to

apply for jobs in the organization (Flippo and

57

Edwin 1984 141) No element of the career

service system is more important than the

recruitment policyrdquo (Commission of

Inquiry on Public Service Personnel 193537

quoted in Stall 196251) 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)

58

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 partymdashas opposed to a system of awarding

offices on the basis of merit independent of

political activityrsquo15

Legal Basis for BCS Recruitment Policy

lsquoThe constitution of Bangladesh has granted

equal employment opportunities for citizens The

constitution declares ldquoThere shall be equality

of opportunity for all citizens in respect of

employment or office in the service of the

Republicrdquo (Article 29 [1]) ldquoNo citizen shall

on the grounds only of religion race caste

59

sex or place of birth be ineligible for or

discriminated against in respect of any

employment or office in the service of the

Republicrdquo (Article 29 [2]) However under clause

(3) of the same Article the constitution has

provided certain exceptions that read ldquoNothing

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

60

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 servicesrsquo 16

61

Recommendations Julian Paul Assange an

Australian computer programmer

politicalinternet activist publisher and

journalist and founder of WikiLeaks supports

the free dissemination of government data17 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

62

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

Thatrsquos 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

63

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 abolished18

64

Besides these quota system should be abolished

as our Constitution or any law has not given the

definition and the factors of opting lsquobackward

sectionrsquo of the citizens Article 29(3)(a) of

our constitution though provides the quota

system for lsquobackward sectionrsquo 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 sonsrsquo being poor are not getting the said

benefit and hence Professor M Abdul Wahhab

65

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

ordersrules 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

66

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

67

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 ldquothough 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 art29 (1) amp29(2) it merely confers an

enabling power But as it an exception to the

guarantee of art29 (1) amp29(2) it should not be

68

interpreted or given effect to in such a way as

to nullify the guarantee under art29 (1)

amp29(2) The Indian Supreme Court held that

reservation in excess of 50 would be

unconstitutional20

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 lsquonotrsquo and hence ldquowe are to consider

the meaning of lsquobackward sectionrsquo Art 29 is

comparable with art16 of the Indian

Constitution which uses the expression lsquobackward

classrsquo where as the expression used in art

29(3) is backward section The Indian Supreme

Court has interpreted the expression lsquobackward

classrsquo in several decisions Those decisions may

69

be helpful but not decisive in interpreting

lsquobackward sectionrsquo 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

70

33 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 statusetc)22

But unfortunately

there is no hard and fast and transparent

principle for doing the transfer of the civil

71

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 workplace23

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 ie what quality is considered is to

72

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

73

determined and if it is taken or done there

will be no request or lobby for the transfer and

harassment

34 Promotion procedure and

recommendation

The word lsquopromotionrsquo 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

Bangladesh24

74

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

75

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

76

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

77

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

35 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

Itrsquos not what you want in life but itrsquos

knowing how to reach it

78

Itrsquos not where you want to go but itrsquos knowing

how to get there

Itrsquos not how high you want to rise but itrsquos

knowing how to take off

It may not be quite the outcome you were aiming

for but it will be an outcome

Itrsquos not what you dream of doing but itrsquos

having the knowledge to do it

Its not a set of goals but itrsquos more like a

vision

79

Itrsquos not the goal you set but itrsquos 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 Departments26

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

80

Recommendation

Training should be given to the civil servants

for realizing the matter that embodied in art21

(2) of the Constitution of the Peoplersquos 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

36 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

81

said word lsquoaccountability 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 ldquowatchdogrdquo units to scrutinize

and hold departments accountable legitimacy of

82

these commissions is built upon their

independence as it avoids any conflicts of

interests27

There are various types of accountability ie

(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

lsquoParliaments are key actors in what has

been termed the lsquochain of

83

accountabilityrsquo 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 lsquosociety driven horizontal

84

accountabilityrsquo 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 ndashno

matter how defined ndash parliaments are one

of the institutions through which

diagonal accountability can be

exercisedrsquo27

However the civil servants should be

accountable by any or all means of

accountability

85

4 Judicial Service of Bangladesh

41 Legal framework

Article 137 of the Constitution also deals with

the term lsquolegal frameworkrsquo 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

itsrsquo judgment passed in Civil Appeal no79 of

1999 commonly known in the Masder Hossainrsquos case

that-

ldquoIt is declared that the word ldquoappointmentsrdquo 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

86

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

ldquoBangladesh Judicial Service Commission has been

established in 2007 by the rule lsquo বাংলােদশ

জিডিসয়াল সািভস কিমশন িবিধমালা ২০০৭ rsquo ie

87

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

88

Law Faculty of any one of three leading public

university ie 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 Secretariatrdquo 28

42 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

89

voice According to Rule 5 of OgraveevsjvDagger`k RywWwmqvj

mvwfcopyDaggermi cOumlDaggerek cDagger` wbDaggerqvM welqK AvDagger`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

90

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 32 are applicable with equitable

equality

43 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

91

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 33 is

applicable with equitable equality

44 Promotion procedure and recommendations

The promotion of sub-ordinate Courtrsquos judges are

in fact depended on the Annual Confidential

92

Reports (ACRs) There is no examination system

for getting the promotion in the sub-

ordinate judiciary

lsquoPresently 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

93

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 linersquo29

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-

ldquoConfidential reports should set out distinctly

and tersely sufficient particulars and it is

essential that they should be clear and definite

94

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 Divisionrdquo 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

95

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 34 is

applicable with equitable equality

45 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

96

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 skills30

Recommendation

The quality of training provided by JATI should

be improved A training need- assessment of the

subordinate court judges could be undertaken

97

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

98

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

subordinatecourts31

99

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

51 Ethical education

100

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 publics trust

and confidence in government by demonstrating

the highest standards of professional

competence efficiency and effectiveness

101

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

102

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

103

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

104

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 assets32 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

52 Use of technology

105

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 peoplersquos 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 lsquoThe Law of

Civil Procedurersquo first edition 2006 volume 1

page iii that

106

ldquoFor 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 lawyerrdquo However

the corruption of the court staff and the

offices of the civil servants can be controlled

easily by using technology ie 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

107

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

108

53 Check and balance

The theory of separation of powers was given by

the Charles-Louis de Secondat baron de La Bregravede

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 lsquothe spirit of

lawsrsquo that

lsquoI have not drawn my principles from my

prejudices but from the nature of thingsrdquo 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

109

Conclusion

In conclusion it can be reminded that 3rd

paragraph of the preamble of our constitution

provides that

lsquoFurther 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 citizensrsquo

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

110

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 p1 see also Mahmudul Islam-

Constitutional law of Bangladesh second edition

p1

2 httpenwikipediaorgwikiConstitution

111

3 httplegal-

dictionarythefreedictionarycomconstitution

4 httpwwwthefreedictionarycomframework

5 httpwwwmacmillandictionarycomdictionarybri

tishframework

6 httpwwwegyankoshacinbitstream

7 httpwwwbanglapediaorghttpdocsHTE_0079HTM

8 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

9 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

10 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

11 httpwwwbpscgovbd2011

12 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

13 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

14 httpwwwrhdgovbdRulesAndRegulationsView_Ov

erviewaspRef=A

112

15 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

16 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

17 wwwforbescomprofilejulian-assange

18 httpwwwti-bangladeshorgresearchES_PSCpdf

19 httpwwwnapsipagorgPDFABDUL_WAHHABpdf see

also Khan Akbar Ali and Kazi Rakibuddin Ahmad

March 2008 ldquoQuota System for Civil Service

Recruitment in Bangladesh An Exploratory

Analysisrdquo 2008 available at http

wwwbpscgovbddocuments news25906 newsdoc

20 Mahmudul Islam- Constitutional law of Bangladesh

second edition p171 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 p171 see also Indra Sawhney v

India AIR 1993 SC 477

113

22 httpwwwmopagovbdindexphpoption=com_conte

ntamptask=viewampid=377ampItemid=419

23 httpwwwvsrhhrCustomPagesStaticHRVFilesL

egislation__Civil-Servants-Actpdf

24 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

25 httptraininganddevelopmentnaukrihubcomtrain

inghtml

26 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

27 httpsiteresourcesworldbankorgPUBLICSECTORAN

DGOVERNANCEResourcesAccountabilityGovernancepd

f

28 httpwwwjscbdorgbdb_functionphp

29 httpwwwigsbracuacbdUserFilesFilearchive

_fileJudiciary_Policy_Notepdf

30 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

114

31 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

32 httpwwwoecdorgdataoecd625735521740pdf

Page 5: The constitutional framework of public administration in bangladesh

5

34 Promotion procedure and recommendations

35 Training

36 Accountability

4 Judicial Service of Bangladesh

41 Legal framework

42 Recruitment procedure and recommendations

43 Transfer procedure and recommendations

44 Promotion procedure and recommendations

45 Training

46 Accountability

5 Way of maximum corruption free

Bangladesh

51 Ethical education

52 Use of technology

53 Check and balance

Conclusion

6

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

11 Constitution

lsquoBy 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

7

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

8

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

ldquoWestern 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

9

that it should no itself be destructive of the

values it was intended to promoterdquo1

The said word lsquoconstitutionrsquo means ldquoa

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 ie 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 constitutionrdquo 2

Again constitution can be defined as ldquothe

fundamental law written or unwritten that

establishes the character of a government by

defining the basic principles to which a society

10

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

actrdquo 3

12 Framework

The word lsquoframeworkrsquo means a structure for

supporting or enclosing something else

especially a skeletal support used as the basis

for something being constructed4 and the said

term is defined as ldquoa system of rules laws

agreements etc that establish the way that

11

something operates in business politics or

societyrdquo5

13 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

12

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

13

Some well known definitions of Public

Administration are

ldquoPublic Administration is detailed and

systematic execution of public law Every

particular application of law is an act of

administrationrdquo _ L D White

Public Administration is ldquothe art and

science of management applied to affairs of

the Staterdquo ndash D Waldo

ldquoBy Public Administration is meant in common

usage the activities of the executive

branches of the National State and Local

Governmentrdquo ndash H Simon

The lsquoPublicrsquo aspect of public administration

gives the discipline a special character It

can be looked at formally to mean government

So public Administration is government

14

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 considered6

14 Constitutional Framework

15

Bangladesh attained independence in 1971

through a historic struggle for national

liberation and the same established the

independent sovereign Peoplersquos 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

16

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

17

Bangladesh Government Organisation Chart

Head of the state President

The Executive The Legislature The Judiciary

Judicial service commission

18

Supreme Courts of Bangladesh

Appellate Division

High Court Division

Sub-ordinate Courts of Bangladesh

House of the Nations (Parliament) Prime Minister

Cabinet Ministers

Ministries

Permanent Secretaries

Cabinet

Civil service commission

19

CJM DJ

ADJ ACJM

SJM JDJ

JM SAJ

AJ

Gram AdalatMimangsa Board

Different Tribunals

Ministries

Finance

Law Justice

and

Parliamentary

Affairs

Agriculture

Planning

Post and Tele

Independent Departments

Auditor General

Attorney General

Bangladesh Police

Anti-Corruption

Commission

Human rights Com

Commission

20

Note The Chief Judicial Magistratersquos equivalent post is Chief

Metropolitan Magistrate and in the same way The Senior Judicial

Magistratersquos 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

Local Authorities

Zila Parishad

PourashavaUpazila Porishad

Union Parishad

Tribal Administration

21

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

21 The Executive (articles from 48 to 64)

Articles from 48 to 64 are connected with the

term lsquothe executiversquo and the constitutional

framework of this is nothing but the structure

of forming and working of the said authority

22

`However I am mentioning here the phase to

phase constitutionally executive framework

Executive under the 1972 Constitution

ldquoThe 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

23

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 Heshe 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 heshe would

be aided by a council of ministers who would

hold office during hisher pleasure Similarly

the power to dissolve the Jatiya Sangsad by the

head of state rested on the advice of the Prime

24

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

25

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

26

appointed by the President at his discretion

The council was to be presided over by the

President and would hold office during hisher

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

27

activities The office of the President was made

all powerful and without any checks on hisher

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

28

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

29

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

30

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

31

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

32

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

Presidents 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 parliaments powers as evidenced

through the addition of a new clause 72(A) made

the case perfectly clear

Executive under the Twelfth Amendment

33

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 Ministers 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

34

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

Ministerialrdquo7

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 Peoplersquos Republic of

Bangladesh has been substituted by the

35

Constitution (Fifth Amendment) Act 2011 (Act

XIV of 2011) section 22 which provides that-

lsquoThe supreme command of the defence services of

Bangladesh shall vest in the President and the

exercise thereof shall be regulated by lawrsquo

22 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

36

regulations bye-laws or other instruments

having legislative effect lsquoThe 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

37

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

38

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 presidents 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

39

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

40

affiliated with the president has been able to

command a solidmajorityrsquo8

23 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

41

the Supreme Court but litigation may be

very slow in 1987 there were 29 Supreme

Court judges dealing with 21600 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

42

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

43

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

44

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

45

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 government9

3 Civil Service of Bangladesh

31 Legal framework

46

Article 137 of the constitution of the Peoplersquos

Republic of Bangladesh deals with the term

lsquolegal frameworkrsquo of civil service of

Bangladesh lsquoThe implementation of government

policies and projects is the duty of the

Bangladesh Civil Service a corps of trained

administrators who form the nations 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

47

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

48

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

49

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 75 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

50

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 Bangladesh10

32 Recruitment procedure and

recommendations

The Bangladesh Public Service Commission (BPSC)

is a quasi judicial body established in 1972

under the Constitution of the Peoples Republic

51

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 Honble President

of the Republic11 Presidential Order No 34 (on

May 9 1972) PSC Ordinance No LVII of 1977 BCS

Recruitment Rules of 1981 PSC Officers amp

52

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 appointment12

The cadres and entry posts of the

Bangladesh Civil Service

General cadres

1 BCS (Administration) Assistant Commissioner)

53

2 BCS (Police) Assistant Superintendent of Police

3 BCS (Audit amp Accounts) Assistant Accountant General

4 BCS (Economic) Assistant Chief

5 BCS (Customs amp Excise) Assistant Commissioner

(Customs amp 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 amp

Export Equivalent Posts

11 BCS (Postal) Assistant Post Master General

Equivalent Posts

12 BCS (Railway Transportation amp Commercial)

Assistant Traffic Superintendent

54

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 amp Highways) Assistant Engineer

4 BCS (Telecommunications) Assistant Divisional

Engineer

5 BCS (Public Health Engineering) Assistant Engineer

55

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

Officer13

Recruitment

56

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 amp 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 appointment14

lsquoRecruitment is the process of searching for

prospective employees and stimulating them to

apply for jobs in the organization (Flippo and

57

Edwin 1984 141) No element of the career

service system is more important than the

recruitment policyrdquo (Commission of

Inquiry on Public Service Personnel 193537

quoted in Stall 196251) 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)

58

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 partymdashas opposed to a system of awarding

offices on the basis of merit independent of

political activityrsquo15

Legal Basis for BCS Recruitment Policy

lsquoThe constitution of Bangladesh has granted

equal employment opportunities for citizens The

constitution declares ldquoThere shall be equality

of opportunity for all citizens in respect of

employment or office in the service of the

Republicrdquo (Article 29 [1]) ldquoNo citizen shall

on the grounds only of religion race caste

59

sex or place of birth be ineligible for or

discriminated against in respect of any

employment or office in the service of the

Republicrdquo (Article 29 [2]) However under clause

(3) of the same Article the constitution has

provided certain exceptions that read ldquoNothing

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

60

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 servicesrsquo 16

61

Recommendations Julian Paul Assange an

Australian computer programmer

politicalinternet activist publisher and

journalist and founder of WikiLeaks supports

the free dissemination of government data17 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

62

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

Thatrsquos 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

63

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 abolished18

64

Besides these quota system should be abolished

as our Constitution or any law has not given the

definition and the factors of opting lsquobackward

sectionrsquo of the citizens Article 29(3)(a) of

our constitution though provides the quota

system for lsquobackward sectionrsquo 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 sonsrsquo being poor are not getting the said

benefit and hence Professor M Abdul Wahhab

65

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

ordersrules 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

66

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

67

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 ldquothough 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 art29 (1) amp29(2) it merely confers an

enabling power But as it an exception to the

guarantee of art29 (1) amp29(2) it should not be

68

interpreted or given effect to in such a way as

to nullify the guarantee under art29 (1)

amp29(2) The Indian Supreme Court held that

reservation in excess of 50 would be

unconstitutional20

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 lsquonotrsquo and hence ldquowe are to consider

the meaning of lsquobackward sectionrsquo Art 29 is

comparable with art16 of the Indian

Constitution which uses the expression lsquobackward

classrsquo where as the expression used in art

29(3) is backward section The Indian Supreme

Court has interpreted the expression lsquobackward

classrsquo in several decisions Those decisions may

69

be helpful but not decisive in interpreting

lsquobackward sectionrsquo 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

70

33 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 statusetc)22

But unfortunately

there is no hard and fast and transparent

principle for doing the transfer of the civil

71

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 workplace23

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 ie what quality is considered is to

72

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

73

determined and if it is taken or done there

will be no request or lobby for the transfer and

harassment

34 Promotion procedure and

recommendation

The word lsquopromotionrsquo 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

Bangladesh24

74

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

75

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

76

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

77

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

35 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

Itrsquos not what you want in life but itrsquos

knowing how to reach it

78

Itrsquos not where you want to go but itrsquos knowing

how to get there

Itrsquos not how high you want to rise but itrsquos

knowing how to take off

It may not be quite the outcome you were aiming

for but it will be an outcome

Itrsquos not what you dream of doing but itrsquos

having the knowledge to do it

Its not a set of goals but itrsquos more like a

vision

79

Itrsquos not the goal you set but itrsquos 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 Departments26

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

80

Recommendation

Training should be given to the civil servants

for realizing the matter that embodied in art21

(2) of the Constitution of the Peoplersquos 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

36 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

81

said word lsquoaccountability 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 ldquowatchdogrdquo units to scrutinize

and hold departments accountable legitimacy of

82

these commissions is built upon their

independence as it avoids any conflicts of

interests27

There are various types of accountability ie

(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

lsquoParliaments are key actors in what has

been termed the lsquochain of

83

accountabilityrsquo 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 lsquosociety driven horizontal

84

accountabilityrsquo 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 ndashno

matter how defined ndash parliaments are one

of the institutions through which

diagonal accountability can be

exercisedrsquo27

However the civil servants should be

accountable by any or all means of

accountability

85

4 Judicial Service of Bangladesh

41 Legal framework

Article 137 of the Constitution also deals with

the term lsquolegal frameworkrsquo 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

itsrsquo judgment passed in Civil Appeal no79 of

1999 commonly known in the Masder Hossainrsquos case

that-

ldquoIt is declared that the word ldquoappointmentsrdquo 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

86

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

ldquoBangladesh Judicial Service Commission has been

established in 2007 by the rule lsquo বাংলােদশ

জিডিসয়াল সািভস কিমশন িবিধমালা ২০০৭ rsquo ie

87

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

88

Law Faculty of any one of three leading public

university ie 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 Secretariatrdquo 28

42 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

89

voice According to Rule 5 of OgraveevsjvDagger`k RywWwmqvj

mvwfcopyDaggermi cOumlDaggerek cDagger` wbDaggerqvM welqK AvDagger`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

90

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 32 are applicable with equitable

equality

43 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

91

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 33 is

applicable with equitable equality

44 Promotion procedure and recommendations

The promotion of sub-ordinate Courtrsquos judges are

in fact depended on the Annual Confidential

92

Reports (ACRs) There is no examination system

for getting the promotion in the sub-

ordinate judiciary

lsquoPresently 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

93

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 linersquo29

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-

ldquoConfidential reports should set out distinctly

and tersely sufficient particulars and it is

essential that they should be clear and definite

94

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 Divisionrdquo 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

95

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 34 is

applicable with equitable equality

45 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

96

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 skills30

Recommendation

The quality of training provided by JATI should

be improved A training need- assessment of the

subordinate court judges could be undertaken

97

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

98

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

subordinatecourts31

99

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

51 Ethical education

100

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 publics trust

and confidence in government by demonstrating

the highest standards of professional

competence efficiency and effectiveness

101

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

102

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

103

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

104

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 assets32 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

52 Use of technology

105

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 peoplersquos 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 lsquoThe Law of

Civil Procedurersquo first edition 2006 volume 1

page iii that

106

ldquoFor 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 lawyerrdquo However

the corruption of the court staff and the

offices of the civil servants can be controlled

easily by using technology ie 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

107

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

108

53 Check and balance

The theory of separation of powers was given by

the Charles-Louis de Secondat baron de La Bregravede

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 lsquothe spirit of

lawsrsquo that

lsquoI have not drawn my principles from my

prejudices but from the nature of thingsrdquo 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

109

Conclusion

In conclusion it can be reminded that 3rd

paragraph of the preamble of our constitution

provides that

lsquoFurther 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 citizensrsquo

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

110

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 p1 see also Mahmudul Islam-

Constitutional law of Bangladesh second edition

p1

2 httpenwikipediaorgwikiConstitution

111

3 httplegal-

dictionarythefreedictionarycomconstitution

4 httpwwwthefreedictionarycomframework

5 httpwwwmacmillandictionarycomdictionarybri

tishframework

6 httpwwwegyankoshacinbitstream

7 httpwwwbanglapediaorghttpdocsHTE_0079HTM

8 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

9 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

10 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

11 httpwwwbpscgovbd2011

12 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

13 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

14 httpwwwrhdgovbdRulesAndRegulationsView_Ov

erviewaspRef=A

112

15 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

16 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

17 wwwforbescomprofilejulian-assange

18 httpwwwti-bangladeshorgresearchES_PSCpdf

19 httpwwwnapsipagorgPDFABDUL_WAHHABpdf see

also Khan Akbar Ali and Kazi Rakibuddin Ahmad

March 2008 ldquoQuota System for Civil Service

Recruitment in Bangladesh An Exploratory

Analysisrdquo 2008 available at http

wwwbpscgovbddocuments news25906 newsdoc

20 Mahmudul Islam- Constitutional law of Bangladesh

second edition p171 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 p171 see also Indra Sawhney v

India AIR 1993 SC 477

113

22 httpwwwmopagovbdindexphpoption=com_conte

ntamptask=viewampid=377ampItemid=419

23 httpwwwvsrhhrCustomPagesStaticHRVFilesL

egislation__Civil-Servants-Actpdf

24 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

25 httptraininganddevelopmentnaukrihubcomtrain

inghtml

26 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

27 httpsiteresourcesworldbankorgPUBLICSECTORAN

DGOVERNANCEResourcesAccountabilityGovernancepd

f

28 httpwwwjscbdorgbdb_functionphp

29 httpwwwigsbracuacbdUserFilesFilearchive

_fileJudiciary_Policy_Notepdf

30 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

114

31 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

32 httpwwwoecdorgdataoecd625735521740pdf

Page 6: The constitutional framework of public administration in bangladesh

6

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

11 Constitution

lsquoBy 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

7

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

8

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

ldquoWestern 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

9

that it should no itself be destructive of the

values it was intended to promoterdquo1

The said word lsquoconstitutionrsquo means ldquoa

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 ie 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 constitutionrdquo 2

Again constitution can be defined as ldquothe

fundamental law written or unwritten that

establishes the character of a government by

defining the basic principles to which a society

10

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

actrdquo 3

12 Framework

The word lsquoframeworkrsquo means a structure for

supporting or enclosing something else

especially a skeletal support used as the basis

for something being constructed4 and the said

term is defined as ldquoa system of rules laws

agreements etc that establish the way that

11

something operates in business politics or

societyrdquo5

13 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

12

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

13

Some well known definitions of Public

Administration are

ldquoPublic Administration is detailed and

systematic execution of public law Every

particular application of law is an act of

administrationrdquo _ L D White

Public Administration is ldquothe art and

science of management applied to affairs of

the Staterdquo ndash D Waldo

ldquoBy Public Administration is meant in common

usage the activities of the executive

branches of the National State and Local

Governmentrdquo ndash H Simon

The lsquoPublicrsquo aspect of public administration

gives the discipline a special character It

can be looked at formally to mean government

So public Administration is government

14

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 considered6

14 Constitutional Framework

15

Bangladesh attained independence in 1971

through a historic struggle for national

liberation and the same established the

independent sovereign Peoplersquos 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

16

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

17

Bangladesh Government Organisation Chart

Head of the state President

The Executive The Legislature The Judiciary

Judicial service commission

18

Supreme Courts of Bangladesh

Appellate Division

High Court Division

Sub-ordinate Courts of Bangladesh

House of the Nations (Parliament) Prime Minister

Cabinet Ministers

Ministries

Permanent Secretaries

Cabinet

Civil service commission

19

CJM DJ

ADJ ACJM

SJM JDJ

JM SAJ

AJ

Gram AdalatMimangsa Board

Different Tribunals

Ministries

Finance

Law Justice

and

Parliamentary

Affairs

Agriculture

Planning

Post and Tele

Independent Departments

Auditor General

Attorney General

Bangladesh Police

Anti-Corruption

Commission

Human rights Com

Commission

20

Note The Chief Judicial Magistratersquos equivalent post is Chief

Metropolitan Magistrate and in the same way The Senior Judicial

Magistratersquos 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

Local Authorities

Zila Parishad

PourashavaUpazila Porishad

Union Parishad

Tribal Administration

21

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

21 The Executive (articles from 48 to 64)

Articles from 48 to 64 are connected with the

term lsquothe executiversquo and the constitutional

framework of this is nothing but the structure

of forming and working of the said authority

22

`However I am mentioning here the phase to

phase constitutionally executive framework

Executive under the 1972 Constitution

ldquoThe 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

23

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 Heshe 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 heshe would

be aided by a council of ministers who would

hold office during hisher pleasure Similarly

the power to dissolve the Jatiya Sangsad by the

head of state rested on the advice of the Prime

24

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

25

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

26

appointed by the President at his discretion

The council was to be presided over by the

President and would hold office during hisher

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

27

activities The office of the President was made

all powerful and without any checks on hisher

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

28

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

29

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

30

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

31

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

32

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

Presidents 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 parliaments powers as evidenced

through the addition of a new clause 72(A) made

the case perfectly clear

Executive under the Twelfth Amendment

33

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 Ministers 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

34

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

Ministerialrdquo7

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 Peoplersquos Republic of

Bangladesh has been substituted by the

35

Constitution (Fifth Amendment) Act 2011 (Act

XIV of 2011) section 22 which provides that-

lsquoThe supreme command of the defence services of

Bangladesh shall vest in the President and the

exercise thereof shall be regulated by lawrsquo

22 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

36

regulations bye-laws or other instruments

having legislative effect lsquoThe 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

37

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

38

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 presidents 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

39

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

40

affiliated with the president has been able to

command a solidmajorityrsquo8

23 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

41

the Supreme Court but litigation may be

very slow in 1987 there were 29 Supreme

Court judges dealing with 21600 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

42

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

43

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

44

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

45

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 government9

3 Civil Service of Bangladesh

31 Legal framework

46

Article 137 of the constitution of the Peoplersquos

Republic of Bangladesh deals with the term

lsquolegal frameworkrsquo of civil service of

Bangladesh lsquoThe implementation of government

policies and projects is the duty of the

Bangladesh Civil Service a corps of trained

administrators who form the nations 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

47

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

48

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

49

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 75 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

50

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 Bangladesh10

32 Recruitment procedure and

recommendations

The Bangladesh Public Service Commission (BPSC)

is a quasi judicial body established in 1972

under the Constitution of the Peoples Republic

51

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 Honble President

of the Republic11 Presidential Order No 34 (on

May 9 1972) PSC Ordinance No LVII of 1977 BCS

Recruitment Rules of 1981 PSC Officers amp

52

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 appointment12

The cadres and entry posts of the

Bangladesh Civil Service

General cadres

1 BCS (Administration) Assistant Commissioner)

53

2 BCS (Police) Assistant Superintendent of Police

3 BCS (Audit amp Accounts) Assistant Accountant General

4 BCS (Economic) Assistant Chief

5 BCS (Customs amp Excise) Assistant Commissioner

(Customs amp 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 amp

Export Equivalent Posts

11 BCS (Postal) Assistant Post Master General

Equivalent Posts

12 BCS (Railway Transportation amp Commercial)

Assistant Traffic Superintendent

54

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 amp Highways) Assistant Engineer

4 BCS (Telecommunications) Assistant Divisional

Engineer

5 BCS (Public Health Engineering) Assistant Engineer

55

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

Officer13

Recruitment

56

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 amp 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 appointment14

lsquoRecruitment is the process of searching for

prospective employees and stimulating them to

apply for jobs in the organization (Flippo and

57

Edwin 1984 141) No element of the career

service system is more important than the

recruitment policyrdquo (Commission of

Inquiry on Public Service Personnel 193537

quoted in Stall 196251) 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)

58

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 partymdashas opposed to a system of awarding

offices on the basis of merit independent of

political activityrsquo15

Legal Basis for BCS Recruitment Policy

lsquoThe constitution of Bangladesh has granted

equal employment opportunities for citizens The

constitution declares ldquoThere shall be equality

of opportunity for all citizens in respect of

employment or office in the service of the

Republicrdquo (Article 29 [1]) ldquoNo citizen shall

on the grounds only of religion race caste

59

sex or place of birth be ineligible for or

discriminated against in respect of any

employment or office in the service of the

Republicrdquo (Article 29 [2]) However under clause

(3) of the same Article the constitution has

provided certain exceptions that read ldquoNothing

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

60

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 servicesrsquo 16

61

Recommendations Julian Paul Assange an

Australian computer programmer

politicalinternet activist publisher and

journalist and founder of WikiLeaks supports

the free dissemination of government data17 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

62

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

Thatrsquos 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

63

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 abolished18

64

Besides these quota system should be abolished

as our Constitution or any law has not given the

definition and the factors of opting lsquobackward

sectionrsquo of the citizens Article 29(3)(a) of

our constitution though provides the quota

system for lsquobackward sectionrsquo 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 sonsrsquo being poor are not getting the said

benefit and hence Professor M Abdul Wahhab

65

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

ordersrules 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

66

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

67

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 ldquothough 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 art29 (1) amp29(2) it merely confers an

enabling power But as it an exception to the

guarantee of art29 (1) amp29(2) it should not be

68

interpreted or given effect to in such a way as

to nullify the guarantee under art29 (1)

amp29(2) The Indian Supreme Court held that

reservation in excess of 50 would be

unconstitutional20

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 lsquonotrsquo and hence ldquowe are to consider

the meaning of lsquobackward sectionrsquo Art 29 is

comparable with art16 of the Indian

Constitution which uses the expression lsquobackward

classrsquo where as the expression used in art

29(3) is backward section The Indian Supreme

Court has interpreted the expression lsquobackward

classrsquo in several decisions Those decisions may

69

be helpful but not decisive in interpreting

lsquobackward sectionrsquo 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

70

33 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 statusetc)22

But unfortunately

there is no hard and fast and transparent

principle for doing the transfer of the civil

71

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 workplace23

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 ie what quality is considered is to

72

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

73

determined and if it is taken or done there

will be no request or lobby for the transfer and

harassment

34 Promotion procedure and

recommendation

The word lsquopromotionrsquo 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

Bangladesh24

74

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

75

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

76

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

77

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

35 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

Itrsquos not what you want in life but itrsquos

knowing how to reach it

78

Itrsquos not where you want to go but itrsquos knowing

how to get there

Itrsquos not how high you want to rise but itrsquos

knowing how to take off

It may not be quite the outcome you were aiming

for but it will be an outcome

Itrsquos not what you dream of doing but itrsquos

having the knowledge to do it

Its not a set of goals but itrsquos more like a

vision

79

Itrsquos not the goal you set but itrsquos 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 Departments26

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

80

Recommendation

Training should be given to the civil servants

for realizing the matter that embodied in art21

(2) of the Constitution of the Peoplersquos 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

36 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

81

said word lsquoaccountability 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 ldquowatchdogrdquo units to scrutinize

and hold departments accountable legitimacy of

82

these commissions is built upon their

independence as it avoids any conflicts of

interests27

There are various types of accountability ie

(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

lsquoParliaments are key actors in what has

been termed the lsquochain of

83

accountabilityrsquo 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 lsquosociety driven horizontal

84

accountabilityrsquo 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 ndashno

matter how defined ndash parliaments are one

of the institutions through which

diagonal accountability can be

exercisedrsquo27

However the civil servants should be

accountable by any or all means of

accountability

85

4 Judicial Service of Bangladesh

41 Legal framework

Article 137 of the Constitution also deals with

the term lsquolegal frameworkrsquo 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

itsrsquo judgment passed in Civil Appeal no79 of

1999 commonly known in the Masder Hossainrsquos case

that-

ldquoIt is declared that the word ldquoappointmentsrdquo 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

86

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

ldquoBangladesh Judicial Service Commission has been

established in 2007 by the rule lsquo বাংলােদশ

জিডিসয়াল সািভস কিমশন িবিধমালা ২০০৭ rsquo ie

87

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

88

Law Faculty of any one of three leading public

university ie 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 Secretariatrdquo 28

42 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

89

voice According to Rule 5 of OgraveevsjvDagger`k RywWwmqvj

mvwfcopyDaggermi cOumlDaggerek cDagger` wbDaggerqvM welqK AvDagger`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

90

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 32 are applicable with equitable

equality

43 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

91

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 33 is

applicable with equitable equality

44 Promotion procedure and recommendations

The promotion of sub-ordinate Courtrsquos judges are

in fact depended on the Annual Confidential

92

Reports (ACRs) There is no examination system

for getting the promotion in the sub-

ordinate judiciary

lsquoPresently 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

93

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 linersquo29

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-

ldquoConfidential reports should set out distinctly

and tersely sufficient particulars and it is

essential that they should be clear and definite

94

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 Divisionrdquo 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

95

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 34 is

applicable with equitable equality

45 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

96

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 skills30

Recommendation

The quality of training provided by JATI should

be improved A training need- assessment of the

subordinate court judges could be undertaken

97

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

98

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

subordinatecourts31

99

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

51 Ethical education

100

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 publics trust

and confidence in government by demonstrating

the highest standards of professional

competence efficiency and effectiveness

101

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

102

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

103

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

104

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 assets32 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

52 Use of technology

105

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 peoplersquos 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 lsquoThe Law of

Civil Procedurersquo first edition 2006 volume 1

page iii that

106

ldquoFor 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 lawyerrdquo However

the corruption of the court staff and the

offices of the civil servants can be controlled

easily by using technology ie 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

107

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

108

53 Check and balance

The theory of separation of powers was given by

the Charles-Louis de Secondat baron de La Bregravede

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 lsquothe spirit of

lawsrsquo that

lsquoI have not drawn my principles from my

prejudices but from the nature of thingsrdquo 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

109

Conclusion

In conclusion it can be reminded that 3rd

paragraph of the preamble of our constitution

provides that

lsquoFurther 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 citizensrsquo

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

110

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 p1 see also Mahmudul Islam-

Constitutional law of Bangladesh second edition

p1

2 httpenwikipediaorgwikiConstitution

111

3 httplegal-

dictionarythefreedictionarycomconstitution

4 httpwwwthefreedictionarycomframework

5 httpwwwmacmillandictionarycomdictionarybri

tishframework

6 httpwwwegyankoshacinbitstream

7 httpwwwbanglapediaorghttpdocsHTE_0079HTM

8 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

9 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

10 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

11 httpwwwbpscgovbd2011

12 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

13 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

14 httpwwwrhdgovbdRulesAndRegulationsView_Ov

erviewaspRef=A

112

15 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

16 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

17 wwwforbescomprofilejulian-assange

18 httpwwwti-bangladeshorgresearchES_PSCpdf

19 httpwwwnapsipagorgPDFABDUL_WAHHABpdf see

also Khan Akbar Ali and Kazi Rakibuddin Ahmad

March 2008 ldquoQuota System for Civil Service

Recruitment in Bangladesh An Exploratory

Analysisrdquo 2008 available at http

wwwbpscgovbddocuments news25906 newsdoc

20 Mahmudul Islam- Constitutional law of Bangladesh

second edition p171 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 p171 see also Indra Sawhney v

India AIR 1993 SC 477

113

22 httpwwwmopagovbdindexphpoption=com_conte

ntamptask=viewampid=377ampItemid=419

23 httpwwwvsrhhrCustomPagesStaticHRVFilesL

egislation__Civil-Servants-Actpdf

24 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

25 httptraininganddevelopmentnaukrihubcomtrain

inghtml

26 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

27 httpsiteresourcesworldbankorgPUBLICSECTORAN

DGOVERNANCEResourcesAccountabilityGovernancepd

f

28 httpwwwjscbdorgbdb_functionphp

29 httpwwwigsbracuacbdUserFilesFilearchive

_fileJudiciary_Policy_Notepdf

30 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

114

31 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

32 httpwwwoecdorgdataoecd625735521740pdf

Page 7: The constitutional framework of public administration in bangladesh

7

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

8

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

ldquoWestern 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

9

that it should no itself be destructive of the

values it was intended to promoterdquo1

The said word lsquoconstitutionrsquo means ldquoa

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 ie 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 constitutionrdquo 2

Again constitution can be defined as ldquothe

fundamental law written or unwritten that

establishes the character of a government by

defining the basic principles to which a society

10

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

actrdquo 3

12 Framework

The word lsquoframeworkrsquo means a structure for

supporting or enclosing something else

especially a skeletal support used as the basis

for something being constructed4 and the said

term is defined as ldquoa system of rules laws

agreements etc that establish the way that

11

something operates in business politics or

societyrdquo5

13 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

12

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

13

Some well known definitions of Public

Administration are

ldquoPublic Administration is detailed and

systematic execution of public law Every

particular application of law is an act of

administrationrdquo _ L D White

Public Administration is ldquothe art and

science of management applied to affairs of

the Staterdquo ndash D Waldo

ldquoBy Public Administration is meant in common

usage the activities of the executive

branches of the National State and Local

Governmentrdquo ndash H Simon

The lsquoPublicrsquo aspect of public administration

gives the discipline a special character It

can be looked at formally to mean government

So public Administration is government

14

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 considered6

14 Constitutional Framework

15

Bangladesh attained independence in 1971

through a historic struggle for national

liberation and the same established the

independent sovereign Peoplersquos 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

16

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

17

Bangladesh Government Organisation Chart

Head of the state President

The Executive The Legislature The Judiciary

Judicial service commission

18

Supreme Courts of Bangladesh

Appellate Division

High Court Division

Sub-ordinate Courts of Bangladesh

House of the Nations (Parliament) Prime Minister

Cabinet Ministers

Ministries

Permanent Secretaries

Cabinet

Civil service commission

19

CJM DJ

ADJ ACJM

SJM JDJ

JM SAJ

AJ

Gram AdalatMimangsa Board

Different Tribunals

Ministries

Finance

Law Justice

and

Parliamentary

Affairs

Agriculture

Planning

Post and Tele

Independent Departments

Auditor General

Attorney General

Bangladesh Police

Anti-Corruption

Commission

Human rights Com

Commission

20

Note The Chief Judicial Magistratersquos equivalent post is Chief

Metropolitan Magistrate and in the same way The Senior Judicial

Magistratersquos 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

Local Authorities

Zila Parishad

PourashavaUpazila Porishad

Union Parishad

Tribal Administration

21

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

21 The Executive (articles from 48 to 64)

Articles from 48 to 64 are connected with the

term lsquothe executiversquo and the constitutional

framework of this is nothing but the structure

of forming and working of the said authority

22

`However I am mentioning here the phase to

phase constitutionally executive framework

Executive under the 1972 Constitution

ldquoThe 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

23

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 Heshe 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 heshe would

be aided by a council of ministers who would

hold office during hisher pleasure Similarly

the power to dissolve the Jatiya Sangsad by the

head of state rested on the advice of the Prime

24

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

25

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

26

appointed by the President at his discretion

The council was to be presided over by the

President and would hold office during hisher

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

27

activities The office of the President was made

all powerful and without any checks on hisher

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

28

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

29

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

30

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

31

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

32

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

Presidents 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 parliaments powers as evidenced

through the addition of a new clause 72(A) made

the case perfectly clear

Executive under the Twelfth Amendment

33

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 Ministers 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

34

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

Ministerialrdquo7

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 Peoplersquos Republic of

Bangladesh has been substituted by the

35

Constitution (Fifth Amendment) Act 2011 (Act

XIV of 2011) section 22 which provides that-

lsquoThe supreme command of the defence services of

Bangladesh shall vest in the President and the

exercise thereof shall be regulated by lawrsquo

22 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

36

regulations bye-laws or other instruments

having legislative effect lsquoThe 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

37

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

38

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 presidents 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

39

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

40

affiliated with the president has been able to

command a solidmajorityrsquo8

23 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

41

the Supreme Court but litigation may be

very slow in 1987 there were 29 Supreme

Court judges dealing with 21600 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

42

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

43

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

44

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

45

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 government9

3 Civil Service of Bangladesh

31 Legal framework

46

Article 137 of the constitution of the Peoplersquos

Republic of Bangladesh deals with the term

lsquolegal frameworkrsquo of civil service of

Bangladesh lsquoThe implementation of government

policies and projects is the duty of the

Bangladesh Civil Service a corps of trained

administrators who form the nations 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

47

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

48

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

49

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 75 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

50

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 Bangladesh10

32 Recruitment procedure and

recommendations

The Bangladesh Public Service Commission (BPSC)

is a quasi judicial body established in 1972

under the Constitution of the Peoples Republic

51

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 Honble President

of the Republic11 Presidential Order No 34 (on

May 9 1972) PSC Ordinance No LVII of 1977 BCS

Recruitment Rules of 1981 PSC Officers amp

52

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 appointment12

The cadres and entry posts of the

Bangladesh Civil Service

General cadres

1 BCS (Administration) Assistant Commissioner)

53

2 BCS (Police) Assistant Superintendent of Police

3 BCS (Audit amp Accounts) Assistant Accountant General

4 BCS (Economic) Assistant Chief

5 BCS (Customs amp Excise) Assistant Commissioner

(Customs amp 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 amp

Export Equivalent Posts

11 BCS (Postal) Assistant Post Master General

Equivalent Posts

12 BCS (Railway Transportation amp Commercial)

Assistant Traffic Superintendent

54

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 amp Highways) Assistant Engineer

4 BCS (Telecommunications) Assistant Divisional

Engineer

5 BCS (Public Health Engineering) Assistant Engineer

55

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

Officer13

Recruitment

56

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 amp 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 appointment14

lsquoRecruitment is the process of searching for

prospective employees and stimulating them to

apply for jobs in the organization (Flippo and

57

Edwin 1984 141) No element of the career

service system is more important than the

recruitment policyrdquo (Commission of

Inquiry on Public Service Personnel 193537

quoted in Stall 196251) 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)

58

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 partymdashas opposed to a system of awarding

offices on the basis of merit independent of

political activityrsquo15

Legal Basis for BCS Recruitment Policy

lsquoThe constitution of Bangladesh has granted

equal employment opportunities for citizens The

constitution declares ldquoThere shall be equality

of opportunity for all citizens in respect of

employment or office in the service of the

Republicrdquo (Article 29 [1]) ldquoNo citizen shall

on the grounds only of religion race caste

59

sex or place of birth be ineligible for or

discriminated against in respect of any

employment or office in the service of the

Republicrdquo (Article 29 [2]) However under clause

(3) of the same Article the constitution has

provided certain exceptions that read ldquoNothing

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

60

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 servicesrsquo 16

61

Recommendations Julian Paul Assange an

Australian computer programmer

politicalinternet activist publisher and

journalist and founder of WikiLeaks supports

the free dissemination of government data17 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

62

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

Thatrsquos 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

63

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 abolished18

64

Besides these quota system should be abolished

as our Constitution or any law has not given the

definition and the factors of opting lsquobackward

sectionrsquo of the citizens Article 29(3)(a) of

our constitution though provides the quota

system for lsquobackward sectionrsquo 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 sonsrsquo being poor are not getting the said

benefit and hence Professor M Abdul Wahhab

65

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

ordersrules 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

66

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

67

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 ldquothough 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 art29 (1) amp29(2) it merely confers an

enabling power But as it an exception to the

guarantee of art29 (1) amp29(2) it should not be

68

interpreted or given effect to in such a way as

to nullify the guarantee under art29 (1)

amp29(2) The Indian Supreme Court held that

reservation in excess of 50 would be

unconstitutional20

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 lsquonotrsquo and hence ldquowe are to consider

the meaning of lsquobackward sectionrsquo Art 29 is

comparable with art16 of the Indian

Constitution which uses the expression lsquobackward

classrsquo where as the expression used in art

29(3) is backward section The Indian Supreme

Court has interpreted the expression lsquobackward

classrsquo in several decisions Those decisions may

69

be helpful but not decisive in interpreting

lsquobackward sectionrsquo 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

70

33 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 statusetc)22

But unfortunately

there is no hard and fast and transparent

principle for doing the transfer of the civil

71

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 workplace23

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 ie what quality is considered is to

72

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

73

determined and if it is taken or done there

will be no request or lobby for the transfer and

harassment

34 Promotion procedure and

recommendation

The word lsquopromotionrsquo 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

Bangladesh24

74

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

75

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

76

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

77

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

35 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

Itrsquos not what you want in life but itrsquos

knowing how to reach it

78

Itrsquos not where you want to go but itrsquos knowing

how to get there

Itrsquos not how high you want to rise but itrsquos

knowing how to take off

It may not be quite the outcome you were aiming

for but it will be an outcome

Itrsquos not what you dream of doing but itrsquos

having the knowledge to do it

Its not a set of goals but itrsquos more like a

vision

79

Itrsquos not the goal you set but itrsquos 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 Departments26

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

80

Recommendation

Training should be given to the civil servants

for realizing the matter that embodied in art21

(2) of the Constitution of the Peoplersquos 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

36 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

81

said word lsquoaccountability 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 ldquowatchdogrdquo units to scrutinize

and hold departments accountable legitimacy of

82

these commissions is built upon their

independence as it avoids any conflicts of

interests27

There are various types of accountability ie

(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

lsquoParliaments are key actors in what has

been termed the lsquochain of

83

accountabilityrsquo 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 lsquosociety driven horizontal

84

accountabilityrsquo 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 ndashno

matter how defined ndash parliaments are one

of the institutions through which

diagonal accountability can be

exercisedrsquo27

However the civil servants should be

accountable by any or all means of

accountability

85

4 Judicial Service of Bangladesh

41 Legal framework

Article 137 of the Constitution also deals with

the term lsquolegal frameworkrsquo 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

itsrsquo judgment passed in Civil Appeal no79 of

1999 commonly known in the Masder Hossainrsquos case

that-

ldquoIt is declared that the word ldquoappointmentsrdquo 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

86

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

ldquoBangladesh Judicial Service Commission has been

established in 2007 by the rule lsquo বাংলােদশ

জিডিসয়াল সািভস কিমশন িবিধমালা ২০০৭ rsquo ie

87

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

88

Law Faculty of any one of three leading public

university ie 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 Secretariatrdquo 28

42 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

89

voice According to Rule 5 of OgraveevsjvDagger`k RywWwmqvj

mvwfcopyDaggermi cOumlDaggerek cDagger` wbDaggerqvM welqK AvDagger`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

90

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 32 are applicable with equitable

equality

43 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

91

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 33 is

applicable with equitable equality

44 Promotion procedure and recommendations

The promotion of sub-ordinate Courtrsquos judges are

in fact depended on the Annual Confidential

92

Reports (ACRs) There is no examination system

for getting the promotion in the sub-

ordinate judiciary

lsquoPresently 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

93

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 linersquo29

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-

ldquoConfidential reports should set out distinctly

and tersely sufficient particulars and it is

essential that they should be clear and definite

94

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 Divisionrdquo 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

95

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 34 is

applicable with equitable equality

45 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

96

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 skills30

Recommendation

The quality of training provided by JATI should

be improved A training need- assessment of the

subordinate court judges could be undertaken

97

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

98

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

subordinatecourts31

99

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

51 Ethical education

100

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 publics trust

and confidence in government by demonstrating

the highest standards of professional

competence efficiency and effectiveness

101

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

102

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

103

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

104

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 assets32 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

52 Use of technology

105

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 peoplersquos 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 lsquoThe Law of

Civil Procedurersquo first edition 2006 volume 1

page iii that

106

ldquoFor 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 lawyerrdquo However

the corruption of the court staff and the

offices of the civil servants can be controlled

easily by using technology ie 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

107

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

108

53 Check and balance

The theory of separation of powers was given by

the Charles-Louis de Secondat baron de La Bregravede

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 lsquothe spirit of

lawsrsquo that

lsquoI have not drawn my principles from my

prejudices but from the nature of thingsrdquo 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

109

Conclusion

In conclusion it can be reminded that 3rd

paragraph of the preamble of our constitution

provides that

lsquoFurther 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 citizensrsquo

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

110

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 p1 see also Mahmudul Islam-

Constitutional law of Bangladesh second edition

p1

2 httpenwikipediaorgwikiConstitution

111

3 httplegal-

dictionarythefreedictionarycomconstitution

4 httpwwwthefreedictionarycomframework

5 httpwwwmacmillandictionarycomdictionarybri

tishframework

6 httpwwwegyankoshacinbitstream

7 httpwwwbanglapediaorghttpdocsHTE_0079HTM

8 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

9 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

10 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

11 httpwwwbpscgovbd2011

12 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

13 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

14 httpwwwrhdgovbdRulesAndRegulationsView_Ov

erviewaspRef=A

112

15 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

16 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

17 wwwforbescomprofilejulian-assange

18 httpwwwti-bangladeshorgresearchES_PSCpdf

19 httpwwwnapsipagorgPDFABDUL_WAHHABpdf see

also Khan Akbar Ali and Kazi Rakibuddin Ahmad

March 2008 ldquoQuota System for Civil Service

Recruitment in Bangladesh An Exploratory

Analysisrdquo 2008 available at http

wwwbpscgovbddocuments news25906 newsdoc

20 Mahmudul Islam- Constitutional law of Bangladesh

second edition p171 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 p171 see also Indra Sawhney v

India AIR 1993 SC 477

113

22 httpwwwmopagovbdindexphpoption=com_conte

ntamptask=viewampid=377ampItemid=419

23 httpwwwvsrhhrCustomPagesStaticHRVFilesL

egislation__Civil-Servants-Actpdf

24 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

25 httptraininganddevelopmentnaukrihubcomtrain

inghtml

26 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

27 httpsiteresourcesworldbankorgPUBLICSECTORAN

DGOVERNANCEResourcesAccountabilityGovernancepd

f

28 httpwwwjscbdorgbdb_functionphp

29 httpwwwigsbracuacbdUserFilesFilearchive

_fileJudiciary_Policy_Notepdf

30 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

114

31 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

32 httpwwwoecdorgdataoecd625735521740pdf

Page 8: The constitutional framework of public administration in bangladesh

8

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

ldquoWestern 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

9

that it should no itself be destructive of the

values it was intended to promoterdquo1

The said word lsquoconstitutionrsquo means ldquoa

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 ie 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 constitutionrdquo 2

Again constitution can be defined as ldquothe

fundamental law written or unwritten that

establishes the character of a government by

defining the basic principles to which a society

10

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

actrdquo 3

12 Framework

The word lsquoframeworkrsquo means a structure for

supporting or enclosing something else

especially a skeletal support used as the basis

for something being constructed4 and the said

term is defined as ldquoa system of rules laws

agreements etc that establish the way that

11

something operates in business politics or

societyrdquo5

13 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

12

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

13

Some well known definitions of Public

Administration are

ldquoPublic Administration is detailed and

systematic execution of public law Every

particular application of law is an act of

administrationrdquo _ L D White

Public Administration is ldquothe art and

science of management applied to affairs of

the Staterdquo ndash D Waldo

ldquoBy Public Administration is meant in common

usage the activities of the executive

branches of the National State and Local

Governmentrdquo ndash H Simon

The lsquoPublicrsquo aspect of public administration

gives the discipline a special character It

can be looked at formally to mean government

So public Administration is government

14

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 considered6

14 Constitutional Framework

15

Bangladesh attained independence in 1971

through a historic struggle for national

liberation and the same established the

independent sovereign Peoplersquos 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

16

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

17

Bangladesh Government Organisation Chart

Head of the state President

The Executive The Legislature The Judiciary

Judicial service commission

18

Supreme Courts of Bangladesh

Appellate Division

High Court Division

Sub-ordinate Courts of Bangladesh

House of the Nations (Parliament) Prime Minister

Cabinet Ministers

Ministries

Permanent Secretaries

Cabinet

Civil service commission

19

CJM DJ

ADJ ACJM

SJM JDJ

JM SAJ

AJ

Gram AdalatMimangsa Board

Different Tribunals

Ministries

Finance

Law Justice

and

Parliamentary

Affairs

Agriculture

Planning

Post and Tele

Independent Departments

Auditor General

Attorney General

Bangladesh Police

Anti-Corruption

Commission

Human rights Com

Commission

20

Note The Chief Judicial Magistratersquos equivalent post is Chief

Metropolitan Magistrate and in the same way The Senior Judicial

Magistratersquos 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

Local Authorities

Zila Parishad

PourashavaUpazila Porishad

Union Parishad

Tribal Administration

21

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

21 The Executive (articles from 48 to 64)

Articles from 48 to 64 are connected with the

term lsquothe executiversquo and the constitutional

framework of this is nothing but the structure

of forming and working of the said authority

22

`However I am mentioning here the phase to

phase constitutionally executive framework

Executive under the 1972 Constitution

ldquoThe 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

23

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 Heshe 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 heshe would

be aided by a council of ministers who would

hold office during hisher pleasure Similarly

the power to dissolve the Jatiya Sangsad by the

head of state rested on the advice of the Prime

24

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

25

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

26

appointed by the President at his discretion

The council was to be presided over by the

President and would hold office during hisher

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

27

activities The office of the President was made

all powerful and without any checks on hisher

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

28

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

29

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

30

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

31

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

32

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

Presidents 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 parliaments powers as evidenced

through the addition of a new clause 72(A) made

the case perfectly clear

Executive under the Twelfth Amendment

33

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 Ministers 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

34

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

Ministerialrdquo7

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 Peoplersquos Republic of

Bangladesh has been substituted by the

35

Constitution (Fifth Amendment) Act 2011 (Act

XIV of 2011) section 22 which provides that-

lsquoThe supreme command of the defence services of

Bangladesh shall vest in the President and the

exercise thereof shall be regulated by lawrsquo

22 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

36

regulations bye-laws or other instruments

having legislative effect lsquoThe 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

37

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

38

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 presidents 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

39

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

40

affiliated with the president has been able to

command a solidmajorityrsquo8

23 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

41

the Supreme Court but litigation may be

very slow in 1987 there were 29 Supreme

Court judges dealing with 21600 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

42

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

43

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

44

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

45

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 government9

3 Civil Service of Bangladesh

31 Legal framework

46

Article 137 of the constitution of the Peoplersquos

Republic of Bangladesh deals with the term

lsquolegal frameworkrsquo of civil service of

Bangladesh lsquoThe implementation of government

policies and projects is the duty of the

Bangladesh Civil Service a corps of trained

administrators who form the nations 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

47

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

48

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

49

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 75 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

50

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 Bangladesh10

32 Recruitment procedure and

recommendations

The Bangladesh Public Service Commission (BPSC)

is a quasi judicial body established in 1972

under the Constitution of the Peoples Republic

51

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 Honble President

of the Republic11 Presidential Order No 34 (on

May 9 1972) PSC Ordinance No LVII of 1977 BCS

Recruitment Rules of 1981 PSC Officers amp

52

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 appointment12

The cadres and entry posts of the

Bangladesh Civil Service

General cadres

1 BCS (Administration) Assistant Commissioner)

53

2 BCS (Police) Assistant Superintendent of Police

3 BCS (Audit amp Accounts) Assistant Accountant General

4 BCS (Economic) Assistant Chief

5 BCS (Customs amp Excise) Assistant Commissioner

(Customs amp 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 amp

Export Equivalent Posts

11 BCS (Postal) Assistant Post Master General

Equivalent Posts

12 BCS (Railway Transportation amp Commercial)

Assistant Traffic Superintendent

54

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 amp Highways) Assistant Engineer

4 BCS (Telecommunications) Assistant Divisional

Engineer

5 BCS (Public Health Engineering) Assistant Engineer

55

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

Officer13

Recruitment

56

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 amp 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 appointment14

lsquoRecruitment is the process of searching for

prospective employees and stimulating them to

apply for jobs in the organization (Flippo and

57

Edwin 1984 141) No element of the career

service system is more important than the

recruitment policyrdquo (Commission of

Inquiry on Public Service Personnel 193537

quoted in Stall 196251) 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)

58

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 partymdashas opposed to a system of awarding

offices on the basis of merit independent of

political activityrsquo15

Legal Basis for BCS Recruitment Policy

lsquoThe constitution of Bangladesh has granted

equal employment opportunities for citizens The

constitution declares ldquoThere shall be equality

of opportunity for all citizens in respect of

employment or office in the service of the

Republicrdquo (Article 29 [1]) ldquoNo citizen shall

on the grounds only of religion race caste

59

sex or place of birth be ineligible for or

discriminated against in respect of any

employment or office in the service of the

Republicrdquo (Article 29 [2]) However under clause

(3) of the same Article the constitution has

provided certain exceptions that read ldquoNothing

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

60

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 servicesrsquo 16

61

Recommendations Julian Paul Assange an

Australian computer programmer

politicalinternet activist publisher and

journalist and founder of WikiLeaks supports

the free dissemination of government data17 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

62

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

Thatrsquos 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

63

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 abolished18

64

Besides these quota system should be abolished

as our Constitution or any law has not given the

definition and the factors of opting lsquobackward

sectionrsquo of the citizens Article 29(3)(a) of

our constitution though provides the quota

system for lsquobackward sectionrsquo 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 sonsrsquo being poor are not getting the said

benefit and hence Professor M Abdul Wahhab

65

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

ordersrules 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

66

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

67

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 ldquothough 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 art29 (1) amp29(2) it merely confers an

enabling power But as it an exception to the

guarantee of art29 (1) amp29(2) it should not be

68

interpreted or given effect to in such a way as

to nullify the guarantee under art29 (1)

amp29(2) The Indian Supreme Court held that

reservation in excess of 50 would be

unconstitutional20

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 lsquonotrsquo and hence ldquowe are to consider

the meaning of lsquobackward sectionrsquo Art 29 is

comparable with art16 of the Indian

Constitution which uses the expression lsquobackward

classrsquo where as the expression used in art

29(3) is backward section The Indian Supreme

Court has interpreted the expression lsquobackward

classrsquo in several decisions Those decisions may

69

be helpful but not decisive in interpreting

lsquobackward sectionrsquo 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

70

33 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 statusetc)22

But unfortunately

there is no hard and fast and transparent

principle for doing the transfer of the civil

71

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 workplace23

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 ie what quality is considered is to

72

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

73

determined and if it is taken or done there

will be no request or lobby for the transfer and

harassment

34 Promotion procedure and

recommendation

The word lsquopromotionrsquo 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

Bangladesh24

74

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

75

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

76

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

77

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

35 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

Itrsquos not what you want in life but itrsquos

knowing how to reach it

78

Itrsquos not where you want to go but itrsquos knowing

how to get there

Itrsquos not how high you want to rise but itrsquos

knowing how to take off

It may not be quite the outcome you were aiming

for but it will be an outcome

Itrsquos not what you dream of doing but itrsquos

having the knowledge to do it

Its not a set of goals but itrsquos more like a

vision

79

Itrsquos not the goal you set but itrsquos 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 Departments26

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

80

Recommendation

Training should be given to the civil servants

for realizing the matter that embodied in art21

(2) of the Constitution of the Peoplersquos 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

36 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

81

said word lsquoaccountability 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 ldquowatchdogrdquo units to scrutinize

and hold departments accountable legitimacy of

82

these commissions is built upon their

independence as it avoids any conflicts of

interests27

There are various types of accountability ie

(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

lsquoParliaments are key actors in what has

been termed the lsquochain of

83

accountabilityrsquo 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 lsquosociety driven horizontal

84

accountabilityrsquo 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 ndashno

matter how defined ndash parliaments are one

of the institutions through which

diagonal accountability can be

exercisedrsquo27

However the civil servants should be

accountable by any or all means of

accountability

85

4 Judicial Service of Bangladesh

41 Legal framework

Article 137 of the Constitution also deals with

the term lsquolegal frameworkrsquo 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

itsrsquo judgment passed in Civil Appeal no79 of

1999 commonly known in the Masder Hossainrsquos case

that-

ldquoIt is declared that the word ldquoappointmentsrdquo 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

86

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

ldquoBangladesh Judicial Service Commission has been

established in 2007 by the rule lsquo বাংলােদশ

জিডিসয়াল সািভস কিমশন িবিধমালা ২০০৭ rsquo ie

87

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

88

Law Faculty of any one of three leading public

university ie 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 Secretariatrdquo 28

42 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

89

voice According to Rule 5 of OgraveevsjvDagger`k RywWwmqvj

mvwfcopyDaggermi cOumlDaggerek cDagger` wbDaggerqvM welqK AvDagger`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

90

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 32 are applicable with equitable

equality

43 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

91

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 33 is

applicable with equitable equality

44 Promotion procedure and recommendations

The promotion of sub-ordinate Courtrsquos judges are

in fact depended on the Annual Confidential

92

Reports (ACRs) There is no examination system

for getting the promotion in the sub-

ordinate judiciary

lsquoPresently 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

93

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 linersquo29

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-

ldquoConfidential reports should set out distinctly

and tersely sufficient particulars and it is

essential that they should be clear and definite

94

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 Divisionrdquo 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

95

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 34 is

applicable with equitable equality

45 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

96

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 skills30

Recommendation

The quality of training provided by JATI should

be improved A training need- assessment of the

subordinate court judges could be undertaken

97

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

98

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

subordinatecourts31

99

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

51 Ethical education

100

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 publics trust

and confidence in government by demonstrating

the highest standards of professional

competence efficiency and effectiveness

101

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

102

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

103

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

104

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 assets32 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

52 Use of technology

105

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 peoplersquos 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 lsquoThe Law of

Civil Procedurersquo first edition 2006 volume 1

page iii that

106

ldquoFor 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 lawyerrdquo However

the corruption of the court staff and the

offices of the civil servants can be controlled

easily by using technology ie 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

107

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

108

53 Check and balance

The theory of separation of powers was given by

the Charles-Louis de Secondat baron de La Bregravede

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 lsquothe spirit of

lawsrsquo that

lsquoI have not drawn my principles from my

prejudices but from the nature of thingsrdquo 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

109

Conclusion

In conclusion it can be reminded that 3rd

paragraph of the preamble of our constitution

provides that

lsquoFurther 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 citizensrsquo

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

110

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 p1 see also Mahmudul Islam-

Constitutional law of Bangladesh second edition

p1

2 httpenwikipediaorgwikiConstitution

111

3 httplegal-

dictionarythefreedictionarycomconstitution

4 httpwwwthefreedictionarycomframework

5 httpwwwmacmillandictionarycomdictionarybri

tishframework

6 httpwwwegyankoshacinbitstream

7 httpwwwbanglapediaorghttpdocsHTE_0079HTM

8 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

9 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

10 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

11 httpwwwbpscgovbd2011

12 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

13 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

14 httpwwwrhdgovbdRulesAndRegulationsView_Ov

erviewaspRef=A

112

15 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

16 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

17 wwwforbescomprofilejulian-assange

18 httpwwwti-bangladeshorgresearchES_PSCpdf

19 httpwwwnapsipagorgPDFABDUL_WAHHABpdf see

also Khan Akbar Ali and Kazi Rakibuddin Ahmad

March 2008 ldquoQuota System for Civil Service

Recruitment in Bangladesh An Exploratory

Analysisrdquo 2008 available at http

wwwbpscgovbddocuments news25906 newsdoc

20 Mahmudul Islam- Constitutional law of Bangladesh

second edition p171 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 p171 see also Indra Sawhney v

India AIR 1993 SC 477

113

22 httpwwwmopagovbdindexphpoption=com_conte

ntamptask=viewampid=377ampItemid=419

23 httpwwwvsrhhrCustomPagesStaticHRVFilesL

egislation__Civil-Servants-Actpdf

24 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

25 httptraininganddevelopmentnaukrihubcomtrain

inghtml

26 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

27 httpsiteresourcesworldbankorgPUBLICSECTORAN

DGOVERNANCEResourcesAccountabilityGovernancepd

f

28 httpwwwjscbdorgbdb_functionphp

29 httpwwwigsbracuacbdUserFilesFilearchive

_fileJudiciary_Policy_Notepdf

30 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

114

31 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

32 httpwwwoecdorgdataoecd625735521740pdf

Page 9: The constitutional framework of public administration in bangladesh

9

that it should no itself be destructive of the

values it was intended to promoterdquo1

The said word lsquoconstitutionrsquo means ldquoa

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 ie 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 constitutionrdquo 2

Again constitution can be defined as ldquothe

fundamental law written or unwritten that

establishes the character of a government by

defining the basic principles to which a society

10

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

actrdquo 3

12 Framework

The word lsquoframeworkrsquo means a structure for

supporting or enclosing something else

especially a skeletal support used as the basis

for something being constructed4 and the said

term is defined as ldquoa system of rules laws

agreements etc that establish the way that

11

something operates in business politics or

societyrdquo5

13 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

12

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

13

Some well known definitions of Public

Administration are

ldquoPublic Administration is detailed and

systematic execution of public law Every

particular application of law is an act of

administrationrdquo _ L D White

Public Administration is ldquothe art and

science of management applied to affairs of

the Staterdquo ndash D Waldo

ldquoBy Public Administration is meant in common

usage the activities of the executive

branches of the National State and Local

Governmentrdquo ndash H Simon

The lsquoPublicrsquo aspect of public administration

gives the discipline a special character It

can be looked at formally to mean government

So public Administration is government

14

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 considered6

14 Constitutional Framework

15

Bangladesh attained independence in 1971

through a historic struggle for national

liberation and the same established the

independent sovereign Peoplersquos 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

16

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

17

Bangladesh Government Organisation Chart

Head of the state President

The Executive The Legislature The Judiciary

Judicial service commission

18

Supreme Courts of Bangladesh

Appellate Division

High Court Division

Sub-ordinate Courts of Bangladesh

House of the Nations (Parliament) Prime Minister

Cabinet Ministers

Ministries

Permanent Secretaries

Cabinet

Civil service commission

19

CJM DJ

ADJ ACJM

SJM JDJ

JM SAJ

AJ

Gram AdalatMimangsa Board

Different Tribunals

Ministries

Finance

Law Justice

and

Parliamentary

Affairs

Agriculture

Planning

Post and Tele

Independent Departments

Auditor General

Attorney General

Bangladesh Police

Anti-Corruption

Commission

Human rights Com

Commission

20

Note The Chief Judicial Magistratersquos equivalent post is Chief

Metropolitan Magistrate and in the same way The Senior Judicial

Magistratersquos 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

Local Authorities

Zila Parishad

PourashavaUpazila Porishad

Union Parishad

Tribal Administration

21

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

21 The Executive (articles from 48 to 64)

Articles from 48 to 64 are connected with the

term lsquothe executiversquo and the constitutional

framework of this is nothing but the structure

of forming and working of the said authority

22

`However I am mentioning here the phase to

phase constitutionally executive framework

Executive under the 1972 Constitution

ldquoThe 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

23

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 Heshe 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 heshe would

be aided by a council of ministers who would

hold office during hisher pleasure Similarly

the power to dissolve the Jatiya Sangsad by the

head of state rested on the advice of the Prime

24

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

25

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

26

appointed by the President at his discretion

The council was to be presided over by the

President and would hold office during hisher

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

27

activities The office of the President was made

all powerful and without any checks on hisher

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

28

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

29

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

30

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

31

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

32

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

Presidents 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 parliaments powers as evidenced

through the addition of a new clause 72(A) made

the case perfectly clear

Executive under the Twelfth Amendment

33

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 Ministers 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

34

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

Ministerialrdquo7

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 Peoplersquos Republic of

Bangladesh has been substituted by the

35

Constitution (Fifth Amendment) Act 2011 (Act

XIV of 2011) section 22 which provides that-

lsquoThe supreme command of the defence services of

Bangladesh shall vest in the President and the

exercise thereof shall be regulated by lawrsquo

22 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

36

regulations bye-laws or other instruments

having legislative effect lsquoThe 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

37

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

38

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 presidents 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

39

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

40

affiliated with the president has been able to

command a solidmajorityrsquo8

23 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

41

the Supreme Court but litigation may be

very slow in 1987 there were 29 Supreme

Court judges dealing with 21600 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

42

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

43

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

44

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

45

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 government9

3 Civil Service of Bangladesh

31 Legal framework

46

Article 137 of the constitution of the Peoplersquos

Republic of Bangladesh deals with the term

lsquolegal frameworkrsquo of civil service of

Bangladesh lsquoThe implementation of government

policies and projects is the duty of the

Bangladesh Civil Service a corps of trained

administrators who form the nations 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

47

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

48

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

49

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 75 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

50

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 Bangladesh10

32 Recruitment procedure and

recommendations

The Bangladesh Public Service Commission (BPSC)

is a quasi judicial body established in 1972

under the Constitution of the Peoples Republic

51

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 Honble President

of the Republic11 Presidential Order No 34 (on

May 9 1972) PSC Ordinance No LVII of 1977 BCS

Recruitment Rules of 1981 PSC Officers amp

52

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 appointment12

The cadres and entry posts of the

Bangladesh Civil Service

General cadres

1 BCS (Administration) Assistant Commissioner)

53

2 BCS (Police) Assistant Superintendent of Police

3 BCS (Audit amp Accounts) Assistant Accountant General

4 BCS (Economic) Assistant Chief

5 BCS (Customs amp Excise) Assistant Commissioner

(Customs amp 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 amp

Export Equivalent Posts

11 BCS (Postal) Assistant Post Master General

Equivalent Posts

12 BCS (Railway Transportation amp Commercial)

Assistant Traffic Superintendent

54

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 amp Highways) Assistant Engineer

4 BCS (Telecommunications) Assistant Divisional

Engineer

5 BCS (Public Health Engineering) Assistant Engineer

55

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

Officer13

Recruitment

56

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 amp 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 appointment14

lsquoRecruitment is the process of searching for

prospective employees and stimulating them to

apply for jobs in the organization (Flippo and

57

Edwin 1984 141) No element of the career

service system is more important than the

recruitment policyrdquo (Commission of

Inquiry on Public Service Personnel 193537

quoted in Stall 196251) 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)

58

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 partymdashas opposed to a system of awarding

offices on the basis of merit independent of

political activityrsquo15

Legal Basis for BCS Recruitment Policy

lsquoThe constitution of Bangladesh has granted

equal employment opportunities for citizens The

constitution declares ldquoThere shall be equality

of opportunity for all citizens in respect of

employment or office in the service of the

Republicrdquo (Article 29 [1]) ldquoNo citizen shall

on the grounds only of religion race caste

59

sex or place of birth be ineligible for or

discriminated against in respect of any

employment or office in the service of the

Republicrdquo (Article 29 [2]) However under clause

(3) of the same Article the constitution has

provided certain exceptions that read ldquoNothing

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

60

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 servicesrsquo 16

61

Recommendations Julian Paul Assange an

Australian computer programmer

politicalinternet activist publisher and

journalist and founder of WikiLeaks supports

the free dissemination of government data17 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

62

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

Thatrsquos 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

63

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 abolished18

64

Besides these quota system should be abolished

as our Constitution or any law has not given the

definition and the factors of opting lsquobackward

sectionrsquo of the citizens Article 29(3)(a) of

our constitution though provides the quota

system for lsquobackward sectionrsquo 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 sonsrsquo being poor are not getting the said

benefit and hence Professor M Abdul Wahhab

65

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

ordersrules 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

66

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

67

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 ldquothough 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 art29 (1) amp29(2) it merely confers an

enabling power But as it an exception to the

guarantee of art29 (1) amp29(2) it should not be

68

interpreted or given effect to in such a way as

to nullify the guarantee under art29 (1)

amp29(2) The Indian Supreme Court held that

reservation in excess of 50 would be

unconstitutional20

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 lsquonotrsquo and hence ldquowe are to consider

the meaning of lsquobackward sectionrsquo Art 29 is

comparable with art16 of the Indian

Constitution which uses the expression lsquobackward

classrsquo where as the expression used in art

29(3) is backward section The Indian Supreme

Court has interpreted the expression lsquobackward

classrsquo in several decisions Those decisions may

69

be helpful but not decisive in interpreting

lsquobackward sectionrsquo 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

70

33 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 statusetc)22

But unfortunately

there is no hard and fast and transparent

principle for doing the transfer of the civil

71

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 workplace23

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 ie what quality is considered is to

72

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

73

determined and if it is taken or done there

will be no request or lobby for the transfer and

harassment

34 Promotion procedure and

recommendation

The word lsquopromotionrsquo 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

Bangladesh24

74

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

75

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

76

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

77

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

35 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

Itrsquos not what you want in life but itrsquos

knowing how to reach it

78

Itrsquos not where you want to go but itrsquos knowing

how to get there

Itrsquos not how high you want to rise but itrsquos

knowing how to take off

It may not be quite the outcome you were aiming

for but it will be an outcome

Itrsquos not what you dream of doing but itrsquos

having the knowledge to do it

Its not a set of goals but itrsquos more like a

vision

79

Itrsquos not the goal you set but itrsquos 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 Departments26

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

80

Recommendation

Training should be given to the civil servants

for realizing the matter that embodied in art21

(2) of the Constitution of the Peoplersquos 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

36 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

81

said word lsquoaccountability 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 ldquowatchdogrdquo units to scrutinize

and hold departments accountable legitimacy of

82

these commissions is built upon their

independence as it avoids any conflicts of

interests27

There are various types of accountability ie

(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

lsquoParliaments are key actors in what has

been termed the lsquochain of

83

accountabilityrsquo 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 lsquosociety driven horizontal

84

accountabilityrsquo 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 ndashno

matter how defined ndash parliaments are one

of the institutions through which

diagonal accountability can be

exercisedrsquo27

However the civil servants should be

accountable by any or all means of

accountability

85

4 Judicial Service of Bangladesh

41 Legal framework

Article 137 of the Constitution also deals with

the term lsquolegal frameworkrsquo 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

itsrsquo judgment passed in Civil Appeal no79 of

1999 commonly known in the Masder Hossainrsquos case

that-

ldquoIt is declared that the word ldquoappointmentsrdquo 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

86

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

ldquoBangladesh Judicial Service Commission has been

established in 2007 by the rule lsquo বাংলােদশ

জিডিসয়াল সািভস কিমশন িবিধমালা ২০০৭ rsquo ie

87

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

88

Law Faculty of any one of three leading public

university ie 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 Secretariatrdquo 28

42 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

89

voice According to Rule 5 of OgraveevsjvDagger`k RywWwmqvj

mvwfcopyDaggermi cOumlDaggerek cDagger` wbDaggerqvM welqK AvDagger`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

90

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 32 are applicable with equitable

equality

43 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

91

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 33 is

applicable with equitable equality

44 Promotion procedure and recommendations

The promotion of sub-ordinate Courtrsquos judges are

in fact depended on the Annual Confidential

92

Reports (ACRs) There is no examination system

for getting the promotion in the sub-

ordinate judiciary

lsquoPresently 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

93

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 linersquo29

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-

ldquoConfidential reports should set out distinctly

and tersely sufficient particulars and it is

essential that they should be clear and definite

94

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 Divisionrdquo 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

95

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 34 is

applicable with equitable equality

45 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

96

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 skills30

Recommendation

The quality of training provided by JATI should

be improved A training need- assessment of the

subordinate court judges could be undertaken

97

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

98

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

subordinatecourts31

99

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

51 Ethical education

100

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 publics trust

and confidence in government by demonstrating

the highest standards of professional

competence efficiency and effectiveness

101

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

102

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

103

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

104

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 assets32 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

52 Use of technology

105

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 peoplersquos 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 lsquoThe Law of

Civil Procedurersquo first edition 2006 volume 1

page iii that

106

ldquoFor 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 lawyerrdquo However

the corruption of the court staff and the

offices of the civil servants can be controlled

easily by using technology ie 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

107

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

108

53 Check and balance

The theory of separation of powers was given by

the Charles-Louis de Secondat baron de La Bregravede

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 lsquothe spirit of

lawsrsquo that

lsquoI have not drawn my principles from my

prejudices but from the nature of thingsrdquo 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

109

Conclusion

In conclusion it can be reminded that 3rd

paragraph of the preamble of our constitution

provides that

lsquoFurther 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 citizensrsquo

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

110

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 p1 see also Mahmudul Islam-

Constitutional law of Bangladesh second edition

p1

2 httpenwikipediaorgwikiConstitution

111

3 httplegal-

dictionarythefreedictionarycomconstitution

4 httpwwwthefreedictionarycomframework

5 httpwwwmacmillandictionarycomdictionarybri

tishframework

6 httpwwwegyankoshacinbitstream

7 httpwwwbanglapediaorghttpdocsHTE_0079HTM

8 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

9 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

10 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

11 httpwwwbpscgovbd2011

12 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

13 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

14 httpwwwrhdgovbdRulesAndRegulationsView_Ov

erviewaspRef=A

112

15 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

16 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

17 wwwforbescomprofilejulian-assange

18 httpwwwti-bangladeshorgresearchES_PSCpdf

19 httpwwwnapsipagorgPDFABDUL_WAHHABpdf see

also Khan Akbar Ali and Kazi Rakibuddin Ahmad

March 2008 ldquoQuota System for Civil Service

Recruitment in Bangladesh An Exploratory

Analysisrdquo 2008 available at http

wwwbpscgovbddocuments news25906 newsdoc

20 Mahmudul Islam- Constitutional law of Bangladesh

second edition p171 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 p171 see also Indra Sawhney v

India AIR 1993 SC 477

113

22 httpwwwmopagovbdindexphpoption=com_conte

ntamptask=viewampid=377ampItemid=419

23 httpwwwvsrhhrCustomPagesStaticHRVFilesL

egislation__Civil-Servants-Actpdf

24 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

25 httptraininganddevelopmentnaukrihubcomtrain

inghtml

26 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

27 httpsiteresourcesworldbankorgPUBLICSECTORAN

DGOVERNANCEResourcesAccountabilityGovernancepd

f

28 httpwwwjscbdorgbdb_functionphp

29 httpwwwigsbracuacbdUserFilesFilearchive

_fileJudiciary_Policy_Notepdf

30 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

114

31 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

32 httpwwwoecdorgdataoecd625735521740pdf

Page 10: The constitutional framework of public administration in bangladesh

10

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

actrdquo 3

12 Framework

The word lsquoframeworkrsquo means a structure for

supporting or enclosing something else

especially a skeletal support used as the basis

for something being constructed4 and the said

term is defined as ldquoa system of rules laws

agreements etc that establish the way that

11

something operates in business politics or

societyrdquo5

13 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

12

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

13

Some well known definitions of Public

Administration are

ldquoPublic Administration is detailed and

systematic execution of public law Every

particular application of law is an act of

administrationrdquo _ L D White

Public Administration is ldquothe art and

science of management applied to affairs of

the Staterdquo ndash D Waldo

ldquoBy Public Administration is meant in common

usage the activities of the executive

branches of the National State and Local

Governmentrdquo ndash H Simon

The lsquoPublicrsquo aspect of public administration

gives the discipline a special character It

can be looked at formally to mean government

So public Administration is government

14

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 considered6

14 Constitutional Framework

15

Bangladesh attained independence in 1971

through a historic struggle for national

liberation and the same established the

independent sovereign Peoplersquos 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

16

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

17

Bangladesh Government Organisation Chart

Head of the state President

The Executive The Legislature The Judiciary

Judicial service commission

18

Supreme Courts of Bangladesh

Appellate Division

High Court Division

Sub-ordinate Courts of Bangladesh

House of the Nations (Parliament) Prime Minister

Cabinet Ministers

Ministries

Permanent Secretaries

Cabinet

Civil service commission

19

CJM DJ

ADJ ACJM

SJM JDJ

JM SAJ

AJ

Gram AdalatMimangsa Board

Different Tribunals

Ministries

Finance

Law Justice

and

Parliamentary

Affairs

Agriculture

Planning

Post and Tele

Independent Departments

Auditor General

Attorney General

Bangladesh Police

Anti-Corruption

Commission

Human rights Com

Commission

20

Note The Chief Judicial Magistratersquos equivalent post is Chief

Metropolitan Magistrate and in the same way The Senior Judicial

Magistratersquos 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

Local Authorities

Zila Parishad

PourashavaUpazila Porishad

Union Parishad

Tribal Administration

21

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

21 The Executive (articles from 48 to 64)

Articles from 48 to 64 are connected with the

term lsquothe executiversquo and the constitutional

framework of this is nothing but the structure

of forming and working of the said authority

22

`However I am mentioning here the phase to

phase constitutionally executive framework

Executive under the 1972 Constitution

ldquoThe 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

23

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 Heshe 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 heshe would

be aided by a council of ministers who would

hold office during hisher pleasure Similarly

the power to dissolve the Jatiya Sangsad by the

head of state rested on the advice of the Prime

24

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

25

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

26

appointed by the President at his discretion

The council was to be presided over by the

President and would hold office during hisher

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

27

activities The office of the President was made

all powerful and without any checks on hisher

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

28

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

29

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

30

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

31

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

32

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

Presidents 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 parliaments powers as evidenced

through the addition of a new clause 72(A) made

the case perfectly clear

Executive under the Twelfth Amendment

33

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 Ministers 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

34

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

Ministerialrdquo7

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 Peoplersquos Republic of

Bangladesh has been substituted by the

35

Constitution (Fifth Amendment) Act 2011 (Act

XIV of 2011) section 22 which provides that-

lsquoThe supreme command of the defence services of

Bangladesh shall vest in the President and the

exercise thereof shall be regulated by lawrsquo

22 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

36

regulations bye-laws or other instruments

having legislative effect lsquoThe 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

37

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

38

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 presidents 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

39

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

40

affiliated with the president has been able to

command a solidmajorityrsquo8

23 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

41

the Supreme Court but litigation may be

very slow in 1987 there were 29 Supreme

Court judges dealing with 21600 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

42

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

43

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

44

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

45

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 government9

3 Civil Service of Bangladesh

31 Legal framework

46

Article 137 of the constitution of the Peoplersquos

Republic of Bangladesh deals with the term

lsquolegal frameworkrsquo of civil service of

Bangladesh lsquoThe implementation of government

policies and projects is the duty of the

Bangladesh Civil Service a corps of trained

administrators who form the nations 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

47

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

48

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

49

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 75 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

50

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 Bangladesh10

32 Recruitment procedure and

recommendations

The Bangladesh Public Service Commission (BPSC)

is a quasi judicial body established in 1972

under the Constitution of the Peoples Republic

51

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 Honble President

of the Republic11 Presidential Order No 34 (on

May 9 1972) PSC Ordinance No LVII of 1977 BCS

Recruitment Rules of 1981 PSC Officers amp

52

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 appointment12

The cadres and entry posts of the

Bangladesh Civil Service

General cadres

1 BCS (Administration) Assistant Commissioner)

53

2 BCS (Police) Assistant Superintendent of Police

3 BCS (Audit amp Accounts) Assistant Accountant General

4 BCS (Economic) Assistant Chief

5 BCS (Customs amp Excise) Assistant Commissioner

(Customs amp 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 amp

Export Equivalent Posts

11 BCS (Postal) Assistant Post Master General

Equivalent Posts

12 BCS (Railway Transportation amp Commercial)

Assistant Traffic Superintendent

54

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 amp Highways) Assistant Engineer

4 BCS (Telecommunications) Assistant Divisional

Engineer

5 BCS (Public Health Engineering) Assistant Engineer

55

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

Officer13

Recruitment

56

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 amp 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 appointment14

lsquoRecruitment is the process of searching for

prospective employees and stimulating them to

apply for jobs in the organization (Flippo and

57

Edwin 1984 141) No element of the career

service system is more important than the

recruitment policyrdquo (Commission of

Inquiry on Public Service Personnel 193537

quoted in Stall 196251) 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)

58

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 partymdashas opposed to a system of awarding

offices on the basis of merit independent of

political activityrsquo15

Legal Basis for BCS Recruitment Policy

lsquoThe constitution of Bangladesh has granted

equal employment opportunities for citizens The

constitution declares ldquoThere shall be equality

of opportunity for all citizens in respect of

employment or office in the service of the

Republicrdquo (Article 29 [1]) ldquoNo citizen shall

on the grounds only of religion race caste

59

sex or place of birth be ineligible for or

discriminated against in respect of any

employment or office in the service of the

Republicrdquo (Article 29 [2]) However under clause

(3) of the same Article the constitution has

provided certain exceptions that read ldquoNothing

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

60

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 servicesrsquo 16

61

Recommendations Julian Paul Assange an

Australian computer programmer

politicalinternet activist publisher and

journalist and founder of WikiLeaks supports

the free dissemination of government data17 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

62

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

Thatrsquos 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

63

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 abolished18

64

Besides these quota system should be abolished

as our Constitution or any law has not given the

definition and the factors of opting lsquobackward

sectionrsquo of the citizens Article 29(3)(a) of

our constitution though provides the quota

system for lsquobackward sectionrsquo 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 sonsrsquo being poor are not getting the said

benefit and hence Professor M Abdul Wahhab

65

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

ordersrules 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

66

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

67

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 ldquothough 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 art29 (1) amp29(2) it merely confers an

enabling power But as it an exception to the

guarantee of art29 (1) amp29(2) it should not be

68

interpreted or given effect to in such a way as

to nullify the guarantee under art29 (1)

amp29(2) The Indian Supreme Court held that

reservation in excess of 50 would be

unconstitutional20

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 lsquonotrsquo and hence ldquowe are to consider

the meaning of lsquobackward sectionrsquo Art 29 is

comparable with art16 of the Indian

Constitution which uses the expression lsquobackward

classrsquo where as the expression used in art

29(3) is backward section The Indian Supreme

Court has interpreted the expression lsquobackward

classrsquo in several decisions Those decisions may

69

be helpful but not decisive in interpreting

lsquobackward sectionrsquo 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

70

33 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 statusetc)22

But unfortunately

there is no hard and fast and transparent

principle for doing the transfer of the civil

71

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 workplace23

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 ie what quality is considered is to

72

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

73

determined and if it is taken or done there

will be no request or lobby for the transfer and

harassment

34 Promotion procedure and

recommendation

The word lsquopromotionrsquo 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

Bangladesh24

74

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

75

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

76

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

77

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

35 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

Itrsquos not what you want in life but itrsquos

knowing how to reach it

78

Itrsquos not where you want to go but itrsquos knowing

how to get there

Itrsquos not how high you want to rise but itrsquos

knowing how to take off

It may not be quite the outcome you were aiming

for but it will be an outcome

Itrsquos not what you dream of doing but itrsquos

having the knowledge to do it

Its not a set of goals but itrsquos more like a

vision

79

Itrsquos not the goal you set but itrsquos 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 Departments26

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

80

Recommendation

Training should be given to the civil servants

for realizing the matter that embodied in art21

(2) of the Constitution of the Peoplersquos 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

36 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

81

said word lsquoaccountability 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 ldquowatchdogrdquo units to scrutinize

and hold departments accountable legitimacy of

82

these commissions is built upon their

independence as it avoids any conflicts of

interests27

There are various types of accountability ie

(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

lsquoParliaments are key actors in what has

been termed the lsquochain of

83

accountabilityrsquo 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 lsquosociety driven horizontal

84

accountabilityrsquo 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 ndashno

matter how defined ndash parliaments are one

of the institutions through which

diagonal accountability can be

exercisedrsquo27

However the civil servants should be

accountable by any or all means of

accountability

85

4 Judicial Service of Bangladesh

41 Legal framework

Article 137 of the Constitution also deals with

the term lsquolegal frameworkrsquo 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

itsrsquo judgment passed in Civil Appeal no79 of

1999 commonly known in the Masder Hossainrsquos case

that-

ldquoIt is declared that the word ldquoappointmentsrdquo 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

86

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

ldquoBangladesh Judicial Service Commission has been

established in 2007 by the rule lsquo বাংলােদশ

জিডিসয়াল সািভস কিমশন িবিধমালা ২০০৭ rsquo ie

87

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

88

Law Faculty of any one of three leading public

university ie 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 Secretariatrdquo 28

42 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

89

voice According to Rule 5 of OgraveevsjvDagger`k RywWwmqvj

mvwfcopyDaggermi cOumlDaggerek cDagger` wbDaggerqvM welqK AvDagger`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

90

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 32 are applicable with equitable

equality

43 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

91

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 33 is

applicable with equitable equality

44 Promotion procedure and recommendations

The promotion of sub-ordinate Courtrsquos judges are

in fact depended on the Annual Confidential

92

Reports (ACRs) There is no examination system

for getting the promotion in the sub-

ordinate judiciary

lsquoPresently 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

93

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 linersquo29

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-

ldquoConfidential reports should set out distinctly

and tersely sufficient particulars and it is

essential that they should be clear and definite

94

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 Divisionrdquo 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

95

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 34 is

applicable with equitable equality

45 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

96

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 skills30

Recommendation

The quality of training provided by JATI should

be improved A training need- assessment of the

subordinate court judges could be undertaken

97

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

98

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

subordinatecourts31

99

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

51 Ethical education

100

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 publics trust

and confidence in government by demonstrating

the highest standards of professional

competence efficiency and effectiveness

101

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

102

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

103

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

104

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 assets32 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

52 Use of technology

105

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 peoplersquos 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 lsquoThe Law of

Civil Procedurersquo first edition 2006 volume 1

page iii that

106

ldquoFor 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 lawyerrdquo However

the corruption of the court staff and the

offices of the civil servants can be controlled

easily by using technology ie 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

107

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

108

53 Check and balance

The theory of separation of powers was given by

the Charles-Louis de Secondat baron de La Bregravede

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 lsquothe spirit of

lawsrsquo that

lsquoI have not drawn my principles from my

prejudices but from the nature of thingsrdquo 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

109

Conclusion

In conclusion it can be reminded that 3rd

paragraph of the preamble of our constitution

provides that

lsquoFurther 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 citizensrsquo

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

110

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 p1 see also Mahmudul Islam-

Constitutional law of Bangladesh second edition

p1

2 httpenwikipediaorgwikiConstitution

111

3 httplegal-

dictionarythefreedictionarycomconstitution

4 httpwwwthefreedictionarycomframework

5 httpwwwmacmillandictionarycomdictionarybri

tishframework

6 httpwwwegyankoshacinbitstream

7 httpwwwbanglapediaorghttpdocsHTE_0079HTM

8 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

9 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

10 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

11 httpwwwbpscgovbd2011

12 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

13 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

14 httpwwwrhdgovbdRulesAndRegulationsView_Ov

erviewaspRef=A

112

15 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

16 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

17 wwwforbescomprofilejulian-assange

18 httpwwwti-bangladeshorgresearchES_PSCpdf

19 httpwwwnapsipagorgPDFABDUL_WAHHABpdf see

also Khan Akbar Ali and Kazi Rakibuddin Ahmad

March 2008 ldquoQuota System for Civil Service

Recruitment in Bangladesh An Exploratory

Analysisrdquo 2008 available at http

wwwbpscgovbddocuments news25906 newsdoc

20 Mahmudul Islam- Constitutional law of Bangladesh

second edition p171 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 p171 see also Indra Sawhney v

India AIR 1993 SC 477

113

22 httpwwwmopagovbdindexphpoption=com_conte

ntamptask=viewampid=377ampItemid=419

23 httpwwwvsrhhrCustomPagesStaticHRVFilesL

egislation__Civil-Servants-Actpdf

24 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

25 httptraininganddevelopmentnaukrihubcomtrain

inghtml

26 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

27 httpsiteresourcesworldbankorgPUBLICSECTORAN

DGOVERNANCEResourcesAccountabilityGovernancepd

f

28 httpwwwjscbdorgbdb_functionphp

29 httpwwwigsbracuacbdUserFilesFilearchive

_fileJudiciary_Policy_Notepdf

30 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

114

31 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

32 httpwwwoecdorgdataoecd625735521740pdf

Page 11: The constitutional framework of public administration in bangladesh

11

something operates in business politics or

societyrdquo5

13 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

12

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

13

Some well known definitions of Public

Administration are

ldquoPublic Administration is detailed and

systematic execution of public law Every

particular application of law is an act of

administrationrdquo _ L D White

Public Administration is ldquothe art and

science of management applied to affairs of

the Staterdquo ndash D Waldo

ldquoBy Public Administration is meant in common

usage the activities of the executive

branches of the National State and Local

Governmentrdquo ndash H Simon

The lsquoPublicrsquo aspect of public administration

gives the discipline a special character It

can be looked at formally to mean government

So public Administration is government

14

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 considered6

14 Constitutional Framework

15

Bangladesh attained independence in 1971

through a historic struggle for national

liberation and the same established the

independent sovereign Peoplersquos 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

16

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

17

Bangladesh Government Organisation Chart

Head of the state President

The Executive The Legislature The Judiciary

Judicial service commission

18

Supreme Courts of Bangladesh

Appellate Division

High Court Division

Sub-ordinate Courts of Bangladesh

House of the Nations (Parliament) Prime Minister

Cabinet Ministers

Ministries

Permanent Secretaries

Cabinet

Civil service commission

19

CJM DJ

ADJ ACJM

SJM JDJ

JM SAJ

AJ

Gram AdalatMimangsa Board

Different Tribunals

Ministries

Finance

Law Justice

and

Parliamentary

Affairs

Agriculture

Planning

Post and Tele

Independent Departments

Auditor General

Attorney General

Bangladesh Police

Anti-Corruption

Commission

Human rights Com

Commission

20

Note The Chief Judicial Magistratersquos equivalent post is Chief

Metropolitan Magistrate and in the same way The Senior Judicial

Magistratersquos 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

Local Authorities

Zila Parishad

PourashavaUpazila Porishad

Union Parishad

Tribal Administration

21

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

21 The Executive (articles from 48 to 64)

Articles from 48 to 64 are connected with the

term lsquothe executiversquo and the constitutional

framework of this is nothing but the structure

of forming and working of the said authority

22

`However I am mentioning here the phase to

phase constitutionally executive framework

Executive under the 1972 Constitution

ldquoThe 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

23

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 Heshe 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 heshe would

be aided by a council of ministers who would

hold office during hisher pleasure Similarly

the power to dissolve the Jatiya Sangsad by the

head of state rested on the advice of the Prime

24

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

25

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

26

appointed by the President at his discretion

The council was to be presided over by the

President and would hold office during hisher

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

27

activities The office of the President was made

all powerful and without any checks on hisher

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

28

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

29

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

30

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

31

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

32

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

Presidents 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 parliaments powers as evidenced

through the addition of a new clause 72(A) made

the case perfectly clear

Executive under the Twelfth Amendment

33

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 Ministers 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

34

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

Ministerialrdquo7

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 Peoplersquos Republic of

Bangladesh has been substituted by the

35

Constitution (Fifth Amendment) Act 2011 (Act

XIV of 2011) section 22 which provides that-

lsquoThe supreme command of the defence services of

Bangladesh shall vest in the President and the

exercise thereof shall be regulated by lawrsquo

22 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

36

regulations bye-laws or other instruments

having legislative effect lsquoThe 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

37

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

38

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 presidents 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

39

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

40

affiliated with the president has been able to

command a solidmajorityrsquo8

23 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

41

the Supreme Court but litigation may be

very slow in 1987 there were 29 Supreme

Court judges dealing with 21600 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

42

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

43

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

44

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

45

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 government9

3 Civil Service of Bangladesh

31 Legal framework

46

Article 137 of the constitution of the Peoplersquos

Republic of Bangladesh deals with the term

lsquolegal frameworkrsquo of civil service of

Bangladesh lsquoThe implementation of government

policies and projects is the duty of the

Bangladesh Civil Service a corps of trained

administrators who form the nations 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

47

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

48

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

49

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 75 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

50

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 Bangladesh10

32 Recruitment procedure and

recommendations

The Bangladesh Public Service Commission (BPSC)

is a quasi judicial body established in 1972

under the Constitution of the Peoples Republic

51

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 Honble President

of the Republic11 Presidential Order No 34 (on

May 9 1972) PSC Ordinance No LVII of 1977 BCS

Recruitment Rules of 1981 PSC Officers amp

52

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 appointment12

The cadres and entry posts of the

Bangladesh Civil Service

General cadres

1 BCS (Administration) Assistant Commissioner)

53

2 BCS (Police) Assistant Superintendent of Police

3 BCS (Audit amp Accounts) Assistant Accountant General

4 BCS (Economic) Assistant Chief

5 BCS (Customs amp Excise) Assistant Commissioner

(Customs amp 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 amp

Export Equivalent Posts

11 BCS (Postal) Assistant Post Master General

Equivalent Posts

12 BCS (Railway Transportation amp Commercial)

Assistant Traffic Superintendent

54

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 amp Highways) Assistant Engineer

4 BCS (Telecommunications) Assistant Divisional

Engineer

5 BCS (Public Health Engineering) Assistant Engineer

55

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

Officer13

Recruitment

56

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 amp 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 appointment14

lsquoRecruitment is the process of searching for

prospective employees and stimulating them to

apply for jobs in the organization (Flippo and

57

Edwin 1984 141) No element of the career

service system is more important than the

recruitment policyrdquo (Commission of

Inquiry on Public Service Personnel 193537

quoted in Stall 196251) 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)

58

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 partymdashas opposed to a system of awarding

offices on the basis of merit independent of

political activityrsquo15

Legal Basis for BCS Recruitment Policy

lsquoThe constitution of Bangladesh has granted

equal employment opportunities for citizens The

constitution declares ldquoThere shall be equality

of opportunity for all citizens in respect of

employment or office in the service of the

Republicrdquo (Article 29 [1]) ldquoNo citizen shall

on the grounds only of religion race caste

59

sex or place of birth be ineligible for or

discriminated against in respect of any

employment or office in the service of the

Republicrdquo (Article 29 [2]) However under clause

(3) of the same Article the constitution has

provided certain exceptions that read ldquoNothing

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

60

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 servicesrsquo 16

61

Recommendations Julian Paul Assange an

Australian computer programmer

politicalinternet activist publisher and

journalist and founder of WikiLeaks supports

the free dissemination of government data17 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

62

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

Thatrsquos 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

63

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 abolished18

64

Besides these quota system should be abolished

as our Constitution or any law has not given the

definition and the factors of opting lsquobackward

sectionrsquo of the citizens Article 29(3)(a) of

our constitution though provides the quota

system for lsquobackward sectionrsquo 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 sonsrsquo being poor are not getting the said

benefit and hence Professor M Abdul Wahhab

65

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

ordersrules 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

66

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

67

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 ldquothough 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 art29 (1) amp29(2) it merely confers an

enabling power But as it an exception to the

guarantee of art29 (1) amp29(2) it should not be

68

interpreted or given effect to in such a way as

to nullify the guarantee under art29 (1)

amp29(2) The Indian Supreme Court held that

reservation in excess of 50 would be

unconstitutional20

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 lsquonotrsquo and hence ldquowe are to consider

the meaning of lsquobackward sectionrsquo Art 29 is

comparable with art16 of the Indian

Constitution which uses the expression lsquobackward

classrsquo where as the expression used in art

29(3) is backward section The Indian Supreme

Court has interpreted the expression lsquobackward

classrsquo in several decisions Those decisions may

69

be helpful but not decisive in interpreting

lsquobackward sectionrsquo 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

70

33 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 statusetc)22

But unfortunately

there is no hard and fast and transparent

principle for doing the transfer of the civil

71

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 workplace23

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 ie what quality is considered is to

72

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

73

determined and if it is taken or done there

will be no request or lobby for the transfer and

harassment

34 Promotion procedure and

recommendation

The word lsquopromotionrsquo 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

Bangladesh24

74

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

75

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

76

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

77

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

35 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

Itrsquos not what you want in life but itrsquos

knowing how to reach it

78

Itrsquos not where you want to go but itrsquos knowing

how to get there

Itrsquos not how high you want to rise but itrsquos

knowing how to take off

It may not be quite the outcome you were aiming

for but it will be an outcome

Itrsquos not what you dream of doing but itrsquos

having the knowledge to do it

Its not a set of goals but itrsquos more like a

vision

79

Itrsquos not the goal you set but itrsquos 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 Departments26

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

80

Recommendation

Training should be given to the civil servants

for realizing the matter that embodied in art21

(2) of the Constitution of the Peoplersquos 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

36 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

81

said word lsquoaccountability 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 ldquowatchdogrdquo units to scrutinize

and hold departments accountable legitimacy of

82

these commissions is built upon their

independence as it avoids any conflicts of

interests27

There are various types of accountability ie

(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

lsquoParliaments are key actors in what has

been termed the lsquochain of

83

accountabilityrsquo 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 lsquosociety driven horizontal

84

accountabilityrsquo 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 ndashno

matter how defined ndash parliaments are one

of the institutions through which

diagonal accountability can be

exercisedrsquo27

However the civil servants should be

accountable by any or all means of

accountability

85

4 Judicial Service of Bangladesh

41 Legal framework

Article 137 of the Constitution also deals with

the term lsquolegal frameworkrsquo 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

itsrsquo judgment passed in Civil Appeal no79 of

1999 commonly known in the Masder Hossainrsquos case

that-

ldquoIt is declared that the word ldquoappointmentsrdquo 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

86

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

ldquoBangladesh Judicial Service Commission has been

established in 2007 by the rule lsquo বাংলােদশ

জিডিসয়াল সািভস কিমশন িবিধমালা ২০০৭ rsquo ie

87

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

88

Law Faculty of any one of three leading public

university ie 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 Secretariatrdquo 28

42 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

89

voice According to Rule 5 of OgraveevsjvDagger`k RywWwmqvj

mvwfcopyDaggermi cOumlDaggerek cDagger` wbDaggerqvM welqK AvDagger`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

90

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 32 are applicable with equitable

equality

43 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

91

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 33 is

applicable with equitable equality

44 Promotion procedure and recommendations

The promotion of sub-ordinate Courtrsquos judges are

in fact depended on the Annual Confidential

92

Reports (ACRs) There is no examination system

for getting the promotion in the sub-

ordinate judiciary

lsquoPresently 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

93

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 linersquo29

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-

ldquoConfidential reports should set out distinctly

and tersely sufficient particulars and it is

essential that they should be clear and definite

94

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 Divisionrdquo 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

95

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 34 is

applicable with equitable equality

45 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

96

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 skills30

Recommendation

The quality of training provided by JATI should

be improved A training need- assessment of the

subordinate court judges could be undertaken

97

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

98

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

subordinatecourts31

99

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

51 Ethical education

100

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 publics trust

and confidence in government by demonstrating

the highest standards of professional

competence efficiency and effectiveness

101

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

102

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

103

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

104

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 assets32 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

52 Use of technology

105

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 peoplersquos 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 lsquoThe Law of

Civil Procedurersquo first edition 2006 volume 1

page iii that

106

ldquoFor 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 lawyerrdquo However

the corruption of the court staff and the

offices of the civil servants can be controlled

easily by using technology ie 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

107

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

108

53 Check and balance

The theory of separation of powers was given by

the Charles-Louis de Secondat baron de La Bregravede

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 lsquothe spirit of

lawsrsquo that

lsquoI have not drawn my principles from my

prejudices but from the nature of thingsrdquo 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

109

Conclusion

In conclusion it can be reminded that 3rd

paragraph of the preamble of our constitution

provides that

lsquoFurther 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 citizensrsquo

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

110

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 p1 see also Mahmudul Islam-

Constitutional law of Bangladesh second edition

p1

2 httpenwikipediaorgwikiConstitution

111

3 httplegal-

dictionarythefreedictionarycomconstitution

4 httpwwwthefreedictionarycomframework

5 httpwwwmacmillandictionarycomdictionarybri

tishframework

6 httpwwwegyankoshacinbitstream

7 httpwwwbanglapediaorghttpdocsHTE_0079HTM

8 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

9 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

10 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

11 httpwwwbpscgovbd2011

12 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

13 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

14 httpwwwrhdgovbdRulesAndRegulationsView_Ov

erviewaspRef=A

112

15 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

16 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

17 wwwforbescomprofilejulian-assange

18 httpwwwti-bangladeshorgresearchES_PSCpdf

19 httpwwwnapsipagorgPDFABDUL_WAHHABpdf see

also Khan Akbar Ali and Kazi Rakibuddin Ahmad

March 2008 ldquoQuota System for Civil Service

Recruitment in Bangladesh An Exploratory

Analysisrdquo 2008 available at http

wwwbpscgovbddocuments news25906 newsdoc

20 Mahmudul Islam- Constitutional law of Bangladesh

second edition p171 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 p171 see also Indra Sawhney v

India AIR 1993 SC 477

113

22 httpwwwmopagovbdindexphpoption=com_conte

ntamptask=viewampid=377ampItemid=419

23 httpwwwvsrhhrCustomPagesStaticHRVFilesL

egislation__Civil-Servants-Actpdf

24 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

25 httptraininganddevelopmentnaukrihubcomtrain

inghtml

26 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

27 httpsiteresourcesworldbankorgPUBLICSECTORAN

DGOVERNANCEResourcesAccountabilityGovernancepd

f

28 httpwwwjscbdorgbdb_functionphp

29 httpwwwigsbracuacbdUserFilesFilearchive

_fileJudiciary_Policy_Notepdf

30 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

114

31 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

32 httpwwwoecdorgdataoecd625735521740pdf

Page 12: The constitutional framework of public administration in bangladesh

12

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

13

Some well known definitions of Public

Administration are

ldquoPublic Administration is detailed and

systematic execution of public law Every

particular application of law is an act of

administrationrdquo _ L D White

Public Administration is ldquothe art and

science of management applied to affairs of

the Staterdquo ndash D Waldo

ldquoBy Public Administration is meant in common

usage the activities of the executive

branches of the National State and Local

Governmentrdquo ndash H Simon

The lsquoPublicrsquo aspect of public administration

gives the discipline a special character It

can be looked at formally to mean government

So public Administration is government

14

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 considered6

14 Constitutional Framework

15

Bangladesh attained independence in 1971

through a historic struggle for national

liberation and the same established the

independent sovereign Peoplersquos 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

16

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

17

Bangladesh Government Organisation Chart

Head of the state President

The Executive The Legislature The Judiciary

Judicial service commission

18

Supreme Courts of Bangladesh

Appellate Division

High Court Division

Sub-ordinate Courts of Bangladesh

House of the Nations (Parliament) Prime Minister

Cabinet Ministers

Ministries

Permanent Secretaries

Cabinet

Civil service commission

19

CJM DJ

ADJ ACJM

SJM JDJ

JM SAJ

AJ

Gram AdalatMimangsa Board

Different Tribunals

Ministries

Finance

Law Justice

and

Parliamentary

Affairs

Agriculture

Planning

Post and Tele

Independent Departments

Auditor General

Attorney General

Bangladesh Police

Anti-Corruption

Commission

Human rights Com

Commission

20

Note The Chief Judicial Magistratersquos equivalent post is Chief

Metropolitan Magistrate and in the same way The Senior Judicial

Magistratersquos 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

Local Authorities

Zila Parishad

PourashavaUpazila Porishad

Union Parishad

Tribal Administration

21

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

21 The Executive (articles from 48 to 64)

Articles from 48 to 64 are connected with the

term lsquothe executiversquo and the constitutional

framework of this is nothing but the structure

of forming and working of the said authority

22

`However I am mentioning here the phase to

phase constitutionally executive framework

Executive under the 1972 Constitution

ldquoThe 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

23

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 Heshe 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 heshe would

be aided by a council of ministers who would

hold office during hisher pleasure Similarly

the power to dissolve the Jatiya Sangsad by the

head of state rested on the advice of the Prime

24

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

25

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

26

appointed by the President at his discretion

The council was to be presided over by the

President and would hold office during hisher

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

27

activities The office of the President was made

all powerful and without any checks on hisher

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

28

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

29

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

30

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

31

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

32

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

Presidents 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 parliaments powers as evidenced

through the addition of a new clause 72(A) made

the case perfectly clear

Executive under the Twelfth Amendment

33

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 Ministers 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

34

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

Ministerialrdquo7

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 Peoplersquos Republic of

Bangladesh has been substituted by the

35

Constitution (Fifth Amendment) Act 2011 (Act

XIV of 2011) section 22 which provides that-

lsquoThe supreme command of the defence services of

Bangladesh shall vest in the President and the

exercise thereof shall be regulated by lawrsquo

22 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

36

regulations bye-laws or other instruments

having legislative effect lsquoThe 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

37

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

38

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 presidents 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

39

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

40

affiliated with the president has been able to

command a solidmajorityrsquo8

23 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

41

the Supreme Court but litigation may be

very slow in 1987 there were 29 Supreme

Court judges dealing with 21600 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

42

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

43

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

44

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

45

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 government9

3 Civil Service of Bangladesh

31 Legal framework

46

Article 137 of the constitution of the Peoplersquos

Republic of Bangladesh deals with the term

lsquolegal frameworkrsquo of civil service of

Bangladesh lsquoThe implementation of government

policies and projects is the duty of the

Bangladesh Civil Service a corps of trained

administrators who form the nations 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

47

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

48

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

49

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 75 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

50

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 Bangladesh10

32 Recruitment procedure and

recommendations

The Bangladesh Public Service Commission (BPSC)

is a quasi judicial body established in 1972

under the Constitution of the Peoples Republic

51

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 Honble President

of the Republic11 Presidential Order No 34 (on

May 9 1972) PSC Ordinance No LVII of 1977 BCS

Recruitment Rules of 1981 PSC Officers amp

52

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 appointment12

The cadres and entry posts of the

Bangladesh Civil Service

General cadres

1 BCS (Administration) Assistant Commissioner)

53

2 BCS (Police) Assistant Superintendent of Police

3 BCS (Audit amp Accounts) Assistant Accountant General

4 BCS (Economic) Assistant Chief

5 BCS (Customs amp Excise) Assistant Commissioner

(Customs amp 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 amp

Export Equivalent Posts

11 BCS (Postal) Assistant Post Master General

Equivalent Posts

12 BCS (Railway Transportation amp Commercial)

Assistant Traffic Superintendent

54

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 amp Highways) Assistant Engineer

4 BCS (Telecommunications) Assistant Divisional

Engineer

5 BCS (Public Health Engineering) Assistant Engineer

55

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

Officer13

Recruitment

56

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 amp 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 appointment14

lsquoRecruitment is the process of searching for

prospective employees and stimulating them to

apply for jobs in the organization (Flippo and

57

Edwin 1984 141) No element of the career

service system is more important than the

recruitment policyrdquo (Commission of

Inquiry on Public Service Personnel 193537

quoted in Stall 196251) 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)

58

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 partymdashas opposed to a system of awarding

offices on the basis of merit independent of

political activityrsquo15

Legal Basis for BCS Recruitment Policy

lsquoThe constitution of Bangladesh has granted

equal employment opportunities for citizens The

constitution declares ldquoThere shall be equality

of opportunity for all citizens in respect of

employment or office in the service of the

Republicrdquo (Article 29 [1]) ldquoNo citizen shall

on the grounds only of religion race caste

59

sex or place of birth be ineligible for or

discriminated against in respect of any

employment or office in the service of the

Republicrdquo (Article 29 [2]) However under clause

(3) of the same Article the constitution has

provided certain exceptions that read ldquoNothing

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

60

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 servicesrsquo 16

61

Recommendations Julian Paul Assange an

Australian computer programmer

politicalinternet activist publisher and

journalist and founder of WikiLeaks supports

the free dissemination of government data17 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

62

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

Thatrsquos 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

63

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 abolished18

64

Besides these quota system should be abolished

as our Constitution or any law has not given the

definition and the factors of opting lsquobackward

sectionrsquo of the citizens Article 29(3)(a) of

our constitution though provides the quota

system for lsquobackward sectionrsquo 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 sonsrsquo being poor are not getting the said

benefit and hence Professor M Abdul Wahhab

65

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

ordersrules 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

66

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

67

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 ldquothough 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 art29 (1) amp29(2) it merely confers an

enabling power But as it an exception to the

guarantee of art29 (1) amp29(2) it should not be

68

interpreted or given effect to in such a way as

to nullify the guarantee under art29 (1)

amp29(2) The Indian Supreme Court held that

reservation in excess of 50 would be

unconstitutional20

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 lsquonotrsquo and hence ldquowe are to consider

the meaning of lsquobackward sectionrsquo Art 29 is

comparable with art16 of the Indian

Constitution which uses the expression lsquobackward

classrsquo where as the expression used in art

29(3) is backward section The Indian Supreme

Court has interpreted the expression lsquobackward

classrsquo in several decisions Those decisions may

69

be helpful but not decisive in interpreting

lsquobackward sectionrsquo 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

70

33 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 statusetc)22

But unfortunately

there is no hard and fast and transparent

principle for doing the transfer of the civil

71

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 workplace23

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 ie what quality is considered is to

72

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

73

determined and if it is taken or done there

will be no request or lobby for the transfer and

harassment

34 Promotion procedure and

recommendation

The word lsquopromotionrsquo 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

Bangladesh24

74

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

75

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

76

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

77

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

35 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

Itrsquos not what you want in life but itrsquos

knowing how to reach it

78

Itrsquos not where you want to go but itrsquos knowing

how to get there

Itrsquos not how high you want to rise but itrsquos

knowing how to take off

It may not be quite the outcome you were aiming

for but it will be an outcome

Itrsquos not what you dream of doing but itrsquos

having the knowledge to do it

Its not a set of goals but itrsquos more like a

vision

79

Itrsquos not the goal you set but itrsquos 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 Departments26

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

80

Recommendation

Training should be given to the civil servants

for realizing the matter that embodied in art21

(2) of the Constitution of the Peoplersquos 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

36 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

81

said word lsquoaccountability 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 ldquowatchdogrdquo units to scrutinize

and hold departments accountable legitimacy of

82

these commissions is built upon their

independence as it avoids any conflicts of

interests27

There are various types of accountability ie

(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

lsquoParliaments are key actors in what has

been termed the lsquochain of

83

accountabilityrsquo 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 lsquosociety driven horizontal

84

accountabilityrsquo 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 ndashno

matter how defined ndash parliaments are one

of the institutions through which

diagonal accountability can be

exercisedrsquo27

However the civil servants should be

accountable by any or all means of

accountability

85

4 Judicial Service of Bangladesh

41 Legal framework

Article 137 of the Constitution also deals with

the term lsquolegal frameworkrsquo 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

itsrsquo judgment passed in Civil Appeal no79 of

1999 commonly known in the Masder Hossainrsquos case

that-

ldquoIt is declared that the word ldquoappointmentsrdquo 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

86

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

ldquoBangladesh Judicial Service Commission has been

established in 2007 by the rule lsquo বাংলােদশ

জিডিসয়াল সািভস কিমশন িবিধমালা ২০০৭ rsquo ie

87

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

88

Law Faculty of any one of three leading public

university ie 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 Secretariatrdquo 28

42 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

89

voice According to Rule 5 of OgraveevsjvDagger`k RywWwmqvj

mvwfcopyDaggermi cOumlDaggerek cDagger` wbDaggerqvM welqK AvDagger`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

90

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 32 are applicable with equitable

equality

43 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

91

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 33 is

applicable with equitable equality

44 Promotion procedure and recommendations

The promotion of sub-ordinate Courtrsquos judges are

in fact depended on the Annual Confidential

92

Reports (ACRs) There is no examination system

for getting the promotion in the sub-

ordinate judiciary

lsquoPresently 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

93

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 linersquo29

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-

ldquoConfidential reports should set out distinctly

and tersely sufficient particulars and it is

essential that they should be clear and definite

94

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 Divisionrdquo 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

95

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 34 is

applicable with equitable equality

45 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

96

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 skills30

Recommendation

The quality of training provided by JATI should

be improved A training need- assessment of the

subordinate court judges could be undertaken

97

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

98

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

subordinatecourts31

99

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

51 Ethical education

100

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 publics trust

and confidence in government by demonstrating

the highest standards of professional

competence efficiency and effectiveness

101

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

102

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

103

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

104

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 assets32 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

52 Use of technology

105

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 peoplersquos 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 lsquoThe Law of

Civil Procedurersquo first edition 2006 volume 1

page iii that

106

ldquoFor 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 lawyerrdquo However

the corruption of the court staff and the

offices of the civil servants can be controlled

easily by using technology ie 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

107

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

108

53 Check and balance

The theory of separation of powers was given by

the Charles-Louis de Secondat baron de La Bregravede

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 lsquothe spirit of

lawsrsquo that

lsquoI have not drawn my principles from my

prejudices but from the nature of thingsrdquo 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

109

Conclusion

In conclusion it can be reminded that 3rd

paragraph of the preamble of our constitution

provides that

lsquoFurther 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 citizensrsquo

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

110

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 p1 see also Mahmudul Islam-

Constitutional law of Bangladesh second edition

p1

2 httpenwikipediaorgwikiConstitution

111

3 httplegal-

dictionarythefreedictionarycomconstitution

4 httpwwwthefreedictionarycomframework

5 httpwwwmacmillandictionarycomdictionarybri

tishframework

6 httpwwwegyankoshacinbitstream

7 httpwwwbanglapediaorghttpdocsHTE_0079HTM

8 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

9 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

10 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

11 httpwwwbpscgovbd2011

12 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

13 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

14 httpwwwrhdgovbdRulesAndRegulationsView_Ov

erviewaspRef=A

112

15 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

16 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

17 wwwforbescomprofilejulian-assange

18 httpwwwti-bangladeshorgresearchES_PSCpdf

19 httpwwwnapsipagorgPDFABDUL_WAHHABpdf see

also Khan Akbar Ali and Kazi Rakibuddin Ahmad

March 2008 ldquoQuota System for Civil Service

Recruitment in Bangladesh An Exploratory

Analysisrdquo 2008 available at http

wwwbpscgovbddocuments news25906 newsdoc

20 Mahmudul Islam- Constitutional law of Bangladesh

second edition p171 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 p171 see also Indra Sawhney v

India AIR 1993 SC 477

113

22 httpwwwmopagovbdindexphpoption=com_conte

ntamptask=viewampid=377ampItemid=419

23 httpwwwvsrhhrCustomPagesStaticHRVFilesL

egislation__Civil-Servants-Actpdf

24 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

25 httptraininganddevelopmentnaukrihubcomtrain

inghtml

26 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

27 httpsiteresourcesworldbankorgPUBLICSECTORAN

DGOVERNANCEResourcesAccountabilityGovernancepd

f

28 httpwwwjscbdorgbdb_functionphp

29 httpwwwigsbracuacbdUserFilesFilearchive

_fileJudiciary_Policy_Notepdf

30 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

114

31 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

32 httpwwwoecdorgdataoecd625735521740pdf

Page 13: The constitutional framework of public administration in bangladesh

13

Some well known definitions of Public

Administration are

ldquoPublic Administration is detailed and

systematic execution of public law Every

particular application of law is an act of

administrationrdquo _ L D White

Public Administration is ldquothe art and

science of management applied to affairs of

the Staterdquo ndash D Waldo

ldquoBy Public Administration is meant in common

usage the activities of the executive

branches of the National State and Local

Governmentrdquo ndash H Simon

The lsquoPublicrsquo aspect of public administration

gives the discipline a special character It

can be looked at formally to mean government

So public Administration is government

14

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 considered6

14 Constitutional Framework

15

Bangladesh attained independence in 1971

through a historic struggle for national

liberation and the same established the

independent sovereign Peoplersquos 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

16

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

17

Bangladesh Government Organisation Chart

Head of the state President

The Executive The Legislature The Judiciary

Judicial service commission

18

Supreme Courts of Bangladesh

Appellate Division

High Court Division

Sub-ordinate Courts of Bangladesh

House of the Nations (Parliament) Prime Minister

Cabinet Ministers

Ministries

Permanent Secretaries

Cabinet

Civil service commission

19

CJM DJ

ADJ ACJM

SJM JDJ

JM SAJ

AJ

Gram AdalatMimangsa Board

Different Tribunals

Ministries

Finance

Law Justice

and

Parliamentary

Affairs

Agriculture

Planning

Post and Tele

Independent Departments

Auditor General

Attorney General

Bangladesh Police

Anti-Corruption

Commission

Human rights Com

Commission

20

Note The Chief Judicial Magistratersquos equivalent post is Chief

Metropolitan Magistrate and in the same way The Senior Judicial

Magistratersquos 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

Local Authorities

Zila Parishad

PourashavaUpazila Porishad

Union Parishad

Tribal Administration

21

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

21 The Executive (articles from 48 to 64)

Articles from 48 to 64 are connected with the

term lsquothe executiversquo and the constitutional

framework of this is nothing but the structure

of forming and working of the said authority

22

`However I am mentioning here the phase to

phase constitutionally executive framework

Executive under the 1972 Constitution

ldquoThe 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

23

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 Heshe 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 heshe would

be aided by a council of ministers who would

hold office during hisher pleasure Similarly

the power to dissolve the Jatiya Sangsad by the

head of state rested on the advice of the Prime

24

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

25

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

26

appointed by the President at his discretion

The council was to be presided over by the

President and would hold office during hisher

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

27

activities The office of the President was made

all powerful and without any checks on hisher

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

28

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

29

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

30

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

31

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

32

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

Presidents 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 parliaments powers as evidenced

through the addition of a new clause 72(A) made

the case perfectly clear

Executive under the Twelfth Amendment

33

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 Ministers 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

34

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

Ministerialrdquo7

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 Peoplersquos Republic of

Bangladesh has been substituted by the

35

Constitution (Fifth Amendment) Act 2011 (Act

XIV of 2011) section 22 which provides that-

lsquoThe supreme command of the defence services of

Bangladesh shall vest in the President and the

exercise thereof shall be regulated by lawrsquo

22 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

36

regulations bye-laws or other instruments

having legislative effect lsquoThe 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

37

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

38

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 presidents 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

39

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

40

affiliated with the president has been able to

command a solidmajorityrsquo8

23 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

41

the Supreme Court but litigation may be

very slow in 1987 there were 29 Supreme

Court judges dealing with 21600 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

42

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

43

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

44

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

45

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 government9

3 Civil Service of Bangladesh

31 Legal framework

46

Article 137 of the constitution of the Peoplersquos

Republic of Bangladesh deals with the term

lsquolegal frameworkrsquo of civil service of

Bangladesh lsquoThe implementation of government

policies and projects is the duty of the

Bangladesh Civil Service a corps of trained

administrators who form the nations 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

47

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

48

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

49

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 75 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

50

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 Bangladesh10

32 Recruitment procedure and

recommendations

The Bangladesh Public Service Commission (BPSC)

is a quasi judicial body established in 1972

under the Constitution of the Peoples Republic

51

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 Honble President

of the Republic11 Presidential Order No 34 (on

May 9 1972) PSC Ordinance No LVII of 1977 BCS

Recruitment Rules of 1981 PSC Officers amp

52

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 appointment12

The cadres and entry posts of the

Bangladesh Civil Service

General cadres

1 BCS (Administration) Assistant Commissioner)

53

2 BCS (Police) Assistant Superintendent of Police

3 BCS (Audit amp Accounts) Assistant Accountant General

4 BCS (Economic) Assistant Chief

5 BCS (Customs amp Excise) Assistant Commissioner

(Customs amp 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 amp

Export Equivalent Posts

11 BCS (Postal) Assistant Post Master General

Equivalent Posts

12 BCS (Railway Transportation amp Commercial)

Assistant Traffic Superintendent

54

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 amp Highways) Assistant Engineer

4 BCS (Telecommunications) Assistant Divisional

Engineer

5 BCS (Public Health Engineering) Assistant Engineer

55

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

Officer13

Recruitment

56

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 amp 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 appointment14

lsquoRecruitment is the process of searching for

prospective employees and stimulating them to

apply for jobs in the organization (Flippo and

57

Edwin 1984 141) No element of the career

service system is more important than the

recruitment policyrdquo (Commission of

Inquiry on Public Service Personnel 193537

quoted in Stall 196251) 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)

58

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 partymdashas opposed to a system of awarding

offices on the basis of merit independent of

political activityrsquo15

Legal Basis for BCS Recruitment Policy

lsquoThe constitution of Bangladesh has granted

equal employment opportunities for citizens The

constitution declares ldquoThere shall be equality

of opportunity for all citizens in respect of

employment or office in the service of the

Republicrdquo (Article 29 [1]) ldquoNo citizen shall

on the grounds only of religion race caste

59

sex or place of birth be ineligible for or

discriminated against in respect of any

employment or office in the service of the

Republicrdquo (Article 29 [2]) However under clause

(3) of the same Article the constitution has

provided certain exceptions that read ldquoNothing

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

60

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 servicesrsquo 16

61

Recommendations Julian Paul Assange an

Australian computer programmer

politicalinternet activist publisher and

journalist and founder of WikiLeaks supports

the free dissemination of government data17 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

62

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

Thatrsquos 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

63

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 abolished18

64

Besides these quota system should be abolished

as our Constitution or any law has not given the

definition and the factors of opting lsquobackward

sectionrsquo of the citizens Article 29(3)(a) of

our constitution though provides the quota

system for lsquobackward sectionrsquo 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 sonsrsquo being poor are not getting the said

benefit and hence Professor M Abdul Wahhab

65

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

ordersrules 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

66

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

67

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 ldquothough 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 art29 (1) amp29(2) it merely confers an

enabling power But as it an exception to the

guarantee of art29 (1) amp29(2) it should not be

68

interpreted or given effect to in such a way as

to nullify the guarantee under art29 (1)

amp29(2) The Indian Supreme Court held that

reservation in excess of 50 would be

unconstitutional20

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 lsquonotrsquo and hence ldquowe are to consider

the meaning of lsquobackward sectionrsquo Art 29 is

comparable with art16 of the Indian

Constitution which uses the expression lsquobackward

classrsquo where as the expression used in art

29(3) is backward section The Indian Supreme

Court has interpreted the expression lsquobackward

classrsquo in several decisions Those decisions may

69

be helpful but not decisive in interpreting

lsquobackward sectionrsquo 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

70

33 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 statusetc)22

But unfortunately

there is no hard and fast and transparent

principle for doing the transfer of the civil

71

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 workplace23

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 ie what quality is considered is to

72

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

73

determined and if it is taken or done there

will be no request or lobby for the transfer and

harassment

34 Promotion procedure and

recommendation

The word lsquopromotionrsquo 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

Bangladesh24

74

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

75

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

76

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

77

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

35 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

Itrsquos not what you want in life but itrsquos

knowing how to reach it

78

Itrsquos not where you want to go but itrsquos knowing

how to get there

Itrsquos not how high you want to rise but itrsquos

knowing how to take off

It may not be quite the outcome you were aiming

for but it will be an outcome

Itrsquos not what you dream of doing but itrsquos

having the knowledge to do it

Its not a set of goals but itrsquos more like a

vision

79

Itrsquos not the goal you set but itrsquos 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 Departments26

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

80

Recommendation

Training should be given to the civil servants

for realizing the matter that embodied in art21

(2) of the Constitution of the Peoplersquos 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

36 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

81

said word lsquoaccountability 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 ldquowatchdogrdquo units to scrutinize

and hold departments accountable legitimacy of

82

these commissions is built upon their

independence as it avoids any conflicts of

interests27

There are various types of accountability ie

(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

lsquoParliaments are key actors in what has

been termed the lsquochain of

83

accountabilityrsquo 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 lsquosociety driven horizontal

84

accountabilityrsquo 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 ndashno

matter how defined ndash parliaments are one

of the institutions through which

diagonal accountability can be

exercisedrsquo27

However the civil servants should be

accountable by any or all means of

accountability

85

4 Judicial Service of Bangladesh

41 Legal framework

Article 137 of the Constitution also deals with

the term lsquolegal frameworkrsquo 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

itsrsquo judgment passed in Civil Appeal no79 of

1999 commonly known in the Masder Hossainrsquos case

that-

ldquoIt is declared that the word ldquoappointmentsrdquo 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

86

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

ldquoBangladesh Judicial Service Commission has been

established in 2007 by the rule lsquo বাংলােদশ

জিডিসয়াল সািভস কিমশন িবিধমালা ২০০৭ rsquo ie

87

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

88

Law Faculty of any one of three leading public

university ie 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 Secretariatrdquo 28

42 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

89

voice According to Rule 5 of OgraveevsjvDagger`k RywWwmqvj

mvwfcopyDaggermi cOumlDaggerek cDagger` wbDaggerqvM welqK AvDagger`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

90

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 32 are applicable with equitable

equality

43 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

91

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 33 is

applicable with equitable equality

44 Promotion procedure and recommendations

The promotion of sub-ordinate Courtrsquos judges are

in fact depended on the Annual Confidential

92

Reports (ACRs) There is no examination system

for getting the promotion in the sub-

ordinate judiciary

lsquoPresently 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

93

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 linersquo29

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-

ldquoConfidential reports should set out distinctly

and tersely sufficient particulars and it is

essential that they should be clear and definite

94

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 Divisionrdquo 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

95

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 34 is

applicable with equitable equality

45 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

96

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 skills30

Recommendation

The quality of training provided by JATI should

be improved A training need- assessment of the

subordinate court judges could be undertaken

97

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

98

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

subordinatecourts31

99

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

51 Ethical education

100

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 publics trust

and confidence in government by demonstrating

the highest standards of professional

competence efficiency and effectiveness

101

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

102

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

103

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

104

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 assets32 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

52 Use of technology

105

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 peoplersquos 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 lsquoThe Law of

Civil Procedurersquo first edition 2006 volume 1

page iii that

106

ldquoFor 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 lawyerrdquo However

the corruption of the court staff and the

offices of the civil servants can be controlled

easily by using technology ie 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

107

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

108

53 Check and balance

The theory of separation of powers was given by

the Charles-Louis de Secondat baron de La Bregravede

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 lsquothe spirit of

lawsrsquo that

lsquoI have not drawn my principles from my

prejudices but from the nature of thingsrdquo 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

109

Conclusion

In conclusion it can be reminded that 3rd

paragraph of the preamble of our constitution

provides that

lsquoFurther 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 citizensrsquo

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

110

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 p1 see also Mahmudul Islam-

Constitutional law of Bangladesh second edition

p1

2 httpenwikipediaorgwikiConstitution

111

3 httplegal-

dictionarythefreedictionarycomconstitution

4 httpwwwthefreedictionarycomframework

5 httpwwwmacmillandictionarycomdictionarybri

tishframework

6 httpwwwegyankoshacinbitstream

7 httpwwwbanglapediaorghttpdocsHTE_0079HTM

8 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

9 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

10 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

11 httpwwwbpscgovbd2011

12 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

13 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

14 httpwwwrhdgovbdRulesAndRegulationsView_Ov

erviewaspRef=A

112

15 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

16 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

17 wwwforbescomprofilejulian-assange

18 httpwwwti-bangladeshorgresearchES_PSCpdf

19 httpwwwnapsipagorgPDFABDUL_WAHHABpdf see

also Khan Akbar Ali and Kazi Rakibuddin Ahmad

March 2008 ldquoQuota System for Civil Service

Recruitment in Bangladesh An Exploratory

Analysisrdquo 2008 available at http

wwwbpscgovbddocuments news25906 newsdoc

20 Mahmudul Islam- Constitutional law of Bangladesh

second edition p171 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 p171 see also Indra Sawhney v

India AIR 1993 SC 477

113

22 httpwwwmopagovbdindexphpoption=com_conte

ntamptask=viewampid=377ampItemid=419

23 httpwwwvsrhhrCustomPagesStaticHRVFilesL

egislation__Civil-Servants-Actpdf

24 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

25 httptraininganddevelopmentnaukrihubcomtrain

inghtml

26 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

27 httpsiteresourcesworldbankorgPUBLICSECTORAN

DGOVERNANCEResourcesAccountabilityGovernancepd

f

28 httpwwwjscbdorgbdb_functionphp

29 httpwwwigsbracuacbdUserFilesFilearchive

_fileJudiciary_Policy_Notepdf

30 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

114

31 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

32 httpwwwoecdorgdataoecd625735521740pdf

Page 14: The constitutional framework of public administration in bangladesh

14

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 considered6

14 Constitutional Framework

15

Bangladesh attained independence in 1971

through a historic struggle for national

liberation and the same established the

independent sovereign Peoplersquos 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

16

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

17

Bangladesh Government Organisation Chart

Head of the state President

The Executive The Legislature The Judiciary

Judicial service commission

18

Supreme Courts of Bangladesh

Appellate Division

High Court Division

Sub-ordinate Courts of Bangladesh

House of the Nations (Parliament) Prime Minister

Cabinet Ministers

Ministries

Permanent Secretaries

Cabinet

Civil service commission

19

CJM DJ

ADJ ACJM

SJM JDJ

JM SAJ

AJ

Gram AdalatMimangsa Board

Different Tribunals

Ministries

Finance

Law Justice

and

Parliamentary

Affairs

Agriculture

Planning

Post and Tele

Independent Departments

Auditor General

Attorney General

Bangladesh Police

Anti-Corruption

Commission

Human rights Com

Commission

20

Note The Chief Judicial Magistratersquos equivalent post is Chief

Metropolitan Magistrate and in the same way The Senior Judicial

Magistratersquos 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

Local Authorities

Zila Parishad

PourashavaUpazila Porishad

Union Parishad

Tribal Administration

21

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

21 The Executive (articles from 48 to 64)

Articles from 48 to 64 are connected with the

term lsquothe executiversquo and the constitutional

framework of this is nothing but the structure

of forming and working of the said authority

22

`However I am mentioning here the phase to

phase constitutionally executive framework

Executive under the 1972 Constitution

ldquoThe 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

23

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 Heshe 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 heshe would

be aided by a council of ministers who would

hold office during hisher pleasure Similarly

the power to dissolve the Jatiya Sangsad by the

head of state rested on the advice of the Prime

24

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

25

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

26

appointed by the President at his discretion

The council was to be presided over by the

President and would hold office during hisher

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

27

activities The office of the President was made

all powerful and without any checks on hisher

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

28

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

29

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

30

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

31

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

32

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

Presidents 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 parliaments powers as evidenced

through the addition of a new clause 72(A) made

the case perfectly clear

Executive under the Twelfth Amendment

33

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 Ministers 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

34

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

Ministerialrdquo7

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 Peoplersquos Republic of

Bangladesh has been substituted by the

35

Constitution (Fifth Amendment) Act 2011 (Act

XIV of 2011) section 22 which provides that-

lsquoThe supreme command of the defence services of

Bangladesh shall vest in the President and the

exercise thereof shall be regulated by lawrsquo

22 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

36

regulations bye-laws or other instruments

having legislative effect lsquoThe 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

37

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

38

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 presidents 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

39

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

40

affiliated with the president has been able to

command a solidmajorityrsquo8

23 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

41

the Supreme Court but litigation may be

very slow in 1987 there were 29 Supreme

Court judges dealing with 21600 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

42

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

43

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

44

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

45

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 government9

3 Civil Service of Bangladesh

31 Legal framework

46

Article 137 of the constitution of the Peoplersquos

Republic of Bangladesh deals with the term

lsquolegal frameworkrsquo of civil service of

Bangladesh lsquoThe implementation of government

policies and projects is the duty of the

Bangladesh Civil Service a corps of trained

administrators who form the nations 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

47

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

48

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

49

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 75 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

50

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 Bangladesh10

32 Recruitment procedure and

recommendations

The Bangladesh Public Service Commission (BPSC)

is a quasi judicial body established in 1972

under the Constitution of the Peoples Republic

51

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 Honble President

of the Republic11 Presidential Order No 34 (on

May 9 1972) PSC Ordinance No LVII of 1977 BCS

Recruitment Rules of 1981 PSC Officers amp

52

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 appointment12

The cadres and entry posts of the

Bangladesh Civil Service

General cadres

1 BCS (Administration) Assistant Commissioner)

53

2 BCS (Police) Assistant Superintendent of Police

3 BCS (Audit amp Accounts) Assistant Accountant General

4 BCS (Economic) Assistant Chief

5 BCS (Customs amp Excise) Assistant Commissioner

(Customs amp 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 amp

Export Equivalent Posts

11 BCS (Postal) Assistant Post Master General

Equivalent Posts

12 BCS (Railway Transportation amp Commercial)

Assistant Traffic Superintendent

54

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 amp Highways) Assistant Engineer

4 BCS (Telecommunications) Assistant Divisional

Engineer

5 BCS (Public Health Engineering) Assistant Engineer

55

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

Officer13

Recruitment

56

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 amp 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 appointment14

lsquoRecruitment is the process of searching for

prospective employees and stimulating them to

apply for jobs in the organization (Flippo and

57

Edwin 1984 141) No element of the career

service system is more important than the

recruitment policyrdquo (Commission of

Inquiry on Public Service Personnel 193537

quoted in Stall 196251) 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)

58

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 partymdashas opposed to a system of awarding

offices on the basis of merit independent of

political activityrsquo15

Legal Basis for BCS Recruitment Policy

lsquoThe constitution of Bangladesh has granted

equal employment opportunities for citizens The

constitution declares ldquoThere shall be equality

of opportunity for all citizens in respect of

employment or office in the service of the

Republicrdquo (Article 29 [1]) ldquoNo citizen shall

on the grounds only of religion race caste

59

sex or place of birth be ineligible for or

discriminated against in respect of any

employment or office in the service of the

Republicrdquo (Article 29 [2]) However under clause

(3) of the same Article the constitution has

provided certain exceptions that read ldquoNothing

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

60

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 servicesrsquo 16

61

Recommendations Julian Paul Assange an

Australian computer programmer

politicalinternet activist publisher and

journalist and founder of WikiLeaks supports

the free dissemination of government data17 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

62

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

Thatrsquos 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

63

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 abolished18

64

Besides these quota system should be abolished

as our Constitution or any law has not given the

definition and the factors of opting lsquobackward

sectionrsquo of the citizens Article 29(3)(a) of

our constitution though provides the quota

system for lsquobackward sectionrsquo 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 sonsrsquo being poor are not getting the said

benefit and hence Professor M Abdul Wahhab

65

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

ordersrules 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

66

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

67

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 ldquothough 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 art29 (1) amp29(2) it merely confers an

enabling power But as it an exception to the

guarantee of art29 (1) amp29(2) it should not be

68

interpreted or given effect to in such a way as

to nullify the guarantee under art29 (1)

amp29(2) The Indian Supreme Court held that

reservation in excess of 50 would be

unconstitutional20

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 lsquonotrsquo and hence ldquowe are to consider

the meaning of lsquobackward sectionrsquo Art 29 is

comparable with art16 of the Indian

Constitution which uses the expression lsquobackward

classrsquo where as the expression used in art

29(3) is backward section The Indian Supreme

Court has interpreted the expression lsquobackward

classrsquo in several decisions Those decisions may

69

be helpful but not decisive in interpreting

lsquobackward sectionrsquo 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

70

33 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 statusetc)22

But unfortunately

there is no hard and fast and transparent

principle for doing the transfer of the civil

71

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 workplace23

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 ie what quality is considered is to

72

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

73

determined and if it is taken or done there

will be no request or lobby for the transfer and

harassment

34 Promotion procedure and

recommendation

The word lsquopromotionrsquo 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

Bangladesh24

74

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

75

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

76

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

77

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

35 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

Itrsquos not what you want in life but itrsquos

knowing how to reach it

78

Itrsquos not where you want to go but itrsquos knowing

how to get there

Itrsquos not how high you want to rise but itrsquos

knowing how to take off

It may not be quite the outcome you were aiming

for but it will be an outcome

Itrsquos not what you dream of doing but itrsquos

having the knowledge to do it

Its not a set of goals but itrsquos more like a

vision

79

Itrsquos not the goal you set but itrsquos 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 Departments26

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

80

Recommendation

Training should be given to the civil servants

for realizing the matter that embodied in art21

(2) of the Constitution of the Peoplersquos 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

36 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

81

said word lsquoaccountability 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 ldquowatchdogrdquo units to scrutinize

and hold departments accountable legitimacy of

82

these commissions is built upon their

independence as it avoids any conflicts of

interests27

There are various types of accountability ie

(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

lsquoParliaments are key actors in what has

been termed the lsquochain of

83

accountabilityrsquo 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 lsquosociety driven horizontal

84

accountabilityrsquo 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 ndashno

matter how defined ndash parliaments are one

of the institutions through which

diagonal accountability can be

exercisedrsquo27

However the civil servants should be

accountable by any or all means of

accountability

85

4 Judicial Service of Bangladesh

41 Legal framework

Article 137 of the Constitution also deals with

the term lsquolegal frameworkrsquo 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

itsrsquo judgment passed in Civil Appeal no79 of

1999 commonly known in the Masder Hossainrsquos case

that-

ldquoIt is declared that the word ldquoappointmentsrdquo 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

86

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

ldquoBangladesh Judicial Service Commission has been

established in 2007 by the rule lsquo বাংলােদশ

জিডিসয়াল সািভস কিমশন িবিধমালা ২০০৭ rsquo ie

87

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

88

Law Faculty of any one of three leading public

university ie 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 Secretariatrdquo 28

42 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

89

voice According to Rule 5 of OgraveevsjvDagger`k RywWwmqvj

mvwfcopyDaggermi cOumlDaggerek cDagger` wbDaggerqvM welqK AvDagger`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

90

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 32 are applicable with equitable

equality

43 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

91

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 33 is

applicable with equitable equality

44 Promotion procedure and recommendations

The promotion of sub-ordinate Courtrsquos judges are

in fact depended on the Annual Confidential

92

Reports (ACRs) There is no examination system

for getting the promotion in the sub-

ordinate judiciary

lsquoPresently 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

93

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 linersquo29

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-

ldquoConfidential reports should set out distinctly

and tersely sufficient particulars and it is

essential that they should be clear and definite

94

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 Divisionrdquo 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

95

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 34 is

applicable with equitable equality

45 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

96

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 skills30

Recommendation

The quality of training provided by JATI should

be improved A training need- assessment of the

subordinate court judges could be undertaken

97

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

98

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

subordinatecourts31

99

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

51 Ethical education

100

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 publics trust

and confidence in government by demonstrating

the highest standards of professional

competence efficiency and effectiveness

101

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

102

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

103

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

104

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 assets32 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

52 Use of technology

105

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 peoplersquos 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 lsquoThe Law of

Civil Procedurersquo first edition 2006 volume 1

page iii that

106

ldquoFor 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 lawyerrdquo However

the corruption of the court staff and the

offices of the civil servants can be controlled

easily by using technology ie 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

107

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

108

53 Check and balance

The theory of separation of powers was given by

the Charles-Louis de Secondat baron de La Bregravede

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 lsquothe spirit of

lawsrsquo that

lsquoI have not drawn my principles from my

prejudices but from the nature of thingsrdquo 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

109

Conclusion

In conclusion it can be reminded that 3rd

paragraph of the preamble of our constitution

provides that

lsquoFurther 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 citizensrsquo

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

110

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 p1 see also Mahmudul Islam-

Constitutional law of Bangladesh second edition

p1

2 httpenwikipediaorgwikiConstitution

111

3 httplegal-

dictionarythefreedictionarycomconstitution

4 httpwwwthefreedictionarycomframework

5 httpwwwmacmillandictionarycomdictionarybri

tishframework

6 httpwwwegyankoshacinbitstream

7 httpwwwbanglapediaorghttpdocsHTE_0079HTM

8 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

9 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

10 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

11 httpwwwbpscgovbd2011

12 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

13 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

14 httpwwwrhdgovbdRulesAndRegulationsView_Ov

erviewaspRef=A

112

15 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

16 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

17 wwwforbescomprofilejulian-assange

18 httpwwwti-bangladeshorgresearchES_PSCpdf

19 httpwwwnapsipagorgPDFABDUL_WAHHABpdf see

also Khan Akbar Ali and Kazi Rakibuddin Ahmad

March 2008 ldquoQuota System for Civil Service

Recruitment in Bangladesh An Exploratory

Analysisrdquo 2008 available at http

wwwbpscgovbddocuments news25906 newsdoc

20 Mahmudul Islam- Constitutional law of Bangladesh

second edition p171 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 p171 see also Indra Sawhney v

India AIR 1993 SC 477

113

22 httpwwwmopagovbdindexphpoption=com_conte

ntamptask=viewampid=377ampItemid=419

23 httpwwwvsrhhrCustomPagesStaticHRVFilesL

egislation__Civil-Servants-Actpdf

24 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

25 httptraininganddevelopmentnaukrihubcomtrain

inghtml

26 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

27 httpsiteresourcesworldbankorgPUBLICSECTORAN

DGOVERNANCEResourcesAccountabilityGovernancepd

f

28 httpwwwjscbdorgbdb_functionphp

29 httpwwwigsbracuacbdUserFilesFilearchive

_fileJudiciary_Policy_Notepdf

30 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

114

31 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

32 httpwwwoecdorgdataoecd625735521740pdf

Page 15: The constitutional framework of public administration in bangladesh

15

Bangladesh attained independence in 1971

through a historic struggle for national

liberation and the same established the

independent sovereign Peoplersquos 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

16

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

17

Bangladesh Government Organisation Chart

Head of the state President

The Executive The Legislature The Judiciary

Judicial service commission

18

Supreme Courts of Bangladesh

Appellate Division

High Court Division

Sub-ordinate Courts of Bangladesh

House of the Nations (Parliament) Prime Minister

Cabinet Ministers

Ministries

Permanent Secretaries

Cabinet

Civil service commission

19

CJM DJ

ADJ ACJM

SJM JDJ

JM SAJ

AJ

Gram AdalatMimangsa Board

Different Tribunals

Ministries

Finance

Law Justice

and

Parliamentary

Affairs

Agriculture

Planning

Post and Tele

Independent Departments

Auditor General

Attorney General

Bangladesh Police

Anti-Corruption

Commission

Human rights Com

Commission

20

Note The Chief Judicial Magistratersquos equivalent post is Chief

Metropolitan Magistrate and in the same way The Senior Judicial

Magistratersquos 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

Local Authorities

Zila Parishad

PourashavaUpazila Porishad

Union Parishad

Tribal Administration

21

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

21 The Executive (articles from 48 to 64)

Articles from 48 to 64 are connected with the

term lsquothe executiversquo and the constitutional

framework of this is nothing but the structure

of forming and working of the said authority

22

`However I am mentioning here the phase to

phase constitutionally executive framework

Executive under the 1972 Constitution

ldquoThe 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

23

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 Heshe 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 heshe would

be aided by a council of ministers who would

hold office during hisher pleasure Similarly

the power to dissolve the Jatiya Sangsad by the

head of state rested on the advice of the Prime

24

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

25

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

26

appointed by the President at his discretion

The council was to be presided over by the

President and would hold office during hisher

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

27

activities The office of the President was made

all powerful and without any checks on hisher

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

28

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

29

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

30

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

31

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

32

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

Presidents 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 parliaments powers as evidenced

through the addition of a new clause 72(A) made

the case perfectly clear

Executive under the Twelfth Amendment

33

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 Ministers 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

34

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

Ministerialrdquo7

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 Peoplersquos Republic of

Bangladesh has been substituted by the

35

Constitution (Fifth Amendment) Act 2011 (Act

XIV of 2011) section 22 which provides that-

lsquoThe supreme command of the defence services of

Bangladesh shall vest in the President and the

exercise thereof shall be regulated by lawrsquo

22 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

36

regulations bye-laws or other instruments

having legislative effect lsquoThe 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

37

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

38

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 presidents 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

39

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

40

affiliated with the president has been able to

command a solidmajorityrsquo8

23 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

41

the Supreme Court but litigation may be

very slow in 1987 there were 29 Supreme

Court judges dealing with 21600 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

42

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

43

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

44

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

45

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 government9

3 Civil Service of Bangladesh

31 Legal framework

46

Article 137 of the constitution of the Peoplersquos

Republic of Bangladesh deals with the term

lsquolegal frameworkrsquo of civil service of

Bangladesh lsquoThe implementation of government

policies and projects is the duty of the

Bangladesh Civil Service a corps of trained

administrators who form the nations 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

47

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

48

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

49

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 75 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

50

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 Bangladesh10

32 Recruitment procedure and

recommendations

The Bangladesh Public Service Commission (BPSC)

is a quasi judicial body established in 1972

under the Constitution of the Peoples Republic

51

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 Honble President

of the Republic11 Presidential Order No 34 (on

May 9 1972) PSC Ordinance No LVII of 1977 BCS

Recruitment Rules of 1981 PSC Officers amp

52

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 appointment12

The cadres and entry posts of the

Bangladesh Civil Service

General cadres

1 BCS (Administration) Assistant Commissioner)

53

2 BCS (Police) Assistant Superintendent of Police

3 BCS (Audit amp Accounts) Assistant Accountant General

4 BCS (Economic) Assistant Chief

5 BCS (Customs amp Excise) Assistant Commissioner

(Customs amp 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 amp

Export Equivalent Posts

11 BCS (Postal) Assistant Post Master General

Equivalent Posts

12 BCS (Railway Transportation amp Commercial)

Assistant Traffic Superintendent

54

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 amp Highways) Assistant Engineer

4 BCS (Telecommunications) Assistant Divisional

Engineer

5 BCS (Public Health Engineering) Assistant Engineer

55

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

Officer13

Recruitment

56

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 amp 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 appointment14

lsquoRecruitment is the process of searching for

prospective employees and stimulating them to

apply for jobs in the organization (Flippo and

57

Edwin 1984 141) No element of the career

service system is more important than the

recruitment policyrdquo (Commission of

Inquiry on Public Service Personnel 193537

quoted in Stall 196251) 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)

58

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 partymdashas opposed to a system of awarding

offices on the basis of merit independent of

political activityrsquo15

Legal Basis for BCS Recruitment Policy

lsquoThe constitution of Bangladesh has granted

equal employment opportunities for citizens The

constitution declares ldquoThere shall be equality

of opportunity for all citizens in respect of

employment or office in the service of the

Republicrdquo (Article 29 [1]) ldquoNo citizen shall

on the grounds only of religion race caste

59

sex or place of birth be ineligible for or

discriminated against in respect of any

employment or office in the service of the

Republicrdquo (Article 29 [2]) However under clause

(3) of the same Article the constitution has

provided certain exceptions that read ldquoNothing

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

60

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 servicesrsquo 16

61

Recommendations Julian Paul Assange an

Australian computer programmer

politicalinternet activist publisher and

journalist and founder of WikiLeaks supports

the free dissemination of government data17 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

62

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

Thatrsquos 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

63

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 abolished18

64

Besides these quota system should be abolished

as our Constitution or any law has not given the

definition and the factors of opting lsquobackward

sectionrsquo of the citizens Article 29(3)(a) of

our constitution though provides the quota

system for lsquobackward sectionrsquo 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 sonsrsquo being poor are not getting the said

benefit and hence Professor M Abdul Wahhab

65

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

ordersrules 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

66

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

67

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 ldquothough 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 art29 (1) amp29(2) it merely confers an

enabling power But as it an exception to the

guarantee of art29 (1) amp29(2) it should not be

68

interpreted or given effect to in such a way as

to nullify the guarantee under art29 (1)

amp29(2) The Indian Supreme Court held that

reservation in excess of 50 would be

unconstitutional20

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 lsquonotrsquo and hence ldquowe are to consider

the meaning of lsquobackward sectionrsquo Art 29 is

comparable with art16 of the Indian

Constitution which uses the expression lsquobackward

classrsquo where as the expression used in art

29(3) is backward section The Indian Supreme

Court has interpreted the expression lsquobackward

classrsquo in several decisions Those decisions may

69

be helpful but not decisive in interpreting

lsquobackward sectionrsquo 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

70

33 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 statusetc)22

But unfortunately

there is no hard and fast and transparent

principle for doing the transfer of the civil

71

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 workplace23

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 ie what quality is considered is to

72

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

73

determined and if it is taken or done there

will be no request or lobby for the transfer and

harassment

34 Promotion procedure and

recommendation

The word lsquopromotionrsquo 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

Bangladesh24

74

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

75

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

76

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

77

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

35 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

Itrsquos not what you want in life but itrsquos

knowing how to reach it

78

Itrsquos not where you want to go but itrsquos knowing

how to get there

Itrsquos not how high you want to rise but itrsquos

knowing how to take off

It may not be quite the outcome you were aiming

for but it will be an outcome

Itrsquos not what you dream of doing but itrsquos

having the knowledge to do it

Its not a set of goals but itrsquos more like a

vision

79

Itrsquos not the goal you set but itrsquos 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 Departments26

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

80

Recommendation

Training should be given to the civil servants

for realizing the matter that embodied in art21

(2) of the Constitution of the Peoplersquos 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

36 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

81

said word lsquoaccountability 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 ldquowatchdogrdquo units to scrutinize

and hold departments accountable legitimacy of

82

these commissions is built upon their

independence as it avoids any conflicts of

interests27

There are various types of accountability ie

(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

lsquoParliaments are key actors in what has

been termed the lsquochain of

83

accountabilityrsquo 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 lsquosociety driven horizontal

84

accountabilityrsquo 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 ndashno

matter how defined ndash parliaments are one

of the institutions through which

diagonal accountability can be

exercisedrsquo27

However the civil servants should be

accountable by any or all means of

accountability

85

4 Judicial Service of Bangladesh

41 Legal framework

Article 137 of the Constitution also deals with

the term lsquolegal frameworkrsquo 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

itsrsquo judgment passed in Civil Appeal no79 of

1999 commonly known in the Masder Hossainrsquos case

that-

ldquoIt is declared that the word ldquoappointmentsrdquo 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

86

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

ldquoBangladesh Judicial Service Commission has been

established in 2007 by the rule lsquo বাংলােদশ

জিডিসয়াল সািভস কিমশন িবিধমালা ২০০৭ rsquo ie

87

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

88

Law Faculty of any one of three leading public

university ie 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 Secretariatrdquo 28

42 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

89

voice According to Rule 5 of OgraveevsjvDagger`k RywWwmqvj

mvwfcopyDaggermi cOumlDaggerek cDagger` wbDaggerqvM welqK AvDagger`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

90

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 32 are applicable with equitable

equality

43 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

91

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 33 is

applicable with equitable equality

44 Promotion procedure and recommendations

The promotion of sub-ordinate Courtrsquos judges are

in fact depended on the Annual Confidential

92

Reports (ACRs) There is no examination system

for getting the promotion in the sub-

ordinate judiciary

lsquoPresently 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

93

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 linersquo29

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-

ldquoConfidential reports should set out distinctly

and tersely sufficient particulars and it is

essential that they should be clear and definite

94

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 Divisionrdquo 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

95

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 34 is

applicable with equitable equality

45 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

96

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 skills30

Recommendation

The quality of training provided by JATI should

be improved A training need- assessment of the

subordinate court judges could be undertaken

97

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

98

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

subordinatecourts31

99

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

51 Ethical education

100

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 publics trust

and confidence in government by demonstrating

the highest standards of professional

competence efficiency and effectiveness

101

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

102

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

103

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

104

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 assets32 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

52 Use of technology

105

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 peoplersquos 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 lsquoThe Law of

Civil Procedurersquo first edition 2006 volume 1

page iii that

106

ldquoFor 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 lawyerrdquo However

the corruption of the court staff and the

offices of the civil servants can be controlled

easily by using technology ie 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

107

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

108

53 Check and balance

The theory of separation of powers was given by

the Charles-Louis de Secondat baron de La Bregravede

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 lsquothe spirit of

lawsrsquo that

lsquoI have not drawn my principles from my

prejudices but from the nature of thingsrdquo 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

109

Conclusion

In conclusion it can be reminded that 3rd

paragraph of the preamble of our constitution

provides that

lsquoFurther 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 citizensrsquo

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

110

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 p1 see also Mahmudul Islam-

Constitutional law of Bangladesh second edition

p1

2 httpenwikipediaorgwikiConstitution

111

3 httplegal-

dictionarythefreedictionarycomconstitution

4 httpwwwthefreedictionarycomframework

5 httpwwwmacmillandictionarycomdictionarybri

tishframework

6 httpwwwegyankoshacinbitstream

7 httpwwwbanglapediaorghttpdocsHTE_0079HTM

8 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

9 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

10 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

11 httpwwwbpscgovbd2011

12 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

13 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

14 httpwwwrhdgovbdRulesAndRegulationsView_Ov

erviewaspRef=A

112

15 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

16 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

17 wwwforbescomprofilejulian-assange

18 httpwwwti-bangladeshorgresearchES_PSCpdf

19 httpwwwnapsipagorgPDFABDUL_WAHHABpdf see

also Khan Akbar Ali and Kazi Rakibuddin Ahmad

March 2008 ldquoQuota System for Civil Service

Recruitment in Bangladesh An Exploratory

Analysisrdquo 2008 available at http

wwwbpscgovbddocuments news25906 newsdoc

20 Mahmudul Islam- Constitutional law of Bangladesh

second edition p171 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 p171 see also Indra Sawhney v

India AIR 1993 SC 477

113

22 httpwwwmopagovbdindexphpoption=com_conte

ntamptask=viewampid=377ampItemid=419

23 httpwwwvsrhhrCustomPagesStaticHRVFilesL

egislation__Civil-Servants-Actpdf

24 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

25 httptraininganddevelopmentnaukrihubcomtrain

inghtml

26 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

27 httpsiteresourcesworldbankorgPUBLICSECTORAN

DGOVERNANCEResourcesAccountabilityGovernancepd

f

28 httpwwwjscbdorgbdb_functionphp

29 httpwwwigsbracuacbdUserFilesFilearchive

_fileJudiciary_Policy_Notepdf

30 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

114

31 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

32 httpwwwoecdorgdataoecd625735521740pdf

Page 16: The constitutional framework of public administration in bangladesh

16

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

17

Bangladesh Government Organisation Chart

Head of the state President

The Executive The Legislature The Judiciary

Judicial service commission

18

Supreme Courts of Bangladesh

Appellate Division

High Court Division

Sub-ordinate Courts of Bangladesh

House of the Nations (Parliament) Prime Minister

Cabinet Ministers

Ministries

Permanent Secretaries

Cabinet

Civil service commission

19

CJM DJ

ADJ ACJM

SJM JDJ

JM SAJ

AJ

Gram AdalatMimangsa Board

Different Tribunals

Ministries

Finance

Law Justice

and

Parliamentary

Affairs

Agriculture

Planning

Post and Tele

Independent Departments

Auditor General

Attorney General

Bangladesh Police

Anti-Corruption

Commission

Human rights Com

Commission

20

Note The Chief Judicial Magistratersquos equivalent post is Chief

Metropolitan Magistrate and in the same way The Senior Judicial

Magistratersquos 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

Local Authorities

Zila Parishad

PourashavaUpazila Porishad

Union Parishad

Tribal Administration

21

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

21 The Executive (articles from 48 to 64)

Articles from 48 to 64 are connected with the

term lsquothe executiversquo and the constitutional

framework of this is nothing but the structure

of forming and working of the said authority

22

`However I am mentioning here the phase to

phase constitutionally executive framework

Executive under the 1972 Constitution

ldquoThe 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

23

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 Heshe 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 heshe would

be aided by a council of ministers who would

hold office during hisher pleasure Similarly

the power to dissolve the Jatiya Sangsad by the

head of state rested on the advice of the Prime

24

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

25

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

26

appointed by the President at his discretion

The council was to be presided over by the

President and would hold office during hisher

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

27

activities The office of the President was made

all powerful and without any checks on hisher

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

28

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

29

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

30

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

31

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

32

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

Presidents 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 parliaments powers as evidenced

through the addition of a new clause 72(A) made

the case perfectly clear

Executive under the Twelfth Amendment

33

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 Ministers 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

34

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

Ministerialrdquo7

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 Peoplersquos Republic of

Bangladesh has been substituted by the

35

Constitution (Fifth Amendment) Act 2011 (Act

XIV of 2011) section 22 which provides that-

lsquoThe supreme command of the defence services of

Bangladesh shall vest in the President and the

exercise thereof shall be regulated by lawrsquo

22 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

36

regulations bye-laws or other instruments

having legislative effect lsquoThe 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

37

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

38

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 presidents 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

39

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

40

affiliated with the president has been able to

command a solidmajorityrsquo8

23 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

41

the Supreme Court but litigation may be

very slow in 1987 there were 29 Supreme

Court judges dealing with 21600 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

42

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

43

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

44

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

45

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 government9

3 Civil Service of Bangladesh

31 Legal framework

46

Article 137 of the constitution of the Peoplersquos

Republic of Bangladesh deals with the term

lsquolegal frameworkrsquo of civil service of

Bangladesh lsquoThe implementation of government

policies and projects is the duty of the

Bangladesh Civil Service a corps of trained

administrators who form the nations 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

47

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

48

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

49

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 75 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

50

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 Bangladesh10

32 Recruitment procedure and

recommendations

The Bangladesh Public Service Commission (BPSC)

is a quasi judicial body established in 1972

under the Constitution of the Peoples Republic

51

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 Honble President

of the Republic11 Presidential Order No 34 (on

May 9 1972) PSC Ordinance No LVII of 1977 BCS

Recruitment Rules of 1981 PSC Officers amp

52

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 appointment12

The cadres and entry posts of the

Bangladesh Civil Service

General cadres

1 BCS (Administration) Assistant Commissioner)

53

2 BCS (Police) Assistant Superintendent of Police

3 BCS (Audit amp Accounts) Assistant Accountant General

4 BCS (Economic) Assistant Chief

5 BCS (Customs amp Excise) Assistant Commissioner

(Customs amp 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 amp

Export Equivalent Posts

11 BCS (Postal) Assistant Post Master General

Equivalent Posts

12 BCS (Railway Transportation amp Commercial)

Assistant Traffic Superintendent

54

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 amp Highways) Assistant Engineer

4 BCS (Telecommunications) Assistant Divisional

Engineer

5 BCS (Public Health Engineering) Assistant Engineer

55

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

Officer13

Recruitment

56

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 amp 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 appointment14

lsquoRecruitment is the process of searching for

prospective employees and stimulating them to

apply for jobs in the organization (Flippo and

57

Edwin 1984 141) No element of the career

service system is more important than the

recruitment policyrdquo (Commission of

Inquiry on Public Service Personnel 193537

quoted in Stall 196251) 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)

58

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 partymdashas opposed to a system of awarding

offices on the basis of merit independent of

political activityrsquo15

Legal Basis for BCS Recruitment Policy

lsquoThe constitution of Bangladesh has granted

equal employment opportunities for citizens The

constitution declares ldquoThere shall be equality

of opportunity for all citizens in respect of

employment or office in the service of the

Republicrdquo (Article 29 [1]) ldquoNo citizen shall

on the grounds only of religion race caste

59

sex or place of birth be ineligible for or

discriminated against in respect of any

employment or office in the service of the

Republicrdquo (Article 29 [2]) However under clause

(3) of the same Article the constitution has

provided certain exceptions that read ldquoNothing

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

60

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 servicesrsquo 16

61

Recommendations Julian Paul Assange an

Australian computer programmer

politicalinternet activist publisher and

journalist and founder of WikiLeaks supports

the free dissemination of government data17 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

62

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

Thatrsquos 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

63

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 abolished18

64

Besides these quota system should be abolished

as our Constitution or any law has not given the

definition and the factors of opting lsquobackward

sectionrsquo of the citizens Article 29(3)(a) of

our constitution though provides the quota

system for lsquobackward sectionrsquo 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 sonsrsquo being poor are not getting the said

benefit and hence Professor M Abdul Wahhab

65

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

ordersrules 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

66

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

67

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 ldquothough 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 art29 (1) amp29(2) it merely confers an

enabling power But as it an exception to the

guarantee of art29 (1) amp29(2) it should not be

68

interpreted or given effect to in such a way as

to nullify the guarantee under art29 (1)

amp29(2) The Indian Supreme Court held that

reservation in excess of 50 would be

unconstitutional20

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 lsquonotrsquo and hence ldquowe are to consider

the meaning of lsquobackward sectionrsquo Art 29 is

comparable with art16 of the Indian

Constitution which uses the expression lsquobackward

classrsquo where as the expression used in art

29(3) is backward section The Indian Supreme

Court has interpreted the expression lsquobackward

classrsquo in several decisions Those decisions may

69

be helpful but not decisive in interpreting

lsquobackward sectionrsquo 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

70

33 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 statusetc)22

But unfortunately

there is no hard and fast and transparent

principle for doing the transfer of the civil

71

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 workplace23

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 ie what quality is considered is to

72

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

73

determined and if it is taken or done there

will be no request or lobby for the transfer and

harassment

34 Promotion procedure and

recommendation

The word lsquopromotionrsquo 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

Bangladesh24

74

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

75

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

76

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

77

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

35 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

Itrsquos not what you want in life but itrsquos

knowing how to reach it

78

Itrsquos not where you want to go but itrsquos knowing

how to get there

Itrsquos not how high you want to rise but itrsquos

knowing how to take off

It may not be quite the outcome you were aiming

for but it will be an outcome

Itrsquos not what you dream of doing but itrsquos

having the knowledge to do it

Its not a set of goals but itrsquos more like a

vision

79

Itrsquos not the goal you set but itrsquos 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 Departments26

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

80

Recommendation

Training should be given to the civil servants

for realizing the matter that embodied in art21

(2) of the Constitution of the Peoplersquos 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

36 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

81

said word lsquoaccountability 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 ldquowatchdogrdquo units to scrutinize

and hold departments accountable legitimacy of

82

these commissions is built upon their

independence as it avoids any conflicts of

interests27

There are various types of accountability ie

(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

lsquoParliaments are key actors in what has

been termed the lsquochain of

83

accountabilityrsquo 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 lsquosociety driven horizontal

84

accountabilityrsquo 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 ndashno

matter how defined ndash parliaments are one

of the institutions through which

diagonal accountability can be

exercisedrsquo27

However the civil servants should be

accountable by any or all means of

accountability

85

4 Judicial Service of Bangladesh

41 Legal framework

Article 137 of the Constitution also deals with

the term lsquolegal frameworkrsquo 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

itsrsquo judgment passed in Civil Appeal no79 of

1999 commonly known in the Masder Hossainrsquos case

that-

ldquoIt is declared that the word ldquoappointmentsrdquo 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

86

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

ldquoBangladesh Judicial Service Commission has been

established in 2007 by the rule lsquo বাংলােদশ

জিডিসয়াল সািভস কিমশন িবিধমালা ২০০৭ rsquo ie

87

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

88

Law Faculty of any one of three leading public

university ie 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 Secretariatrdquo 28

42 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

89

voice According to Rule 5 of OgraveevsjvDagger`k RywWwmqvj

mvwfcopyDaggermi cOumlDaggerek cDagger` wbDaggerqvM welqK AvDagger`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

90

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 32 are applicable with equitable

equality

43 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

91

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 33 is

applicable with equitable equality

44 Promotion procedure and recommendations

The promotion of sub-ordinate Courtrsquos judges are

in fact depended on the Annual Confidential

92

Reports (ACRs) There is no examination system

for getting the promotion in the sub-

ordinate judiciary

lsquoPresently 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

93

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 linersquo29

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-

ldquoConfidential reports should set out distinctly

and tersely sufficient particulars and it is

essential that they should be clear and definite

94

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 Divisionrdquo 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

95

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 34 is

applicable with equitable equality

45 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

96

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 skills30

Recommendation

The quality of training provided by JATI should

be improved A training need- assessment of the

subordinate court judges could be undertaken

97

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

98

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

subordinatecourts31

99

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

51 Ethical education

100

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 publics trust

and confidence in government by demonstrating

the highest standards of professional

competence efficiency and effectiveness

101

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

102

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

103

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

104

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 assets32 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

52 Use of technology

105

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 peoplersquos 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 lsquoThe Law of

Civil Procedurersquo first edition 2006 volume 1

page iii that

106

ldquoFor 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 lawyerrdquo However

the corruption of the court staff and the

offices of the civil servants can be controlled

easily by using technology ie 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

107

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

108

53 Check and balance

The theory of separation of powers was given by

the Charles-Louis de Secondat baron de La Bregravede

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 lsquothe spirit of

lawsrsquo that

lsquoI have not drawn my principles from my

prejudices but from the nature of thingsrdquo 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

109

Conclusion

In conclusion it can be reminded that 3rd

paragraph of the preamble of our constitution

provides that

lsquoFurther 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 citizensrsquo

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

110

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 p1 see also Mahmudul Islam-

Constitutional law of Bangladesh second edition

p1

2 httpenwikipediaorgwikiConstitution

111

3 httplegal-

dictionarythefreedictionarycomconstitution

4 httpwwwthefreedictionarycomframework

5 httpwwwmacmillandictionarycomdictionarybri

tishframework

6 httpwwwegyankoshacinbitstream

7 httpwwwbanglapediaorghttpdocsHTE_0079HTM

8 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

9 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

10 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

11 httpwwwbpscgovbd2011

12 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

13 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

14 httpwwwrhdgovbdRulesAndRegulationsView_Ov

erviewaspRef=A

112

15 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

16 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

17 wwwforbescomprofilejulian-assange

18 httpwwwti-bangladeshorgresearchES_PSCpdf

19 httpwwwnapsipagorgPDFABDUL_WAHHABpdf see

also Khan Akbar Ali and Kazi Rakibuddin Ahmad

March 2008 ldquoQuota System for Civil Service

Recruitment in Bangladesh An Exploratory

Analysisrdquo 2008 available at http

wwwbpscgovbddocuments news25906 newsdoc

20 Mahmudul Islam- Constitutional law of Bangladesh

second edition p171 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 p171 see also Indra Sawhney v

India AIR 1993 SC 477

113

22 httpwwwmopagovbdindexphpoption=com_conte

ntamptask=viewampid=377ampItemid=419

23 httpwwwvsrhhrCustomPagesStaticHRVFilesL

egislation__Civil-Servants-Actpdf

24 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

25 httptraininganddevelopmentnaukrihubcomtrain

inghtml

26 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

27 httpsiteresourcesworldbankorgPUBLICSECTORAN

DGOVERNANCEResourcesAccountabilityGovernancepd

f

28 httpwwwjscbdorgbdb_functionphp

29 httpwwwigsbracuacbdUserFilesFilearchive

_fileJudiciary_Policy_Notepdf

30 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

114

31 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

32 httpwwwoecdorgdataoecd625735521740pdf

Page 17: The constitutional framework of public administration in bangladesh

17

Bangladesh Government Organisation Chart

Head of the state President

The Executive The Legislature The Judiciary

Judicial service commission

18

Supreme Courts of Bangladesh

Appellate Division

High Court Division

Sub-ordinate Courts of Bangladesh

House of the Nations (Parliament) Prime Minister

Cabinet Ministers

Ministries

Permanent Secretaries

Cabinet

Civil service commission

19

CJM DJ

ADJ ACJM

SJM JDJ

JM SAJ

AJ

Gram AdalatMimangsa Board

Different Tribunals

Ministries

Finance

Law Justice

and

Parliamentary

Affairs

Agriculture

Planning

Post and Tele

Independent Departments

Auditor General

Attorney General

Bangladesh Police

Anti-Corruption

Commission

Human rights Com

Commission

20

Note The Chief Judicial Magistratersquos equivalent post is Chief

Metropolitan Magistrate and in the same way The Senior Judicial

Magistratersquos 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

Local Authorities

Zila Parishad

PourashavaUpazila Porishad

Union Parishad

Tribal Administration

21

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

21 The Executive (articles from 48 to 64)

Articles from 48 to 64 are connected with the

term lsquothe executiversquo and the constitutional

framework of this is nothing but the structure

of forming and working of the said authority

22

`However I am mentioning here the phase to

phase constitutionally executive framework

Executive under the 1972 Constitution

ldquoThe 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

23

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 Heshe 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 heshe would

be aided by a council of ministers who would

hold office during hisher pleasure Similarly

the power to dissolve the Jatiya Sangsad by the

head of state rested on the advice of the Prime

24

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

25

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

26

appointed by the President at his discretion

The council was to be presided over by the

President and would hold office during hisher

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

27

activities The office of the President was made

all powerful and without any checks on hisher

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

28

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

29

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

30

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

31

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

32

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

Presidents 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 parliaments powers as evidenced

through the addition of a new clause 72(A) made

the case perfectly clear

Executive under the Twelfth Amendment

33

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 Ministers 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

34

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

Ministerialrdquo7

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 Peoplersquos Republic of

Bangladesh has been substituted by the

35

Constitution (Fifth Amendment) Act 2011 (Act

XIV of 2011) section 22 which provides that-

lsquoThe supreme command of the defence services of

Bangladesh shall vest in the President and the

exercise thereof shall be regulated by lawrsquo

22 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

36

regulations bye-laws or other instruments

having legislative effect lsquoThe 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

37

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

38

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 presidents 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

39

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

40

affiliated with the president has been able to

command a solidmajorityrsquo8

23 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

41

the Supreme Court but litigation may be

very slow in 1987 there were 29 Supreme

Court judges dealing with 21600 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

42

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

43

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

44

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

45

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 government9

3 Civil Service of Bangladesh

31 Legal framework

46

Article 137 of the constitution of the Peoplersquos

Republic of Bangladesh deals with the term

lsquolegal frameworkrsquo of civil service of

Bangladesh lsquoThe implementation of government

policies and projects is the duty of the

Bangladesh Civil Service a corps of trained

administrators who form the nations 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

47

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

48

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

49

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 75 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

50

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 Bangladesh10

32 Recruitment procedure and

recommendations

The Bangladesh Public Service Commission (BPSC)

is a quasi judicial body established in 1972

under the Constitution of the Peoples Republic

51

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 Honble President

of the Republic11 Presidential Order No 34 (on

May 9 1972) PSC Ordinance No LVII of 1977 BCS

Recruitment Rules of 1981 PSC Officers amp

52

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 appointment12

The cadres and entry posts of the

Bangladesh Civil Service

General cadres

1 BCS (Administration) Assistant Commissioner)

53

2 BCS (Police) Assistant Superintendent of Police

3 BCS (Audit amp Accounts) Assistant Accountant General

4 BCS (Economic) Assistant Chief

5 BCS (Customs amp Excise) Assistant Commissioner

(Customs amp 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 amp

Export Equivalent Posts

11 BCS (Postal) Assistant Post Master General

Equivalent Posts

12 BCS (Railway Transportation amp Commercial)

Assistant Traffic Superintendent

54

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 amp Highways) Assistant Engineer

4 BCS (Telecommunications) Assistant Divisional

Engineer

5 BCS (Public Health Engineering) Assistant Engineer

55

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

Officer13

Recruitment

56

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 amp 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 appointment14

lsquoRecruitment is the process of searching for

prospective employees and stimulating them to

apply for jobs in the organization (Flippo and

57

Edwin 1984 141) No element of the career

service system is more important than the

recruitment policyrdquo (Commission of

Inquiry on Public Service Personnel 193537

quoted in Stall 196251) 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)

58

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 partymdashas opposed to a system of awarding

offices on the basis of merit independent of

political activityrsquo15

Legal Basis for BCS Recruitment Policy

lsquoThe constitution of Bangladesh has granted

equal employment opportunities for citizens The

constitution declares ldquoThere shall be equality

of opportunity for all citizens in respect of

employment or office in the service of the

Republicrdquo (Article 29 [1]) ldquoNo citizen shall

on the grounds only of religion race caste

59

sex or place of birth be ineligible for or

discriminated against in respect of any

employment or office in the service of the

Republicrdquo (Article 29 [2]) However under clause

(3) of the same Article the constitution has

provided certain exceptions that read ldquoNothing

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

60

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 servicesrsquo 16

61

Recommendations Julian Paul Assange an

Australian computer programmer

politicalinternet activist publisher and

journalist and founder of WikiLeaks supports

the free dissemination of government data17 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

62

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

Thatrsquos 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

63

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 abolished18

64

Besides these quota system should be abolished

as our Constitution or any law has not given the

definition and the factors of opting lsquobackward

sectionrsquo of the citizens Article 29(3)(a) of

our constitution though provides the quota

system for lsquobackward sectionrsquo 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 sonsrsquo being poor are not getting the said

benefit and hence Professor M Abdul Wahhab

65

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

ordersrules 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

66

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

67

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 ldquothough 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 art29 (1) amp29(2) it merely confers an

enabling power But as it an exception to the

guarantee of art29 (1) amp29(2) it should not be

68

interpreted or given effect to in such a way as

to nullify the guarantee under art29 (1)

amp29(2) The Indian Supreme Court held that

reservation in excess of 50 would be

unconstitutional20

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 lsquonotrsquo and hence ldquowe are to consider

the meaning of lsquobackward sectionrsquo Art 29 is

comparable with art16 of the Indian

Constitution which uses the expression lsquobackward

classrsquo where as the expression used in art

29(3) is backward section The Indian Supreme

Court has interpreted the expression lsquobackward

classrsquo in several decisions Those decisions may

69

be helpful but not decisive in interpreting

lsquobackward sectionrsquo 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

70

33 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 statusetc)22

But unfortunately

there is no hard and fast and transparent

principle for doing the transfer of the civil

71

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 workplace23

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 ie what quality is considered is to

72

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

73

determined and if it is taken or done there

will be no request or lobby for the transfer and

harassment

34 Promotion procedure and

recommendation

The word lsquopromotionrsquo 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

Bangladesh24

74

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

75

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

76

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

77

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

35 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

Itrsquos not what you want in life but itrsquos

knowing how to reach it

78

Itrsquos not where you want to go but itrsquos knowing

how to get there

Itrsquos not how high you want to rise but itrsquos

knowing how to take off

It may not be quite the outcome you were aiming

for but it will be an outcome

Itrsquos not what you dream of doing but itrsquos

having the knowledge to do it

Its not a set of goals but itrsquos more like a

vision

79

Itrsquos not the goal you set but itrsquos 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 Departments26

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

80

Recommendation

Training should be given to the civil servants

for realizing the matter that embodied in art21

(2) of the Constitution of the Peoplersquos 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

36 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

81

said word lsquoaccountability 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 ldquowatchdogrdquo units to scrutinize

and hold departments accountable legitimacy of

82

these commissions is built upon their

independence as it avoids any conflicts of

interests27

There are various types of accountability ie

(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

lsquoParliaments are key actors in what has

been termed the lsquochain of

83

accountabilityrsquo 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 lsquosociety driven horizontal

84

accountabilityrsquo 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 ndashno

matter how defined ndash parliaments are one

of the institutions through which

diagonal accountability can be

exercisedrsquo27

However the civil servants should be

accountable by any or all means of

accountability

85

4 Judicial Service of Bangladesh

41 Legal framework

Article 137 of the Constitution also deals with

the term lsquolegal frameworkrsquo 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

itsrsquo judgment passed in Civil Appeal no79 of

1999 commonly known in the Masder Hossainrsquos case

that-

ldquoIt is declared that the word ldquoappointmentsrdquo 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

86

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

ldquoBangladesh Judicial Service Commission has been

established in 2007 by the rule lsquo বাংলােদশ

জিডিসয়াল সািভস কিমশন িবিধমালা ২০০৭ rsquo ie

87

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

88

Law Faculty of any one of three leading public

university ie 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 Secretariatrdquo 28

42 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

89

voice According to Rule 5 of OgraveevsjvDagger`k RywWwmqvj

mvwfcopyDaggermi cOumlDaggerek cDagger` wbDaggerqvM welqK AvDagger`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

90

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 32 are applicable with equitable

equality

43 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

91

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 33 is

applicable with equitable equality

44 Promotion procedure and recommendations

The promotion of sub-ordinate Courtrsquos judges are

in fact depended on the Annual Confidential

92

Reports (ACRs) There is no examination system

for getting the promotion in the sub-

ordinate judiciary

lsquoPresently 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

93

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 linersquo29

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-

ldquoConfidential reports should set out distinctly

and tersely sufficient particulars and it is

essential that they should be clear and definite

94

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 Divisionrdquo 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

95

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 34 is

applicable with equitable equality

45 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

96

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 skills30

Recommendation

The quality of training provided by JATI should

be improved A training need- assessment of the

subordinate court judges could be undertaken

97

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

98

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

subordinatecourts31

99

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

51 Ethical education

100

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 publics trust

and confidence in government by demonstrating

the highest standards of professional

competence efficiency and effectiveness

101

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

102

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

103

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

104

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 assets32 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

52 Use of technology

105

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 peoplersquos 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 lsquoThe Law of

Civil Procedurersquo first edition 2006 volume 1

page iii that

106

ldquoFor 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 lawyerrdquo However

the corruption of the court staff and the

offices of the civil servants can be controlled

easily by using technology ie 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

107

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

108

53 Check and balance

The theory of separation of powers was given by

the Charles-Louis de Secondat baron de La Bregravede

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 lsquothe spirit of

lawsrsquo that

lsquoI have not drawn my principles from my

prejudices but from the nature of thingsrdquo 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

109

Conclusion

In conclusion it can be reminded that 3rd

paragraph of the preamble of our constitution

provides that

lsquoFurther 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 citizensrsquo

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

110

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 p1 see also Mahmudul Islam-

Constitutional law of Bangladesh second edition

p1

2 httpenwikipediaorgwikiConstitution

111

3 httplegal-

dictionarythefreedictionarycomconstitution

4 httpwwwthefreedictionarycomframework

5 httpwwwmacmillandictionarycomdictionarybri

tishframework

6 httpwwwegyankoshacinbitstream

7 httpwwwbanglapediaorghttpdocsHTE_0079HTM

8 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

9 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

10 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

11 httpwwwbpscgovbd2011

12 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

13 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

14 httpwwwrhdgovbdRulesAndRegulationsView_Ov

erviewaspRef=A

112

15 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

16 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

17 wwwforbescomprofilejulian-assange

18 httpwwwti-bangladeshorgresearchES_PSCpdf

19 httpwwwnapsipagorgPDFABDUL_WAHHABpdf see

also Khan Akbar Ali and Kazi Rakibuddin Ahmad

March 2008 ldquoQuota System for Civil Service

Recruitment in Bangladesh An Exploratory

Analysisrdquo 2008 available at http

wwwbpscgovbddocuments news25906 newsdoc

20 Mahmudul Islam- Constitutional law of Bangladesh

second edition p171 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 p171 see also Indra Sawhney v

India AIR 1993 SC 477

113

22 httpwwwmopagovbdindexphpoption=com_conte

ntamptask=viewampid=377ampItemid=419

23 httpwwwvsrhhrCustomPagesStaticHRVFilesL

egislation__Civil-Servants-Actpdf

24 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

25 httptraininganddevelopmentnaukrihubcomtrain

inghtml

26 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

27 httpsiteresourcesworldbankorgPUBLICSECTORAN

DGOVERNANCEResourcesAccountabilityGovernancepd

f

28 httpwwwjscbdorgbdb_functionphp

29 httpwwwigsbracuacbdUserFilesFilearchive

_fileJudiciary_Policy_Notepdf

30 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

114

31 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

32 httpwwwoecdorgdataoecd625735521740pdf

Page 18: The constitutional framework of public administration in bangladesh

18

Supreme Courts of Bangladesh

Appellate Division

High Court Division

Sub-ordinate Courts of Bangladesh

House of the Nations (Parliament) Prime Minister

Cabinet Ministers

Ministries

Permanent Secretaries

Cabinet

Civil service commission

19

CJM DJ

ADJ ACJM

SJM JDJ

JM SAJ

AJ

Gram AdalatMimangsa Board

Different Tribunals

Ministries

Finance

Law Justice

and

Parliamentary

Affairs

Agriculture

Planning

Post and Tele

Independent Departments

Auditor General

Attorney General

Bangladesh Police

Anti-Corruption

Commission

Human rights Com

Commission

20

Note The Chief Judicial Magistratersquos equivalent post is Chief

Metropolitan Magistrate and in the same way The Senior Judicial

Magistratersquos 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

Local Authorities

Zila Parishad

PourashavaUpazila Porishad

Union Parishad

Tribal Administration

21

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

21 The Executive (articles from 48 to 64)

Articles from 48 to 64 are connected with the

term lsquothe executiversquo and the constitutional

framework of this is nothing but the structure

of forming and working of the said authority

22

`However I am mentioning here the phase to

phase constitutionally executive framework

Executive under the 1972 Constitution

ldquoThe 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

23

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 Heshe 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 heshe would

be aided by a council of ministers who would

hold office during hisher pleasure Similarly

the power to dissolve the Jatiya Sangsad by the

head of state rested on the advice of the Prime

24

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

25

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

26

appointed by the President at his discretion

The council was to be presided over by the

President and would hold office during hisher

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

27

activities The office of the President was made

all powerful and without any checks on hisher

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

28

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

29

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

30

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

31

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

32

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

Presidents 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 parliaments powers as evidenced

through the addition of a new clause 72(A) made

the case perfectly clear

Executive under the Twelfth Amendment

33

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 Ministers 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

34

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

Ministerialrdquo7

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 Peoplersquos Republic of

Bangladesh has been substituted by the

35

Constitution (Fifth Amendment) Act 2011 (Act

XIV of 2011) section 22 which provides that-

lsquoThe supreme command of the defence services of

Bangladesh shall vest in the President and the

exercise thereof shall be regulated by lawrsquo

22 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

36

regulations bye-laws or other instruments

having legislative effect lsquoThe 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

37

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

38

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 presidents 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

39

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

40

affiliated with the president has been able to

command a solidmajorityrsquo8

23 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

41

the Supreme Court but litigation may be

very slow in 1987 there were 29 Supreme

Court judges dealing with 21600 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

42

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

43

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

44

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

45

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 government9

3 Civil Service of Bangladesh

31 Legal framework

46

Article 137 of the constitution of the Peoplersquos

Republic of Bangladesh deals with the term

lsquolegal frameworkrsquo of civil service of

Bangladesh lsquoThe implementation of government

policies and projects is the duty of the

Bangladesh Civil Service a corps of trained

administrators who form the nations 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

47

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

48

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

49

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 75 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

50

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 Bangladesh10

32 Recruitment procedure and

recommendations

The Bangladesh Public Service Commission (BPSC)

is a quasi judicial body established in 1972

under the Constitution of the Peoples Republic

51

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 Honble President

of the Republic11 Presidential Order No 34 (on

May 9 1972) PSC Ordinance No LVII of 1977 BCS

Recruitment Rules of 1981 PSC Officers amp

52

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 appointment12

The cadres and entry posts of the

Bangladesh Civil Service

General cadres

1 BCS (Administration) Assistant Commissioner)

53

2 BCS (Police) Assistant Superintendent of Police

3 BCS (Audit amp Accounts) Assistant Accountant General

4 BCS (Economic) Assistant Chief

5 BCS (Customs amp Excise) Assistant Commissioner

(Customs amp 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 amp

Export Equivalent Posts

11 BCS (Postal) Assistant Post Master General

Equivalent Posts

12 BCS (Railway Transportation amp Commercial)

Assistant Traffic Superintendent

54

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 amp Highways) Assistant Engineer

4 BCS (Telecommunications) Assistant Divisional

Engineer

5 BCS (Public Health Engineering) Assistant Engineer

55

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

Officer13

Recruitment

56

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 amp 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 appointment14

lsquoRecruitment is the process of searching for

prospective employees and stimulating them to

apply for jobs in the organization (Flippo and

57

Edwin 1984 141) No element of the career

service system is more important than the

recruitment policyrdquo (Commission of

Inquiry on Public Service Personnel 193537

quoted in Stall 196251) 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)

58

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 partymdashas opposed to a system of awarding

offices on the basis of merit independent of

political activityrsquo15

Legal Basis for BCS Recruitment Policy

lsquoThe constitution of Bangladesh has granted

equal employment opportunities for citizens The

constitution declares ldquoThere shall be equality

of opportunity for all citizens in respect of

employment or office in the service of the

Republicrdquo (Article 29 [1]) ldquoNo citizen shall

on the grounds only of religion race caste

59

sex or place of birth be ineligible for or

discriminated against in respect of any

employment or office in the service of the

Republicrdquo (Article 29 [2]) However under clause

(3) of the same Article the constitution has

provided certain exceptions that read ldquoNothing

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

60

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 servicesrsquo 16

61

Recommendations Julian Paul Assange an

Australian computer programmer

politicalinternet activist publisher and

journalist and founder of WikiLeaks supports

the free dissemination of government data17 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

62

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

Thatrsquos 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

63

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 abolished18

64

Besides these quota system should be abolished

as our Constitution or any law has not given the

definition and the factors of opting lsquobackward

sectionrsquo of the citizens Article 29(3)(a) of

our constitution though provides the quota

system for lsquobackward sectionrsquo 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 sonsrsquo being poor are not getting the said

benefit and hence Professor M Abdul Wahhab

65

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

ordersrules 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

66

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

67

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 ldquothough 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 art29 (1) amp29(2) it merely confers an

enabling power But as it an exception to the

guarantee of art29 (1) amp29(2) it should not be

68

interpreted or given effect to in such a way as

to nullify the guarantee under art29 (1)

amp29(2) The Indian Supreme Court held that

reservation in excess of 50 would be

unconstitutional20

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 lsquonotrsquo and hence ldquowe are to consider

the meaning of lsquobackward sectionrsquo Art 29 is

comparable with art16 of the Indian

Constitution which uses the expression lsquobackward

classrsquo where as the expression used in art

29(3) is backward section The Indian Supreme

Court has interpreted the expression lsquobackward

classrsquo in several decisions Those decisions may

69

be helpful but not decisive in interpreting

lsquobackward sectionrsquo 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

70

33 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 statusetc)22

But unfortunately

there is no hard and fast and transparent

principle for doing the transfer of the civil

71

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 workplace23

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 ie what quality is considered is to

72

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

73

determined and if it is taken or done there

will be no request or lobby for the transfer and

harassment

34 Promotion procedure and

recommendation

The word lsquopromotionrsquo 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

Bangladesh24

74

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

75

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

76

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

77

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

35 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

Itrsquos not what you want in life but itrsquos

knowing how to reach it

78

Itrsquos not where you want to go but itrsquos knowing

how to get there

Itrsquos not how high you want to rise but itrsquos

knowing how to take off

It may not be quite the outcome you were aiming

for but it will be an outcome

Itrsquos not what you dream of doing but itrsquos

having the knowledge to do it

Its not a set of goals but itrsquos more like a

vision

79

Itrsquos not the goal you set but itrsquos 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 Departments26

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

80

Recommendation

Training should be given to the civil servants

for realizing the matter that embodied in art21

(2) of the Constitution of the Peoplersquos 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

36 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

81

said word lsquoaccountability 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 ldquowatchdogrdquo units to scrutinize

and hold departments accountable legitimacy of

82

these commissions is built upon their

independence as it avoids any conflicts of

interests27

There are various types of accountability ie

(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

lsquoParliaments are key actors in what has

been termed the lsquochain of

83

accountabilityrsquo 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 lsquosociety driven horizontal

84

accountabilityrsquo 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 ndashno

matter how defined ndash parliaments are one

of the institutions through which

diagonal accountability can be

exercisedrsquo27

However the civil servants should be

accountable by any or all means of

accountability

85

4 Judicial Service of Bangladesh

41 Legal framework

Article 137 of the Constitution also deals with

the term lsquolegal frameworkrsquo 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

itsrsquo judgment passed in Civil Appeal no79 of

1999 commonly known in the Masder Hossainrsquos case

that-

ldquoIt is declared that the word ldquoappointmentsrdquo 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

86

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

ldquoBangladesh Judicial Service Commission has been

established in 2007 by the rule lsquo বাংলােদশ

জিডিসয়াল সািভস কিমশন িবিধমালা ২০০৭ rsquo ie

87

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

88

Law Faculty of any one of three leading public

university ie 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 Secretariatrdquo 28

42 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

89

voice According to Rule 5 of OgraveevsjvDagger`k RywWwmqvj

mvwfcopyDaggermi cOumlDaggerek cDagger` wbDaggerqvM welqK AvDagger`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

90

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 32 are applicable with equitable

equality

43 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

91

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 33 is

applicable with equitable equality

44 Promotion procedure and recommendations

The promotion of sub-ordinate Courtrsquos judges are

in fact depended on the Annual Confidential

92

Reports (ACRs) There is no examination system

for getting the promotion in the sub-

ordinate judiciary

lsquoPresently 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

93

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 linersquo29

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-

ldquoConfidential reports should set out distinctly

and tersely sufficient particulars and it is

essential that they should be clear and definite

94

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 Divisionrdquo 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

95

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 34 is

applicable with equitable equality

45 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

96

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 skills30

Recommendation

The quality of training provided by JATI should

be improved A training need- assessment of the

subordinate court judges could be undertaken

97

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

98

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

subordinatecourts31

99

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

51 Ethical education

100

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 publics trust

and confidence in government by demonstrating

the highest standards of professional

competence efficiency and effectiveness

101

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

102

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

103

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

104

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 assets32 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

52 Use of technology

105

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 peoplersquos 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 lsquoThe Law of

Civil Procedurersquo first edition 2006 volume 1

page iii that

106

ldquoFor 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 lawyerrdquo However

the corruption of the court staff and the

offices of the civil servants can be controlled

easily by using technology ie 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

107

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

108

53 Check and balance

The theory of separation of powers was given by

the Charles-Louis de Secondat baron de La Bregravede

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 lsquothe spirit of

lawsrsquo that

lsquoI have not drawn my principles from my

prejudices but from the nature of thingsrdquo 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

109

Conclusion

In conclusion it can be reminded that 3rd

paragraph of the preamble of our constitution

provides that

lsquoFurther 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 citizensrsquo

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

110

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 p1 see also Mahmudul Islam-

Constitutional law of Bangladesh second edition

p1

2 httpenwikipediaorgwikiConstitution

111

3 httplegal-

dictionarythefreedictionarycomconstitution

4 httpwwwthefreedictionarycomframework

5 httpwwwmacmillandictionarycomdictionarybri

tishframework

6 httpwwwegyankoshacinbitstream

7 httpwwwbanglapediaorghttpdocsHTE_0079HTM

8 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

9 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

10 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

11 httpwwwbpscgovbd2011

12 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

13 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

14 httpwwwrhdgovbdRulesAndRegulationsView_Ov

erviewaspRef=A

112

15 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

16 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

17 wwwforbescomprofilejulian-assange

18 httpwwwti-bangladeshorgresearchES_PSCpdf

19 httpwwwnapsipagorgPDFABDUL_WAHHABpdf see

also Khan Akbar Ali and Kazi Rakibuddin Ahmad

March 2008 ldquoQuota System for Civil Service

Recruitment in Bangladesh An Exploratory

Analysisrdquo 2008 available at http

wwwbpscgovbddocuments news25906 newsdoc

20 Mahmudul Islam- Constitutional law of Bangladesh

second edition p171 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 p171 see also Indra Sawhney v

India AIR 1993 SC 477

113

22 httpwwwmopagovbdindexphpoption=com_conte

ntamptask=viewampid=377ampItemid=419

23 httpwwwvsrhhrCustomPagesStaticHRVFilesL

egislation__Civil-Servants-Actpdf

24 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

25 httptraininganddevelopmentnaukrihubcomtrain

inghtml

26 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

27 httpsiteresourcesworldbankorgPUBLICSECTORAN

DGOVERNANCEResourcesAccountabilityGovernancepd

f

28 httpwwwjscbdorgbdb_functionphp

29 httpwwwigsbracuacbdUserFilesFilearchive

_fileJudiciary_Policy_Notepdf

30 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

114

31 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

32 httpwwwoecdorgdataoecd625735521740pdf

Page 19: The constitutional framework of public administration in bangladesh

19

CJM DJ

ADJ ACJM

SJM JDJ

JM SAJ

AJ

Gram AdalatMimangsa Board

Different Tribunals

Ministries

Finance

Law Justice

and

Parliamentary

Affairs

Agriculture

Planning

Post and Tele

Independent Departments

Auditor General

Attorney General

Bangladesh Police

Anti-Corruption

Commission

Human rights Com

Commission

20

Note The Chief Judicial Magistratersquos equivalent post is Chief

Metropolitan Magistrate and in the same way The Senior Judicial

Magistratersquos 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

Local Authorities

Zila Parishad

PourashavaUpazila Porishad

Union Parishad

Tribal Administration

21

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

21 The Executive (articles from 48 to 64)

Articles from 48 to 64 are connected with the

term lsquothe executiversquo and the constitutional

framework of this is nothing but the structure

of forming and working of the said authority

22

`However I am mentioning here the phase to

phase constitutionally executive framework

Executive under the 1972 Constitution

ldquoThe 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

23

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 Heshe 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 heshe would

be aided by a council of ministers who would

hold office during hisher pleasure Similarly

the power to dissolve the Jatiya Sangsad by the

head of state rested on the advice of the Prime

24

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

25

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

26

appointed by the President at his discretion

The council was to be presided over by the

President and would hold office during hisher

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

27

activities The office of the President was made

all powerful and without any checks on hisher

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

28

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

29

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

30

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

31

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

32

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

Presidents 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 parliaments powers as evidenced

through the addition of a new clause 72(A) made

the case perfectly clear

Executive under the Twelfth Amendment

33

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 Ministers 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

34

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

Ministerialrdquo7

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 Peoplersquos Republic of

Bangladesh has been substituted by the

35

Constitution (Fifth Amendment) Act 2011 (Act

XIV of 2011) section 22 which provides that-

lsquoThe supreme command of the defence services of

Bangladesh shall vest in the President and the

exercise thereof shall be regulated by lawrsquo

22 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

36

regulations bye-laws or other instruments

having legislative effect lsquoThe 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

37

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

38

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 presidents 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

39

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

40

affiliated with the president has been able to

command a solidmajorityrsquo8

23 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

41

the Supreme Court but litigation may be

very slow in 1987 there were 29 Supreme

Court judges dealing with 21600 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

42

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

43

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

44

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

45

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 government9

3 Civil Service of Bangladesh

31 Legal framework

46

Article 137 of the constitution of the Peoplersquos

Republic of Bangladesh deals with the term

lsquolegal frameworkrsquo of civil service of

Bangladesh lsquoThe implementation of government

policies and projects is the duty of the

Bangladesh Civil Service a corps of trained

administrators who form the nations 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

47

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

48

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

49

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 75 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

50

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 Bangladesh10

32 Recruitment procedure and

recommendations

The Bangladesh Public Service Commission (BPSC)

is a quasi judicial body established in 1972

under the Constitution of the Peoples Republic

51

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 Honble President

of the Republic11 Presidential Order No 34 (on

May 9 1972) PSC Ordinance No LVII of 1977 BCS

Recruitment Rules of 1981 PSC Officers amp

52

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 appointment12

The cadres and entry posts of the

Bangladesh Civil Service

General cadres

1 BCS (Administration) Assistant Commissioner)

53

2 BCS (Police) Assistant Superintendent of Police

3 BCS (Audit amp Accounts) Assistant Accountant General

4 BCS (Economic) Assistant Chief

5 BCS (Customs amp Excise) Assistant Commissioner

(Customs amp 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 amp

Export Equivalent Posts

11 BCS (Postal) Assistant Post Master General

Equivalent Posts

12 BCS (Railway Transportation amp Commercial)

Assistant Traffic Superintendent

54

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 amp Highways) Assistant Engineer

4 BCS (Telecommunications) Assistant Divisional

Engineer

5 BCS (Public Health Engineering) Assistant Engineer

55

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

Officer13

Recruitment

56

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 amp 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 appointment14

lsquoRecruitment is the process of searching for

prospective employees and stimulating them to

apply for jobs in the organization (Flippo and

57

Edwin 1984 141) No element of the career

service system is more important than the

recruitment policyrdquo (Commission of

Inquiry on Public Service Personnel 193537

quoted in Stall 196251) 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)

58

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 partymdashas opposed to a system of awarding

offices on the basis of merit independent of

political activityrsquo15

Legal Basis for BCS Recruitment Policy

lsquoThe constitution of Bangladesh has granted

equal employment opportunities for citizens The

constitution declares ldquoThere shall be equality

of opportunity for all citizens in respect of

employment or office in the service of the

Republicrdquo (Article 29 [1]) ldquoNo citizen shall

on the grounds only of religion race caste

59

sex or place of birth be ineligible for or

discriminated against in respect of any

employment or office in the service of the

Republicrdquo (Article 29 [2]) However under clause

(3) of the same Article the constitution has

provided certain exceptions that read ldquoNothing

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

60

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 servicesrsquo 16

61

Recommendations Julian Paul Assange an

Australian computer programmer

politicalinternet activist publisher and

journalist and founder of WikiLeaks supports

the free dissemination of government data17 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

62

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

Thatrsquos 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

63

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 abolished18

64

Besides these quota system should be abolished

as our Constitution or any law has not given the

definition and the factors of opting lsquobackward

sectionrsquo of the citizens Article 29(3)(a) of

our constitution though provides the quota

system for lsquobackward sectionrsquo 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 sonsrsquo being poor are not getting the said

benefit and hence Professor M Abdul Wahhab

65

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

ordersrules 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

66

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

67

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 ldquothough 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 art29 (1) amp29(2) it merely confers an

enabling power But as it an exception to the

guarantee of art29 (1) amp29(2) it should not be

68

interpreted or given effect to in such a way as

to nullify the guarantee under art29 (1)

amp29(2) The Indian Supreme Court held that

reservation in excess of 50 would be

unconstitutional20

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 lsquonotrsquo and hence ldquowe are to consider

the meaning of lsquobackward sectionrsquo Art 29 is

comparable with art16 of the Indian

Constitution which uses the expression lsquobackward

classrsquo where as the expression used in art

29(3) is backward section The Indian Supreme

Court has interpreted the expression lsquobackward

classrsquo in several decisions Those decisions may

69

be helpful but not decisive in interpreting

lsquobackward sectionrsquo 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

70

33 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 statusetc)22

But unfortunately

there is no hard and fast and transparent

principle for doing the transfer of the civil

71

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 workplace23

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 ie what quality is considered is to

72

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

73

determined and if it is taken or done there

will be no request or lobby for the transfer and

harassment

34 Promotion procedure and

recommendation

The word lsquopromotionrsquo 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

Bangladesh24

74

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

75

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

76

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

77

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

35 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

Itrsquos not what you want in life but itrsquos

knowing how to reach it

78

Itrsquos not where you want to go but itrsquos knowing

how to get there

Itrsquos not how high you want to rise but itrsquos

knowing how to take off

It may not be quite the outcome you were aiming

for but it will be an outcome

Itrsquos not what you dream of doing but itrsquos

having the knowledge to do it

Its not a set of goals but itrsquos more like a

vision

79

Itrsquos not the goal you set but itrsquos 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 Departments26

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

80

Recommendation

Training should be given to the civil servants

for realizing the matter that embodied in art21

(2) of the Constitution of the Peoplersquos 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

36 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

81

said word lsquoaccountability 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 ldquowatchdogrdquo units to scrutinize

and hold departments accountable legitimacy of

82

these commissions is built upon their

independence as it avoids any conflicts of

interests27

There are various types of accountability ie

(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

lsquoParliaments are key actors in what has

been termed the lsquochain of

83

accountabilityrsquo 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 lsquosociety driven horizontal

84

accountabilityrsquo 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 ndashno

matter how defined ndash parliaments are one

of the institutions through which

diagonal accountability can be

exercisedrsquo27

However the civil servants should be

accountable by any or all means of

accountability

85

4 Judicial Service of Bangladesh

41 Legal framework

Article 137 of the Constitution also deals with

the term lsquolegal frameworkrsquo 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

itsrsquo judgment passed in Civil Appeal no79 of

1999 commonly known in the Masder Hossainrsquos case

that-

ldquoIt is declared that the word ldquoappointmentsrdquo 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

86

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

ldquoBangladesh Judicial Service Commission has been

established in 2007 by the rule lsquo বাংলােদশ

জিডিসয়াল সািভস কিমশন িবিধমালা ২০০৭ rsquo ie

87

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

88

Law Faculty of any one of three leading public

university ie 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 Secretariatrdquo 28

42 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

89

voice According to Rule 5 of OgraveevsjvDagger`k RywWwmqvj

mvwfcopyDaggermi cOumlDaggerek cDagger` wbDaggerqvM welqK AvDagger`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

90

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 32 are applicable with equitable

equality

43 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

91

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 33 is

applicable with equitable equality

44 Promotion procedure and recommendations

The promotion of sub-ordinate Courtrsquos judges are

in fact depended on the Annual Confidential

92

Reports (ACRs) There is no examination system

for getting the promotion in the sub-

ordinate judiciary

lsquoPresently 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

93

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 linersquo29

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-

ldquoConfidential reports should set out distinctly

and tersely sufficient particulars and it is

essential that they should be clear and definite

94

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 Divisionrdquo 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

95

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 34 is

applicable with equitable equality

45 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

96

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 skills30

Recommendation

The quality of training provided by JATI should

be improved A training need- assessment of the

subordinate court judges could be undertaken

97

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

98

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

subordinatecourts31

99

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

51 Ethical education

100

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 publics trust

and confidence in government by demonstrating

the highest standards of professional

competence efficiency and effectiveness

101

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

102

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

103

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

104

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 assets32 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

52 Use of technology

105

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 peoplersquos 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 lsquoThe Law of

Civil Procedurersquo first edition 2006 volume 1

page iii that

106

ldquoFor 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 lawyerrdquo However

the corruption of the court staff and the

offices of the civil servants can be controlled

easily by using technology ie 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

107

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

108

53 Check and balance

The theory of separation of powers was given by

the Charles-Louis de Secondat baron de La Bregravede

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 lsquothe spirit of

lawsrsquo that

lsquoI have not drawn my principles from my

prejudices but from the nature of thingsrdquo 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

109

Conclusion

In conclusion it can be reminded that 3rd

paragraph of the preamble of our constitution

provides that

lsquoFurther 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 citizensrsquo

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

110

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 p1 see also Mahmudul Islam-

Constitutional law of Bangladesh second edition

p1

2 httpenwikipediaorgwikiConstitution

111

3 httplegal-

dictionarythefreedictionarycomconstitution

4 httpwwwthefreedictionarycomframework

5 httpwwwmacmillandictionarycomdictionarybri

tishframework

6 httpwwwegyankoshacinbitstream

7 httpwwwbanglapediaorghttpdocsHTE_0079HTM

8 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

9 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

10 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

11 httpwwwbpscgovbd2011

12 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

13 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

14 httpwwwrhdgovbdRulesAndRegulationsView_Ov

erviewaspRef=A

112

15 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

16 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

17 wwwforbescomprofilejulian-assange

18 httpwwwti-bangladeshorgresearchES_PSCpdf

19 httpwwwnapsipagorgPDFABDUL_WAHHABpdf see

also Khan Akbar Ali and Kazi Rakibuddin Ahmad

March 2008 ldquoQuota System for Civil Service

Recruitment in Bangladesh An Exploratory

Analysisrdquo 2008 available at http

wwwbpscgovbddocuments news25906 newsdoc

20 Mahmudul Islam- Constitutional law of Bangladesh

second edition p171 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 p171 see also Indra Sawhney v

India AIR 1993 SC 477

113

22 httpwwwmopagovbdindexphpoption=com_conte

ntamptask=viewampid=377ampItemid=419

23 httpwwwvsrhhrCustomPagesStaticHRVFilesL

egislation__Civil-Servants-Actpdf

24 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

25 httptraininganddevelopmentnaukrihubcomtrain

inghtml

26 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

27 httpsiteresourcesworldbankorgPUBLICSECTORAN

DGOVERNANCEResourcesAccountabilityGovernancepd

f

28 httpwwwjscbdorgbdb_functionphp

29 httpwwwigsbracuacbdUserFilesFilearchive

_fileJudiciary_Policy_Notepdf

30 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

114

31 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

32 httpwwwoecdorgdataoecd625735521740pdf

Page 20: The constitutional framework of public administration in bangladesh

20

Note The Chief Judicial Magistratersquos equivalent post is Chief

Metropolitan Magistrate and in the same way The Senior Judicial

Magistratersquos 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

Local Authorities

Zila Parishad

PourashavaUpazila Porishad

Union Parishad

Tribal Administration

21

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

21 The Executive (articles from 48 to 64)

Articles from 48 to 64 are connected with the

term lsquothe executiversquo and the constitutional

framework of this is nothing but the structure

of forming and working of the said authority

22

`However I am mentioning here the phase to

phase constitutionally executive framework

Executive under the 1972 Constitution

ldquoThe 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

23

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 Heshe 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 heshe would

be aided by a council of ministers who would

hold office during hisher pleasure Similarly

the power to dissolve the Jatiya Sangsad by the

head of state rested on the advice of the Prime

24

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

25

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

26

appointed by the President at his discretion

The council was to be presided over by the

President and would hold office during hisher

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

27

activities The office of the President was made

all powerful and without any checks on hisher

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

28

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

29

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

30

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

31

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

32

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

Presidents 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 parliaments powers as evidenced

through the addition of a new clause 72(A) made

the case perfectly clear

Executive under the Twelfth Amendment

33

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 Ministers 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

34

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

Ministerialrdquo7

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 Peoplersquos Republic of

Bangladesh has been substituted by the

35

Constitution (Fifth Amendment) Act 2011 (Act

XIV of 2011) section 22 which provides that-

lsquoThe supreme command of the defence services of

Bangladesh shall vest in the President and the

exercise thereof shall be regulated by lawrsquo

22 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

36

regulations bye-laws or other instruments

having legislative effect lsquoThe 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

37

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

38

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 presidents 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

39

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

40

affiliated with the president has been able to

command a solidmajorityrsquo8

23 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

41

the Supreme Court but litigation may be

very slow in 1987 there were 29 Supreme

Court judges dealing with 21600 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

42

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

43

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

44

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

45

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 government9

3 Civil Service of Bangladesh

31 Legal framework

46

Article 137 of the constitution of the Peoplersquos

Republic of Bangladesh deals with the term

lsquolegal frameworkrsquo of civil service of

Bangladesh lsquoThe implementation of government

policies and projects is the duty of the

Bangladesh Civil Service a corps of trained

administrators who form the nations 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

47

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

48

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

49

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 75 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

50

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 Bangladesh10

32 Recruitment procedure and

recommendations

The Bangladesh Public Service Commission (BPSC)

is a quasi judicial body established in 1972

under the Constitution of the Peoples Republic

51

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 Honble President

of the Republic11 Presidential Order No 34 (on

May 9 1972) PSC Ordinance No LVII of 1977 BCS

Recruitment Rules of 1981 PSC Officers amp

52

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 appointment12

The cadres and entry posts of the

Bangladesh Civil Service

General cadres

1 BCS (Administration) Assistant Commissioner)

53

2 BCS (Police) Assistant Superintendent of Police

3 BCS (Audit amp Accounts) Assistant Accountant General

4 BCS (Economic) Assistant Chief

5 BCS (Customs amp Excise) Assistant Commissioner

(Customs amp 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 amp

Export Equivalent Posts

11 BCS (Postal) Assistant Post Master General

Equivalent Posts

12 BCS (Railway Transportation amp Commercial)

Assistant Traffic Superintendent

54

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 amp Highways) Assistant Engineer

4 BCS (Telecommunications) Assistant Divisional

Engineer

5 BCS (Public Health Engineering) Assistant Engineer

55

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

Officer13

Recruitment

56

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 amp 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 appointment14

lsquoRecruitment is the process of searching for

prospective employees and stimulating them to

apply for jobs in the organization (Flippo and

57

Edwin 1984 141) No element of the career

service system is more important than the

recruitment policyrdquo (Commission of

Inquiry on Public Service Personnel 193537

quoted in Stall 196251) 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)

58

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 partymdashas opposed to a system of awarding

offices on the basis of merit independent of

political activityrsquo15

Legal Basis for BCS Recruitment Policy

lsquoThe constitution of Bangladesh has granted

equal employment opportunities for citizens The

constitution declares ldquoThere shall be equality

of opportunity for all citizens in respect of

employment or office in the service of the

Republicrdquo (Article 29 [1]) ldquoNo citizen shall

on the grounds only of religion race caste

59

sex or place of birth be ineligible for or

discriminated against in respect of any

employment or office in the service of the

Republicrdquo (Article 29 [2]) However under clause

(3) of the same Article the constitution has

provided certain exceptions that read ldquoNothing

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

60

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 servicesrsquo 16

61

Recommendations Julian Paul Assange an

Australian computer programmer

politicalinternet activist publisher and

journalist and founder of WikiLeaks supports

the free dissemination of government data17 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

62

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

Thatrsquos 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

63

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 abolished18

64

Besides these quota system should be abolished

as our Constitution or any law has not given the

definition and the factors of opting lsquobackward

sectionrsquo of the citizens Article 29(3)(a) of

our constitution though provides the quota

system for lsquobackward sectionrsquo 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 sonsrsquo being poor are not getting the said

benefit and hence Professor M Abdul Wahhab

65

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

ordersrules 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

66

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

67

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 ldquothough 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 art29 (1) amp29(2) it merely confers an

enabling power But as it an exception to the

guarantee of art29 (1) amp29(2) it should not be

68

interpreted or given effect to in such a way as

to nullify the guarantee under art29 (1)

amp29(2) The Indian Supreme Court held that

reservation in excess of 50 would be

unconstitutional20

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 lsquonotrsquo and hence ldquowe are to consider

the meaning of lsquobackward sectionrsquo Art 29 is

comparable with art16 of the Indian

Constitution which uses the expression lsquobackward

classrsquo where as the expression used in art

29(3) is backward section The Indian Supreme

Court has interpreted the expression lsquobackward

classrsquo in several decisions Those decisions may

69

be helpful but not decisive in interpreting

lsquobackward sectionrsquo 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

70

33 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 statusetc)22

But unfortunately

there is no hard and fast and transparent

principle for doing the transfer of the civil

71

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 workplace23

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 ie what quality is considered is to

72

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

73

determined and if it is taken or done there

will be no request or lobby for the transfer and

harassment

34 Promotion procedure and

recommendation

The word lsquopromotionrsquo 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

Bangladesh24

74

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

75

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

76

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

77

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

35 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

Itrsquos not what you want in life but itrsquos

knowing how to reach it

78

Itrsquos not where you want to go but itrsquos knowing

how to get there

Itrsquos not how high you want to rise but itrsquos

knowing how to take off

It may not be quite the outcome you were aiming

for but it will be an outcome

Itrsquos not what you dream of doing but itrsquos

having the knowledge to do it

Its not a set of goals but itrsquos more like a

vision

79

Itrsquos not the goal you set but itrsquos 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 Departments26

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

80

Recommendation

Training should be given to the civil servants

for realizing the matter that embodied in art21

(2) of the Constitution of the Peoplersquos 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

36 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

81

said word lsquoaccountability 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 ldquowatchdogrdquo units to scrutinize

and hold departments accountable legitimacy of

82

these commissions is built upon their

independence as it avoids any conflicts of

interests27

There are various types of accountability ie

(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

lsquoParliaments are key actors in what has

been termed the lsquochain of

83

accountabilityrsquo 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 lsquosociety driven horizontal

84

accountabilityrsquo 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 ndashno

matter how defined ndash parliaments are one

of the institutions through which

diagonal accountability can be

exercisedrsquo27

However the civil servants should be

accountable by any or all means of

accountability

85

4 Judicial Service of Bangladesh

41 Legal framework

Article 137 of the Constitution also deals with

the term lsquolegal frameworkrsquo 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

itsrsquo judgment passed in Civil Appeal no79 of

1999 commonly known in the Masder Hossainrsquos case

that-

ldquoIt is declared that the word ldquoappointmentsrdquo 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

86

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

ldquoBangladesh Judicial Service Commission has been

established in 2007 by the rule lsquo বাংলােদশ

জিডিসয়াল সািভস কিমশন িবিধমালা ২০০৭ rsquo ie

87

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

88

Law Faculty of any one of three leading public

university ie 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 Secretariatrdquo 28

42 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

89

voice According to Rule 5 of OgraveevsjvDagger`k RywWwmqvj

mvwfcopyDaggermi cOumlDaggerek cDagger` wbDaggerqvM welqK AvDagger`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

90

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 32 are applicable with equitable

equality

43 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

91

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 33 is

applicable with equitable equality

44 Promotion procedure and recommendations

The promotion of sub-ordinate Courtrsquos judges are

in fact depended on the Annual Confidential

92

Reports (ACRs) There is no examination system

for getting the promotion in the sub-

ordinate judiciary

lsquoPresently 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

93

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 linersquo29

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-

ldquoConfidential reports should set out distinctly

and tersely sufficient particulars and it is

essential that they should be clear and definite

94

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 Divisionrdquo 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

95

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 34 is

applicable with equitable equality

45 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

96

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 skills30

Recommendation

The quality of training provided by JATI should

be improved A training need- assessment of the

subordinate court judges could be undertaken

97

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

98

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

subordinatecourts31

99

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

51 Ethical education

100

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 publics trust

and confidence in government by demonstrating

the highest standards of professional

competence efficiency and effectiveness

101

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

102

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

103

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

104

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 assets32 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

52 Use of technology

105

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 peoplersquos 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 lsquoThe Law of

Civil Procedurersquo first edition 2006 volume 1

page iii that

106

ldquoFor 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 lawyerrdquo However

the corruption of the court staff and the

offices of the civil servants can be controlled

easily by using technology ie 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

107

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

108

53 Check and balance

The theory of separation of powers was given by

the Charles-Louis de Secondat baron de La Bregravede

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 lsquothe spirit of

lawsrsquo that

lsquoI have not drawn my principles from my

prejudices but from the nature of thingsrdquo 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

109

Conclusion

In conclusion it can be reminded that 3rd

paragraph of the preamble of our constitution

provides that

lsquoFurther 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 citizensrsquo

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

110

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 p1 see also Mahmudul Islam-

Constitutional law of Bangladesh second edition

p1

2 httpenwikipediaorgwikiConstitution

111

3 httplegal-

dictionarythefreedictionarycomconstitution

4 httpwwwthefreedictionarycomframework

5 httpwwwmacmillandictionarycomdictionarybri

tishframework

6 httpwwwegyankoshacinbitstream

7 httpwwwbanglapediaorghttpdocsHTE_0079HTM

8 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

9 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

10 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

11 httpwwwbpscgovbd2011

12 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

13 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

14 httpwwwrhdgovbdRulesAndRegulationsView_Ov

erviewaspRef=A

112

15 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

16 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

17 wwwforbescomprofilejulian-assange

18 httpwwwti-bangladeshorgresearchES_PSCpdf

19 httpwwwnapsipagorgPDFABDUL_WAHHABpdf see

also Khan Akbar Ali and Kazi Rakibuddin Ahmad

March 2008 ldquoQuota System for Civil Service

Recruitment in Bangladesh An Exploratory

Analysisrdquo 2008 available at http

wwwbpscgovbddocuments news25906 newsdoc

20 Mahmudul Islam- Constitutional law of Bangladesh

second edition p171 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 p171 see also Indra Sawhney v

India AIR 1993 SC 477

113

22 httpwwwmopagovbdindexphpoption=com_conte

ntamptask=viewampid=377ampItemid=419

23 httpwwwvsrhhrCustomPagesStaticHRVFilesL

egislation__Civil-Servants-Actpdf

24 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

25 httptraininganddevelopmentnaukrihubcomtrain

inghtml

26 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

27 httpsiteresourcesworldbankorgPUBLICSECTORAN

DGOVERNANCEResourcesAccountabilityGovernancepd

f

28 httpwwwjscbdorgbdb_functionphp

29 httpwwwigsbracuacbdUserFilesFilearchive

_fileJudiciary_Policy_Notepdf

30 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

114

31 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

32 httpwwwoecdorgdataoecd625735521740pdf

Page 21: The constitutional framework of public administration in bangladesh

21

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

21 The Executive (articles from 48 to 64)

Articles from 48 to 64 are connected with the

term lsquothe executiversquo and the constitutional

framework of this is nothing but the structure

of forming and working of the said authority

22

`However I am mentioning here the phase to

phase constitutionally executive framework

Executive under the 1972 Constitution

ldquoThe 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

23

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 Heshe 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 heshe would

be aided by a council of ministers who would

hold office during hisher pleasure Similarly

the power to dissolve the Jatiya Sangsad by the

head of state rested on the advice of the Prime

24

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

25

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

26

appointed by the President at his discretion

The council was to be presided over by the

President and would hold office during hisher

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

27

activities The office of the President was made

all powerful and without any checks on hisher

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

28

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

29

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

30

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

31

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

32

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

Presidents 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 parliaments powers as evidenced

through the addition of a new clause 72(A) made

the case perfectly clear

Executive under the Twelfth Amendment

33

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 Ministers 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

34

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

Ministerialrdquo7

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 Peoplersquos Republic of

Bangladesh has been substituted by the

35

Constitution (Fifth Amendment) Act 2011 (Act

XIV of 2011) section 22 which provides that-

lsquoThe supreme command of the defence services of

Bangladesh shall vest in the President and the

exercise thereof shall be regulated by lawrsquo

22 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

36

regulations bye-laws or other instruments

having legislative effect lsquoThe 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

37

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

38

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 presidents 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

39

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

40

affiliated with the president has been able to

command a solidmajorityrsquo8

23 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

41

the Supreme Court but litigation may be

very slow in 1987 there were 29 Supreme

Court judges dealing with 21600 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

42

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

43

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

44

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

45

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 government9

3 Civil Service of Bangladesh

31 Legal framework

46

Article 137 of the constitution of the Peoplersquos

Republic of Bangladesh deals with the term

lsquolegal frameworkrsquo of civil service of

Bangladesh lsquoThe implementation of government

policies and projects is the duty of the

Bangladesh Civil Service a corps of trained

administrators who form the nations 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

47

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

48

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

49

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 75 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

50

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 Bangladesh10

32 Recruitment procedure and

recommendations

The Bangladesh Public Service Commission (BPSC)

is a quasi judicial body established in 1972

under the Constitution of the Peoples Republic

51

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 Honble President

of the Republic11 Presidential Order No 34 (on

May 9 1972) PSC Ordinance No LVII of 1977 BCS

Recruitment Rules of 1981 PSC Officers amp

52

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 appointment12

The cadres and entry posts of the

Bangladesh Civil Service

General cadres

1 BCS (Administration) Assistant Commissioner)

53

2 BCS (Police) Assistant Superintendent of Police

3 BCS (Audit amp Accounts) Assistant Accountant General

4 BCS (Economic) Assistant Chief

5 BCS (Customs amp Excise) Assistant Commissioner

(Customs amp 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 amp

Export Equivalent Posts

11 BCS (Postal) Assistant Post Master General

Equivalent Posts

12 BCS (Railway Transportation amp Commercial)

Assistant Traffic Superintendent

54

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 amp Highways) Assistant Engineer

4 BCS (Telecommunications) Assistant Divisional

Engineer

5 BCS (Public Health Engineering) Assistant Engineer

55

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

Officer13

Recruitment

56

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 amp 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 appointment14

lsquoRecruitment is the process of searching for

prospective employees and stimulating them to

apply for jobs in the organization (Flippo and

57

Edwin 1984 141) No element of the career

service system is more important than the

recruitment policyrdquo (Commission of

Inquiry on Public Service Personnel 193537

quoted in Stall 196251) 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)

58

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 partymdashas opposed to a system of awarding

offices on the basis of merit independent of

political activityrsquo15

Legal Basis for BCS Recruitment Policy

lsquoThe constitution of Bangladesh has granted

equal employment opportunities for citizens The

constitution declares ldquoThere shall be equality

of opportunity for all citizens in respect of

employment or office in the service of the

Republicrdquo (Article 29 [1]) ldquoNo citizen shall

on the grounds only of religion race caste

59

sex or place of birth be ineligible for or

discriminated against in respect of any

employment or office in the service of the

Republicrdquo (Article 29 [2]) However under clause

(3) of the same Article the constitution has

provided certain exceptions that read ldquoNothing

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

60

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 servicesrsquo 16

61

Recommendations Julian Paul Assange an

Australian computer programmer

politicalinternet activist publisher and

journalist and founder of WikiLeaks supports

the free dissemination of government data17 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

62

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

Thatrsquos 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

63

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 abolished18

64

Besides these quota system should be abolished

as our Constitution or any law has not given the

definition and the factors of opting lsquobackward

sectionrsquo of the citizens Article 29(3)(a) of

our constitution though provides the quota

system for lsquobackward sectionrsquo 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 sonsrsquo being poor are not getting the said

benefit and hence Professor M Abdul Wahhab

65

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

ordersrules 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

66

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

67

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 ldquothough 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 art29 (1) amp29(2) it merely confers an

enabling power But as it an exception to the

guarantee of art29 (1) amp29(2) it should not be

68

interpreted or given effect to in such a way as

to nullify the guarantee under art29 (1)

amp29(2) The Indian Supreme Court held that

reservation in excess of 50 would be

unconstitutional20

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 lsquonotrsquo and hence ldquowe are to consider

the meaning of lsquobackward sectionrsquo Art 29 is

comparable with art16 of the Indian

Constitution which uses the expression lsquobackward

classrsquo where as the expression used in art

29(3) is backward section The Indian Supreme

Court has interpreted the expression lsquobackward

classrsquo in several decisions Those decisions may

69

be helpful but not decisive in interpreting

lsquobackward sectionrsquo 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

70

33 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 statusetc)22

But unfortunately

there is no hard and fast and transparent

principle for doing the transfer of the civil

71

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 workplace23

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 ie what quality is considered is to

72

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

73

determined and if it is taken or done there

will be no request or lobby for the transfer and

harassment

34 Promotion procedure and

recommendation

The word lsquopromotionrsquo 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

Bangladesh24

74

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

75

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

76

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

77

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

35 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

Itrsquos not what you want in life but itrsquos

knowing how to reach it

78

Itrsquos not where you want to go but itrsquos knowing

how to get there

Itrsquos not how high you want to rise but itrsquos

knowing how to take off

It may not be quite the outcome you were aiming

for but it will be an outcome

Itrsquos not what you dream of doing but itrsquos

having the knowledge to do it

Its not a set of goals but itrsquos more like a

vision

79

Itrsquos not the goal you set but itrsquos 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 Departments26

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

80

Recommendation

Training should be given to the civil servants

for realizing the matter that embodied in art21

(2) of the Constitution of the Peoplersquos 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

36 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

81

said word lsquoaccountability 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 ldquowatchdogrdquo units to scrutinize

and hold departments accountable legitimacy of

82

these commissions is built upon their

independence as it avoids any conflicts of

interests27

There are various types of accountability ie

(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

lsquoParliaments are key actors in what has

been termed the lsquochain of

83

accountabilityrsquo 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 lsquosociety driven horizontal

84

accountabilityrsquo 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 ndashno

matter how defined ndash parliaments are one

of the institutions through which

diagonal accountability can be

exercisedrsquo27

However the civil servants should be

accountable by any or all means of

accountability

85

4 Judicial Service of Bangladesh

41 Legal framework

Article 137 of the Constitution also deals with

the term lsquolegal frameworkrsquo 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

itsrsquo judgment passed in Civil Appeal no79 of

1999 commonly known in the Masder Hossainrsquos case

that-

ldquoIt is declared that the word ldquoappointmentsrdquo 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

86

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

ldquoBangladesh Judicial Service Commission has been

established in 2007 by the rule lsquo বাংলােদশ

জিডিসয়াল সািভস কিমশন িবিধমালা ২০০৭ rsquo ie

87

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

88

Law Faculty of any one of three leading public

university ie 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 Secretariatrdquo 28

42 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

89

voice According to Rule 5 of OgraveevsjvDagger`k RywWwmqvj

mvwfcopyDaggermi cOumlDaggerek cDagger` wbDaggerqvM welqK AvDagger`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

90

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 32 are applicable with equitable

equality

43 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

91

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 33 is

applicable with equitable equality

44 Promotion procedure and recommendations

The promotion of sub-ordinate Courtrsquos judges are

in fact depended on the Annual Confidential

92

Reports (ACRs) There is no examination system

for getting the promotion in the sub-

ordinate judiciary

lsquoPresently 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

93

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 linersquo29

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-

ldquoConfidential reports should set out distinctly

and tersely sufficient particulars and it is

essential that they should be clear and definite

94

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 Divisionrdquo 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

95

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 34 is

applicable with equitable equality

45 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

96

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 skills30

Recommendation

The quality of training provided by JATI should

be improved A training need- assessment of the

subordinate court judges could be undertaken

97

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

98

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

subordinatecourts31

99

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

51 Ethical education

100

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 publics trust

and confidence in government by demonstrating

the highest standards of professional

competence efficiency and effectiveness

101

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

102

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

103

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

104

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 assets32 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

52 Use of technology

105

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 peoplersquos 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 lsquoThe Law of

Civil Procedurersquo first edition 2006 volume 1

page iii that

106

ldquoFor 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 lawyerrdquo However

the corruption of the court staff and the

offices of the civil servants can be controlled

easily by using technology ie 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

107

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

108

53 Check and balance

The theory of separation of powers was given by

the Charles-Louis de Secondat baron de La Bregravede

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 lsquothe spirit of

lawsrsquo that

lsquoI have not drawn my principles from my

prejudices but from the nature of thingsrdquo 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

109

Conclusion

In conclusion it can be reminded that 3rd

paragraph of the preamble of our constitution

provides that

lsquoFurther 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 citizensrsquo

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

110

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 p1 see also Mahmudul Islam-

Constitutional law of Bangladesh second edition

p1

2 httpenwikipediaorgwikiConstitution

111

3 httplegal-

dictionarythefreedictionarycomconstitution

4 httpwwwthefreedictionarycomframework

5 httpwwwmacmillandictionarycomdictionarybri

tishframework

6 httpwwwegyankoshacinbitstream

7 httpwwwbanglapediaorghttpdocsHTE_0079HTM

8 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

9 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

10 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

11 httpwwwbpscgovbd2011

12 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

13 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

14 httpwwwrhdgovbdRulesAndRegulationsView_Ov

erviewaspRef=A

112

15 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

16 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

17 wwwforbescomprofilejulian-assange

18 httpwwwti-bangladeshorgresearchES_PSCpdf

19 httpwwwnapsipagorgPDFABDUL_WAHHABpdf see

also Khan Akbar Ali and Kazi Rakibuddin Ahmad

March 2008 ldquoQuota System for Civil Service

Recruitment in Bangladesh An Exploratory

Analysisrdquo 2008 available at http

wwwbpscgovbddocuments news25906 newsdoc

20 Mahmudul Islam- Constitutional law of Bangladesh

second edition p171 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 p171 see also Indra Sawhney v

India AIR 1993 SC 477

113

22 httpwwwmopagovbdindexphpoption=com_conte

ntamptask=viewampid=377ampItemid=419

23 httpwwwvsrhhrCustomPagesStaticHRVFilesL

egislation__Civil-Servants-Actpdf

24 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

25 httptraininganddevelopmentnaukrihubcomtrain

inghtml

26 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

27 httpsiteresourcesworldbankorgPUBLICSECTORAN

DGOVERNANCEResourcesAccountabilityGovernancepd

f

28 httpwwwjscbdorgbdb_functionphp

29 httpwwwigsbracuacbdUserFilesFilearchive

_fileJudiciary_Policy_Notepdf

30 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

114

31 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

32 httpwwwoecdorgdataoecd625735521740pdf

Page 22: The constitutional framework of public administration in bangladesh

22

`However I am mentioning here the phase to

phase constitutionally executive framework

Executive under the 1972 Constitution

ldquoThe 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

23

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 Heshe 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 heshe would

be aided by a council of ministers who would

hold office during hisher pleasure Similarly

the power to dissolve the Jatiya Sangsad by the

head of state rested on the advice of the Prime

24

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

25

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

26

appointed by the President at his discretion

The council was to be presided over by the

President and would hold office during hisher

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

27

activities The office of the President was made

all powerful and without any checks on hisher

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

28

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

29

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

30

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

31

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

32

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

Presidents 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 parliaments powers as evidenced

through the addition of a new clause 72(A) made

the case perfectly clear

Executive under the Twelfth Amendment

33

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 Ministers 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

34

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

Ministerialrdquo7

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 Peoplersquos Republic of

Bangladesh has been substituted by the

35

Constitution (Fifth Amendment) Act 2011 (Act

XIV of 2011) section 22 which provides that-

lsquoThe supreme command of the defence services of

Bangladesh shall vest in the President and the

exercise thereof shall be regulated by lawrsquo

22 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

36

regulations bye-laws or other instruments

having legislative effect lsquoThe 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

37

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

38

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 presidents 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

39

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

40

affiliated with the president has been able to

command a solidmajorityrsquo8

23 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

41

the Supreme Court but litigation may be

very slow in 1987 there were 29 Supreme

Court judges dealing with 21600 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

42

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

43

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

44

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

45

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 government9

3 Civil Service of Bangladesh

31 Legal framework

46

Article 137 of the constitution of the Peoplersquos

Republic of Bangladesh deals with the term

lsquolegal frameworkrsquo of civil service of

Bangladesh lsquoThe implementation of government

policies and projects is the duty of the

Bangladesh Civil Service a corps of trained

administrators who form the nations 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

47

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

48

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

49

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 75 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

50

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 Bangladesh10

32 Recruitment procedure and

recommendations

The Bangladesh Public Service Commission (BPSC)

is a quasi judicial body established in 1972

under the Constitution of the Peoples Republic

51

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 Honble President

of the Republic11 Presidential Order No 34 (on

May 9 1972) PSC Ordinance No LVII of 1977 BCS

Recruitment Rules of 1981 PSC Officers amp

52

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 appointment12

The cadres and entry posts of the

Bangladesh Civil Service

General cadres

1 BCS (Administration) Assistant Commissioner)

53

2 BCS (Police) Assistant Superintendent of Police

3 BCS (Audit amp Accounts) Assistant Accountant General

4 BCS (Economic) Assistant Chief

5 BCS (Customs amp Excise) Assistant Commissioner

(Customs amp 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 amp

Export Equivalent Posts

11 BCS (Postal) Assistant Post Master General

Equivalent Posts

12 BCS (Railway Transportation amp Commercial)

Assistant Traffic Superintendent

54

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 amp Highways) Assistant Engineer

4 BCS (Telecommunications) Assistant Divisional

Engineer

5 BCS (Public Health Engineering) Assistant Engineer

55

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

Officer13

Recruitment

56

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 amp 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 appointment14

lsquoRecruitment is the process of searching for

prospective employees and stimulating them to

apply for jobs in the organization (Flippo and

57

Edwin 1984 141) No element of the career

service system is more important than the

recruitment policyrdquo (Commission of

Inquiry on Public Service Personnel 193537

quoted in Stall 196251) 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)

58

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 partymdashas opposed to a system of awarding

offices on the basis of merit independent of

political activityrsquo15

Legal Basis for BCS Recruitment Policy

lsquoThe constitution of Bangladesh has granted

equal employment opportunities for citizens The

constitution declares ldquoThere shall be equality

of opportunity for all citizens in respect of

employment or office in the service of the

Republicrdquo (Article 29 [1]) ldquoNo citizen shall

on the grounds only of religion race caste

59

sex or place of birth be ineligible for or

discriminated against in respect of any

employment or office in the service of the

Republicrdquo (Article 29 [2]) However under clause

(3) of the same Article the constitution has

provided certain exceptions that read ldquoNothing

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

60

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 servicesrsquo 16

61

Recommendations Julian Paul Assange an

Australian computer programmer

politicalinternet activist publisher and

journalist and founder of WikiLeaks supports

the free dissemination of government data17 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

62

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

Thatrsquos 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

63

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 abolished18

64

Besides these quota system should be abolished

as our Constitution or any law has not given the

definition and the factors of opting lsquobackward

sectionrsquo of the citizens Article 29(3)(a) of

our constitution though provides the quota

system for lsquobackward sectionrsquo 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 sonsrsquo being poor are not getting the said

benefit and hence Professor M Abdul Wahhab

65

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

ordersrules 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

66

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

67

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 ldquothough 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 art29 (1) amp29(2) it merely confers an

enabling power But as it an exception to the

guarantee of art29 (1) amp29(2) it should not be

68

interpreted or given effect to in such a way as

to nullify the guarantee under art29 (1)

amp29(2) The Indian Supreme Court held that

reservation in excess of 50 would be

unconstitutional20

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 lsquonotrsquo and hence ldquowe are to consider

the meaning of lsquobackward sectionrsquo Art 29 is

comparable with art16 of the Indian

Constitution which uses the expression lsquobackward

classrsquo where as the expression used in art

29(3) is backward section The Indian Supreme

Court has interpreted the expression lsquobackward

classrsquo in several decisions Those decisions may

69

be helpful but not decisive in interpreting

lsquobackward sectionrsquo 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

70

33 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 statusetc)22

But unfortunately

there is no hard and fast and transparent

principle for doing the transfer of the civil

71

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 workplace23

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 ie what quality is considered is to

72

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

73

determined and if it is taken or done there

will be no request or lobby for the transfer and

harassment

34 Promotion procedure and

recommendation

The word lsquopromotionrsquo 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

Bangladesh24

74

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

75

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

76

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

77

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

35 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

Itrsquos not what you want in life but itrsquos

knowing how to reach it

78

Itrsquos not where you want to go but itrsquos knowing

how to get there

Itrsquos not how high you want to rise but itrsquos

knowing how to take off

It may not be quite the outcome you were aiming

for but it will be an outcome

Itrsquos not what you dream of doing but itrsquos

having the knowledge to do it

Its not a set of goals but itrsquos more like a

vision

79

Itrsquos not the goal you set but itrsquos 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 Departments26

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

80

Recommendation

Training should be given to the civil servants

for realizing the matter that embodied in art21

(2) of the Constitution of the Peoplersquos 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

36 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

81

said word lsquoaccountability 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 ldquowatchdogrdquo units to scrutinize

and hold departments accountable legitimacy of

82

these commissions is built upon their

independence as it avoids any conflicts of

interests27

There are various types of accountability ie

(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

lsquoParliaments are key actors in what has

been termed the lsquochain of

83

accountabilityrsquo 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 lsquosociety driven horizontal

84

accountabilityrsquo 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 ndashno

matter how defined ndash parliaments are one

of the institutions through which

diagonal accountability can be

exercisedrsquo27

However the civil servants should be

accountable by any or all means of

accountability

85

4 Judicial Service of Bangladesh

41 Legal framework

Article 137 of the Constitution also deals with

the term lsquolegal frameworkrsquo 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

itsrsquo judgment passed in Civil Appeal no79 of

1999 commonly known in the Masder Hossainrsquos case

that-

ldquoIt is declared that the word ldquoappointmentsrdquo 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

86

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

ldquoBangladesh Judicial Service Commission has been

established in 2007 by the rule lsquo বাংলােদশ

জিডিসয়াল সািভস কিমশন িবিধমালা ২০০৭ rsquo ie

87

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

88

Law Faculty of any one of three leading public

university ie 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 Secretariatrdquo 28

42 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

89

voice According to Rule 5 of OgraveevsjvDagger`k RywWwmqvj

mvwfcopyDaggermi cOumlDaggerek cDagger` wbDaggerqvM welqK AvDagger`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

90

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 32 are applicable with equitable

equality

43 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

91

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 33 is

applicable with equitable equality

44 Promotion procedure and recommendations

The promotion of sub-ordinate Courtrsquos judges are

in fact depended on the Annual Confidential

92

Reports (ACRs) There is no examination system

for getting the promotion in the sub-

ordinate judiciary

lsquoPresently 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

93

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 linersquo29

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-

ldquoConfidential reports should set out distinctly

and tersely sufficient particulars and it is

essential that they should be clear and definite

94

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 Divisionrdquo 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

95

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 34 is

applicable with equitable equality

45 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

96

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 skills30

Recommendation

The quality of training provided by JATI should

be improved A training need- assessment of the

subordinate court judges could be undertaken

97

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

98

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

subordinatecourts31

99

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

51 Ethical education

100

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 publics trust

and confidence in government by demonstrating

the highest standards of professional

competence efficiency and effectiveness

101

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

102

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

103

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

104

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 assets32 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

52 Use of technology

105

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 peoplersquos 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 lsquoThe Law of

Civil Procedurersquo first edition 2006 volume 1

page iii that

106

ldquoFor 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 lawyerrdquo However

the corruption of the court staff and the

offices of the civil servants can be controlled

easily by using technology ie 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

107

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

108

53 Check and balance

The theory of separation of powers was given by

the Charles-Louis de Secondat baron de La Bregravede

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 lsquothe spirit of

lawsrsquo that

lsquoI have not drawn my principles from my

prejudices but from the nature of thingsrdquo 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

109

Conclusion

In conclusion it can be reminded that 3rd

paragraph of the preamble of our constitution

provides that

lsquoFurther 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 citizensrsquo

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

110

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 p1 see also Mahmudul Islam-

Constitutional law of Bangladesh second edition

p1

2 httpenwikipediaorgwikiConstitution

111

3 httplegal-

dictionarythefreedictionarycomconstitution

4 httpwwwthefreedictionarycomframework

5 httpwwwmacmillandictionarycomdictionarybri

tishframework

6 httpwwwegyankoshacinbitstream

7 httpwwwbanglapediaorghttpdocsHTE_0079HTM

8 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

9 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

10 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

11 httpwwwbpscgovbd2011

12 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

13 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

14 httpwwwrhdgovbdRulesAndRegulationsView_Ov

erviewaspRef=A

112

15 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

16 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

17 wwwforbescomprofilejulian-assange

18 httpwwwti-bangladeshorgresearchES_PSCpdf

19 httpwwwnapsipagorgPDFABDUL_WAHHABpdf see

also Khan Akbar Ali and Kazi Rakibuddin Ahmad

March 2008 ldquoQuota System for Civil Service

Recruitment in Bangladesh An Exploratory

Analysisrdquo 2008 available at http

wwwbpscgovbddocuments news25906 newsdoc

20 Mahmudul Islam- Constitutional law of Bangladesh

second edition p171 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 p171 see also Indra Sawhney v

India AIR 1993 SC 477

113

22 httpwwwmopagovbdindexphpoption=com_conte

ntamptask=viewampid=377ampItemid=419

23 httpwwwvsrhhrCustomPagesStaticHRVFilesL

egislation__Civil-Servants-Actpdf

24 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

25 httptraininganddevelopmentnaukrihubcomtrain

inghtml

26 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

27 httpsiteresourcesworldbankorgPUBLICSECTORAN

DGOVERNANCEResourcesAccountabilityGovernancepd

f

28 httpwwwjscbdorgbdb_functionphp

29 httpwwwigsbracuacbdUserFilesFilearchive

_fileJudiciary_Policy_Notepdf

30 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

114

31 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

32 httpwwwoecdorgdataoecd625735521740pdf

Page 23: The constitutional framework of public administration in bangladesh

23

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 Heshe 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 heshe would

be aided by a council of ministers who would

hold office during hisher pleasure Similarly

the power to dissolve the Jatiya Sangsad by the

head of state rested on the advice of the Prime

24

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

25

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

26

appointed by the President at his discretion

The council was to be presided over by the

President and would hold office during hisher

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

27

activities The office of the President was made

all powerful and without any checks on hisher

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

28

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

29

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

30

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

31

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

32

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

Presidents 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 parliaments powers as evidenced

through the addition of a new clause 72(A) made

the case perfectly clear

Executive under the Twelfth Amendment

33

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 Ministers 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

34

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

Ministerialrdquo7

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 Peoplersquos Republic of

Bangladesh has been substituted by the

35

Constitution (Fifth Amendment) Act 2011 (Act

XIV of 2011) section 22 which provides that-

lsquoThe supreme command of the defence services of

Bangladesh shall vest in the President and the

exercise thereof shall be regulated by lawrsquo

22 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

36

regulations bye-laws or other instruments

having legislative effect lsquoThe 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

37

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

38

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 presidents 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

39

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

40

affiliated with the president has been able to

command a solidmajorityrsquo8

23 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

41

the Supreme Court but litigation may be

very slow in 1987 there were 29 Supreme

Court judges dealing with 21600 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

42

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

43

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

44

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

45

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 government9

3 Civil Service of Bangladesh

31 Legal framework

46

Article 137 of the constitution of the Peoplersquos

Republic of Bangladesh deals with the term

lsquolegal frameworkrsquo of civil service of

Bangladesh lsquoThe implementation of government

policies and projects is the duty of the

Bangladesh Civil Service a corps of trained

administrators who form the nations 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

47

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

48

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

49

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 75 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

50

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 Bangladesh10

32 Recruitment procedure and

recommendations

The Bangladesh Public Service Commission (BPSC)

is a quasi judicial body established in 1972

under the Constitution of the Peoples Republic

51

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 Honble President

of the Republic11 Presidential Order No 34 (on

May 9 1972) PSC Ordinance No LVII of 1977 BCS

Recruitment Rules of 1981 PSC Officers amp

52

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 appointment12

The cadres and entry posts of the

Bangladesh Civil Service

General cadres

1 BCS (Administration) Assistant Commissioner)

53

2 BCS (Police) Assistant Superintendent of Police

3 BCS (Audit amp Accounts) Assistant Accountant General

4 BCS (Economic) Assistant Chief

5 BCS (Customs amp Excise) Assistant Commissioner

(Customs amp 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 amp

Export Equivalent Posts

11 BCS (Postal) Assistant Post Master General

Equivalent Posts

12 BCS (Railway Transportation amp Commercial)

Assistant Traffic Superintendent

54

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 amp Highways) Assistant Engineer

4 BCS (Telecommunications) Assistant Divisional

Engineer

5 BCS (Public Health Engineering) Assistant Engineer

55

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

Officer13

Recruitment

56

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 amp 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 appointment14

lsquoRecruitment is the process of searching for

prospective employees and stimulating them to

apply for jobs in the organization (Flippo and

57

Edwin 1984 141) No element of the career

service system is more important than the

recruitment policyrdquo (Commission of

Inquiry on Public Service Personnel 193537

quoted in Stall 196251) 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)

58

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 partymdashas opposed to a system of awarding

offices on the basis of merit independent of

political activityrsquo15

Legal Basis for BCS Recruitment Policy

lsquoThe constitution of Bangladesh has granted

equal employment opportunities for citizens The

constitution declares ldquoThere shall be equality

of opportunity for all citizens in respect of

employment or office in the service of the

Republicrdquo (Article 29 [1]) ldquoNo citizen shall

on the grounds only of religion race caste

59

sex or place of birth be ineligible for or

discriminated against in respect of any

employment or office in the service of the

Republicrdquo (Article 29 [2]) However under clause

(3) of the same Article the constitution has

provided certain exceptions that read ldquoNothing

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

60

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 servicesrsquo 16

61

Recommendations Julian Paul Assange an

Australian computer programmer

politicalinternet activist publisher and

journalist and founder of WikiLeaks supports

the free dissemination of government data17 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

62

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

Thatrsquos 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

63

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 abolished18

64

Besides these quota system should be abolished

as our Constitution or any law has not given the

definition and the factors of opting lsquobackward

sectionrsquo of the citizens Article 29(3)(a) of

our constitution though provides the quota

system for lsquobackward sectionrsquo 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 sonsrsquo being poor are not getting the said

benefit and hence Professor M Abdul Wahhab

65

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

ordersrules 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

66

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

67

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 ldquothough 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 art29 (1) amp29(2) it merely confers an

enabling power But as it an exception to the

guarantee of art29 (1) amp29(2) it should not be

68

interpreted or given effect to in such a way as

to nullify the guarantee under art29 (1)

amp29(2) The Indian Supreme Court held that

reservation in excess of 50 would be

unconstitutional20

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 lsquonotrsquo and hence ldquowe are to consider

the meaning of lsquobackward sectionrsquo Art 29 is

comparable with art16 of the Indian

Constitution which uses the expression lsquobackward

classrsquo where as the expression used in art

29(3) is backward section The Indian Supreme

Court has interpreted the expression lsquobackward

classrsquo in several decisions Those decisions may

69

be helpful but not decisive in interpreting

lsquobackward sectionrsquo 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

70

33 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 statusetc)22

But unfortunately

there is no hard and fast and transparent

principle for doing the transfer of the civil

71

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 workplace23

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 ie what quality is considered is to

72

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

73

determined and if it is taken or done there

will be no request or lobby for the transfer and

harassment

34 Promotion procedure and

recommendation

The word lsquopromotionrsquo 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

Bangladesh24

74

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

75

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

76

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

77

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

35 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

Itrsquos not what you want in life but itrsquos

knowing how to reach it

78

Itrsquos not where you want to go but itrsquos knowing

how to get there

Itrsquos not how high you want to rise but itrsquos

knowing how to take off

It may not be quite the outcome you were aiming

for but it will be an outcome

Itrsquos not what you dream of doing but itrsquos

having the knowledge to do it

Its not a set of goals but itrsquos more like a

vision

79

Itrsquos not the goal you set but itrsquos 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 Departments26

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

80

Recommendation

Training should be given to the civil servants

for realizing the matter that embodied in art21

(2) of the Constitution of the Peoplersquos 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

36 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

81

said word lsquoaccountability 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 ldquowatchdogrdquo units to scrutinize

and hold departments accountable legitimacy of

82

these commissions is built upon their

independence as it avoids any conflicts of

interests27

There are various types of accountability ie

(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

lsquoParliaments are key actors in what has

been termed the lsquochain of

83

accountabilityrsquo 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 lsquosociety driven horizontal

84

accountabilityrsquo 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 ndashno

matter how defined ndash parliaments are one

of the institutions through which

diagonal accountability can be

exercisedrsquo27

However the civil servants should be

accountable by any or all means of

accountability

85

4 Judicial Service of Bangladesh

41 Legal framework

Article 137 of the Constitution also deals with

the term lsquolegal frameworkrsquo 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

itsrsquo judgment passed in Civil Appeal no79 of

1999 commonly known in the Masder Hossainrsquos case

that-

ldquoIt is declared that the word ldquoappointmentsrdquo 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

86

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

ldquoBangladesh Judicial Service Commission has been

established in 2007 by the rule lsquo বাংলােদশ

জিডিসয়াল সািভস কিমশন িবিধমালা ২০০৭ rsquo ie

87

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

88

Law Faculty of any one of three leading public

university ie 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 Secretariatrdquo 28

42 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

89

voice According to Rule 5 of OgraveevsjvDagger`k RywWwmqvj

mvwfcopyDaggermi cOumlDaggerek cDagger` wbDaggerqvM welqK AvDagger`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

90

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 32 are applicable with equitable

equality

43 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

91

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 33 is

applicable with equitable equality

44 Promotion procedure and recommendations

The promotion of sub-ordinate Courtrsquos judges are

in fact depended on the Annual Confidential

92

Reports (ACRs) There is no examination system

for getting the promotion in the sub-

ordinate judiciary

lsquoPresently 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

93

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 linersquo29

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-

ldquoConfidential reports should set out distinctly

and tersely sufficient particulars and it is

essential that they should be clear and definite

94

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 Divisionrdquo 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

95

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 34 is

applicable with equitable equality

45 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

96

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 skills30

Recommendation

The quality of training provided by JATI should

be improved A training need- assessment of the

subordinate court judges could be undertaken

97

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

98

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

subordinatecourts31

99

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

51 Ethical education

100

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 publics trust

and confidence in government by demonstrating

the highest standards of professional

competence efficiency and effectiveness

101

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

102

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

103

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

104

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 assets32 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

52 Use of technology

105

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 peoplersquos 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 lsquoThe Law of

Civil Procedurersquo first edition 2006 volume 1

page iii that

106

ldquoFor 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 lawyerrdquo However

the corruption of the court staff and the

offices of the civil servants can be controlled

easily by using technology ie 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

107

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

108

53 Check and balance

The theory of separation of powers was given by

the Charles-Louis de Secondat baron de La Bregravede

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 lsquothe spirit of

lawsrsquo that

lsquoI have not drawn my principles from my

prejudices but from the nature of thingsrdquo 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

109

Conclusion

In conclusion it can be reminded that 3rd

paragraph of the preamble of our constitution

provides that

lsquoFurther 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 citizensrsquo

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

110

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 p1 see also Mahmudul Islam-

Constitutional law of Bangladesh second edition

p1

2 httpenwikipediaorgwikiConstitution

111

3 httplegal-

dictionarythefreedictionarycomconstitution

4 httpwwwthefreedictionarycomframework

5 httpwwwmacmillandictionarycomdictionarybri

tishframework

6 httpwwwegyankoshacinbitstream

7 httpwwwbanglapediaorghttpdocsHTE_0079HTM

8 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

9 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

10 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

11 httpwwwbpscgovbd2011

12 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

13 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

14 httpwwwrhdgovbdRulesAndRegulationsView_Ov

erviewaspRef=A

112

15 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

16 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

17 wwwforbescomprofilejulian-assange

18 httpwwwti-bangladeshorgresearchES_PSCpdf

19 httpwwwnapsipagorgPDFABDUL_WAHHABpdf see

also Khan Akbar Ali and Kazi Rakibuddin Ahmad

March 2008 ldquoQuota System for Civil Service

Recruitment in Bangladesh An Exploratory

Analysisrdquo 2008 available at http

wwwbpscgovbddocuments news25906 newsdoc

20 Mahmudul Islam- Constitutional law of Bangladesh

second edition p171 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 p171 see also Indra Sawhney v

India AIR 1993 SC 477

113

22 httpwwwmopagovbdindexphpoption=com_conte

ntamptask=viewampid=377ampItemid=419

23 httpwwwvsrhhrCustomPagesStaticHRVFilesL

egislation__Civil-Servants-Actpdf

24 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

25 httptraininganddevelopmentnaukrihubcomtrain

inghtml

26 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

27 httpsiteresourcesworldbankorgPUBLICSECTORAN

DGOVERNANCEResourcesAccountabilityGovernancepd

f

28 httpwwwjscbdorgbdb_functionphp

29 httpwwwigsbracuacbdUserFilesFilearchive

_fileJudiciary_Policy_Notepdf

30 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

114

31 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

32 httpwwwoecdorgdataoecd625735521740pdf

Page 24: The constitutional framework of public administration in bangladesh

24

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

25

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

26

appointed by the President at his discretion

The council was to be presided over by the

President and would hold office during hisher

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

27

activities The office of the President was made

all powerful and without any checks on hisher

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

28

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

29

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

30

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

31

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

32

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

Presidents 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 parliaments powers as evidenced

through the addition of a new clause 72(A) made

the case perfectly clear

Executive under the Twelfth Amendment

33

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 Ministers 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

34

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

Ministerialrdquo7

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 Peoplersquos Republic of

Bangladesh has been substituted by the

35

Constitution (Fifth Amendment) Act 2011 (Act

XIV of 2011) section 22 which provides that-

lsquoThe supreme command of the defence services of

Bangladesh shall vest in the President and the

exercise thereof shall be regulated by lawrsquo

22 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

36

regulations bye-laws or other instruments

having legislative effect lsquoThe 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

37

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

38

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 presidents 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

39

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

40

affiliated with the president has been able to

command a solidmajorityrsquo8

23 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

41

the Supreme Court but litigation may be

very slow in 1987 there were 29 Supreme

Court judges dealing with 21600 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

42

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

43

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

44

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

45

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 government9

3 Civil Service of Bangladesh

31 Legal framework

46

Article 137 of the constitution of the Peoplersquos

Republic of Bangladesh deals with the term

lsquolegal frameworkrsquo of civil service of

Bangladesh lsquoThe implementation of government

policies and projects is the duty of the

Bangladesh Civil Service a corps of trained

administrators who form the nations 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

47

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

48

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

49

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 75 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

50

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 Bangladesh10

32 Recruitment procedure and

recommendations

The Bangladesh Public Service Commission (BPSC)

is a quasi judicial body established in 1972

under the Constitution of the Peoples Republic

51

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 Honble President

of the Republic11 Presidential Order No 34 (on

May 9 1972) PSC Ordinance No LVII of 1977 BCS

Recruitment Rules of 1981 PSC Officers amp

52

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 appointment12

The cadres and entry posts of the

Bangladesh Civil Service

General cadres

1 BCS (Administration) Assistant Commissioner)

53

2 BCS (Police) Assistant Superintendent of Police

3 BCS (Audit amp Accounts) Assistant Accountant General

4 BCS (Economic) Assistant Chief

5 BCS (Customs amp Excise) Assistant Commissioner

(Customs amp 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 amp

Export Equivalent Posts

11 BCS (Postal) Assistant Post Master General

Equivalent Posts

12 BCS (Railway Transportation amp Commercial)

Assistant Traffic Superintendent

54

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 amp Highways) Assistant Engineer

4 BCS (Telecommunications) Assistant Divisional

Engineer

5 BCS (Public Health Engineering) Assistant Engineer

55

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

Officer13

Recruitment

56

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 amp 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 appointment14

lsquoRecruitment is the process of searching for

prospective employees and stimulating them to

apply for jobs in the organization (Flippo and

57

Edwin 1984 141) No element of the career

service system is more important than the

recruitment policyrdquo (Commission of

Inquiry on Public Service Personnel 193537

quoted in Stall 196251) 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)

58

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 partymdashas opposed to a system of awarding

offices on the basis of merit independent of

political activityrsquo15

Legal Basis for BCS Recruitment Policy

lsquoThe constitution of Bangladesh has granted

equal employment opportunities for citizens The

constitution declares ldquoThere shall be equality

of opportunity for all citizens in respect of

employment or office in the service of the

Republicrdquo (Article 29 [1]) ldquoNo citizen shall

on the grounds only of religion race caste

59

sex or place of birth be ineligible for or

discriminated against in respect of any

employment or office in the service of the

Republicrdquo (Article 29 [2]) However under clause

(3) of the same Article the constitution has

provided certain exceptions that read ldquoNothing

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

60

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 servicesrsquo 16

61

Recommendations Julian Paul Assange an

Australian computer programmer

politicalinternet activist publisher and

journalist and founder of WikiLeaks supports

the free dissemination of government data17 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

62

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

Thatrsquos 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

63

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 abolished18

64

Besides these quota system should be abolished

as our Constitution or any law has not given the

definition and the factors of opting lsquobackward

sectionrsquo of the citizens Article 29(3)(a) of

our constitution though provides the quota

system for lsquobackward sectionrsquo 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 sonsrsquo being poor are not getting the said

benefit and hence Professor M Abdul Wahhab

65

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

ordersrules 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

66

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

67

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 ldquothough 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 art29 (1) amp29(2) it merely confers an

enabling power But as it an exception to the

guarantee of art29 (1) amp29(2) it should not be

68

interpreted or given effect to in such a way as

to nullify the guarantee under art29 (1)

amp29(2) The Indian Supreme Court held that

reservation in excess of 50 would be

unconstitutional20

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 lsquonotrsquo and hence ldquowe are to consider

the meaning of lsquobackward sectionrsquo Art 29 is

comparable with art16 of the Indian

Constitution which uses the expression lsquobackward

classrsquo where as the expression used in art

29(3) is backward section The Indian Supreme

Court has interpreted the expression lsquobackward

classrsquo in several decisions Those decisions may

69

be helpful but not decisive in interpreting

lsquobackward sectionrsquo 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

70

33 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 statusetc)22

But unfortunately

there is no hard and fast and transparent

principle for doing the transfer of the civil

71

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 workplace23

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 ie what quality is considered is to

72

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

73

determined and if it is taken or done there

will be no request or lobby for the transfer and

harassment

34 Promotion procedure and

recommendation

The word lsquopromotionrsquo 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

Bangladesh24

74

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

75

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

76

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

77

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

35 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

Itrsquos not what you want in life but itrsquos

knowing how to reach it

78

Itrsquos not where you want to go but itrsquos knowing

how to get there

Itrsquos not how high you want to rise but itrsquos

knowing how to take off

It may not be quite the outcome you were aiming

for but it will be an outcome

Itrsquos not what you dream of doing but itrsquos

having the knowledge to do it

Its not a set of goals but itrsquos more like a

vision

79

Itrsquos not the goal you set but itrsquos 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 Departments26

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

80

Recommendation

Training should be given to the civil servants

for realizing the matter that embodied in art21

(2) of the Constitution of the Peoplersquos 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

36 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

81

said word lsquoaccountability 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 ldquowatchdogrdquo units to scrutinize

and hold departments accountable legitimacy of

82

these commissions is built upon their

independence as it avoids any conflicts of

interests27

There are various types of accountability ie

(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

lsquoParliaments are key actors in what has

been termed the lsquochain of

83

accountabilityrsquo 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 lsquosociety driven horizontal

84

accountabilityrsquo 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 ndashno

matter how defined ndash parliaments are one

of the institutions through which

diagonal accountability can be

exercisedrsquo27

However the civil servants should be

accountable by any or all means of

accountability

85

4 Judicial Service of Bangladesh

41 Legal framework

Article 137 of the Constitution also deals with

the term lsquolegal frameworkrsquo 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

itsrsquo judgment passed in Civil Appeal no79 of

1999 commonly known in the Masder Hossainrsquos case

that-

ldquoIt is declared that the word ldquoappointmentsrdquo 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

86

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

ldquoBangladesh Judicial Service Commission has been

established in 2007 by the rule lsquo বাংলােদশ

জিডিসয়াল সািভস কিমশন িবিধমালা ২০০৭ rsquo ie

87

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

88

Law Faculty of any one of three leading public

university ie 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 Secretariatrdquo 28

42 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

89

voice According to Rule 5 of OgraveevsjvDagger`k RywWwmqvj

mvwfcopyDaggermi cOumlDaggerek cDagger` wbDaggerqvM welqK AvDagger`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

90

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 32 are applicable with equitable

equality

43 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

91

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 33 is

applicable with equitable equality

44 Promotion procedure and recommendations

The promotion of sub-ordinate Courtrsquos judges are

in fact depended on the Annual Confidential

92

Reports (ACRs) There is no examination system

for getting the promotion in the sub-

ordinate judiciary

lsquoPresently 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

93

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 linersquo29

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-

ldquoConfidential reports should set out distinctly

and tersely sufficient particulars and it is

essential that they should be clear and definite

94

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 Divisionrdquo 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

95

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 34 is

applicable with equitable equality

45 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

96

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 skills30

Recommendation

The quality of training provided by JATI should

be improved A training need- assessment of the

subordinate court judges could be undertaken

97

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

98

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

subordinatecourts31

99

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

51 Ethical education

100

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 publics trust

and confidence in government by demonstrating

the highest standards of professional

competence efficiency and effectiveness

101

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

102

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

103

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

104

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 assets32 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

52 Use of technology

105

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 peoplersquos 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 lsquoThe Law of

Civil Procedurersquo first edition 2006 volume 1

page iii that

106

ldquoFor 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 lawyerrdquo However

the corruption of the court staff and the

offices of the civil servants can be controlled

easily by using technology ie 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

107

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

108

53 Check and balance

The theory of separation of powers was given by

the Charles-Louis de Secondat baron de La Bregravede

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 lsquothe spirit of

lawsrsquo that

lsquoI have not drawn my principles from my

prejudices but from the nature of thingsrdquo 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

109

Conclusion

In conclusion it can be reminded that 3rd

paragraph of the preamble of our constitution

provides that

lsquoFurther 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 citizensrsquo

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

110

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 p1 see also Mahmudul Islam-

Constitutional law of Bangladesh second edition

p1

2 httpenwikipediaorgwikiConstitution

111

3 httplegal-

dictionarythefreedictionarycomconstitution

4 httpwwwthefreedictionarycomframework

5 httpwwwmacmillandictionarycomdictionarybri

tishframework

6 httpwwwegyankoshacinbitstream

7 httpwwwbanglapediaorghttpdocsHTE_0079HTM

8 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

9 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

10 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

11 httpwwwbpscgovbd2011

12 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

13 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

14 httpwwwrhdgovbdRulesAndRegulationsView_Ov

erviewaspRef=A

112

15 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

16 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

17 wwwforbescomprofilejulian-assange

18 httpwwwti-bangladeshorgresearchES_PSCpdf

19 httpwwwnapsipagorgPDFABDUL_WAHHABpdf see

also Khan Akbar Ali and Kazi Rakibuddin Ahmad

March 2008 ldquoQuota System for Civil Service

Recruitment in Bangladesh An Exploratory

Analysisrdquo 2008 available at http

wwwbpscgovbddocuments news25906 newsdoc

20 Mahmudul Islam- Constitutional law of Bangladesh

second edition p171 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 p171 see also Indra Sawhney v

India AIR 1993 SC 477

113

22 httpwwwmopagovbdindexphpoption=com_conte

ntamptask=viewampid=377ampItemid=419

23 httpwwwvsrhhrCustomPagesStaticHRVFilesL

egislation__Civil-Servants-Actpdf

24 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

25 httptraininganddevelopmentnaukrihubcomtrain

inghtml

26 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

27 httpsiteresourcesworldbankorgPUBLICSECTORAN

DGOVERNANCEResourcesAccountabilityGovernancepd

f

28 httpwwwjscbdorgbdb_functionphp

29 httpwwwigsbracuacbdUserFilesFilearchive

_fileJudiciary_Policy_Notepdf

30 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

114

31 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

32 httpwwwoecdorgdataoecd625735521740pdf

Page 25: The constitutional framework of public administration in bangladesh

25

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

26

appointed by the President at his discretion

The council was to be presided over by the

President and would hold office during hisher

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

27

activities The office of the President was made

all powerful and without any checks on hisher

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

28

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

29

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

30

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

31

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

32

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

Presidents 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 parliaments powers as evidenced

through the addition of a new clause 72(A) made

the case perfectly clear

Executive under the Twelfth Amendment

33

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 Ministers 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

34

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

Ministerialrdquo7

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 Peoplersquos Republic of

Bangladesh has been substituted by the

35

Constitution (Fifth Amendment) Act 2011 (Act

XIV of 2011) section 22 which provides that-

lsquoThe supreme command of the defence services of

Bangladesh shall vest in the President and the

exercise thereof shall be regulated by lawrsquo

22 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

36

regulations bye-laws or other instruments

having legislative effect lsquoThe 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

37

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

38

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 presidents 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

39

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

40

affiliated with the president has been able to

command a solidmajorityrsquo8

23 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

41

the Supreme Court but litigation may be

very slow in 1987 there were 29 Supreme

Court judges dealing with 21600 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

42

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

43

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

44

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

45

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 government9

3 Civil Service of Bangladesh

31 Legal framework

46

Article 137 of the constitution of the Peoplersquos

Republic of Bangladesh deals with the term

lsquolegal frameworkrsquo of civil service of

Bangladesh lsquoThe implementation of government

policies and projects is the duty of the

Bangladesh Civil Service a corps of trained

administrators who form the nations 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

47

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

48

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

49

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 75 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

50

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 Bangladesh10

32 Recruitment procedure and

recommendations

The Bangladesh Public Service Commission (BPSC)

is a quasi judicial body established in 1972

under the Constitution of the Peoples Republic

51

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 Honble President

of the Republic11 Presidential Order No 34 (on

May 9 1972) PSC Ordinance No LVII of 1977 BCS

Recruitment Rules of 1981 PSC Officers amp

52

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 appointment12

The cadres and entry posts of the

Bangladesh Civil Service

General cadres

1 BCS (Administration) Assistant Commissioner)

53

2 BCS (Police) Assistant Superintendent of Police

3 BCS (Audit amp Accounts) Assistant Accountant General

4 BCS (Economic) Assistant Chief

5 BCS (Customs amp Excise) Assistant Commissioner

(Customs amp 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 amp

Export Equivalent Posts

11 BCS (Postal) Assistant Post Master General

Equivalent Posts

12 BCS (Railway Transportation amp Commercial)

Assistant Traffic Superintendent

54

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 amp Highways) Assistant Engineer

4 BCS (Telecommunications) Assistant Divisional

Engineer

5 BCS (Public Health Engineering) Assistant Engineer

55

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

Officer13

Recruitment

56

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 amp 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 appointment14

lsquoRecruitment is the process of searching for

prospective employees and stimulating them to

apply for jobs in the organization (Flippo and

57

Edwin 1984 141) No element of the career

service system is more important than the

recruitment policyrdquo (Commission of

Inquiry on Public Service Personnel 193537

quoted in Stall 196251) 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)

58

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 partymdashas opposed to a system of awarding

offices on the basis of merit independent of

political activityrsquo15

Legal Basis for BCS Recruitment Policy

lsquoThe constitution of Bangladesh has granted

equal employment opportunities for citizens The

constitution declares ldquoThere shall be equality

of opportunity for all citizens in respect of

employment or office in the service of the

Republicrdquo (Article 29 [1]) ldquoNo citizen shall

on the grounds only of religion race caste

59

sex or place of birth be ineligible for or

discriminated against in respect of any

employment or office in the service of the

Republicrdquo (Article 29 [2]) However under clause

(3) of the same Article the constitution has

provided certain exceptions that read ldquoNothing

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

60

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 servicesrsquo 16

61

Recommendations Julian Paul Assange an

Australian computer programmer

politicalinternet activist publisher and

journalist and founder of WikiLeaks supports

the free dissemination of government data17 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

62

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

Thatrsquos 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

63

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 abolished18

64

Besides these quota system should be abolished

as our Constitution or any law has not given the

definition and the factors of opting lsquobackward

sectionrsquo of the citizens Article 29(3)(a) of

our constitution though provides the quota

system for lsquobackward sectionrsquo 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 sonsrsquo being poor are not getting the said

benefit and hence Professor M Abdul Wahhab

65

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

ordersrules 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

66

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

67

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 ldquothough 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 art29 (1) amp29(2) it merely confers an

enabling power But as it an exception to the

guarantee of art29 (1) amp29(2) it should not be

68

interpreted or given effect to in such a way as

to nullify the guarantee under art29 (1)

amp29(2) The Indian Supreme Court held that

reservation in excess of 50 would be

unconstitutional20

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 lsquonotrsquo and hence ldquowe are to consider

the meaning of lsquobackward sectionrsquo Art 29 is

comparable with art16 of the Indian

Constitution which uses the expression lsquobackward

classrsquo where as the expression used in art

29(3) is backward section The Indian Supreme

Court has interpreted the expression lsquobackward

classrsquo in several decisions Those decisions may

69

be helpful but not decisive in interpreting

lsquobackward sectionrsquo 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

70

33 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 statusetc)22

But unfortunately

there is no hard and fast and transparent

principle for doing the transfer of the civil

71

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 workplace23

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 ie what quality is considered is to

72

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

73

determined and if it is taken or done there

will be no request or lobby for the transfer and

harassment

34 Promotion procedure and

recommendation

The word lsquopromotionrsquo 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

Bangladesh24

74

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

75

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

76

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

77

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

35 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

Itrsquos not what you want in life but itrsquos

knowing how to reach it

78

Itrsquos not where you want to go but itrsquos knowing

how to get there

Itrsquos not how high you want to rise but itrsquos

knowing how to take off

It may not be quite the outcome you were aiming

for but it will be an outcome

Itrsquos not what you dream of doing but itrsquos

having the knowledge to do it

Its not a set of goals but itrsquos more like a

vision

79

Itrsquos not the goal you set but itrsquos 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 Departments26

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

80

Recommendation

Training should be given to the civil servants

for realizing the matter that embodied in art21

(2) of the Constitution of the Peoplersquos 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

36 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

81

said word lsquoaccountability 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 ldquowatchdogrdquo units to scrutinize

and hold departments accountable legitimacy of

82

these commissions is built upon their

independence as it avoids any conflicts of

interests27

There are various types of accountability ie

(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

lsquoParliaments are key actors in what has

been termed the lsquochain of

83

accountabilityrsquo 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 lsquosociety driven horizontal

84

accountabilityrsquo 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 ndashno

matter how defined ndash parliaments are one

of the institutions through which

diagonal accountability can be

exercisedrsquo27

However the civil servants should be

accountable by any or all means of

accountability

85

4 Judicial Service of Bangladesh

41 Legal framework

Article 137 of the Constitution also deals with

the term lsquolegal frameworkrsquo 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

itsrsquo judgment passed in Civil Appeal no79 of

1999 commonly known in the Masder Hossainrsquos case

that-

ldquoIt is declared that the word ldquoappointmentsrdquo 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

86

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

ldquoBangladesh Judicial Service Commission has been

established in 2007 by the rule lsquo বাংলােদশ

জিডিসয়াল সািভস কিমশন িবিধমালা ২০০৭ rsquo ie

87

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

88

Law Faculty of any one of three leading public

university ie 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 Secretariatrdquo 28

42 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

89

voice According to Rule 5 of OgraveevsjvDagger`k RywWwmqvj

mvwfcopyDaggermi cOumlDaggerek cDagger` wbDaggerqvM welqK AvDagger`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

90

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 32 are applicable with equitable

equality

43 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

91

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 33 is

applicable with equitable equality

44 Promotion procedure and recommendations

The promotion of sub-ordinate Courtrsquos judges are

in fact depended on the Annual Confidential

92

Reports (ACRs) There is no examination system

for getting the promotion in the sub-

ordinate judiciary

lsquoPresently 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

93

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 linersquo29

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-

ldquoConfidential reports should set out distinctly

and tersely sufficient particulars and it is

essential that they should be clear and definite

94

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 Divisionrdquo 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

95

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 34 is

applicable with equitable equality

45 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

96

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 skills30

Recommendation

The quality of training provided by JATI should

be improved A training need- assessment of the

subordinate court judges could be undertaken

97

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

98

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

subordinatecourts31

99

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

51 Ethical education

100

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 publics trust

and confidence in government by demonstrating

the highest standards of professional

competence efficiency and effectiveness

101

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

102

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

103

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

104

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 assets32 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

52 Use of technology

105

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 peoplersquos 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 lsquoThe Law of

Civil Procedurersquo first edition 2006 volume 1

page iii that

106

ldquoFor 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 lawyerrdquo However

the corruption of the court staff and the

offices of the civil servants can be controlled

easily by using technology ie 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

107

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

108

53 Check and balance

The theory of separation of powers was given by

the Charles-Louis de Secondat baron de La Bregravede

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 lsquothe spirit of

lawsrsquo that

lsquoI have not drawn my principles from my

prejudices but from the nature of thingsrdquo 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

109

Conclusion

In conclusion it can be reminded that 3rd

paragraph of the preamble of our constitution

provides that

lsquoFurther 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 citizensrsquo

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

110

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 p1 see also Mahmudul Islam-

Constitutional law of Bangladesh second edition

p1

2 httpenwikipediaorgwikiConstitution

111

3 httplegal-

dictionarythefreedictionarycomconstitution

4 httpwwwthefreedictionarycomframework

5 httpwwwmacmillandictionarycomdictionarybri

tishframework

6 httpwwwegyankoshacinbitstream

7 httpwwwbanglapediaorghttpdocsHTE_0079HTM

8 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

9 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

10 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

11 httpwwwbpscgovbd2011

12 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

13 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

14 httpwwwrhdgovbdRulesAndRegulationsView_Ov

erviewaspRef=A

112

15 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

16 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

17 wwwforbescomprofilejulian-assange

18 httpwwwti-bangladeshorgresearchES_PSCpdf

19 httpwwwnapsipagorgPDFABDUL_WAHHABpdf see

also Khan Akbar Ali and Kazi Rakibuddin Ahmad

March 2008 ldquoQuota System for Civil Service

Recruitment in Bangladesh An Exploratory

Analysisrdquo 2008 available at http

wwwbpscgovbddocuments news25906 newsdoc

20 Mahmudul Islam- Constitutional law of Bangladesh

second edition p171 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 p171 see also Indra Sawhney v

India AIR 1993 SC 477

113

22 httpwwwmopagovbdindexphpoption=com_conte

ntamptask=viewampid=377ampItemid=419

23 httpwwwvsrhhrCustomPagesStaticHRVFilesL

egislation__Civil-Servants-Actpdf

24 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

25 httptraininganddevelopmentnaukrihubcomtrain

inghtml

26 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

27 httpsiteresourcesworldbankorgPUBLICSECTORAN

DGOVERNANCEResourcesAccountabilityGovernancepd

f

28 httpwwwjscbdorgbdb_functionphp

29 httpwwwigsbracuacbdUserFilesFilearchive

_fileJudiciary_Policy_Notepdf

30 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

114

31 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

32 httpwwwoecdorgdataoecd625735521740pdf

Page 26: The constitutional framework of public administration in bangladesh

26

appointed by the President at his discretion

The council was to be presided over by the

President and would hold office during hisher

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

27

activities The office of the President was made

all powerful and without any checks on hisher

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

28

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

29

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

30

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

31

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

32

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

Presidents 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 parliaments powers as evidenced

through the addition of a new clause 72(A) made

the case perfectly clear

Executive under the Twelfth Amendment

33

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 Ministers 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

34

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

Ministerialrdquo7

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 Peoplersquos Republic of

Bangladesh has been substituted by the

35

Constitution (Fifth Amendment) Act 2011 (Act

XIV of 2011) section 22 which provides that-

lsquoThe supreme command of the defence services of

Bangladesh shall vest in the President and the

exercise thereof shall be regulated by lawrsquo

22 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

36

regulations bye-laws or other instruments

having legislative effect lsquoThe 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

37

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

38

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 presidents 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

39

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

40

affiliated with the president has been able to

command a solidmajorityrsquo8

23 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

41

the Supreme Court but litigation may be

very slow in 1987 there were 29 Supreme

Court judges dealing with 21600 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

42

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

43

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

44

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

45

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 government9

3 Civil Service of Bangladesh

31 Legal framework

46

Article 137 of the constitution of the Peoplersquos

Republic of Bangladesh deals with the term

lsquolegal frameworkrsquo of civil service of

Bangladesh lsquoThe implementation of government

policies and projects is the duty of the

Bangladesh Civil Service a corps of trained

administrators who form the nations 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

47

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

48

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

49

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 75 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

50

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 Bangladesh10

32 Recruitment procedure and

recommendations

The Bangladesh Public Service Commission (BPSC)

is a quasi judicial body established in 1972

under the Constitution of the Peoples Republic

51

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 Honble President

of the Republic11 Presidential Order No 34 (on

May 9 1972) PSC Ordinance No LVII of 1977 BCS

Recruitment Rules of 1981 PSC Officers amp

52

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 appointment12

The cadres and entry posts of the

Bangladesh Civil Service

General cadres

1 BCS (Administration) Assistant Commissioner)

53

2 BCS (Police) Assistant Superintendent of Police

3 BCS (Audit amp Accounts) Assistant Accountant General

4 BCS (Economic) Assistant Chief

5 BCS (Customs amp Excise) Assistant Commissioner

(Customs amp 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 amp

Export Equivalent Posts

11 BCS (Postal) Assistant Post Master General

Equivalent Posts

12 BCS (Railway Transportation amp Commercial)

Assistant Traffic Superintendent

54

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 amp Highways) Assistant Engineer

4 BCS (Telecommunications) Assistant Divisional

Engineer

5 BCS (Public Health Engineering) Assistant Engineer

55

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

Officer13

Recruitment

56

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 amp 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 appointment14

lsquoRecruitment is the process of searching for

prospective employees and stimulating them to

apply for jobs in the organization (Flippo and

57

Edwin 1984 141) No element of the career

service system is more important than the

recruitment policyrdquo (Commission of

Inquiry on Public Service Personnel 193537

quoted in Stall 196251) 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)

58

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 partymdashas opposed to a system of awarding

offices on the basis of merit independent of

political activityrsquo15

Legal Basis for BCS Recruitment Policy

lsquoThe constitution of Bangladesh has granted

equal employment opportunities for citizens The

constitution declares ldquoThere shall be equality

of opportunity for all citizens in respect of

employment or office in the service of the

Republicrdquo (Article 29 [1]) ldquoNo citizen shall

on the grounds only of religion race caste

59

sex or place of birth be ineligible for or

discriminated against in respect of any

employment or office in the service of the

Republicrdquo (Article 29 [2]) However under clause

(3) of the same Article the constitution has

provided certain exceptions that read ldquoNothing

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

60

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 servicesrsquo 16

61

Recommendations Julian Paul Assange an

Australian computer programmer

politicalinternet activist publisher and

journalist and founder of WikiLeaks supports

the free dissemination of government data17 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

62

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

Thatrsquos 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

63

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 abolished18

64

Besides these quota system should be abolished

as our Constitution or any law has not given the

definition and the factors of opting lsquobackward

sectionrsquo of the citizens Article 29(3)(a) of

our constitution though provides the quota

system for lsquobackward sectionrsquo 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 sonsrsquo being poor are not getting the said

benefit and hence Professor M Abdul Wahhab

65

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

ordersrules 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

66

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

67

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 ldquothough 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 art29 (1) amp29(2) it merely confers an

enabling power But as it an exception to the

guarantee of art29 (1) amp29(2) it should not be

68

interpreted or given effect to in such a way as

to nullify the guarantee under art29 (1)

amp29(2) The Indian Supreme Court held that

reservation in excess of 50 would be

unconstitutional20

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 lsquonotrsquo and hence ldquowe are to consider

the meaning of lsquobackward sectionrsquo Art 29 is

comparable with art16 of the Indian

Constitution which uses the expression lsquobackward

classrsquo where as the expression used in art

29(3) is backward section The Indian Supreme

Court has interpreted the expression lsquobackward

classrsquo in several decisions Those decisions may

69

be helpful but not decisive in interpreting

lsquobackward sectionrsquo 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

70

33 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 statusetc)22

But unfortunately

there is no hard and fast and transparent

principle for doing the transfer of the civil

71

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 workplace23

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 ie what quality is considered is to

72

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

73

determined and if it is taken or done there

will be no request or lobby for the transfer and

harassment

34 Promotion procedure and

recommendation

The word lsquopromotionrsquo 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

Bangladesh24

74

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

75

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

76

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

77

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

35 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

Itrsquos not what you want in life but itrsquos

knowing how to reach it

78

Itrsquos not where you want to go but itrsquos knowing

how to get there

Itrsquos not how high you want to rise but itrsquos

knowing how to take off

It may not be quite the outcome you were aiming

for but it will be an outcome

Itrsquos not what you dream of doing but itrsquos

having the knowledge to do it

Its not a set of goals but itrsquos more like a

vision

79

Itrsquos not the goal you set but itrsquos 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 Departments26

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

80

Recommendation

Training should be given to the civil servants

for realizing the matter that embodied in art21

(2) of the Constitution of the Peoplersquos 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

36 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

81

said word lsquoaccountability 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 ldquowatchdogrdquo units to scrutinize

and hold departments accountable legitimacy of

82

these commissions is built upon their

independence as it avoids any conflicts of

interests27

There are various types of accountability ie

(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

lsquoParliaments are key actors in what has

been termed the lsquochain of

83

accountabilityrsquo 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 lsquosociety driven horizontal

84

accountabilityrsquo 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 ndashno

matter how defined ndash parliaments are one

of the institutions through which

diagonal accountability can be

exercisedrsquo27

However the civil servants should be

accountable by any or all means of

accountability

85

4 Judicial Service of Bangladesh

41 Legal framework

Article 137 of the Constitution also deals with

the term lsquolegal frameworkrsquo 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

itsrsquo judgment passed in Civil Appeal no79 of

1999 commonly known in the Masder Hossainrsquos case

that-

ldquoIt is declared that the word ldquoappointmentsrdquo 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

86

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

ldquoBangladesh Judicial Service Commission has been

established in 2007 by the rule lsquo বাংলােদশ

জিডিসয়াল সািভস কিমশন িবিধমালা ২০০৭ rsquo ie

87

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

88

Law Faculty of any one of three leading public

university ie 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 Secretariatrdquo 28

42 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

89

voice According to Rule 5 of OgraveevsjvDagger`k RywWwmqvj

mvwfcopyDaggermi cOumlDaggerek cDagger` wbDaggerqvM welqK AvDagger`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

90

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 32 are applicable with equitable

equality

43 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

91

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 33 is

applicable with equitable equality

44 Promotion procedure and recommendations

The promotion of sub-ordinate Courtrsquos judges are

in fact depended on the Annual Confidential

92

Reports (ACRs) There is no examination system

for getting the promotion in the sub-

ordinate judiciary

lsquoPresently 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

93

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 linersquo29

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-

ldquoConfidential reports should set out distinctly

and tersely sufficient particulars and it is

essential that they should be clear and definite

94

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 Divisionrdquo 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

95

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 34 is

applicable with equitable equality

45 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

96

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 skills30

Recommendation

The quality of training provided by JATI should

be improved A training need- assessment of the

subordinate court judges could be undertaken

97

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

98

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

subordinatecourts31

99

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

51 Ethical education

100

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 publics trust

and confidence in government by demonstrating

the highest standards of professional

competence efficiency and effectiveness

101

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

102

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

103

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

104

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 assets32 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

52 Use of technology

105

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 peoplersquos 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 lsquoThe Law of

Civil Procedurersquo first edition 2006 volume 1

page iii that

106

ldquoFor 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 lawyerrdquo However

the corruption of the court staff and the

offices of the civil servants can be controlled

easily by using technology ie 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

107

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

108

53 Check and balance

The theory of separation of powers was given by

the Charles-Louis de Secondat baron de La Bregravede

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 lsquothe spirit of

lawsrsquo that

lsquoI have not drawn my principles from my

prejudices but from the nature of thingsrdquo 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

109

Conclusion

In conclusion it can be reminded that 3rd

paragraph of the preamble of our constitution

provides that

lsquoFurther 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 citizensrsquo

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

110

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 p1 see also Mahmudul Islam-

Constitutional law of Bangladesh second edition

p1

2 httpenwikipediaorgwikiConstitution

111

3 httplegal-

dictionarythefreedictionarycomconstitution

4 httpwwwthefreedictionarycomframework

5 httpwwwmacmillandictionarycomdictionarybri

tishframework

6 httpwwwegyankoshacinbitstream

7 httpwwwbanglapediaorghttpdocsHTE_0079HTM

8 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

9 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

10 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

11 httpwwwbpscgovbd2011

12 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

13 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

14 httpwwwrhdgovbdRulesAndRegulationsView_Ov

erviewaspRef=A

112

15 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

16 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

17 wwwforbescomprofilejulian-assange

18 httpwwwti-bangladeshorgresearchES_PSCpdf

19 httpwwwnapsipagorgPDFABDUL_WAHHABpdf see

also Khan Akbar Ali and Kazi Rakibuddin Ahmad

March 2008 ldquoQuota System for Civil Service

Recruitment in Bangladesh An Exploratory

Analysisrdquo 2008 available at http

wwwbpscgovbddocuments news25906 newsdoc

20 Mahmudul Islam- Constitutional law of Bangladesh

second edition p171 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 p171 see also Indra Sawhney v

India AIR 1993 SC 477

113

22 httpwwwmopagovbdindexphpoption=com_conte

ntamptask=viewampid=377ampItemid=419

23 httpwwwvsrhhrCustomPagesStaticHRVFilesL

egislation__Civil-Servants-Actpdf

24 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

25 httptraininganddevelopmentnaukrihubcomtrain

inghtml

26 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

27 httpsiteresourcesworldbankorgPUBLICSECTORAN

DGOVERNANCEResourcesAccountabilityGovernancepd

f

28 httpwwwjscbdorgbdb_functionphp

29 httpwwwigsbracuacbdUserFilesFilearchive

_fileJudiciary_Policy_Notepdf

30 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

114

31 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

32 httpwwwoecdorgdataoecd625735521740pdf

Page 27: The constitutional framework of public administration in bangladesh

27

activities The office of the President was made

all powerful and without any checks on hisher

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

28

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

29

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

30

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

31

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

32

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

Presidents 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 parliaments powers as evidenced

through the addition of a new clause 72(A) made

the case perfectly clear

Executive under the Twelfth Amendment

33

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 Ministers 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

34

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

Ministerialrdquo7

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 Peoplersquos Republic of

Bangladesh has been substituted by the

35

Constitution (Fifth Amendment) Act 2011 (Act

XIV of 2011) section 22 which provides that-

lsquoThe supreme command of the defence services of

Bangladesh shall vest in the President and the

exercise thereof shall be regulated by lawrsquo

22 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

36

regulations bye-laws or other instruments

having legislative effect lsquoThe 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

37

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

38

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 presidents 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

39

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

40

affiliated with the president has been able to

command a solidmajorityrsquo8

23 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

41

the Supreme Court but litigation may be

very slow in 1987 there were 29 Supreme

Court judges dealing with 21600 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

42

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

43

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

44

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

45

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 government9

3 Civil Service of Bangladesh

31 Legal framework

46

Article 137 of the constitution of the Peoplersquos

Republic of Bangladesh deals with the term

lsquolegal frameworkrsquo of civil service of

Bangladesh lsquoThe implementation of government

policies and projects is the duty of the

Bangladesh Civil Service a corps of trained

administrators who form the nations 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

47

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

48

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

49

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 75 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

50

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 Bangladesh10

32 Recruitment procedure and

recommendations

The Bangladesh Public Service Commission (BPSC)

is a quasi judicial body established in 1972

under the Constitution of the Peoples Republic

51

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 Honble President

of the Republic11 Presidential Order No 34 (on

May 9 1972) PSC Ordinance No LVII of 1977 BCS

Recruitment Rules of 1981 PSC Officers amp

52

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 appointment12

The cadres and entry posts of the

Bangladesh Civil Service

General cadres

1 BCS (Administration) Assistant Commissioner)

53

2 BCS (Police) Assistant Superintendent of Police

3 BCS (Audit amp Accounts) Assistant Accountant General

4 BCS (Economic) Assistant Chief

5 BCS (Customs amp Excise) Assistant Commissioner

(Customs amp 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 amp

Export Equivalent Posts

11 BCS (Postal) Assistant Post Master General

Equivalent Posts

12 BCS (Railway Transportation amp Commercial)

Assistant Traffic Superintendent

54

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 amp Highways) Assistant Engineer

4 BCS (Telecommunications) Assistant Divisional

Engineer

5 BCS (Public Health Engineering) Assistant Engineer

55

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

Officer13

Recruitment

56

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 amp 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 appointment14

lsquoRecruitment is the process of searching for

prospective employees and stimulating them to

apply for jobs in the organization (Flippo and

57

Edwin 1984 141) No element of the career

service system is more important than the

recruitment policyrdquo (Commission of

Inquiry on Public Service Personnel 193537

quoted in Stall 196251) 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)

58

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 partymdashas opposed to a system of awarding

offices on the basis of merit independent of

political activityrsquo15

Legal Basis for BCS Recruitment Policy

lsquoThe constitution of Bangladesh has granted

equal employment opportunities for citizens The

constitution declares ldquoThere shall be equality

of opportunity for all citizens in respect of

employment or office in the service of the

Republicrdquo (Article 29 [1]) ldquoNo citizen shall

on the grounds only of religion race caste

59

sex or place of birth be ineligible for or

discriminated against in respect of any

employment or office in the service of the

Republicrdquo (Article 29 [2]) However under clause

(3) of the same Article the constitution has

provided certain exceptions that read ldquoNothing

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

60

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 servicesrsquo 16

61

Recommendations Julian Paul Assange an

Australian computer programmer

politicalinternet activist publisher and

journalist and founder of WikiLeaks supports

the free dissemination of government data17 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

62

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

Thatrsquos 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

63

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 abolished18

64

Besides these quota system should be abolished

as our Constitution or any law has not given the

definition and the factors of opting lsquobackward

sectionrsquo of the citizens Article 29(3)(a) of

our constitution though provides the quota

system for lsquobackward sectionrsquo 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 sonsrsquo being poor are not getting the said

benefit and hence Professor M Abdul Wahhab

65

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

ordersrules 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

66

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

67

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 ldquothough 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 art29 (1) amp29(2) it merely confers an

enabling power But as it an exception to the

guarantee of art29 (1) amp29(2) it should not be

68

interpreted or given effect to in such a way as

to nullify the guarantee under art29 (1)

amp29(2) The Indian Supreme Court held that

reservation in excess of 50 would be

unconstitutional20

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 lsquonotrsquo and hence ldquowe are to consider

the meaning of lsquobackward sectionrsquo Art 29 is

comparable with art16 of the Indian

Constitution which uses the expression lsquobackward

classrsquo where as the expression used in art

29(3) is backward section The Indian Supreme

Court has interpreted the expression lsquobackward

classrsquo in several decisions Those decisions may

69

be helpful but not decisive in interpreting

lsquobackward sectionrsquo 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

70

33 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 statusetc)22

But unfortunately

there is no hard and fast and transparent

principle for doing the transfer of the civil

71

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 workplace23

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 ie what quality is considered is to

72

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

73

determined and if it is taken or done there

will be no request or lobby for the transfer and

harassment

34 Promotion procedure and

recommendation

The word lsquopromotionrsquo 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

Bangladesh24

74

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

75

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

76

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

77

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

35 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

Itrsquos not what you want in life but itrsquos

knowing how to reach it

78

Itrsquos not where you want to go but itrsquos knowing

how to get there

Itrsquos not how high you want to rise but itrsquos

knowing how to take off

It may not be quite the outcome you were aiming

for but it will be an outcome

Itrsquos not what you dream of doing but itrsquos

having the knowledge to do it

Its not a set of goals but itrsquos more like a

vision

79

Itrsquos not the goal you set but itrsquos 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 Departments26

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

80

Recommendation

Training should be given to the civil servants

for realizing the matter that embodied in art21

(2) of the Constitution of the Peoplersquos 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

36 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

81

said word lsquoaccountability 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 ldquowatchdogrdquo units to scrutinize

and hold departments accountable legitimacy of

82

these commissions is built upon their

independence as it avoids any conflicts of

interests27

There are various types of accountability ie

(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

lsquoParliaments are key actors in what has

been termed the lsquochain of

83

accountabilityrsquo 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 lsquosociety driven horizontal

84

accountabilityrsquo 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 ndashno

matter how defined ndash parliaments are one

of the institutions through which

diagonal accountability can be

exercisedrsquo27

However the civil servants should be

accountable by any or all means of

accountability

85

4 Judicial Service of Bangladesh

41 Legal framework

Article 137 of the Constitution also deals with

the term lsquolegal frameworkrsquo 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

itsrsquo judgment passed in Civil Appeal no79 of

1999 commonly known in the Masder Hossainrsquos case

that-

ldquoIt is declared that the word ldquoappointmentsrdquo 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

86

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

ldquoBangladesh Judicial Service Commission has been

established in 2007 by the rule lsquo বাংলােদশ

জিডিসয়াল সািভস কিমশন িবিধমালা ২০০৭ rsquo ie

87

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

88

Law Faculty of any one of three leading public

university ie 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 Secretariatrdquo 28

42 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

89

voice According to Rule 5 of OgraveevsjvDagger`k RywWwmqvj

mvwfcopyDaggermi cOumlDaggerek cDagger` wbDaggerqvM welqK AvDagger`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

90

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 32 are applicable with equitable

equality

43 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

91

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 33 is

applicable with equitable equality

44 Promotion procedure and recommendations

The promotion of sub-ordinate Courtrsquos judges are

in fact depended on the Annual Confidential

92

Reports (ACRs) There is no examination system

for getting the promotion in the sub-

ordinate judiciary

lsquoPresently 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

93

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 linersquo29

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-

ldquoConfidential reports should set out distinctly

and tersely sufficient particulars and it is

essential that they should be clear and definite

94

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 Divisionrdquo 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

95

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 34 is

applicable with equitable equality

45 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

96

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 skills30

Recommendation

The quality of training provided by JATI should

be improved A training need- assessment of the

subordinate court judges could be undertaken

97

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

98

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

subordinatecourts31

99

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

51 Ethical education

100

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 publics trust

and confidence in government by demonstrating

the highest standards of professional

competence efficiency and effectiveness

101

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

102

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

103

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

104

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 assets32 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

52 Use of technology

105

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 peoplersquos 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 lsquoThe Law of

Civil Procedurersquo first edition 2006 volume 1

page iii that

106

ldquoFor 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 lawyerrdquo However

the corruption of the court staff and the

offices of the civil servants can be controlled

easily by using technology ie 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

107

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

108

53 Check and balance

The theory of separation of powers was given by

the Charles-Louis de Secondat baron de La Bregravede

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 lsquothe spirit of

lawsrsquo that

lsquoI have not drawn my principles from my

prejudices but from the nature of thingsrdquo 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

109

Conclusion

In conclusion it can be reminded that 3rd

paragraph of the preamble of our constitution

provides that

lsquoFurther 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 citizensrsquo

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

110

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 p1 see also Mahmudul Islam-

Constitutional law of Bangladesh second edition

p1

2 httpenwikipediaorgwikiConstitution

111

3 httplegal-

dictionarythefreedictionarycomconstitution

4 httpwwwthefreedictionarycomframework

5 httpwwwmacmillandictionarycomdictionarybri

tishframework

6 httpwwwegyankoshacinbitstream

7 httpwwwbanglapediaorghttpdocsHTE_0079HTM

8 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

9 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

10 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

11 httpwwwbpscgovbd2011

12 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

13 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

14 httpwwwrhdgovbdRulesAndRegulationsView_Ov

erviewaspRef=A

112

15 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

16 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

17 wwwforbescomprofilejulian-assange

18 httpwwwti-bangladeshorgresearchES_PSCpdf

19 httpwwwnapsipagorgPDFABDUL_WAHHABpdf see

also Khan Akbar Ali and Kazi Rakibuddin Ahmad

March 2008 ldquoQuota System for Civil Service

Recruitment in Bangladesh An Exploratory

Analysisrdquo 2008 available at http

wwwbpscgovbddocuments news25906 newsdoc

20 Mahmudul Islam- Constitutional law of Bangladesh

second edition p171 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 p171 see also Indra Sawhney v

India AIR 1993 SC 477

113

22 httpwwwmopagovbdindexphpoption=com_conte

ntamptask=viewampid=377ampItemid=419

23 httpwwwvsrhhrCustomPagesStaticHRVFilesL

egislation__Civil-Servants-Actpdf

24 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

25 httptraininganddevelopmentnaukrihubcomtrain

inghtml

26 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

27 httpsiteresourcesworldbankorgPUBLICSECTORAN

DGOVERNANCEResourcesAccountabilityGovernancepd

f

28 httpwwwjscbdorgbdb_functionphp

29 httpwwwigsbracuacbdUserFilesFilearchive

_fileJudiciary_Policy_Notepdf

30 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

114

31 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

32 httpwwwoecdorgdataoecd625735521740pdf

Page 28: The constitutional framework of public administration in bangladesh

28

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

29

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

30

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

31

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

32

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

Presidents 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 parliaments powers as evidenced

through the addition of a new clause 72(A) made

the case perfectly clear

Executive under the Twelfth Amendment

33

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 Ministers 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

34

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

Ministerialrdquo7

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 Peoplersquos Republic of

Bangladesh has been substituted by the

35

Constitution (Fifth Amendment) Act 2011 (Act

XIV of 2011) section 22 which provides that-

lsquoThe supreme command of the defence services of

Bangladesh shall vest in the President and the

exercise thereof shall be regulated by lawrsquo

22 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

36

regulations bye-laws or other instruments

having legislative effect lsquoThe 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

37

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

38

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 presidents 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

39

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

40

affiliated with the president has been able to

command a solidmajorityrsquo8

23 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

41

the Supreme Court but litigation may be

very slow in 1987 there were 29 Supreme

Court judges dealing with 21600 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

42

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

43

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

44

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

45

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 government9

3 Civil Service of Bangladesh

31 Legal framework

46

Article 137 of the constitution of the Peoplersquos

Republic of Bangladesh deals with the term

lsquolegal frameworkrsquo of civil service of

Bangladesh lsquoThe implementation of government

policies and projects is the duty of the

Bangladesh Civil Service a corps of trained

administrators who form the nations 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

47

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

48

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

49

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 75 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

50

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 Bangladesh10

32 Recruitment procedure and

recommendations

The Bangladesh Public Service Commission (BPSC)

is a quasi judicial body established in 1972

under the Constitution of the Peoples Republic

51

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 Honble President

of the Republic11 Presidential Order No 34 (on

May 9 1972) PSC Ordinance No LVII of 1977 BCS

Recruitment Rules of 1981 PSC Officers amp

52

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 appointment12

The cadres and entry posts of the

Bangladesh Civil Service

General cadres

1 BCS (Administration) Assistant Commissioner)

53

2 BCS (Police) Assistant Superintendent of Police

3 BCS (Audit amp Accounts) Assistant Accountant General

4 BCS (Economic) Assistant Chief

5 BCS (Customs amp Excise) Assistant Commissioner

(Customs amp 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 amp

Export Equivalent Posts

11 BCS (Postal) Assistant Post Master General

Equivalent Posts

12 BCS (Railway Transportation amp Commercial)

Assistant Traffic Superintendent

54

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 amp Highways) Assistant Engineer

4 BCS (Telecommunications) Assistant Divisional

Engineer

5 BCS (Public Health Engineering) Assistant Engineer

55

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

Officer13

Recruitment

56

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 amp 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 appointment14

lsquoRecruitment is the process of searching for

prospective employees and stimulating them to

apply for jobs in the organization (Flippo and

57

Edwin 1984 141) No element of the career

service system is more important than the

recruitment policyrdquo (Commission of

Inquiry on Public Service Personnel 193537

quoted in Stall 196251) 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)

58

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 partymdashas opposed to a system of awarding

offices on the basis of merit independent of

political activityrsquo15

Legal Basis for BCS Recruitment Policy

lsquoThe constitution of Bangladesh has granted

equal employment opportunities for citizens The

constitution declares ldquoThere shall be equality

of opportunity for all citizens in respect of

employment or office in the service of the

Republicrdquo (Article 29 [1]) ldquoNo citizen shall

on the grounds only of religion race caste

59

sex or place of birth be ineligible for or

discriminated against in respect of any

employment or office in the service of the

Republicrdquo (Article 29 [2]) However under clause

(3) of the same Article the constitution has

provided certain exceptions that read ldquoNothing

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

60

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 servicesrsquo 16

61

Recommendations Julian Paul Assange an

Australian computer programmer

politicalinternet activist publisher and

journalist and founder of WikiLeaks supports

the free dissemination of government data17 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

62

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

Thatrsquos 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

63

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 abolished18

64

Besides these quota system should be abolished

as our Constitution or any law has not given the

definition and the factors of opting lsquobackward

sectionrsquo of the citizens Article 29(3)(a) of

our constitution though provides the quota

system for lsquobackward sectionrsquo 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 sonsrsquo being poor are not getting the said

benefit and hence Professor M Abdul Wahhab

65

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

ordersrules 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

66

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

67

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 ldquothough 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 art29 (1) amp29(2) it merely confers an

enabling power But as it an exception to the

guarantee of art29 (1) amp29(2) it should not be

68

interpreted or given effect to in such a way as

to nullify the guarantee under art29 (1)

amp29(2) The Indian Supreme Court held that

reservation in excess of 50 would be

unconstitutional20

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 lsquonotrsquo and hence ldquowe are to consider

the meaning of lsquobackward sectionrsquo Art 29 is

comparable with art16 of the Indian

Constitution which uses the expression lsquobackward

classrsquo where as the expression used in art

29(3) is backward section The Indian Supreme

Court has interpreted the expression lsquobackward

classrsquo in several decisions Those decisions may

69

be helpful but not decisive in interpreting

lsquobackward sectionrsquo 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

70

33 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 statusetc)22

But unfortunately

there is no hard and fast and transparent

principle for doing the transfer of the civil

71

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 workplace23

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 ie what quality is considered is to

72

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

73

determined and if it is taken or done there

will be no request or lobby for the transfer and

harassment

34 Promotion procedure and

recommendation

The word lsquopromotionrsquo 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

Bangladesh24

74

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

75

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

76

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

77

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

35 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

Itrsquos not what you want in life but itrsquos

knowing how to reach it

78

Itrsquos not where you want to go but itrsquos knowing

how to get there

Itrsquos not how high you want to rise but itrsquos

knowing how to take off

It may not be quite the outcome you were aiming

for but it will be an outcome

Itrsquos not what you dream of doing but itrsquos

having the knowledge to do it

Its not a set of goals but itrsquos more like a

vision

79

Itrsquos not the goal you set but itrsquos 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 Departments26

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

80

Recommendation

Training should be given to the civil servants

for realizing the matter that embodied in art21

(2) of the Constitution of the Peoplersquos 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

36 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

81

said word lsquoaccountability 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 ldquowatchdogrdquo units to scrutinize

and hold departments accountable legitimacy of

82

these commissions is built upon their

independence as it avoids any conflicts of

interests27

There are various types of accountability ie

(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

lsquoParliaments are key actors in what has

been termed the lsquochain of

83

accountabilityrsquo 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 lsquosociety driven horizontal

84

accountabilityrsquo 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 ndashno

matter how defined ndash parliaments are one

of the institutions through which

diagonal accountability can be

exercisedrsquo27

However the civil servants should be

accountable by any or all means of

accountability

85

4 Judicial Service of Bangladesh

41 Legal framework

Article 137 of the Constitution also deals with

the term lsquolegal frameworkrsquo 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

itsrsquo judgment passed in Civil Appeal no79 of

1999 commonly known in the Masder Hossainrsquos case

that-

ldquoIt is declared that the word ldquoappointmentsrdquo 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

86

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

ldquoBangladesh Judicial Service Commission has been

established in 2007 by the rule lsquo বাংলােদশ

জিডিসয়াল সািভস কিমশন িবিধমালা ২০০৭ rsquo ie

87

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

88

Law Faculty of any one of three leading public

university ie 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 Secretariatrdquo 28

42 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

89

voice According to Rule 5 of OgraveevsjvDagger`k RywWwmqvj

mvwfcopyDaggermi cOumlDaggerek cDagger` wbDaggerqvM welqK AvDagger`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

90

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 32 are applicable with equitable

equality

43 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

91

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 33 is

applicable with equitable equality

44 Promotion procedure and recommendations

The promotion of sub-ordinate Courtrsquos judges are

in fact depended on the Annual Confidential

92

Reports (ACRs) There is no examination system

for getting the promotion in the sub-

ordinate judiciary

lsquoPresently 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

93

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 linersquo29

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-

ldquoConfidential reports should set out distinctly

and tersely sufficient particulars and it is

essential that they should be clear and definite

94

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 Divisionrdquo 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

95

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 34 is

applicable with equitable equality

45 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

96

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 skills30

Recommendation

The quality of training provided by JATI should

be improved A training need- assessment of the

subordinate court judges could be undertaken

97

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

98

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

subordinatecourts31

99

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

51 Ethical education

100

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 publics trust

and confidence in government by demonstrating

the highest standards of professional

competence efficiency and effectiveness

101

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

102

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

103

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

104

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 assets32 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

52 Use of technology

105

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 peoplersquos 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 lsquoThe Law of

Civil Procedurersquo first edition 2006 volume 1

page iii that

106

ldquoFor 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 lawyerrdquo However

the corruption of the court staff and the

offices of the civil servants can be controlled

easily by using technology ie 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

107

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

108

53 Check and balance

The theory of separation of powers was given by

the Charles-Louis de Secondat baron de La Bregravede

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 lsquothe spirit of

lawsrsquo that

lsquoI have not drawn my principles from my

prejudices but from the nature of thingsrdquo 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

109

Conclusion

In conclusion it can be reminded that 3rd

paragraph of the preamble of our constitution

provides that

lsquoFurther 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 citizensrsquo

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

110

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 p1 see also Mahmudul Islam-

Constitutional law of Bangladesh second edition

p1

2 httpenwikipediaorgwikiConstitution

111

3 httplegal-

dictionarythefreedictionarycomconstitution

4 httpwwwthefreedictionarycomframework

5 httpwwwmacmillandictionarycomdictionarybri

tishframework

6 httpwwwegyankoshacinbitstream

7 httpwwwbanglapediaorghttpdocsHTE_0079HTM

8 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

9 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

10 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

11 httpwwwbpscgovbd2011

12 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

13 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

14 httpwwwrhdgovbdRulesAndRegulationsView_Ov

erviewaspRef=A

112

15 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

16 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

17 wwwforbescomprofilejulian-assange

18 httpwwwti-bangladeshorgresearchES_PSCpdf

19 httpwwwnapsipagorgPDFABDUL_WAHHABpdf see

also Khan Akbar Ali and Kazi Rakibuddin Ahmad

March 2008 ldquoQuota System for Civil Service

Recruitment in Bangladesh An Exploratory

Analysisrdquo 2008 available at http

wwwbpscgovbddocuments news25906 newsdoc

20 Mahmudul Islam- Constitutional law of Bangladesh

second edition p171 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 p171 see also Indra Sawhney v

India AIR 1993 SC 477

113

22 httpwwwmopagovbdindexphpoption=com_conte

ntamptask=viewampid=377ampItemid=419

23 httpwwwvsrhhrCustomPagesStaticHRVFilesL

egislation__Civil-Servants-Actpdf

24 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

25 httptraininganddevelopmentnaukrihubcomtrain

inghtml

26 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

27 httpsiteresourcesworldbankorgPUBLICSECTORAN

DGOVERNANCEResourcesAccountabilityGovernancepd

f

28 httpwwwjscbdorgbdb_functionphp

29 httpwwwigsbracuacbdUserFilesFilearchive

_fileJudiciary_Policy_Notepdf

30 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

114

31 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

32 httpwwwoecdorgdataoecd625735521740pdf

Page 29: The constitutional framework of public administration in bangladesh

29

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

30

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

31

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

32

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

Presidents 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 parliaments powers as evidenced

through the addition of a new clause 72(A) made

the case perfectly clear

Executive under the Twelfth Amendment

33

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 Ministers 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

34

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

Ministerialrdquo7

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 Peoplersquos Republic of

Bangladesh has been substituted by the

35

Constitution (Fifth Amendment) Act 2011 (Act

XIV of 2011) section 22 which provides that-

lsquoThe supreme command of the defence services of

Bangladesh shall vest in the President and the

exercise thereof shall be regulated by lawrsquo

22 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

36

regulations bye-laws or other instruments

having legislative effect lsquoThe 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

37

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

38

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 presidents 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

39

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

40

affiliated with the president has been able to

command a solidmajorityrsquo8

23 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

41

the Supreme Court but litigation may be

very slow in 1987 there were 29 Supreme

Court judges dealing with 21600 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

42

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

43

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

44

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

45

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 government9

3 Civil Service of Bangladesh

31 Legal framework

46

Article 137 of the constitution of the Peoplersquos

Republic of Bangladesh deals with the term

lsquolegal frameworkrsquo of civil service of

Bangladesh lsquoThe implementation of government

policies and projects is the duty of the

Bangladesh Civil Service a corps of trained

administrators who form the nations 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

47

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

48

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

49

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 75 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

50

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 Bangladesh10

32 Recruitment procedure and

recommendations

The Bangladesh Public Service Commission (BPSC)

is a quasi judicial body established in 1972

under the Constitution of the Peoples Republic

51

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 Honble President

of the Republic11 Presidential Order No 34 (on

May 9 1972) PSC Ordinance No LVII of 1977 BCS

Recruitment Rules of 1981 PSC Officers amp

52

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 appointment12

The cadres and entry posts of the

Bangladesh Civil Service

General cadres

1 BCS (Administration) Assistant Commissioner)

53

2 BCS (Police) Assistant Superintendent of Police

3 BCS (Audit amp Accounts) Assistant Accountant General

4 BCS (Economic) Assistant Chief

5 BCS (Customs amp Excise) Assistant Commissioner

(Customs amp 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 amp

Export Equivalent Posts

11 BCS (Postal) Assistant Post Master General

Equivalent Posts

12 BCS (Railway Transportation amp Commercial)

Assistant Traffic Superintendent

54

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 amp Highways) Assistant Engineer

4 BCS (Telecommunications) Assistant Divisional

Engineer

5 BCS (Public Health Engineering) Assistant Engineer

55

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

Officer13

Recruitment

56

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 amp 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 appointment14

lsquoRecruitment is the process of searching for

prospective employees and stimulating them to

apply for jobs in the organization (Flippo and

57

Edwin 1984 141) No element of the career

service system is more important than the

recruitment policyrdquo (Commission of

Inquiry on Public Service Personnel 193537

quoted in Stall 196251) 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)

58

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 partymdashas opposed to a system of awarding

offices on the basis of merit independent of

political activityrsquo15

Legal Basis for BCS Recruitment Policy

lsquoThe constitution of Bangladesh has granted

equal employment opportunities for citizens The

constitution declares ldquoThere shall be equality

of opportunity for all citizens in respect of

employment or office in the service of the

Republicrdquo (Article 29 [1]) ldquoNo citizen shall

on the grounds only of religion race caste

59

sex or place of birth be ineligible for or

discriminated against in respect of any

employment or office in the service of the

Republicrdquo (Article 29 [2]) However under clause

(3) of the same Article the constitution has

provided certain exceptions that read ldquoNothing

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

60

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 servicesrsquo 16

61

Recommendations Julian Paul Assange an

Australian computer programmer

politicalinternet activist publisher and

journalist and founder of WikiLeaks supports

the free dissemination of government data17 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

62

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

Thatrsquos 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

63

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 abolished18

64

Besides these quota system should be abolished

as our Constitution or any law has not given the

definition and the factors of opting lsquobackward

sectionrsquo of the citizens Article 29(3)(a) of

our constitution though provides the quota

system for lsquobackward sectionrsquo 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 sonsrsquo being poor are not getting the said

benefit and hence Professor M Abdul Wahhab

65

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

ordersrules 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

66

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

67

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 ldquothough 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 art29 (1) amp29(2) it merely confers an

enabling power But as it an exception to the

guarantee of art29 (1) amp29(2) it should not be

68

interpreted or given effect to in such a way as

to nullify the guarantee under art29 (1)

amp29(2) The Indian Supreme Court held that

reservation in excess of 50 would be

unconstitutional20

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 lsquonotrsquo and hence ldquowe are to consider

the meaning of lsquobackward sectionrsquo Art 29 is

comparable with art16 of the Indian

Constitution which uses the expression lsquobackward

classrsquo where as the expression used in art

29(3) is backward section The Indian Supreme

Court has interpreted the expression lsquobackward

classrsquo in several decisions Those decisions may

69

be helpful but not decisive in interpreting

lsquobackward sectionrsquo 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

70

33 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 statusetc)22

But unfortunately

there is no hard and fast and transparent

principle for doing the transfer of the civil

71

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 workplace23

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 ie what quality is considered is to

72

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

73

determined and if it is taken or done there

will be no request or lobby for the transfer and

harassment

34 Promotion procedure and

recommendation

The word lsquopromotionrsquo 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

Bangladesh24

74

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

75

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

76

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

77

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

35 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

Itrsquos not what you want in life but itrsquos

knowing how to reach it

78

Itrsquos not where you want to go but itrsquos knowing

how to get there

Itrsquos not how high you want to rise but itrsquos

knowing how to take off

It may not be quite the outcome you were aiming

for but it will be an outcome

Itrsquos not what you dream of doing but itrsquos

having the knowledge to do it

Its not a set of goals but itrsquos more like a

vision

79

Itrsquos not the goal you set but itrsquos 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 Departments26

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

80

Recommendation

Training should be given to the civil servants

for realizing the matter that embodied in art21

(2) of the Constitution of the Peoplersquos 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

36 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

81

said word lsquoaccountability 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 ldquowatchdogrdquo units to scrutinize

and hold departments accountable legitimacy of

82

these commissions is built upon their

independence as it avoids any conflicts of

interests27

There are various types of accountability ie

(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

lsquoParliaments are key actors in what has

been termed the lsquochain of

83

accountabilityrsquo 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 lsquosociety driven horizontal

84

accountabilityrsquo 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 ndashno

matter how defined ndash parliaments are one

of the institutions through which

diagonal accountability can be

exercisedrsquo27

However the civil servants should be

accountable by any or all means of

accountability

85

4 Judicial Service of Bangladesh

41 Legal framework

Article 137 of the Constitution also deals with

the term lsquolegal frameworkrsquo 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

itsrsquo judgment passed in Civil Appeal no79 of

1999 commonly known in the Masder Hossainrsquos case

that-

ldquoIt is declared that the word ldquoappointmentsrdquo 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

86

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

ldquoBangladesh Judicial Service Commission has been

established in 2007 by the rule lsquo বাংলােদশ

জিডিসয়াল সািভস কিমশন িবিধমালা ২০০৭ rsquo ie

87

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

88

Law Faculty of any one of three leading public

university ie 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 Secretariatrdquo 28

42 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

89

voice According to Rule 5 of OgraveevsjvDagger`k RywWwmqvj

mvwfcopyDaggermi cOumlDaggerek cDagger` wbDaggerqvM welqK AvDagger`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

90

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 32 are applicable with equitable

equality

43 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

91

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 33 is

applicable with equitable equality

44 Promotion procedure and recommendations

The promotion of sub-ordinate Courtrsquos judges are

in fact depended on the Annual Confidential

92

Reports (ACRs) There is no examination system

for getting the promotion in the sub-

ordinate judiciary

lsquoPresently 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

93

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 linersquo29

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-

ldquoConfidential reports should set out distinctly

and tersely sufficient particulars and it is

essential that they should be clear and definite

94

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 Divisionrdquo 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

95

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 34 is

applicable with equitable equality

45 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

96

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 skills30

Recommendation

The quality of training provided by JATI should

be improved A training need- assessment of the

subordinate court judges could be undertaken

97

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

98

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

subordinatecourts31

99

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

51 Ethical education

100

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 publics trust

and confidence in government by demonstrating

the highest standards of professional

competence efficiency and effectiveness

101

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

102

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

103

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

104

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 assets32 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

52 Use of technology

105

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 peoplersquos 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 lsquoThe Law of

Civil Procedurersquo first edition 2006 volume 1

page iii that

106

ldquoFor 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 lawyerrdquo However

the corruption of the court staff and the

offices of the civil servants can be controlled

easily by using technology ie 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

107

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

108

53 Check and balance

The theory of separation of powers was given by

the Charles-Louis de Secondat baron de La Bregravede

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 lsquothe spirit of

lawsrsquo that

lsquoI have not drawn my principles from my

prejudices but from the nature of thingsrdquo 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

109

Conclusion

In conclusion it can be reminded that 3rd

paragraph of the preamble of our constitution

provides that

lsquoFurther 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 citizensrsquo

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

110

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 p1 see also Mahmudul Islam-

Constitutional law of Bangladesh second edition

p1

2 httpenwikipediaorgwikiConstitution

111

3 httplegal-

dictionarythefreedictionarycomconstitution

4 httpwwwthefreedictionarycomframework

5 httpwwwmacmillandictionarycomdictionarybri

tishframework

6 httpwwwegyankoshacinbitstream

7 httpwwwbanglapediaorghttpdocsHTE_0079HTM

8 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

9 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

10 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

11 httpwwwbpscgovbd2011

12 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

13 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

14 httpwwwrhdgovbdRulesAndRegulationsView_Ov

erviewaspRef=A

112

15 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

16 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

17 wwwforbescomprofilejulian-assange

18 httpwwwti-bangladeshorgresearchES_PSCpdf

19 httpwwwnapsipagorgPDFABDUL_WAHHABpdf see

also Khan Akbar Ali and Kazi Rakibuddin Ahmad

March 2008 ldquoQuota System for Civil Service

Recruitment in Bangladesh An Exploratory

Analysisrdquo 2008 available at http

wwwbpscgovbddocuments news25906 newsdoc

20 Mahmudul Islam- Constitutional law of Bangladesh

second edition p171 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 p171 see also Indra Sawhney v

India AIR 1993 SC 477

113

22 httpwwwmopagovbdindexphpoption=com_conte

ntamptask=viewampid=377ampItemid=419

23 httpwwwvsrhhrCustomPagesStaticHRVFilesL

egislation__Civil-Servants-Actpdf

24 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

25 httptraininganddevelopmentnaukrihubcomtrain

inghtml

26 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

27 httpsiteresourcesworldbankorgPUBLICSECTORAN

DGOVERNANCEResourcesAccountabilityGovernancepd

f

28 httpwwwjscbdorgbdb_functionphp

29 httpwwwigsbracuacbdUserFilesFilearchive

_fileJudiciary_Policy_Notepdf

30 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

114

31 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

32 httpwwwoecdorgdataoecd625735521740pdf

Page 30: The constitutional framework of public administration in bangladesh

30

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

31

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

32

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

Presidents 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 parliaments powers as evidenced

through the addition of a new clause 72(A) made

the case perfectly clear

Executive under the Twelfth Amendment

33

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 Ministers 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

34

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

Ministerialrdquo7

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 Peoplersquos Republic of

Bangladesh has been substituted by the

35

Constitution (Fifth Amendment) Act 2011 (Act

XIV of 2011) section 22 which provides that-

lsquoThe supreme command of the defence services of

Bangladesh shall vest in the President and the

exercise thereof shall be regulated by lawrsquo

22 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

36

regulations bye-laws or other instruments

having legislative effect lsquoThe 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

37

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

38

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 presidents 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

39

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

40

affiliated with the president has been able to

command a solidmajorityrsquo8

23 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

41

the Supreme Court but litigation may be

very slow in 1987 there were 29 Supreme

Court judges dealing with 21600 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

42

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

43

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

44

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

45

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 government9

3 Civil Service of Bangladesh

31 Legal framework

46

Article 137 of the constitution of the Peoplersquos

Republic of Bangladesh deals with the term

lsquolegal frameworkrsquo of civil service of

Bangladesh lsquoThe implementation of government

policies and projects is the duty of the

Bangladesh Civil Service a corps of trained

administrators who form the nations 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

47

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

48

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

49

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 75 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

50

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 Bangladesh10

32 Recruitment procedure and

recommendations

The Bangladesh Public Service Commission (BPSC)

is a quasi judicial body established in 1972

under the Constitution of the Peoples Republic

51

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 Honble President

of the Republic11 Presidential Order No 34 (on

May 9 1972) PSC Ordinance No LVII of 1977 BCS

Recruitment Rules of 1981 PSC Officers amp

52

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 appointment12

The cadres and entry posts of the

Bangladesh Civil Service

General cadres

1 BCS (Administration) Assistant Commissioner)

53

2 BCS (Police) Assistant Superintendent of Police

3 BCS (Audit amp Accounts) Assistant Accountant General

4 BCS (Economic) Assistant Chief

5 BCS (Customs amp Excise) Assistant Commissioner

(Customs amp 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 amp

Export Equivalent Posts

11 BCS (Postal) Assistant Post Master General

Equivalent Posts

12 BCS (Railway Transportation amp Commercial)

Assistant Traffic Superintendent

54

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 amp Highways) Assistant Engineer

4 BCS (Telecommunications) Assistant Divisional

Engineer

5 BCS (Public Health Engineering) Assistant Engineer

55

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

Officer13

Recruitment

56

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 amp 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 appointment14

lsquoRecruitment is the process of searching for

prospective employees and stimulating them to

apply for jobs in the organization (Flippo and

57

Edwin 1984 141) No element of the career

service system is more important than the

recruitment policyrdquo (Commission of

Inquiry on Public Service Personnel 193537

quoted in Stall 196251) 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)

58

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 partymdashas opposed to a system of awarding

offices on the basis of merit independent of

political activityrsquo15

Legal Basis for BCS Recruitment Policy

lsquoThe constitution of Bangladesh has granted

equal employment opportunities for citizens The

constitution declares ldquoThere shall be equality

of opportunity for all citizens in respect of

employment or office in the service of the

Republicrdquo (Article 29 [1]) ldquoNo citizen shall

on the grounds only of religion race caste

59

sex or place of birth be ineligible for or

discriminated against in respect of any

employment or office in the service of the

Republicrdquo (Article 29 [2]) However under clause

(3) of the same Article the constitution has

provided certain exceptions that read ldquoNothing

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

60

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 servicesrsquo 16

61

Recommendations Julian Paul Assange an

Australian computer programmer

politicalinternet activist publisher and

journalist and founder of WikiLeaks supports

the free dissemination of government data17 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

62

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

Thatrsquos 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

63

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 abolished18

64

Besides these quota system should be abolished

as our Constitution or any law has not given the

definition and the factors of opting lsquobackward

sectionrsquo of the citizens Article 29(3)(a) of

our constitution though provides the quota

system for lsquobackward sectionrsquo 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 sonsrsquo being poor are not getting the said

benefit and hence Professor M Abdul Wahhab

65

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

ordersrules 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

66

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

67

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 ldquothough 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 art29 (1) amp29(2) it merely confers an

enabling power But as it an exception to the

guarantee of art29 (1) amp29(2) it should not be

68

interpreted or given effect to in such a way as

to nullify the guarantee under art29 (1)

amp29(2) The Indian Supreme Court held that

reservation in excess of 50 would be

unconstitutional20

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 lsquonotrsquo and hence ldquowe are to consider

the meaning of lsquobackward sectionrsquo Art 29 is

comparable with art16 of the Indian

Constitution which uses the expression lsquobackward

classrsquo where as the expression used in art

29(3) is backward section The Indian Supreme

Court has interpreted the expression lsquobackward

classrsquo in several decisions Those decisions may

69

be helpful but not decisive in interpreting

lsquobackward sectionrsquo 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

70

33 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 statusetc)22

But unfortunately

there is no hard and fast and transparent

principle for doing the transfer of the civil

71

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 workplace23

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 ie what quality is considered is to

72

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

73

determined and if it is taken or done there

will be no request or lobby for the transfer and

harassment

34 Promotion procedure and

recommendation

The word lsquopromotionrsquo 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

Bangladesh24

74

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

75

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

76

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

77

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

35 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

Itrsquos not what you want in life but itrsquos

knowing how to reach it

78

Itrsquos not where you want to go but itrsquos knowing

how to get there

Itrsquos not how high you want to rise but itrsquos

knowing how to take off

It may not be quite the outcome you were aiming

for but it will be an outcome

Itrsquos not what you dream of doing but itrsquos

having the knowledge to do it

Its not a set of goals but itrsquos more like a

vision

79

Itrsquos not the goal you set but itrsquos 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 Departments26

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

80

Recommendation

Training should be given to the civil servants

for realizing the matter that embodied in art21

(2) of the Constitution of the Peoplersquos 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

36 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

81

said word lsquoaccountability 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 ldquowatchdogrdquo units to scrutinize

and hold departments accountable legitimacy of

82

these commissions is built upon their

independence as it avoids any conflicts of

interests27

There are various types of accountability ie

(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

lsquoParliaments are key actors in what has

been termed the lsquochain of

83

accountabilityrsquo 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 lsquosociety driven horizontal

84

accountabilityrsquo 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 ndashno

matter how defined ndash parliaments are one

of the institutions through which

diagonal accountability can be

exercisedrsquo27

However the civil servants should be

accountable by any or all means of

accountability

85

4 Judicial Service of Bangladesh

41 Legal framework

Article 137 of the Constitution also deals with

the term lsquolegal frameworkrsquo 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

itsrsquo judgment passed in Civil Appeal no79 of

1999 commonly known in the Masder Hossainrsquos case

that-

ldquoIt is declared that the word ldquoappointmentsrdquo 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

86

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

ldquoBangladesh Judicial Service Commission has been

established in 2007 by the rule lsquo বাংলােদশ

জিডিসয়াল সািভস কিমশন িবিধমালা ২০০৭ rsquo ie

87

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

88

Law Faculty of any one of three leading public

university ie 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 Secretariatrdquo 28

42 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

89

voice According to Rule 5 of OgraveevsjvDagger`k RywWwmqvj

mvwfcopyDaggermi cOumlDaggerek cDagger` wbDaggerqvM welqK AvDagger`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

90

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 32 are applicable with equitable

equality

43 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

91

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 33 is

applicable with equitable equality

44 Promotion procedure and recommendations

The promotion of sub-ordinate Courtrsquos judges are

in fact depended on the Annual Confidential

92

Reports (ACRs) There is no examination system

for getting the promotion in the sub-

ordinate judiciary

lsquoPresently 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

93

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 linersquo29

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-

ldquoConfidential reports should set out distinctly

and tersely sufficient particulars and it is

essential that they should be clear and definite

94

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 Divisionrdquo 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

95

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 34 is

applicable with equitable equality

45 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

96

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 skills30

Recommendation

The quality of training provided by JATI should

be improved A training need- assessment of the

subordinate court judges could be undertaken

97

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

98

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

subordinatecourts31

99

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

51 Ethical education

100

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 publics trust

and confidence in government by demonstrating

the highest standards of professional

competence efficiency and effectiveness

101

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

102

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

103

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

104

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 assets32 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

52 Use of technology

105

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 peoplersquos 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 lsquoThe Law of

Civil Procedurersquo first edition 2006 volume 1

page iii that

106

ldquoFor 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 lawyerrdquo However

the corruption of the court staff and the

offices of the civil servants can be controlled

easily by using technology ie 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

107

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

108

53 Check and balance

The theory of separation of powers was given by

the Charles-Louis de Secondat baron de La Bregravede

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 lsquothe spirit of

lawsrsquo that

lsquoI have not drawn my principles from my

prejudices but from the nature of thingsrdquo 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

109

Conclusion

In conclusion it can be reminded that 3rd

paragraph of the preamble of our constitution

provides that

lsquoFurther 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 citizensrsquo

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

110

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 p1 see also Mahmudul Islam-

Constitutional law of Bangladesh second edition

p1

2 httpenwikipediaorgwikiConstitution

111

3 httplegal-

dictionarythefreedictionarycomconstitution

4 httpwwwthefreedictionarycomframework

5 httpwwwmacmillandictionarycomdictionarybri

tishframework

6 httpwwwegyankoshacinbitstream

7 httpwwwbanglapediaorghttpdocsHTE_0079HTM

8 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

9 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

10 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

11 httpwwwbpscgovbd2011

12 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

13 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

14 httpwwwrhdgovbdRulesAndRegulationsView_Ov

erviewaspRef=A

112

15 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

16 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

17 wwwforbescomprofilejulian-assange

18 httpwwwti-bangladeshorgresearchES_PSCpdf

19 httpwwwnapsipagorgPDFABDUL_WAHHABpdf see

also Khan Akbar Ali and Kazi Rakibuddin Ahmad

March 2008 ldquoQuota System for Civil Service

Recruitment in Bangladesh An Exploratory

Analysisrdquo 2008 available at http

wwwbpscgovbddocuments news25906 newsdoc

20 Mahmudul Islam- Constitutional law of Bangladesh

second edition p171 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 p171 see also Indra Sawhney v

India AIR 1993 SC 477

113

22 httpwwwmopagovbdindexphpoption=com_conte

ntamptask=viewampid=377ampItemid=419

23 httpwwwvsrhhrCustomPagesStaticHRVFilesL

egislation__Civil-Servants-Actpdf

24 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

25 httptraininganddevelopmentnaukrihubcomtrain

inghtml

26 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

27 httpsiteresourcesworldbankorgPUBLICSECTORAN

DGOVERNANCEResourcesAccountabilityGovernancepd

f

28 httpwwwjscbdorgbdb_functionphp

29 httpwwwigsbracuacbdUserFilesFilearchive

_fileJudiciary_Policy_Notepdf

30 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

114

31 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

32 httpwwwoecdorgdataoecd625735521740pdf

Page 31: The constitutional framework of public administration in bangladesh

31

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

32

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

Presidents 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 parliaments powers as evidenced

through the addition of a new clause 72(A) made

the case perfectly clear

Executive under the Twelfth Amendment

33

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 Ministers 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

34

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

Ministerialrdquo7

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 Peoplersquos Republic of

Bangladesh has been substituted by the

35

Constitution (Fifth Amendment) Act 2011 (Act

XIV of 2011) section 22 which provides that-

lsquoThe supreme command of the defence services of

Bangladesh shall vest in the President and the

exercise thereof shall be regulated by lawrsquo

22 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

36

regulations bye-laws or other instruments

having legislative effect lsquoThe 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

37

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

38

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 presidents 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

39

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

40

affiliated with the president has been able to

command a solidmajorityrsquo8

23 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

41

the Supreme Court but litigation may be

very slow in 1987 there were 29 Supreme

Court judges dealing with 21600 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

42

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

43

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

44

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

45

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 government9

3 Civil Service of Bangladesh

31 Legal framework

46

Article 137 of the constitution of the Peoplersquos

Republic of Bangladesh deals with the term

lsquolegal frameworkrsquo of civil service of

Bangladesh lsquoThe implementation of government

policies and projects is the duty of the

Bangladesh Civil Service a corps of trained

administrators who form the nations 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

47

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

48

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

49

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 75 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

50

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 Bangladesh10

32 Recruitment procedure and

recommendations

The Bangladesh Public Service Commission (BPSC)

is a quasi judicial body established in 1972

under the Constitution of the Peoples Republic

51

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 Honble President

of the Republic11 Presidential Order No 34 (on

May 9 1972) PSC Ordinance No LVII of 1977 BCS

Recruitment Rules of 1981 PSC Officers amp

52

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 appointment12

The cadres and entry posts of the

Bangladesh Civil Service

General cadres

1 BCS (Administration) Assistant Commissioner)

53

2 BCS (Police) Assistant Superintendent of Police

3 BCS (Audit amp Accounts) Assistant Accountant General

4 BCS (Economic) Assistant Chief

5 BCS (Customs amp Excise) Assistant Commissioner

(Customs amp 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 amp

Export Equivalent Posts

11 BCS (Postal) Assistant Post Master General

Equivalent Posts

12 BCS (Railway Transportation amp Commercial)

Assistant Traffic Superintendent

54

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 amp Highways) Assistant Engineer

4 BCS (Telecommunications) Assistant Divisional

Engineer

5 BCS (Public Health Engineering) Assistant Engineer

55

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

Officer13

Recruitment

56

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 amp 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 appointment14

lsquoRecruitment is the process of searching for

prospective employees and stimulating them to

apply for jobs in the organization (Flippo and

57

Edwin 1984 141) No element of the career

service system is more important than the

recruitment policyrdquo (Commission of

Inquiry on Public Service Personnel 193537

quoted in Stall 196251) 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)

58

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 partymdashas opposed to a system of awarding

offices on the basis of merit independent of

political activityrsquo15

Legal Basis for BCS Recruitment Policy

lsquoThe constitution of Bangladesh has granted

equal employment opportunities for citizens The

constitution declares ldquoThere shall be equality

of opportunity for all citizens in respect of

employment or office in the service of the

Republicrdquo (Article 29 [1]) ldquoNo citizen shall

on the grounds only of religion race caste

59

sex or place of birth be ineligible for or

discriminated against in respect of any

employment or office in the service of the

Republicrdquo (Article 29 [2]) However under clause

(3) of the same Article the constitution has

provided certain exceptions that read ldquoNothing

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

60

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 servicesrsquo 16

61

Recommendations Julian Paul Assange an

Australian computer programmer

politicalinternet activist publisher and

journalist and founder of WikiLeaks supports

the free dissemination of government data17 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

62

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

Thatrsquos 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

63

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 abolished18

64

Besides these quota system should be abolished

as our Constitution or any law has not given the

definition and the factors of opting lsquobackward

sectionrsquo of the citizens Article 29(3)(a) of

our constitution though provides the quota

system for lsquobackward sectionrsquo 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 sonsrsquo being poor are not getting the said

benefit and hence Professor M Abdul Wahhab

65

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

ordersrules 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

66

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

67

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 ldquothough 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 art29 (1) amp29(2) it merely confers an

enabling power But as it an exception to the

guarantee of art29 (1) amp29(2) it should not be

68

interpreted or given effect to in such a way as

to nullify the guarantee under art29 (1)

amp29(2) The Indian Supreme Court held that

reservation in excess of 50 would be

unconstitutional20

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 lsquonotrsquo and hence ldquowe are to consider

the meaning of lsquobackward sectionrsquo Art 29 is

comparable with art16 of the Indian

Constitution which uses the expression lsquobackward

classrsquo where as the expression used in art

29(3) is backward section The Indian Supreme

Court has interpreted the expression lsquobackward

classrsquo in several decisions Those decisions may

69

be helpful but not decisive in interpreting

lsquobackward sectionrsquo 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

70

33 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 statusetc)22

But unfortunately

there is no hard and fast and transparent

principle for doing the transfer of the civil

71

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 workplace23

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 ie what quality is considered is to

72

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

73

determined and if it is taken or done there

will be no request or lobby for the transfer and

harassment

34 Promotion procedure and

recommendation

The word lsquopromotionrsquo 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

Bangladesh24

74

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

75

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

76

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

77

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

35 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

Itrsquos not what you want in life but itrsquos

knowing how to reach it

78

Itrsquos not where you want to go but itrsquos knowing

how to get there

Itrsquos not how high you want to rise but itrsquos

knowing how to take off

It may not be quite the outcome you were aiming

for but it will be an outcome

Itrsquos not what you dream of doing but itrsquos

having the knowledge to do it

Its not a set of goals but itrsquos more like a

vision

79

Itrsquos not the goal you set but itrsquos 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 Departments26

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

80

Recommendation

Training should be given to the civil servants

for realizing the matter that embodied in art21

(2) of the Constitution of the Peoplersquos 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

36 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

81

said word lsquoaccountability 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 ldquowatchdogrdquo units to scrutinize

and hold departments accountable legitimacy of

82

these commissions is built upon their

independence as it avoids any conflicts of

interests27

There are various types of accountability ie

(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

lsquoParliaments are key actors in what has

been termed the lsquochain of

83

accountabilityrsquo 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 lsquosociety driven horizontal

84

accountabilityrsquo 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 ndashno

matter how defined ndash parliaments are one

of the institutions through which

diagonal accountability can be

exercisedrsquo27

However the civil servants should be

accountable by any or all means of

accountability

85

4 Judicial Service of Bangladesh

41 Legal framework

Article 137 of the Constitution also deals with

the term lsquolegal frameworkrsquo 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

itsrsquo judgment passed in Civil Appeal no79 of

1999 commonly known in the Masder Hossainrsquos case

that-

ldquoIt is declared that the word ldquoappointmentsrdquo 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

86

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

ldquoBangladesh Judicial Service Commission has been

established in 2007 by the rule lsquo বাংলােদশ

জিডিসয়াল সািভস কিমশন িবিধমালা ২০০৭ rsquo ie

87

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

88

Law Faculty of any one of three leading public

university ie 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 Secretariatrdquo 28

42 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

89

voice According to Rule 5 of OgraveevsjvDagger`k RywWwmqvj

mvwfcopyDaggermi cOumlDaggerek cDagger` wbDaggerqvM welqK AvDagger`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

90

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 32 are applicable with equitable

equality

43 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

91

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 33 is

applicable with equitable equality

44 Promotion procedure and recommendations

The promotion of sub-ordinate Courtrsquos judges are

in fact depended on the Annual Confidential

92

Reports (ACRs) There is no examination system

for getting the promotion in the sub-

ordinate judiciary

lsquoPresently 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

93

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 linersquo29

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-

ldquoConfidential reports should set out distinctly

and tersely sufficient particulars and it is

essential that they should be clear and definite

94

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 Divisionrdquo 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

95

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 34 is

applicable with equitable equality

45 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

96

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 skills30

Recommendation

The quality of training provided by JATI should

be improved A training need- assessment of the

subordinate court judges could be undertaken

97

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

98

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

subordinatecourts31

99

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

51 Ethical education

100

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 publics trust

and confidence in government by demonstrating

the highest standards of professional

competence efficiency and effectiveness

101

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

102

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

103

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

104

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 assets32 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

52 Use of technology

105

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 peoplersquos 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 lsquoThe Law of

Civil Procedurersquo first edition 2006 volume 1

page iii that

106

ldquoFor 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 lawyerrdquo However

the corruption of the court staff and the

offices of the civil servants can be controlled

easily by using technology ie 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

107

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

108

53 Check and balance

The theory of separation of powers was given by

the Charles-Louis de Secondat baron de La Bregravede

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 lsquothe spirit of

lawsrsquo that

lsquoI have not drawn my principles from my

prejudices but from the nature of thingsrdquo 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

109

Conclusion

In conclusion it can be reminded that 3rd

paragraph of the preamble of our constitution

provides that

lsquoFurther 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 citizensrsquo

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

110

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 p1 see also Mahmudul Islam-

Constitutional law of Bangladesh second edition

p1

2 httpenwikipediaorgwikiConstitution

111

3 httplegal-

dictionarythefreedictionarycomconstitution

4 httpwwwthefreedictionarycomframework

5 httpwwwmacmillandictionarycomdictionarybri

tishframework

6 httpwwwegyankoshacinbitstream

7 httpwwwbanglapediaorghttpdocsHTE_0079HTM

8 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

9 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

10 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

11 httpwwwbpscgovbd2011

12 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

13 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

14 httpwwwrhdgovbdRulesAndRegulationsView_Ov

erviewaspRef=A

112

15 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

16 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

17 wwwforbescomprofilejulian-assange

18 httpwwwti-bangladeshorgresearchES_PSCpdf

19 httpwwwnapsipagorgPDFABDUL_WAHHABpdf see

also Khan Akbar Ali and Kazi Rakibuddin Ahmad

March 2008 ldquoQuota System for Civil Service

Recruitment in Bangladesh An Exploratory

Analysisrdquo 2008 available at http

wwwbpscgovbddocuments news25906 newsdoc

20 Mahmudul Islam- Constitutional law of Bangladesh

second edition p171 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 p171 see also Indra Sawhney v

India AIR 1993 SC 477

113

22 httpwwwmopagovbdindexphpoption=com_conte

ntamptask=viewampid=377ampItemid=419

23 httpwwwvsrhhrCustomPagesStaticHRVFilesL

egislation__Civil-Servants-Actpdf

24 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

25 httptraininganddevelopmentnaukrihubcomtrain

inghtml

26 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

27 httpsiteresourcesworldbankorgPUBLICSECTORAN

DGOVERNANCEResourcesAccountabilityGovernancepd

f

28 httpwwwjscbdorgbdb_functionphp

29 httpwwwigsbracuacbdUserFilesFilearchive

_fileJudiciary_Policy_Notepdf

30 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

114

31 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

32 httpwwwoecdorgdataoecd625735521740pdf

Page 32: The constitutional framework of public administration in bangladesh

32

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

Presidents 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 parliaments powers as evidenced

through the addition of a new clause 72(A) made

the case perfectly clear

Executive under the Twelfth Amendment

33

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 Ministers 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

34

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

Ministerialrdquo7

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 Peoplersquos Republic of

Bangladesh has been substituted by the

35

Constitution (Fifth Amendment) Act 2011 (Act

XIV of 2011) section 22 which provides that-

lsquoThe supreme command of the defence services of

Bangladesh shall vest in the President and the

exercise thereof shall be regulated by lawrsquo

22 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

36

regulations bye-laws or other instruments

having legislative effect lsquoThe 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

37

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

38

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 presidents 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

39

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

40

affiliated with the president has been able to

command a solidmajorityrsquo8

23 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

41

the Supreme Court but litigation may be

very slow in 1987 there were 29 Supreme

Court judges dealing with 21600 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

42

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

43

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

44

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

45

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 government9

3 Civil Service of Bangladesh

31 Legal framework

46

Article 137 of the constitution of the Peoplersquos

Republic of Bangladesh deals with the term

lsquolegal frameworkrsquo of civil service of

Bangladesh lsquoThe implementation of government

policies and projects is the duty of the

Bangladesh Civil Service a corps of trained

administrators who form the nations 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

47

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

48

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

49

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 75 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

50

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 Bangladesh10

32 Recruitment procedure and

recommendations

The Bangladesh Public Service Commission (BPSC)

is a quasi judicial body established in 1972

under the Constitution of the Peoples Republic

51

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 Honble President

of the Republic11 Presidential Order No 34 (on

May 9 1972) PSC Ordinance No LVII of 1977 BCS

Recruitment Rules of 1981 PSC Officers amp

52

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 appointment12

The cadres and entry posts of the

Bangladesh Civil Service

General cadres

1 BCS (Administration) Assistant Commissioner)

53

2 BCS (Police) Assistant Superintendent of Police

3 BCS (Audit amp Accounts) Assistant Accountant General

4 BCS (Economic) Assistant Chief

5 BCS (Customs amp Excise) Assistant Commissioner

(Customs amp 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 amp

Export Equivalent Posts

11 BCS (Postal) Assistant Post Master General

Equivalent Posts

12 BCS (Railway Transportation amp Commercial)

Assistant Traffic Superintendent

54

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 amp Highways) Assistant Engineer

4 BCS (Telecommunications) Assistant Divisional

Engineer

5 BCS (Public Health Engineering) Assistant Engineer

55

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

Officer13

Recruitment

56

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 amp 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 appointment14

lsquoRecruitment is the process of searching for

prospective employees and stimulating them to

apply for jobs in the organization (Flippo and

57

Edwin 1984 141) No element of the career

service system is more important than the

recruitment policyrdquo (Commission of

Inquiry on Public Service Personnel 193537

quoted in Stall 196251) 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)

58

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 partymdashas opposed to a system of awarding

offices on the basis of merit independent of

political activityrsquo15

Legal Basis for BCS Recruitment Policy

lsquoThe constitution of Bangladesh has granted

equal employment opportunities for citizens The

constitution declares ldquoThere shall be equality

of opportunity for all citizens in respect of

employment or office in the service of the

Republicrdquo (Article 29 [1]) ldquoNo citizen shall

on the grounds only of religion race caste

59

sex or place of birth be ineligible for or

discriminated against in respect of any

employment or office in the service of the

Republicrdquo (Article 29 [2]) However under clause

(3) of the same Article the constitution has

provided certain exceptions that read ldquoNothing

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

60

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 servicesrsquo 16

61

Recommendations Julian Paul Assange an

Australian computer programmer

politicalinternet activist publisher and

journalist and founder of WikiLeaks supports

the free dissemination of government data17 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

62

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

Thatrsquos 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

63

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 abolished18

64

Besides these quota system should be abolished

as our Constitution or any law has not given the

definition and the factors of opting lsquobackward

sectionrsquo of the citizens Article 29(3)(a) of

our constitution though provides the quota

system for lsquobackward sectionrsquo 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 sonsrsquo being poor are not getting the said

benefit and hence Professor M Abdul Wahhab

65

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

ordersrules 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

66

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

67

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 ldquothough 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 art29 (1) amp29(2) it merely confers an

enabling power But as it an exception to the

guarantee of art29 (1) amp29(2) it should not be

68

interpreted or given effect to in such a way as

to nullify the guarantee under art29 (1)

amp29(2) The Indian Supreme Court held that

reservation in excess of 50 would be

unconstitutional20

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 lsquonotrsquo and hence ldquowe are to consider

the meaning of lsquobackward sectionrsquo Art 29 is

comparable with art16 of the Indian

Constitution which uses the expression lsquobackward

classrsquo where as the expression used in art

29(3) is backward section The Indian Supreme

Court has interpreted the expression lsquobackward

classrsquo in several decisions Those decisions may

69

be helpful but not decisive in interpreting

lsquobackward sectionrsquo 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

70

33 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 statusetc)22

But unfortunately

there is no hard and fast and transparent

principle for doing the transfer of the civil

71

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 workplace23

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 ie what quality is considered is to

72

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

73

determined and if it is taken or done there

will be no request or lobby for the transfer and

harassment

34 Promotion procedure and

recommendation

The word lsquopromotionrsquo 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

Bangladesh24

74

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

75

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

76

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

77

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

35 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

Itrsquos not what you want in life but itrsquos

knowing how to reach it

78

Itrsquos not where you want to go but itrsquos knowing

how to get there

Itrsquos not how high you want to rise but itrsquos

knowing how to take off

It may not be quite the outcome you were aiming

for but it will be an outcome

Itrsquos not what you dream of doing but itrsquos

having the knowledge to do it

Its not a set of goals but itrsquos more like a

vision

79

Itrsquos not the goal you set but itrsquos 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 Departments26

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

80

Recommendation

Training should be given to the civil servants

for realizing the matter that embodied in art21

(2) of the Constitution of the Peoplersquos 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

36 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

81

said word lsquoaccountability 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 ldquowatchdogrdquo units to scrutinize

and hold departments accountable legitimacy of

82

these commissions is built upon their

independence as it avoids any conflicts of

interests27

There are various types of accountability ie

(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

lsquoParliaments are key actors in what has

been termed the lsquochain of

83

accountabilityrsquo 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 lsquosociety driven horizontal

84

accountabilityrsquo 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 ndashno

matter how defined ndash parliaments are one

of the institutions through which

diagonal accountability can be

exercisedrsquo27

However the civil servants should be

accountable by any or all means of

accountability

85

4 Judicial Service of Bangladesh

41 Legal framework

Article 137 of the Constitution also deals with

the term lsquolegal frameworkrsquo 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

itsrsquo judgment passed in Civil Appeal no79 of

1999 commonly known in the Masder Hossainrsquos case

that-

ldquoIt is declared that the word ldquoappointmentsrdquo 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

86

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

ldquoBangladesh Judicial Service Commission has been

established in 2007 by the rule lsquo বাংলােদশ

জিডিসয়াল সািভস কিমশন িবিধমালা ২০০৭ rsquo ie

87

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

88

Law Faculty of any one of three leading public

university ie 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 Secretariatrdquo 28

42 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

89

voice According to Rule 5 of OgraveevsjvDagger`k RywWwmqvj

mvwfcopyDaggermi cOumlDaggerek cDagger` wbDaggerqvM welqK AvDagger`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

90

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 32 are applicable with equitable

equality

43 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

91

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 33 is

applicable with equitable equality

44 Promotion procedure and recommendations

The promotion of sub-ordinate Courtrsquos judges are

in fact depended on the Annual Confidential

92

Reports (ACRs) There is no examination system

for getting the promotion in the sub-

ordinate judiciary

lsquoPresently 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

93

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 linersquo29

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-

ldquoConfidential reports should set out distinctly

and tersely sufficient particulars and it is

essential that they should be clear and definite

94

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 Divisionrdquo 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

95

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 34 is

applicable with equitable equality

45 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

96

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 skills30

Recommendation

The quality of training provided by JATI should

be improved A training need- assessment of the

subordinate court judges could be undertaken

97

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

98

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

subordinatecourts31

99

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

51 Ethical education

100

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 publics trust

and confidence in government by demonstrating

the highest standards of professional

competence efficiency and effectiveness

101

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

102

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

103

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

104

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 assets32 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

52 Use of technology

105

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 peoplersquos 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 lsquoThe Law of

Civil Procedurersquo first edition 2006 volume 1

page iii that

106

ldquoFor 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 lawyerrdquo However

the corruption of the court staff and the

offices of the civil servants can be controlled

easily by using technology ie 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

107

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

108

53 Check and balance

The theory of separation of powers was given by

the Charles-Louis de Secondat baron de La Bregravede

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 lsquothe spirit of

lawsrsquo that

lsquoI have not drawn my principles from my

prejudices but from the nature of thingsrdquo 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

109

Conclusion

In conclusion it can be reminded that 3rd

paragraph of the preamble of our constitution

provides that

lsquoFurther 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 citizensrsquo

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

110

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 p1 see also Mahmudul Islam-

Constitutional law of Bangladesh second edition

p1

2 httpenwikipediaorgwikiConstitution

111

3 httplegal-

dictionarythefreedictionarycomconstitution

4 httpwwwthefreedictionarycomframework

5 httpwwwmacmillandictionarycomdictionarybri

tishframework

6 httpwwwegyankoshacinbitstream

7 httpwwwbanglapediaorghttpdocsHTE_0079HTM

8 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

9 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

10 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

11 httpwwwbpscgovbd2011

12 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

13 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

14 httpwwwrhdgovbdRulesAndRegulationsView_Ov

erviewaspRef=A

112

15 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

16 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

17 wwwforbescomprofilejulian-assange

18 httpwwwti-bangladeshorgresearchES_PSCpdf

19 httpwwwnapsipagorgPDFABDUL_WAHHABpdf see

also Khan Akbar Ali and Kazi Rakibuddin Ahmad

March 2008 ldquoQuota System for Civil Service

Recruitment in Bangladesh An Exploratory

Analysisrdquo 2008 available at http

wwwbpscgovbddocuments news25906 newsdoc

20 Mahmudul Islam- Constitutional law of Bangladesh

second edition p171 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 p171 see also Indra Sawhney v

India AIR 1993 SC 477

113

22 httpwwwmopagovbdindexphpoption=com_conte

ntamptask=viewampid=377ampItemid=419

23 httpwwwvsrhhrCustomPagesStaticHRVFilesL

egislation__Civil-Servants-Actpdf

24 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

25 httptraininganddevelopmentnaukrihubcomtrain

inghtml

26 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

27 httpsiteresourcesworldbankorgPUBLICSECTORAN

DGOVERNANCEResourcesAccountabilityGovernancepd

f

28 httpwwwjscbdorgbdb_functionphp

29 httpwwwigsbracuacbdUserFilesFilearchive

_fileJudiciary_Policy_Notepdf

30 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

114

31 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

32 httpwwwoecdorgdataoecd625735521740pdf

Page 33: The constitutional framework of public administration in bangladesh

33

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 Ministers 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

34

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

Ministerialrdquo7

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 Peoplersquos Republic of

Bangladesh has been substituted by the

35

Constitution (Fifth Amendment) Act 2011 (Act

XIV of 2011) section 22 which provides that-

lsquoThe supreme command of the defence services of

Bangladesh shall vest in the President and the

exercise thereof shall be regulated by lawrsquo

22 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

36

regulations bye-laws or other instruments

having legislative effect lsquoThe 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

37

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

38

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 presidents 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

39

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

40

affiliated with the president has been able to

command a solidmajorityrsquo8

23 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

41

the Supreme Court but litigation may be

very slow in 1987 there were 29 Supreme

Court judges dealing with 21600 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

42

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

43

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

44

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

45

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 government9

3 Civil Service of Bangladesh

31 Legal framework

46

Article 137 of the constitution of the Peoplersquos

Republic of Bangladesh deals with the term

lsquolegal frameworkrsquo of civil service of

Bangladesh lsquoThe implementation of government

policies and projects is the duty of the

Bangladesh Civil Service a corps of trained

administrators who form the nations 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

47

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

48

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

49

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 75 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

50

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 Bangladesh10

32 Recruitment procedure and

recommendations

The Bangladesh Public Service Commission (BPSC)

is a quasi judicial body established in 1972

under the Constitution of the Peoples Republic

51

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 Honble President

of the Republic11 Presidential Order No 34 (on

May 9 1972) PSC Ordinance No LVII of 1977 BCS

Recruitment Rules of 1981 PSC Officers amp

52

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 appointment12

The cadres and entry posts of the

Bangladesh Civil Service

General cadres

1 BCS (Administration) Assistant Commissioner)

53

2 BCS (Police) Assistant Superintendent of Police

3 BCS (Audit amp Accounts) Assistant Accountant General

4 BCS (Economic) Assistant Chief

5 BCS (Customs amp Excise) Assistant Commissioner

(Customs amp 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 amp

Export Equivalent Posts

11 BCS (Postal) Assistant Post Master General

Equivalent Posts

12 BCS (Railway Transportation amp Commercial)

Assistant Traffic Superintendent

54

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 amp Highways) Assistant Engineer

4 BCS (Telecommunications) Assistant Divisional

Engineer

5 BCS (Public Health Engineering) Assistant Engineer

55

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

Officer13

Recruitment

56

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 amp 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 appointment14

lsquoRecruitment is the process of searching for

prospective employees and stimulating them to

apply for jobs in the organization (Flippo and

57

Edwin 1984 141) No element of the career

service system is more important than the

recruitment policyrdquo (Commission of

Inquiry on Public Service Personnel 193537

quoted in Stall 196251) 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)

58

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 partymdashas opposed to a system of awarding

offices on the basis of merit independent of

political activityrsquo15

Legal Basis for BCS Recruitment Policy

lsquoThe constitution of Bangladesh has granted

equal employment opportunities for citizens The

constitution declares ldquoThere shall be equality

of opportunity for all citizens in respect of

employment or office in the service of the

Republicrdquo (Article 29 [1]) ldquoNo citizen shall

on the grounds only of religion race caste

59

sex or place of birth be ineligible for or

discriminated against in respect of any

employment or office in the service of the

Republicrdquo (Article 29 [2]) However under clause

(3) of the same Article the constitution has

provided certain exceptions that read ldquoNothing

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

60

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 servicesrsquo 16

61

Recommendations Julian Paul Assange an

Australian computer programmer

politicalinternet activist publisher and

journalist and founder of WikiLeaks supports

the free dissemination of government data17 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

62

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

Thatrsquos 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

63

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 abolished18

64

Besides these quota system should be abolished

as our Constitution or any law has not given the

definition and the factors of opting lsquobackward

sectionrsquo of the citizens Article 29(3)(a) of

our constitution though provides the quota

system for lsquobackward sectionrsquo 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 sonsrsquo being poor are not getting the said

benefit and hence Professor M Abdul Wahhab

65

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

ordersrules 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

66

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

67

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 ldquothough 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 art29 (1) amp29(2) it merely confers an

enabling power But as it an exception to the

guarantee of art29 (1) amp29(2) it should not be

68

interpreted or given effect to in such a way as

to nullify the guarantee under art29 (1)

amp29(2) The Indian Supreme Court held that

reservation in excess of 50 would be

unconstitutional20

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 lsquonotrsquo and hence ldquowe are to consider

the meaning of lsquobackward sectionrsquo Art 29 is

comparable with art16 of the Indian

Constitution which uses the expression lsquobackward

classrsquo where as the expression used in art

29(3) is backward section The Indian Supreme

Court has interpreted the expression lsquobackward

classrsquo in several decisions Those decisions may

69

be helpful but not decisive in interpreting

lsquobackward sectionrsquo 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

70

33 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 statusetc)22

But unfortunately

there is no hard and fast and transparent

principle for doing the transfer of the civil

71

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 workplace23

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 ie what quality is considered is to

72

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

73

determined and if it is taken or done there

will be no request or lobby for the transfer and

harassment

34 Promotion procedure and

recommendation

The word lsquopromotionrsquo 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

Bangladesh24

74

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

75

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

76

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

77

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

35 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

Itrsquos not what you want in life but itrsquos

knowing how to reach it

78

Itrsquos not where you want to go but itrsquos knowing

how to get there

Itrsquos not how high you want to rise but itrsquos

knowing how to take off

It may not be quite the outcome you were aiming

for but it will be an outcome

Itrsquos not what you dream of doing but itrsquos

having the knowledge to do it

Its not a set of goals but itrsquos more like a

vision

79

Itrsquos not the goal you set but itrsquos 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 Departments26

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

80

Recommendation

Training should be given to the civil servants

for realizing the matter that embodied in art21

(2) of the Constitution of the Peoplersquos 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

36 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

81

said word lsquoaccountability 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 ldquowatchdogrdquo units to scrutinize

and hold departments accountable legitimacy of

82

these commissions is built upon their

independence as it avoids any conflicts of

interests27

There are various types of accountability ie

(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

lsquoParliaments are key actors in what has

been termed the lsquochain of

83

accountabilityrsquo 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 lsquosociety driven horizontal

84

accountabilityrsquo 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 ndashno

matter how defined ndash parliaments are one

of the institutions through which

diagonal accountability can be

exercisedrsquo27

However the civil servants should be

accountable by any or all means of

accountability

85

4 Judicial Service of Bangladesh

41 Legal framework

Article 137 of the Constitution also deals with

the term lsquolegal frameworkrsquo 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

itsrsquo judgment passed in Civil Appeal no79 of

1999 commonly known in the Masder Hossainrsquos case

that-

ldquoIt is declared that the word ldquoappointmentsrdquo 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

86

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

ldquoBangladesh Judicial Service Commission has been

established in 2007 by the rule lsquo বাংলােদশ

জিডিসয়াল সািভস কিমশন িবিধমালা ২০০৭ rsquo ie

87

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

88

Law Faculty of any one of three leading public

university ie 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 Secretariatrdquo 28

42 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

89

voice According to Rule 5 of OgraveevsjvDagger`k RywWwmqvj

mvwfcopyDaggermi cOumlDaggerek cDagger` wbDaggerqvM welqK AvDagger`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

90

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 32 are applicable with equitable

equality

43 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

91

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 33 is

applicable with equitable equality

44 Promotion procedure and recommendations

The promotion of sub-ordinate Courtrsquos judges are

in fact depended on the Annual Confidential

92

Reports (ACRs) There is no examination system

for getting the promotion in the sub-

ordinate judiciary

lsquoPresently 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

93

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 linersquo29

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-

ldquoConfidential reports should set out distinctly

and tersely sufficient particulars and it is

essential that they should be clear and definite

94

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 Divisionrdquo 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

95

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 34 is

applicable with equitable equality

45 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

96

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 skills30

Recommendation

The quality of training provided by JATI should

be improved A training need- assessment of the

subordinate court judges could be undertaken

97

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

98

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

subordinatecourts31

99

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

51 Ethical education

100

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 publics trust

and confidence in government by demonstrating

the highest standards of professional

competence efficiency and effectiveness

101

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

102

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

103

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

104

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 assets32 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

52 Use of technology

105

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 peoplersquos 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 lsquoThe Law of

Civil Procedurersquo first edition 2006 volume 1

page iii that

106

ldquoFor 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 lawyerrdquo However

the corruption of the court staff and the

offices of the civil servants can be controlled

easily by using technology ie 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

107

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

108

53 Check and balance

The theory of separation of powers was given by

the Charles-Louis de Secondat baron de La Bregravede

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 lsquothe spirit of

lawsrsquo that

lsquoI have not drawn my principles from my

prejudices but from the nature of thingsrdquo 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

109

Conclusion

In conclusion it can be reminded that 3rd

paragraph of the preamble of our constitution

provides that

lsquoFurther 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 citizensrsquo

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

110

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 p1 see also Mahmudul Islam-

Constitutional law of Bangladesh second edition

p1

2 httpenwikipediaorgwikiConstitution

111

3 httplegal-

dictionarythefreedictionarycomconstitution

4 httpwwwthefreedictionarycomframework

5 httpwwwmacmillandictionarycomdictionarybri

tishframework

6 httpwwwegyankoshacinbitstream

7 httpwwwbanglapediaorghttpdocsHTE_0079HTM

8 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

9 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

10 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

11 httpwwwbpscgovbd2011

12 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

13 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

14 httpwwwrhdgovbdRulesAndRegulationsView_Ov

erviewaspRef=A

112

15 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

16 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

17 wwwforbescomprofilejulian-assange

18 httpwwwti-bangladeshorgresearchES_PSCpdf

19 httpwwwnapsipagorgPDFABDUL_WAHHABpdf see

also Khan Akbar Ali and Kazi Rakibuddin Ahmad

March 2008 ldquoQuota System for Civil Service

Recruitment in Bangladesh An Exploratory

Analysisrdquo 2008 available at http

wwwbpscgovbddocuments news25906 newsdoc

20 Mahmudul Islam- Constitutional law of Bangladesh

second edition p171 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 p171 see also Indra Sawhney v

India AIR 1993 SC 477

113

22 httpwwwmopagovbdindexphpoption=com_conte

ntamptask=viewampid=377ampItemid=419

23 httpwwwvsrhhrCustomPagesStaticHRVFilesL

egislation__Civil-Servants-Actpdf

24 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

25 httptraininganddevelopmentnaukrihubcomtrain

inghtml

26 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

27 httpsiteresourcesworldbankorgPUBLICSECTORAN

DGOVERNANCEResourcesAccountabilityGovernancepd

f

28 httpwwwjscbdorgbdb_functionphp

29 httpwwwigsbracuacbdUserFilesFilearchive

_fileJudiciary_Policy_Notepdf

30 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

114

31 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

32 httpwwwoecdorgdataoecd625735521740pdf

Page 34: The constitutional framework of public administration in bangladesh

34

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

Ministerialrdquo7

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 Peoplersquos Republic of

Bangladesh has been substituted by the

35

Constitution (Fifth Amendment) Act 2011 (Act

XIV of 2011) section 22 which provides that-

lsquoThe supreme command of the defence services of

Bangladesh shall vest in the President and the

exercise thereof shall be regulated by lawrsquo

22 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

36

regulations bye-laws or other instruments

having legislative effect lsquoThe 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

37

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

38

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 presidents 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

39

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

40

affiliated with the president has been able to

command a solidmajorityrsquo8

23 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

41

the Supreme Court but litigation may be

very slow in 1987 there were 29 Supreme

Court judges dealing with 21600 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

42

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

43

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

44

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

45

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 government9

3 Civil Service of Bangladesh

31 Legal framework

46

Article 137 of the constitution of the Peoplersquos

Republic of Bangladesh deals with the term

lsquolegal frameworkrsquo of civil service of

Bangladesh lsquoThe implementation of government

policies and projects is the duty of the

Bangladesh Civil Service a corps of trained

administrators who form the nations 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

47

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

48

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

49

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 75 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

50

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 Bangladesh10

32 Recruitment procedure and

recommendations

The Bangladesh Public Service Commission (BPSC)

is a quasi judicial body established in 1972

under the Constitution of the Peoples Republic

51

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 Honble President

of the Republic11 Presidential Order No 34 (on

May 9 1972) PSC Ordinance No LVII of 1977 BCS

Recruitment Rules of 1981 PSC Officers amp

52

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 appointment12

The cadres and entry posts of the

Bangladesh Civil Service

General cadres

1 BCS (Administration) Assistant Commissioner)

53

2 BCS (Police) Assistant Superintendent of Police

3 BCS (Audit amp Accounts) Assistant Accountant General

4 BCS (Economic) Assistant Chief

5 BCS (Customs amp Excise) Assistant Commissioner

(Customs amp 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 amp

Export Equivalent Posts

11 BCS (Postal) Assistant Post Master General

Equivalent Posts

12 BCS (Railway Transportation amp Commercial)

Assistant Traffic Superintendent

54

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 amp Highways) Assistant Engineer

4 BCS (Telecommunications) Assistant Divisional

Engineer

5 BCS (Public Health Engineering) Assistant Engineer

55

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

Officer13

Recruitment

56

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 amp 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 appointment14

lsquoRecruitment is the process of searching for

prospective employees and stimulating them to

apply for jobs in the organization (Flippo and

57

Edwin 1984 141) No element of the career

service system is more important than the

recruitment policyrdquo (Commission of

Inquiry on Public Service Personnel 193537

quoted in Stall 196251) 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)

58

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 partymdashas opposed to a system of awarding

offices on the basis of merit independent of

political activityrsquo15

Legal Basis for BCS Recruitment Policy

lsquoThe constitution of Bangladesh has granted

equal employment opportunities for citizens The

constitution declares ldquoThere shall be equality

of opportunity for all citizens in respect of

employment or office in the service of the

Republicrdquo (Article 29 [1]) ldquoNo citizen shall

on the grounds only of religion race caste

59

sex or place of birth be ineligible for or

discriminated against in respect of any

employment or office in the service of the

Republicrdquo (Article 29 [2]) However under clause

(3) of the same Article the constitution has

provided certain exceptions that read ldquoNothing

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

60

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 servicesrsquo 16

61

Recommendations Julian Paul Assange an

Australian computer programmer

politicalinternet activist publisher and

journalist and founder of WikiLeaks supports

the free dissemination of government data17 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

62

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

Thatrsquos 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

63

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 abolished18

64

Besides these quota system should be abolished

as our Constitution or any law has not given the

definition and the factors of opting lsquobackward

sectionrsquo of the citizens Article 29(3)(a) of

our constitution though provides the quota

system for lsquobackward sectionrsquo 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 sonsrsquo being poor are not getting the said

benefit and hence Professor M Abdul Wahhab

65

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

ordersrules 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

66

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

67

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 ldquothough 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 art29 (1) amp29(2) it merely confers an

enabling power But as it an exception to the

guarantee of art29 (1) amp29(2) it should not be

68

interpreted or given effect to in such a way as

to nullify the guarantee under art29 (1)

amp29(2) The Indian Supreme Court held that

reservation in excess of 50 would be

unconstitutional20

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 lsquonotrsquo and hence ldquowe are to consider

the meaning of lsquobackward sectionrsquo Art 29 is

comparable with art16 of the Indian

Constitution which uses the expression lsquobackward

classrsquo where as the expression used in art

29(3) is backward section The Indian Supreme

Court has interpreted the expression lsquobackward

classrsquo in several decisions Those decisions may

69

be helpful but not decisive in interpreting

lsquobackward sectionrsquo 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

70

33 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 statusetc)22

But unfortunately

there is no hard and fast and transparent

principle for doing the transfer of the civil

71

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 workplace23

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 ie what quality is considered is to

72

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

73

determined and if it is taken or done there

will be no request or lobby for the transfer and

harassment

34 Promotion procedure and

recommendation

The word lsquopromotionrsquo 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

Bangladesh24

74

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

75

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

76

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

77

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

35 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

Itrsquos not what you want in life but itrsquos

knowing how to reach it

78

Itrsquos not where you want to go but itrsquos knowing

how to get there

Itrsquos not how high you want to rise but itrsquos

knowing how to take off

It may not be quite the outcome you were aiming

for but it will be an outcome

Itrsquos not what you dream of doing but itrsquos

having the knowledge to do it

Its not a set of goals but itrsquos more like a

vision

79

Itrsquos not the goal you set but itrsquos 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 Departments26

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

80

Recommendation

Training should be given to the civil servants

for realizing the matter that embodied in art21

(2) of the Constitution of the Peoplersquos 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

36 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

81

said word lsquoaccountability 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 ldquowatchdogrdquo units to scrutinize

and hold departments accountable legitimacy of

82

these commissions is built upon their

independence as it avoids any conflicts of

interests27

There are various types of accountability ie

(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

lsquoParliaments are key actors in what has

been termed the lsquochain of

83

accountabilityrsquo 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 lsquosociety driven horizontal

84

accountabilityrsquo 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 ndashno

matter how defined ndash parliaments are one

of the institutions through which

diagonal accountability can be

exercisedrsquo27

However the civil servants should be

accountable by any or all means of

accountability

85

4 Judicial Service of Bangladesh

41 Legal framework

Article 137 of the Constitution also deals with

the term lsquolegal frameworkrsquo 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

itsrsquo judgment passed in Civil Appeal no79 of

1999 commonly known in the Masder Hossainrsquos case

that-

ldquoIt is declared that the word ldquoappointmentsrdquo 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

86

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

ldquoBangladesh Judicial Service Commission has been

established in 2007 by the rule lsquo বাংলােদশ

জিডিসয়াল সািভস কিমশন িবিধমালা ২০০৭ rsquo ie

87

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

88

Law Faculty of any one of three leading public

university ie 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 Secretariatrdquo 28

42 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

89

voice According to Rule 5 of OgraveevsjvDagger`k RywWwmqvj

mvwfcopyDaggermi cOumlDaggerek cDagger` wbDaggerqvM welqK AvDagger`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

90

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 32 are applicable with equitable

equality

43 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

91

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 33 is

applicable with equitable equality

44 Promotion procedure and recommendations

The promotion of sub-ordinate Courtrsquos judges are

in fact depended on the Annual Confidential

92

Reports (ACRs) There is no examination system

for getting the promotion in the sub-

ordinate judiciary

lsquoPresently 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

93

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 linersquo29

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-

ldquoConfidential reports should set out distinctly

and tersely sufficient particulars and it is

essential that they should be clear and definite

94

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 Divisionrdquo 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

95

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 34 is

applicable with equitable equality

45 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

96

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 skills30

Recommendation

The quality of training provided by JATI should

be improved A training need- assessment of the

subordinate court judges could be undertaken

97

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

98

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

subordinatecourts31

99

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

51 Ethical education

100

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 publics trust

and confidence in government by demonstrating

the highest standards of professional

competence efficiency and effectiveness

101

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

102

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

103

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

104

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 assets32 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

52 Use of technology

105

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 peoplersquos 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 lsquoThe Law of

Civil Procedurersquo first edition 2006 volume 1

page iii that

106

ldquoFor 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 lawyerrdquo However

the corruption of the court staff and the

offices of the civil servants can be controlled

easily by using technology ie 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

107

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

108

53 Check and balance

The theory of separation of powers was given by

the Charles-Louis de Secondat baron de La Bregravede

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 lsquothe spirit of

lawsrsquo that

lsquoI have not drawn my principles from my

prejudices but from the nature of thingsrdquo 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

109

Conclusion

In conclusion it can be reminded that 3rd

paragraph of the preamble of our constitution

provides that

lsquoFurther 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 citizensrsquo

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

110

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 p1 see also Mahmudul Islam-

Constitutional law of Bangladesh second edition

p1

2 httpenwikipediaorgwikiConstitution

111

3 httplegal-

dictionarythefreedictionarycomconstitution

4 httpwwwthefreedictionarycomframework

5 httpwwwmacmillandictionarycomdictionarybri

tishframework

6 httpwwwegyankoshacinbitstream

7 httpwwwbanglapediaorghttpdocsHTE_0079HTM

8 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

9 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

10 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

11 httpwwwbpscgovbd2011

12 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

13 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

14 httpwwwrhdgovbdRulesAndRegulationsView_Ov

erviewaspRef=A

112

15 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

16 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

17 wwwforbescomprofilejulian-assange

18 httpwwwti-bangladeshorgresearchES_PSCpdf

19 httpwwwnapsipagorgPDFABDUL_WAHHABpdf see

also Khan Akbar Ali and Kazi Rakibuddin Ahmad

March 2008 ldquoQuota System for Civil Service

Recruitment in Bangladesh An Exploratory

Analysisrdquo 2008 available at http

wwwbpscgovbddocuments news25906 newsdoc

20 Mahmudul Islam- Constitutional law of Bangladesh

second edition p171 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 p171 see also Indra Sawhney v

India AIR 1993 SC 477

113

22 httpwwwmopagovbdindexphpoption=com_conte

ntamptask=viewampid=377ampItemid=419

23 httpwwwvsrhhrCustomPagesStaticHRVFilesL

egislation__Civil-Servants-Actpdf

24 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

25 httptraininganddevelopmentnaukrihubcomtrain

inghtml

26 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

27 httpsiteresourcesworldbankorgPUBLICSECTORAN

DGOVERNANCEResourcesAccountabilityGovernancepd

f

28 httpwwwjscbdorgbdb_functionphp

29 httpwwwigsbracuacbdUserFilesFilearchive

_fileJudiciary_Policy_Notepdf

30 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

114

31 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

32 httpwwwoecdorgdataoecd625735521740pdf

Page 35: The constitutional framework of public administration in bangladesh

35

Constitution (Fifth Amendment) Act 2011 (Act

XIV of 2011) section 22 which provides that-

lsquoThe supreme command of the defence services of

Bangladesh shall vest in the President and the

exercise thereof shall be regulated by lawrsquo

22 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

36

regulations bye-laws or other instruments

having legislative effect lsquoThe 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

37

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

38

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 presidents 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

39

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

40

affiliated with the president has been able to

command a solidmajorityrsquo8

23 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

41

the Supreme Court but litigation may be

very slow in 1987 there were 29 Supreme

Court judges dealing with 21600 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

42

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

43

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

44

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

45

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 government9

3 Civil Service of Bangladesh

31 Legal framework

46

Article 137 of the constitution of the Peoplersquos

Republic of Bangladesh deals with the term

lsquolegal frameworkrsquo of civil service of

Bangladesh lsquoThe implementation of government

policies and projects is the duty of the

Bangladesh Civil Service a corps of trained

administrators who form the nations 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

47

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

48

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

49

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 75 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

50

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 Bangladesh10

32 Recruitment procedure and

recommendations

The Bangladesh Public Service Commission (BPSC)

is a quasi judicial body established in 1972

under the Constitution of the Peoples Republic

51

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 Honble President

of the Republic11 Presidential Order No 34 (on

May 9 1972) PSC Ordinance No LVII of 1977 BCS

Recruitment Rules of 1981 PSC Officers amp

52

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 appointment12

The cadres and entry posts of the

Bangladesh Civil Service

General cadres

1 BCS (Administration) Assistant Commissioner)

53

2 BCS (Police) Assistant Superintendent of Police

3 BCS (Audit amp Accounts) Assistant Accountant General

4 BCS (Economic) Assistant Chief

5 BCS (Customs amp Excise) Assistant Commissioner

(Customs amp 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 amp

Export Equivalent Posts

11 BCS (Postal) Assistant Post Master General

Equivalent Posts

12 BCS (Railway Transportation amp Commercial)

Assistant Traffic Superintendent

54

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 amp Highways) Assistant Engineer

4 BCS (Telecommunications) Assistant Divisional

Engineer

5 BCS (Public Health Engineering) Assistant Engineer

55

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

Officer13

Recruitment

56

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 amp 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 appointment14

lsquoRecruitment is the process of searching for

prospective employees and stimulating them to

apply for jobs in the organization (Flippo and

57

Edwin 1984 141) No element of the career

service system is more important than the

recruitment policyrdquo (Commission of

Inquiry on Public Service Personnel 193537

quoted in Stall 196251) 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)

58

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 partymdashas opposed to a system of awarding

offices on the basis of merit independent of

political activityrsquo15

Legal Basis for BCS Recruitment Policy

lsquoThe constitution of Bangladesh has granted

equal employment opportunities for citizens The

constitution declares ldquoThere shall be equality

of opportunity for all citizens in respect of

employment or office in the service of the

Republicrdquo (Article 29 [1]) ldquoNo citizen shall

on the grounds only of religion race caste

59

sex or place of birth be ineligible for or

discriminated against in respect of any

employment or office in the service of the

Republicrdquo (Article 29 [2]) However under clause

(3) of the same Article the constitution has

provided certain exceptions that read ldquoNothing

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

60

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 servicesrsquo 16

61

Recommendations Julian Paul Assange an

Australian computer programmer

politicalinternet activist publisher and

journalist and founder of WikiLeaks supports

the free dissemination of government data17 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

62

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

Thatrsquos 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

63

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 abolished18

64

Besides these quota system should be abolished

as our Constitution or any law has not given the

definition and the factors of opting lsquobackward

sectionrsquo of the citizens Article 29(3)(a) of

our constitution though provides the quota

system for lsquobackward sectionrsquo 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 sonsrsquo being poor are not getting the said

benefit and hence Professor M Abdul Wahhab

65

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

ordersrules 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

66

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

67

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 ldquothough 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 art29 (1) amp29(2) it merely confers an

enabling power But as it an exception to the

guarantee of art29 (1) amp29(2) it should not be

68

interpreted or given effect to in such a way as

to nullify the guarantee under art29 (1)

amp29(2) The Indian Supreme Court held that

reservation in excess of 50 would be

unconstitutional20

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 lsquonotrsquo and hence ldquowe are to consider

the meaning of lsquobackward sectionrsquo Art 29 is

comparable with art16 of the Indian

Constitution which uses the expression lsquobackward

classrsquo where as the expression used in art

29(3) is backward section The Indian Supreme

Court has interpreted the expression lsquobackward

classrsquo in several decisions Those decisions may

69

be helpful but not decisive in interpreting

lsquobackward sectionrsquo 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

70

33 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 statusetc)22

But unfortunately

there is no hard and fast and transparent

principle for doing the transfer of the civil

71

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 workplace23

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 ie what quality is considered is to

72

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

73

determined and if it is taken or done there

will be no request or lobby for the transfer and

harassment

34 Promotion procedure and

recommendation

The word lsquopromotionrsquo 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

Bangladesh24

74

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

75

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

76

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

77

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

35 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

Itrsquos not what you want in life but itrsquos

knowing how to reach it

78

Itrsquos not where you want to go but itrsquos knowing

how to get there

Itrsquos not how high you want to rise but itrsquos

knowing how to take off

It may not be quite the outcome you were aiming

for but it will be an outcome

Itrsquos not what you dream of doing but itrsquos

having the knowledge to do it

Its not a set of goals but itrsquos more like a

vision

79

Itrsquos not the goal you set but itrsquos 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 Departments26

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

80

Recommendation

Training should be given to the civil servants

for realizing the matter that embodied in art21

(2) of the Constitution of the Peoplersquos 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

36 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

81

said word lsquoaccountability 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 ldquowatchdogrdquo units to scrutinize

and hold departments accountable legitimacy of

82

these commissions is built upon their

independence as it avoids any conflicts of

interests27

There are various types of accountability ie

(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

lsquoParliaments are key actors in what has

been termed the lsquochain of

83

accountabilityrsquo 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 lsquosociety driven horizontal

84

accountabilityrsquo 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 ndashno

matter how defined ndash parliaments are one

of the institutions through which

diagonal accountability can be

exercisedrsquo27

However the civil servants should be

accountable by any or all means of

accountability

85

4 Judicial Service of Bangladesh

41 Legal framework

Article 137 of the Constitution also deals with

the term lsquolegal frameworkrsquo 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

itsrsquo judgment passed in Civil Appeal no79 of

1999 commonly known in the Masder Hossainrsquos case

that-

ldquoIt is declared that the word ldquoappointmentsrdquo 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

86

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

ldquoBangladesh Judicial Service Commission has been

established in 2007 by the rule lsquo বাংলােদশ

জিডিসয়াল সািভস কিমশন িবিধমালা ২০০৭ rsquo ie

87

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

88

Law Faculty of any one of three leading public

university ie 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 Secretariatrdquo 28

42 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

89

voice According to Rule 5 of OgraveevsjvDagger`k RywWwmqvj

mvwfcopyDaggermi cOumlDaggerek cDagger` wbDaggerqvM welqK AvDagger`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

90

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 32 are applicable with equitable

equality

43 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

91

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 33 is

applicable with equitable equality

44 Promotion procedure and recommendations

The promotion of sub-ordinate Courtrsquos judges are

in fact depended on the Annual Confidential

92

Reports (ACRs) There is no examination system

for getting the promotion in the sub-

ordinate judiciary

lsquoPresently 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

93

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 linersquo29

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-

ldquoConfidential reports should set out distinctly

and tersely sufficient particulars and it is

essential that they should be clear and definite

94

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 Divisionrdquo 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

95

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 34 is

applicable with equitable equality

45 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

96

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 skills30

Recommendation

The quality of training provided by JATI should

be improved A training need- assessment of the

subordinate court judges could be undertaken

97

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

98

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

subordinatecourts31

99

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

51 Ethical education

100

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 publics trust

and confidence in government by demonstrating

the highest standards of professional

competence efficiency and effectiveness

101

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

102

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

103

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

104

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 assets32 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

52 Use of technology

105

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 peoplersquos 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 lsquoThe Law of

Civil Procedurersquo first edition 2006 volume 1

page iii that

106

ldquoFor 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 lawyerrdquo However

the corruption of the court staff and the

offices of the civil servants can be controlled

easily by using technology ie 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

107

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

108

53 Check and balance

The theory of separation of powers was given by

the Charles-Louis de Secondat baron de La Bregravede

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 lsquothe spirit of

lawsrsquo that

lsquoI have not drawn my principles from my

prejudices but from the nature of thingsrdquo 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

109

Conclusion

In conclusion it can be reminded that 3rd

paragraph of the preamble of our constitution

provides that

lsquoFurther 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 citizensrsquo

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

110

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 p1 see also Mahmudul Islam-

Constitutional law of Bangladesh second edition

p1

2 httpenwikipediaorgwikiConstitution

111

3 httplegal-

dictionarythefreedictionarycomconstitution

4 httpwwwthefreedictionarycomframework

5 httpwwwmacmillandictionarycomdictionarybri

tishframework

6 httpwwwegyankoshacinbitstream

7 httpwwwbanglapediaorghttpdocsHTE_0079HTM

8 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

9 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

10 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

11 httpwwwbpscgovbd2011

12 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

13 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

14 httpwwwrhdgovbdRulesAndRegulationsView_Ov

erviewaspRef=A

112

15 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

16 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

17 wwwforbescomprofilejulian-assange

18 httpwwwti-bangladeshorgresearchES_PSCpdf

19 httpwwwnapsipagorgPDFABDUL_WAHHABpdf see

also Khan Akbar Ali and Kazi Rakibuddin Ahmad

March 2008 ldquoQuota System for Civil Service

Recruitment in Bangladesh An Exploratory

Analysisrdquo 2008 available at http

wwwbpscgovbddocuments news25906 newsdoc

20 Mahmudul Islam- Constitutional law of Bangladesh

second edition p171 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 p171 see also Indra Sawhney v

India AIR 1993 SC 477

113

22 httpwwwmopagovbdindexphpoption=com_conte

ntamptask=viewampid=377ampItemid=419

23 httpwwwvsrhhrCustomPagesStaticHRVFilesL

egislation__Civil-Servants-Actpdf

24 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

25 httptraininganddevelopmentnaukrihubcomtrain

inghtml

26 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

27 httpsiteresourcesworldbankorgPUBLICSECTORAN

DGOVERNANCEResourcesAccountabilityGovernancepd

f

28 httpwwwjscbdorgbdb_functionphp

29 httpwwwigsbracuacbdUserFilesFilearchive

_fileJudiciary_Policy_Notepdf

30 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

114

31 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

32 httpwwwoecdorgdataoecd625735521740pdf

Page 36: The constitutional framework of public administration in bangladesh

36

regulations bye-laws or other instruments

having legislative effect lsquoThe 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

37

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

38

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 presidents 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

39

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

40

affiliated with the president has been able to

command a solidmajorityrsquo8

23 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

41

the Supreme Court but litigation may be

very slow in 1987 there were 29 Supreme

Court judges dealing with 21600 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

42

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

43

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

44

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

45

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 government9

3 Civil Service of Bangladesh

31 Legal framework

46

Article 137 of the constitution of the Peoplersquos

Republic of Bangladesh deals with the term

lsquolegal frameworkrsquo of civil service of

Bangladesh lsquoThe implementation of government

policies and projects is the duty of the

Bangladesh Civil Service a corps of trained

administrators who form the nations 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

47

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

48

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

49

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 75 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

50

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 Bangladesh10

32 Recruitment procedure and

recommendations

The Bangladesh Public Service Commission (BPSC)

is a quasi judicial body established in 1972

under the Constitution of the Peoples Republic

51

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 Honble President

of the Republic11 Presidential Order No 34 (on

May 9 1972) PSC Ordinance No LVII of 1977 BCS

Recruitment Rules of 1981 PSC Officers amp

52

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 appointment12

The cadres and entry posts of the

Bangladesh Civil Service

General cadres

1 BCS (Administration) Assistant Commissioner)

53

2 BCS (Police) Assistant Superintendent of Police

3 BCS (Audit amp Accounts) Assistant Accountant General

4 BCS (Economic) Assistant Chief

5 BCS (Customs amp Excise) Assistant Commissioner

(Customs amp 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 amp

Export Equivalent Posts

11 BCS (Postal) Assistant Post Master General

Equivalent Posts

12 BCS (Railway Transportation amp Commercial)

Assistant Traffic Superintendent

54

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 amp Highways) Assistant Engineer

4 BCS (Telecommunications) Assistant Divisional

Engineer

5 BCS (Public Health Engineering) Assistant Engineer

55

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

Officer13

Recruitment

56

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 amp 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 appointment14

lsquoRecruitment is the process of searching for

prospective employees and stimulating them to

apply for jobs in the organization (Flippo and

57

Edwin 1984 141) No element of the career

service system is more important than the

recruitment policyrdquo (Commission of

Inquiry on Public Service Personnel 193537

quoted in Stall 196251) 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)

58

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 partymdashas opposed to a system of awarding

offices on the basis of merit independent of

political activityrsquo15

Legal Basis for BCS Recruitment Policy

lsquoThe constitution of Bangladesh has granted

equal employment opportunities for citizens The

constitution declares ldquoThere shall be equality

of opportunity for all citizens in respect of

employment or office in the service of the

Republicrdquo (Article 29 [1]) ldquoNo citizen shall

on the grounds only of religion race caste

59

sex or place of birth be ineligible for or

discriminated against in respect of any

employment or office in the service of the

Republicrdquo (Article 29 [2]) However under clause

(3) of the same Article the constitution has

provided certain exceptions that read ldquoNothing

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

60

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 servicesrsquo 16

61

Recommendations Julian Paul Assange an

Australian computer programmer

politicalinternet activist publisher and

journalist and founder of WikiLeaks supports

the free dissemination of government data17 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

62

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

Thatrsquos 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

63

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 abolished18

64

Besides these quota system should be abolished

as our Constitution or any law has not given the

definition and the factors of opting lsquobackward

sectionrsquo of the citizens Article 29(3)(a) of

our constitution though provides the quota

system for lsquobackward sectionrsquo 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 sonsrsquo being poor are not getting the said

benefit and hence Professor M Abdul Wahhab

65

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

ordersrules 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

66

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

67

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 ldquothough 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 art29 (1) amp29(2) it merely confers an

enabling power But as it an exception to the

guarantee of art29 (1) amp29(2) it should not be

68

interpreted or given effect to in such a way as

to nullify the guarantee under art29 (1)

amp29(2) The Indian Supreme Court held that

reservation in excess of 50 would be

unconstitutional20

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 lsquonotrsquo and hence ldquowe are to consider

the meaning of lsquobackward sectionrsquo Art 29 is

comparable with art16 of the Indian

Constitution which uses the expression lsquobackward

classrsquo where as the expression used in art

29(3) is backward section The Indian Supreme

Court has interpreted the expression lsquobackward

classrsquo in several decisions Those decisions may

69

be helpful but not decisive in interpreting

lsquobackward sectionrsquo 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

70

33 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 statusetc)22

But unfortunately

there is no hard and fast and transparent

principle for doing the transfer of the civil

71

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 workplace23

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 ie what quality is considered is to

72

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

73

determined and if it is taken or done there

will be no request or lobby for the transfer and

harassment

34 Promotion procedure and

recommendation

The word lsquopromotionrsquo 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

Bangladesh24

74

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

75

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

76

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

77

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

35 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

Itrsquos not what you want in life but itrsquos

knowing how to reach it

78

Itrsquos not where you want to go but itrsquos knowing

how to get there

Itrsquos not how high you want to rise but itrsquos

knowing how to take off

It may not be quite the outcome you were aiming

for but it will be an outcome

Itrsquos not what you dream of doing but itrsquos

having the knowledge to do it

Its not a set of goals but itrsquos more like a

vision

79

Itrsquos not the goal you set but itrsquos 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 Departments26

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

80

Recommendation

Training should be given to the civil servants

for realizing the matter that embodied in art21

(2) of the Constitution of the Peoplersquos 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

36 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

81

said word lsquoaccountability 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 ldquowatchdogrdquo units to scrutinize

and hold departments accountable legitimacy of

82

these commissions is built upon their

independence as it avoids any conflicts of

interests27

There are various types of accountability ie

(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

lsquoParliaments are key actors in what has

been termed the lsquochain of

83

accountabilityrsquo 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 lsquosociety driven horizontal

84

accountabilityrsquo 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 ndashno

matter how defined ndash parliaments are one

of the institutions through which

diagonal accountability can be

exercisedrsquo27

However the civil servants should be

accountable by any or all means of

accountability

85

4 Judicial Service of Bangladesh

41 Legal framework

Article 137 of the Constitution also deals with

the term lsquolegal frameworkrsquo 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

itsrsquo judgment passed in Civil Appeal no79 of

1999 commonly known in the Masder Hossainrsquos case

that-

ldquoIt is declared that the word ldquoappointmentsrdquo 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

86

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

ldquoBangladesh Judicial Service Commission has been

established in 2007 by the rule lsquo বাংলােদশ

জিডিসয়াল সািভস কিমশন িবিধমালা ২০০৭ rsquo ie

87

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

88

Law Faculty of any one of three leading public

university ie 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 Secretariatrdquo 28

42 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

89

voice According to Rule 5 of OgraveevsjvDagger`k RywWwmqvj

mvwfcopyDaggermi cOumlDaggerek cDagger` wbDaggerqvM welqK AvDagger`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

90

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 32 are applicable with equitable

equality

43 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

91

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 33 is

applicable with equitable equality

44 Promotion procedure and recommendations

The promotion of sub-ordinate Courtrsquos judges are

in fact depended on the Annual Confidential

92

Reports (ACRs) There is no examination system

for getting the promotion in the sub-

ordinate judiciary

lsquoPresently 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

93

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 linersquo29

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-

ldquoConfidential reports should set out distinctly

and tersely sufficient particulars and it is

essential that they should be clear and definite

94

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 Divisionrdquo 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

95

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 34 is

applicable with equitable equality

45 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

96

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 skills30

Recommendation

The quality of training provided by JATI should

be improved A training need- assessment of the

subordinate court judges could be undertaken

97

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

98

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

subordinatecourts31

99

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

51 Ethical education

100

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 publics trust

and confidence in government by demonstrating

the highest standards of professional

competence efficiency and effectiveness

101

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

102

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

103

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

104

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 assets32 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

52 Use of technology

105

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 peoplersquos 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 lsquoThe Law of

Civil Procedurersquo first edition 2006 volume 1

page iii that

106

ldquoFor 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 lawyerrdquo However

the corruption of the court staff and the

offices of the civil servants can be controlled

easily by using technology ie 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

107

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

108

53 Check and balance

The theory of separation of powers was given by

the Charles-Louis de Secondat baron de La Bregravede

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 lsquothe spirit of

lawsrsquo that

lsquoI have not drawn my principles from my

prejudices but from the nature of thingsrdquo 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

109

Conclusion

In conclusion it can be reminded that 3rd

paragraph of the preamble of our constitution

provides that

lsquoFurther 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 citizensrsquo

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

110

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 p1 see also Mahmudul Islam-

Constitutional law of Bangladesh second edition

p1

2 httpenwikipediaorgwikiConstitution

111

3 httplegal-

dictionarythefreedictionarycomconstitution

4 httpwwwthefreedictionarycomframework

5 httpwwwmacmillandictionarycomdictionarybri

tishframework

6 httpwwwegyankoshacinbitstream

7 httpwwwbanglapediaorghttpdocsHTE_0079HTM

8 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

9 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

10 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

11 httpwwwbpscgovbd2011

12 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

13 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

14 httpwwwrhdgovbdRulesAndRegulationsView_Ov

erviewaspRef=A

112

15 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

16 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

17 wwwforbescomprofilejulian-assange

18 httpwwwti-bangladeshorgresearchES_PSCpdf

19 httpwwwnapsipagorgPDFABDUL_WAHHABpdf see

also Khan Akbar Ali and Kazi Rakibuddin Ahmad

March 2008 ldquoQuota System for Civil Service

Recruitment in Bangladesh An Exploratory

Analysisrdquo 2008 available at http

wwwbpscgovbddocuments news25906 newsdoc

20 Mahmudul Islam- Constitutional law of Bangladesh

second edition p171 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 p171 see also Indra Sawhney v

India AIR 1993 SC 477

113

22 httpwwwmopagovbdindexphpoption=com_conte

ntamptask=viewampid=377ampItemid=419

23 httpwwwvsrhhrCustomPagesStaticHRVFilesL

egislation__Civil-Servants-Actpdf

24 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

25 httptraininganddevelopmentnaukrihubcomtrain

inghtml

26 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

27 httpsiteresourcesworldbankorgPUBLICSECTORAN

DGOVERNANCEResourcesAccountabilityGovernancepd

f

28 httpwwwjscbdorgbdb_functionphp

29 httpwwwigsbracuacbdUserFilesFilearchive

_fileJudiciary_Policy_Notepdf

30 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

114

31 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

32 httpwwwoecdorgdataoecd625735521740pdf

Page 37: The constitutional framework of public administration in bangladesh

37

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

38

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 presidents 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

39

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

40

affiliated with the president has been able to

command a solidmajorityrsquo8

23 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

41

the Supreme Court but litigation may be

very slow in 1987 there were 29 Supreme

Court judges dealing with 21600 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

42

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

43

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

44

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

45

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 government9

3 Civil Service of Bangladesh

31 Legal framework

46

Article 137 of the constitution of the Peoplersquos

Republic of Bangladesh deals with the term

lsquolegal frameworkrsquo of civil service of

Bangladesh lsquoThe implementation of government

policies and projects is the duty of the

Bangladesh Civil Service a corps of trained

administrators who form the nations 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

47

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

48

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

49

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 75 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

50

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 Bangladesh10

32 Recruitment procedure and

recommendations

The Bangladesh Public Service Commission (BPSC)

is a quasi judicial body established in 1972

under the Constitution of the Peoples Republic

51

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 Honble President

of the Republic11 Presidential Order No 34 (on

May 9 1972) PSC Ordinance No LVII of 1977 BCS

Recruitment Rules of 1981 PSC Officers amp

52

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 appointment12

The cadres and entry posts of the

Bangladesh Civil Service

General cadres

1 BCS (Administration) Assistant Commissioner)

53

2 BCS (Police) Assistant Superintendent of Police

3 BCS (Audit amp Accounts) Assistant Accountant General

4 BCS (Economic) Assistant Chief

5 BCS (Customs amp Excise) Assistant Commissioner

(Customs amp 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 amp

Export Equivalent Posts

11 BCS (Postal) Assistant Post Master General

Equivalent Posts

12 BCS (Railway Transportation amp Commercial)

Assistant Traffic Superintendent

54

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 amp Highways) Assistant Engineer

4 BCS (Telecommunications) Assistant Divisional

Engineer

5 BCS (Public Health Engineering) Assistant Engineer

55

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

Officer13

Recruitment

56

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 amp 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 appointment14

lsquoRecruitment is the process of searching for

prospective employees and stimulating them to

apply for jobs in the organization (Flippo and

57

Edwin 1984 141) No element of the career

service system is more important than the

recruitment policyrdquo (Commission of

Inquiry on Public Service Personnel 193537

quoted in Stall 196251) 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)

58

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 partymdashas opposed to a system of awarding

offices on the basis of merit independent of

political activityrsquo15

Legal Basis for BCS Recruitment Policy

lsquoThe constitution of Bangladesh has granted

equal employment opportunities for citizens The

constitution declares ldquoThere shall be equality

of opportunity for all citizens in respect of

employment or office in the service of the

Republicrdquo (Article 29 [1]) ldquoNo citizen shall

on the grounds only of religion race caste

59

sex or place of birth be ineligible for or

discriminated against in respect of any

employment or office in the service of the

Republicrdquo (Article 29 [2]) However under clause

(3) of the same Article the constitution has

provided certain exceptions that read ldquoNothing

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

60

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 servicesrsquo 16

61

Recommendations Julian Paul Assange an

Australian computer programmer

politicalinternet activist publisher and

journalist and founder of WikiLeaks supports

the free dissemination of government data17 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

62

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

Thatrsquos 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

63

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 abolished18

64

Besides these quota system should be abolished

as our Constitution or any law has not given the

definition and the factors of opting lsquobackward

sectionrsquo of the citizens Article 29(3)(a) of

our constitution though provides the quota

system for lsquobackward sectionrsquo 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 sonsrsquo being poor are not getting the said

benefit and hence Professor M Abdul Wahhab

65

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

ordersrules 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

66

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

67

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 ldquothough 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 art29 (1) amp29(2) it merely confers an

enabling power But as it an exception to the

guarantee of art29 (1) amp29(2) it should not be

68

interpreted or given effect to in such a way as

to nullify the guarantee under art29 (1)

amp29(2) The Indian Supreme Court held that

reservation in excess of 50 would be

unconstitutional20

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 lsquonotrsquo and hence ldquowe are to consider

the meaning of lsquobackward sectionrsquo Art 29 is

comparable with art16 of the Indian

Constitution which uses the expression lsquobackward

classrsquo where as the expression used in art

29(3) is backward section The Indian Supreme

Court has interpreted the expression lsquobackward

classrsquo in several decisions Those decisions may

69

be helpful but not decisive in interpreting

lsquobackward sectionrsquo 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

70

33 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 statusetc)22

But unfortunately

there is no hard and fast and transparent

principle for doing the transfer of the civil

71

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 workplace23

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 ie what quality is considered is to

72

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

73

determined and if it is taken or done there

will be no request or lobby for the transfer and

harassment

34 Promotion procedure and

recommendation

The word lsquopromotionrsquo 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

Bangladesh24

74

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

75

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

76

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

77

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

35 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

Itrsquos not what you want in life but itrsquos

knowing how to reach it

78

Itrsquos not where you want to go but itrsquos knowing

how to get there

Itrsquos not how high you want to rise but itrsquos

knowing how to take off

It may not be quite the outcome you were aiming

for but it will be an outcome

Itrsquos not what you dream of doing but itrsquos

having the knowledge to do it

Its not a set of goals but itrsquos more like a

vision

79

Itrsquos not the goal you set but itrsquos 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 Departments26

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

80

Recommendation

Training should be given to the civil servants

for realizing the matter that embodied in art21

(2) of the Constitution of the Peoplersquos 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

36 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

81

said word lsquoaccountability 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 ldquowatchdogrdquo units to scrutinize

and hold departments accountable legitimacy of

82

these commissions is built upon their

independence as it avoids any conflicts of

interests27

There are various types of accountability ie

(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

lsquoParliaments are key actors in what has

been termed the lsquochain of

83

accountabilityrsquo 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 lsquosociety driven horizontal

84

accountabilityrsquo 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 ndashno

matter how defined ndash parliaments are one

of the institutions through which

diagonal accountability can be

exercisedrsquo27

However the civil servants should be

accountable by any or all means of

accountability

85

4 Judicial Service of Bangladesh

41 Legal framework

Article 137 of the Constitution also deals with

the term lsquolegal frameworkrsquo 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

itsrsquo judgment passed in Civil Appeal no79 of

1999 commonly known in the Masder Hossainrsquos case

that-

ldquoIt is declared that the word ldquoappointmentsrdquo 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

86

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

ldquoBangladesh Judicial Service Commission has been

established in 2007 by the rule lsquo বাংলােদশ

জিডিসয়াল সািভস কিমশন িবিধমালা ২০০৭ rsquo ie

87

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

88

Law Faculty of any one of three leading public

university ie 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 Secretariatrdquo 28

42 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

89

voice According to Rule 5 of OgraveevsjvDagger`k RywWwmqvj

mvwfcopyDaggermi cOumlDaggerek cDagger` wbDaggerqvM welqK AvDagger`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

90

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 32 are applicable with equitable

equality

43 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

91

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 33 is

applicable with equitable equality

44 Promotion procedure and recommendations

The promotion of sub-ordinate Courtrsquos judges are

in fact depended on the Annual Confidential

92

Reports (ACRs) There is no examination system

for getting the promotion in the sub-

ordinate judiciary

lsquoPresently 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

93

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 linersquo29

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-

ldquoConfidential reports should set out distinctly

and tersely sufficient particulars and it is

essential that they should be clear and definite

94

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 Divisionrdquo 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

95

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 34 is

applicable with equitable equality

45 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

96

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 skills30

Recommendation

The quality of training provided by JATI should

be improved A training need- assessment of the

subordinate court judges could be undertaken

97

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

98

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

subordinatecourts31

99

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

51 Ethical education

100

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 publics trust

and confidence in government by demonstrating

the highest standards of professional

competence efficiency and effectiveness

101

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

102

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

103

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

104

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 assets32 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

52 Use of technology

105

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 peoplersquos 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 lsquoThe Law of

Civil Procedurersquo first edition 2006 volume 1

page iii that

106

ldquoFor 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 lawyerrdquo However

the corruption of the court staff and the

offices of the civil servants can be controlled

easily by using technology ie 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

107

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

108

53 Check and balance

The theory of separation of powers was given by

the Charles-Louis de Secondat baron de La Bregravede

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 lsquothe spirit of

lawsrsquo that

lsquoI have not drawn my principles from my

prejudices but from the nature of thingsrdquo 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

109

Conclusion

In conclusion it can be reminded that 3rd

paragraph of the preamble of our constitution

provides that

lsquoFurther 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 citizensrsquo

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

110

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 p1 see also Mahmudul Islam-

Constitutional law of Bangladesh second edition

p1

2 httpenwikipediaorgwikiConstitution

111

3 httplegal-

dictionarythefreedictionarycomconstitution

4 httpwwwthefreedictionarycomframework

5 httpwwwmacmillandictionarycomdictionarybri

tishframework

6 httpwwwegyankoshacinbitstream

7 httpwwwbanglapediaorghttpdocsHTE_0079HTM

8 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

9 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

10 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

11 httpwwwbpscgovbd2011

12 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

13 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

14 httpwwwrhdgovbdRulesAndRegulationsView_Ov

erviewaspRef=A

112

15 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

16 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

17 wwwforbescomprofilejulian-assange

18 httpwwwti-bangladeshorgresearchES_PSCpdf

19 httpwwwnapsipagorgPDFABDUL_WAHHABpdf see

also Khan Akbar Ali and Kazi Rakibuddin Ahmad

March 2008 ldquoQuota System for Civil Service

Recruitment in Bangladesh An Exploratory

Analysisrdquo 2008 available at http

wwwbpscgovbddocuments news25906 newsdoc

20 Mahmudul Islam- Constitutional law of Bangladesh

second edition p171 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 p171 see also Indra Sawhney v

India AIR 1993 SC 477

113

22 httpwwwmopagovbdindexphpoption=com_conte

ntamptask=viewampid=377ampItemid=419

23 httpwwwvsrhhrCustomPagesStaticHRVFilesL

egislation__Civil-Servants-Actpdf

24 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

25 httptraininganddevelopmentnaukrihubcomtrain

inghtml

26 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

27 httpsiteresourcesworldbankorgPUBLICSECTORAN

DGOVERNANCEResourcesAccountabilityGovernancepd

f

28 httpwwwjscbdorgbdb_functionphp

29 httpwwwigsbracuacbdUserFilesFilearchive

_fileJudiciary_Policy_Notepdf

30 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

114

31 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

32 httpwwwoecdorgdataoecd625735521740pdf

Page 38: The constitutional framework of public administration in bangladesh

38

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 presidents 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

39

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

40

affiliated with the president has been able to

command a solidmajorityrsquo8

23 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

41

the Supreme Court but litigation may be

very slow in 1987 there were 29 Supreme

Court judges dealing with 21600 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

42

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

43

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

44

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

45

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 government9

3 Civil Service of Bangladesh

31 Legal framework

46

Article 137 of the constitution of the Peoplersquos

Republic of Bangladesh deals with the term

lsquolegal frameworkrsquo of civil service of

Bangladesh lsquoThe implementation of government

policies and projects is the duty of the

Bangladesh Civil Service a corps of trained

administrators who form the nations 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

47

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

48

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

49

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 75 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

50

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 Bangladesh10

32 Recruitment procedure and

recommendations

The Bangladesh Public Service Commission (BPSC)

is a quasi judicial body established in 1972

under the Constitution of the Peoples Republic

51

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 Honble President

of the Republic11 Presidential Order No 34 (on

May 9 1972) PSC Ordinance No LVII of 1977 BCS

Recruitment Rules of 1981 PSC Officers amp

52

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 appointment12

The cadres and entry posts of the

Bangladesh Civil Service

General cadres

1 BCS (Administration) Assistant Commissioner)

53

2 BCS (Police) Assistant Superintendent of Police

3 BCS (Audit amp Accounts) Assistant Accountant General

4 BCS (Economic) Assistant Chief

5 BCS (Customs amp Excise) Assistant Commissioner

(Customs amp 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 amp

Export Equivalent Posts

11 BCS (Postal) Assistant Post Master General

Equivalent Posts

12 BCS (Railway Transportation amp Commercial)

Assistant Traffic Superintendent

54

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 amp Highways) Assistant Engineer

4 BCS (Telecommunications) Assistant Divisional

Engineer

5 BCS (Public Health Engineering) Assistant Engineer

55

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

Officer13

Recruitment

56

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 amp 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 appointment14

lsquoRecruitment is the process of searching for

prospective employees and stimulating them to

apply for jobs in the organization (Flippo and

57

Edwin 1984 141) No element of the career

service system is more important than the

recruitment policyrdquo (Commission of

Inquiry on Public Service Personnel 193537

quoted in Stall 196251) 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)

58

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 partymdashas opposed to a system of awarding

offices on the basis of merit independent of

political activityrsquo15

Legal Basis for BCS Recruitment Policy

lsquoThe constitution of Bangladesh has granted

equal employment opportunities for citizens The

constitution declares ldquoThere shall be equality

of opportunity for all citizens in respect of

employment or office in the service of the

Republicrdquo (Article 29 [1]) ldquoNo citizen shall

on the grounds only of religion race caste

59

sex or place of birth be ineligible for or

discriminated against in respect of any

employment or office in the service of the

Republicrdquo (Article 29 [2]) However under clause

(3) of the same Article the constitution has

provided certain exceptions that read ldquoNothing

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

60

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 servicesrsquo 16

61

Recommendations Julian Paul Assange an

Australian computer programmer

politicalinternet activist publisher and

journalist and founder of WikiLeaks supports

the free dissemination of government data17 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

62

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

Thatrsquos 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

63

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 abolished18

64

Besides these quota system should be abolished

as our Constitution or any law has not given the

definition and the factors of opting lsquobackward

sectionrsquo of the citizens Article 29(3)(a) of

our constitution though provides the quota

system for lsquobackward sectionrsquo 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 sonsrsquo being poor are not getting the said

benefit and hence Professor M Abdul Wahhab

65

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

ordersrules 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

66

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

67

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 ldquothough 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 art29 (1) amp29(2) it merely confers an

enabling power But as it an exception to the

guarantee of art29 (1) amp29(2) it should not be

68

interpreted or given effect to in such a way as

to nullify the guarantee under art29 (1)

amp29(2) The Indian Supreme Court held that

reservation in excess of 50 would be

unconstitutional20

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 lsquonotrsquo and hence ldquowe are to consider

the meaning of lsquobackward sectionrsquo Art 29 is

comparable with art16 of the Indian

Constitution which uses the expression lsquobackward

classrsquo where as the expression used in art

29(3) is backward section The Indian Supreme

Court has interpreted the expression lsquobackward

classrsquo in several decisions Those decisions may

69

be helpful but not decisive in interpreting

lsquobackward sectionrsquo 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

70

33 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 statusetc)22

But unfortunately

there is no hard and fast and transparent

principle for doing the transfer of the civil

71

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 workplace23

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 ie what quality is considered is to

72

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

73

determined and if it is taken or done there

will be no request or lobby for the transfer and

harassment

34 Promotion procedure and

recommendation

The word lsquopromotionrsquo 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

Bangladesh24

74

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

75

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

76

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

77

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

35 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

Itrsquos not what you want in life but itrsquos

knowing how to reach it

78

Itrsquos not where you want to go but itrsquos knowing

how to get there

Itrsquos not how high you want to rise but itrsquos

knowing how to take off

It may not be quite the outcome you were aiming

for but it will be an outcome

Itrsquos not what you dream of doing but itrsquos

having the knowledge to do it

Its not a set of goals but itrsquos more like a

vision

79

Itrsquos not the goal you set but itrsquos 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 Departments26

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

80

Recommendation

Training should be given to the civil servants

for realizing the matter that embodied in art21

(2) of the Constitution of the Peoplersquos 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

36 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

81

said word lsquoaccountability 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 ldquowatchdogrdquo units to scrutinize

and hold departments accountable legitimacy of

82

these commissions is built upon their

independence as it avoids any conflicts of

interests27

There are various types of accountability ie

(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

lsquoParliaments are key actors in what has

been termed the lsquochain of

83

accountabilityrsquo 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 lsquosociety driven horizontal

84

accountabilityrsquo 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 ndashno

matter how defined ndash parliaments are one

of the institutions through which

diagonal accountability can be

exercisedrsquo27

However the civil servants should be

accountable by any or all means of

accountability

85

4 Judicial Service of Bangladesh

41 Legal framework

Article 137 of the Constitution also deals with

the term lsquolegal frameworkrsquo 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

itsrsquo judgment passed in Civil Appeal no79 of

1999 commonly known in the Masder Hossainrsquos case

that-

ldquoIt is declared that the word ldquoappointmentsrdquo 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

86

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

ldquoBangladesh Judicial Service Commission has been

established in 2007 by the rule lsquo বাংলােদশ

জিডিসয়াল সািভস কিমশন িবিধমালা ২০০৭ rsquo ie

87

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

88

Law Faculty of any one of three leading public

university ie 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 Secretariatrdquo 28

42 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

89

voice According to Rule 5 of OgraveevsjvDagger`k RywWwmqvj

mvwfcopyDaggermi cOumlDaggerek cDagger` wbDaggerqvM welqK AvDagger`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

90

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 32 are applicable with equitable

equality

43 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

91

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 33 is

applicable with equitable equality

44 Promotion procedure and recommendations

The promotion of sub-ordinate Courtrsquos judges are

in fact depended on the Annual Confidential

92

Reports (ACRs) There is no examination system

for getting the promotion in the sub-

ordinate judiciary

lsquoPresently 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

93

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 linersquo29

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-

ldquoConfidential reports should set out distinctly

and tersely sufficient particulars and it is

essential that they should be clear and definite

94

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 Divisionrdquo 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

95

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 34 is

applicable with equitable equality

45 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

96

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 skills30

Recommendation

The quality of training provided by JATI should

be improved A training need- assessment of the

subordinate court judges could be undertaken

97

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

98

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

subordinatecourts31

99

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

51 Ethical education

100

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 publics trust

and confidence in government by demonstrating

the highest standards of professional

competence efficiency and effectiveness

101

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

102

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

103

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

104

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 assets32 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

52 Use of technology

105

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 peoplersquos 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 lsquoThe Law of

Civil Procedurersquo first edition 2006 volume 1

page iii that

106

ldquoFor 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 lawyerrdquo However

the corruption of the court staff and the

offices of the civil servants can be controlled

easily by using technology ie 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

107

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

108

53 Check and balance

The theory of separation of powers was given by

the Charles-Louis de Secondat baron de La Bregravede

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 lsquothe spirit of

lawsrsquo that

lsquoI have not drawn my principles from my

prejudices but from the nature of thingsrdquo 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

109

Conclusion

In conclusion it can be reminded that 3rd

paragraph of the preamble of our constitution

provides that

lsquoFurther 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 citizensrsquo

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

110

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 p1 see also Mahmudul Islam-

Constitutional law of Bangladesh second edition

p1

2 httpenwikipediaorgwikiConstitution

111

3 httplegal-

dictionarythefreedictionarycomconstitution

4 httpwwwthefreedictionarycomframework

5 httpwwwmacmillandictionarycomdictionarybri

tishframework

6 httpwwwegyankoshacinbitstream

7 httpwwwbanglapediaorghttpdocsHTE_0079HTM

8 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

9 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

10 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

11 httpwwwbpscgovbd2011

12 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

13 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

14 httpwwwrhdgovbdRulesAndRegulationsView_Ov

erviewaspRef=A

112

15 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

16 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

17 wwwforbescomprofilejulian-assange

18 httpwwwti-bangladeshorgresearchES_PSCpdf

19 httpwwwnapsipagorgPDFABDUL_WAHHABpdf see

also Khan Akbar Ali and Kazi Rakibuddin Ahmad

March 2008 ldquoQuota System for Civil Service

Recruitment in Bangladesh An Exploratory

Analysisrdquo 2008 available at http

wwwbpscgovbddocuments news25906 newsdoc

20 Mahmudul Islam- Constitutional law of Bangladesh

second edition p171 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 p171 see also Indra Sawhney v

India AIR 1993 SC 477

113

22 httpwwwmopagovbdindexphpoption=com_conte

ntamptask=viewampid=377ampItemid=419

23 httpwwwvsrhhrCustomPagesStaticHRVFilesL

egislation__Civil-Servants-Actpdf

24 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

25 httptraininganddevelopmentnaukrihubcomtrain

inghtml

26 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

27 httpsiteresourcesworldbankorgPUBLICSECTORAN

DGOVERNANCEResourcesAccountabilityGovernancepd

f

28 httpwwwjscbdorgbdb_functionphp

29 httpwwwigsbracuacbdUserFilesFilearchive

_fileJudiciary_Policy_Notepdf

30 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

114

31 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

32 httpwwwoecdorgdataoecd625735521740pdf

Page 39: The constitutional framework of public administration in bangladesh

39

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

40

affiliated with the president has been able to

command a solidmajorityrsquo8

23 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

41

the Supreme Court but litigation may be

very slow in 1987 there were 29 Supreme

Court judges dealing with 21600 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

42

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

43

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

44

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

45

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 government9

3 Civil Service of Bangladesh

31 Legal framework

46

Article 137 of the constitution of the Peoplersquos

Republic of Bangladesh deals with the term

lsquolegal frameworkrsquo of civil service of

Bangladesh lsquoThe implementation of government

policies and projects is the duty of the

Bangladesh Civil Service a corps of trained

administrators who form the nations 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

47

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

48

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

49

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 75 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

50

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 Bangladesh10

32 Recruitment procedure and

recommendations

The Bangladesh Public Service Commission (BPSC)

is a quasi judicial body established in 1972

under the Constitution of the Peoples Republic

51

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 Honble President

of the Republic11 Presidential Order No 34 (on

May 9 1972) PSC Ordinance No LVII of 1977 BCS

Recruitment Rules of 1981 PSC Officers amp

52

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 appointment12

The cadres and entry posts of the

Bangladesh Civil Service

General cadres

1 BCS (Administration) Assistant Commissioner)

53

2 BCS (Police) Assistant Superintendent of Police

3 BCS (Audit amp Accounts) Assistant Accountant General

4 BCS (Economic) Assistant Chief

5 BCS (Customs amp Excise) Assistant Commissioner

(Customs amp 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 amp

Export Equivalent Posts

11 BCS (Postal) Assistant Post Master General

Equivalent Posts

12 BCS (Railway Transportation amp Commercial)

Assistant Traffic Superintendent

54

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 amp Highways) Assistant Engineer

4 BCS (Telecommunications) Assistant Divisional

Engineer

5 BCS (Public Health Engineering) Assistant Engineer

55

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

Officer13

Recruitment

56

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 amp 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 appointment14

lsquoRecruitment is the process of searching for

prospective employees and stimulating them to

apply for jobs in the organization (Flippo and

57

Edwin 1984 141) No element of the career

service system is more important than the

recruitment policyrdquo (Commission of

Inquiry on Public Service Personnel 193537

quoted in Stall 196251) 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)

58

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 partymdashas opposed to a system of awarding

offices on the basis of merit independent of

political activityrsquo15

Legal Basis for BCS Recruitment Policy

lsquoThe constitution of Bangladesh has granted

equal employment opportunities for citizens The

constitution declares ldquoThere shall be equality

of opportunity for all citizens in respect of

employment or office in the service of the

Republicrdquo (Article 29 [1]) ldquoNo citizen shall

on the grounds only of religion race caste

59

sex or place of birth be ineligible for or

discriminated against in respect of any

employment or office in the service of the

Republicrdquo (Article 29 [2]) However under clause

(3) of the same Article the constitution has

provided certain exceptions that read ldquoNothing

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

60

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 servicesrsquo 16

61

Recommendations Julian Paul Assange an

Australian computer programmer

politicalinternet activist publisher and

journalist and founder of WikiLeaks supports

the free dissemination of government data17 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

62

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

Thatrsquos 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

63

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 abolished18

64

Besides these quota system should be abolished

as our Constitution or any law has not given the

definition and the factors of opting lsquobackward

sectionrsquo of the citizens Article 29(3)(a) of

our constitution though provides the quota

system for lsquobackward sectionrsquo 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 sonsrsquo being poor are not getting the said

benefit and hence Professor M Abdul Wahhab

65

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

ordersrules 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

66

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

67

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 ldquothough 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 art29 (1) amp29(2) it merely confers an

enabling power But as it an exception to the

guarantee of art29 (1) amp29(2) it should not be

68

interpreted or given effect to in such a way as

to nullify the guarantee under art29 (1)

amp29(2) The Indian Supreme Court held that

reservation in excess of 50 would be

unconstitutional20

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 lsquonotrsquo and hence ldquowe are to consider

the meaning of lsquobackward sectionrsquo Art 29 is

comparable with art16 of the Indian

Constitution which uses the expression lsquobackward

classrsquo where as the expression used in art

29(3) is backward section The Indian Supreme

Court has interpreted the expression lsquobackward

classrsquo in several decisions Those decisions may

69

be helpful but not decisive in interpreting

lsquobackward sectionrsquo 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

70

33 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 statusetc)22

But unfortunately

there is no hard and fast and transparent

principle for doing the transfer of the civil

71

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 workplace23

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 ie what quality is considered is to

72

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

73

determined and if it is taken or done there

will be no request or lobby for the transfer and

harassment

34 Promotion procedure and

recommendation

The word lsquopromotionrsquo 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

Bangladesh24

74

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

75

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

76

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

77

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

35 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

Itrsquos not what you want in life but itrsquos

knowing how to reach it

78

Itrsquos not where you want to go but itrsquos knowing

how to get there

Itrsquos not how high you want to rise but itrsquos

knowing how to take off

It may not be quite the outcome you were aiming

for but it will be an outcome

Itrsquos not what you dream of doing but itrsquos

having the knowledge to do it

Its not a set of goals but itrsquos more like a

vision

79

Itrsquos not the goal you set but itrsquos 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 Departments26

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

80

Recommendation

Training should be given to the civil servants

for realizing the matter that embodied in art21

(2) of the Constitution of the Peoplersquos 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

36 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

81

said word lsquoaccountability 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 ldquowatchdogrdquo units to scrutinize

and hold departments accountable legitimacy of

82

these commissions is built upon their

independence as it avoids any conflicts of

interests27

There are various types of accountability ie

(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

lsquoParliaments are key actors in what has

been termed the lsquochain of

83

accountabilityrsquo 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 lsquosociety driven horizontal

84

accountabilityrsquo 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 ndashno

matter how defined ndash parliaments are one

of the institutions through which

diagonal accountability can be

exercisedrsquo27

However the civil servants should be

accountable by any or all means of

accountability

85

4 Judicial Service of Bangladesh

41 Legal framework

Article 137 of the Constitution also deals with

the term lsquolegal frameworkrsquo 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

itsrsquo judgment passed in Civil Appeal no79 of

1999 commonly known in the Masder Hossainrsquos case

that-

ldquoIt is declared that the word ldquoappointmentsrdquo 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

86

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

ldquoBangladesh Judicial Service Commission has been

established in 2007 by the rule lsquo বাংলােদশ

জিডিসয়াল সািভস কিমশন িবিধমালা ২০০৭ rsquo ie

87

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

88

Law Faculty of any one of three leading public

university ie 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 Secretariatrdquo 28

42 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

89

voice According to Rule 5 of OgraveevsjvDagger`k RywWwmqvj

mvwfcopyDaggermi cOumlDaggerek cDagger` wbDaggerqvM welqK AvDagger`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

90

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 32 are applicable with equitable

equality

43 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

91

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 33 is

applicable with equitable equality

44 Promotion procedure and recommendations

The promotion of sub-ordinate Courtrsquos judges are

in fact depended on the Annual Confidential

92

Reports (ACRs) There is no examination system

for getting the promotion in the sub-

ordinate judiciary

lsquoPresently 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

93

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 linersquo29

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-

ldquoConfidential reports should set out distinctly

and tersely sufficient particulars and it is

essential that they should be clear and definite

94

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 Divisionrdquo 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

95

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 34 is

applicable with equitable equality

45 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

96

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 skills30

Recommendation

The quality of training provided by JATI should

be improved A training need- assessment of the

subordinate court judges could be undertaken

97

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

98

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

subordinatecourts31

99

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

51 Ethical education

100

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 publics trust

and confidence in government by demonstrating

the highest standards of professional

competence efficiency and effectiveness

101

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

102

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

103

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

104

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 assets32 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

52 Use of technology

105

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 peoplersquos 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 lsquoThe Law of

Civil Procedurersquo first edition 2006 volume 1

page iii that

106

ldquoFor 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 lawyerrdquo However

the corruption of the court staff and the

offices of the civil servants can be controlled

easily by using technology ie 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

107

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

108

53 Check and balance

The theory of separation of powers was given by

the Charles-Louis de Secondat baron de La Bregravede

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 lsquothe spirit of

lawsrsquo that

lsquoI have not drawn my principles from my

prejudices but from the nature of thingsrdquo 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

109

Conclusion

In conclusion it can be reminded that 3rd

paragraph of the preamble of our constitution

provides that

lsquoFurther 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 citizensrsquo

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

110

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 p1 see also Mahmudul Islam-

Constitutional law of Bangladesh second edition

p1

2 httpenwikipediaorgwikiConstitution

111

3 httplegal-

dictionarythefreedictionarycomconstitution

4 httpwwwthefreedictionarycomframework

5 httpwwwmacmillandictionarycomdictionarybri

tishframework

6 httpwwwegyankoshacinbitstream

7 httpwwwbanglapediaorghttpdocsHTE_0079HTM

8 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

9 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

10 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

11 httpwwwbpscgovbd2011

12 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

13 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

14 httpwwwrhdgovbdRulesAndRegulationsView_Ov

erviewaspRef=A

112

15 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

16 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

17 wwwforbescomprofilejulian-assange

18 httpwwwti-bangladeshorgresearchES_PSCpdf

19 httpwwwnapsipagorgPDFABDUL_WAHHABpdf see

also Khan Akbar Ali and Kazi Rakibuddin Ahmad

March 2008 ldquoQuota System for Civil Service

Recruitment in Bangladesh An Exploratory

Analysisrdquo 2008 available at http

wwwbpscgovbddocuments news25906 newsdoc

20 Mahmudul Islam- Constitutional law of Bangladesh

second edition p171 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 p171 see also Indra Sawhney v

India AIR 1993 SC 477

113

22 httpwwwmopagovbdindexphpoption=com_conte

ntamptask=viewampid=377ampItemid=419

23 httpwwwvsrhhrCustomPagesStaticHRVFilesL

egislation__Civil-Servants-Actpdf

24 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

25 httptraininganddevelopmentnaukrihubcomtrain

inghtml

26 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

27 httpsiteresourcesworldbankorgPUBLICSECTORAN

DGOVERNANCEResourcesAccountabilityGovernancepd

f

28 httpwwwjscbdorgbdb_functionphp

29 httpwwwigsbracuacbdUserFilesFilearchive

_fileJudiciary_Policy_Notepdf

30 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

114

31 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

32 httpwwwoecdorgdataoecd625735521740pdf

Page 40: The constitutional framework of public administration in bangladesh

40

affiliated with the president has been able to

command a solidmajorityrsquo8

23 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

41

the Supreme Court but litigation may be

very slow in 1987 there were 29 Supreme

Court judges dealing with 21600 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

42

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

43

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

44

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

45

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 government9

3 Civil Service of Bangladesh

31 Legal framework

46

Article 137 of the constitution of the Peoplersquos

Republic of Bangladesh deals with the term

lsquolegal frameworkrsquo of civil service of

Bangladesh lsquoThe implementation of government

policies and projects is the duty of the

Bangladesh Civil Service a corps of trained

administrators who form the nations 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

47

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

48

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

49

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 75 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

50

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 Bangladesh10

32 Recruitment procedure and

recommendations

The Bangladesh Public Service Commission (BPSC)

is a quasi judicial body established in 1972

under the Constitution of the Peoples Republic

51

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 Honble President

of the Republic11 Presidential Order No 34 (on

May 9 1972) PSC Ordinance No LVII of 1977 BCS

Recruitment Rules of 1981 PSC Officers amp

52

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 appointment12

The cadres and entry posts of the

Bangladesh Civil Service

General cadres

1 BCS (Administration) Assistant Commissioner)

53

2 BCS (Police) Assistant Superintendent of Police

3 BCS (Audit amp Accounts) Assistant Accountant General

4 BCS (Economic) Assistant Chief

5 BCS (Customs amp Excise) Assistant Commissioner

(Customs amp 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 amp

Export Equivalent Posts

11 BCS (Postal) Assistant Post Master General

Equivalent Posts

12 BCS (Railway Transportation amp Commercial)

Assistant Traffic Superintendent

54

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 amp Highways) Assistant Engineer

4 BCS (Telecommunications) Assistant Divisional

Engineer

5 BCS (Public Health Engineering) Assistant Engineer

55

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

Officer13

Recruitment

56

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 amp 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 appointment14

lsquoRecruitment is the process of searching for

prospective employees and stimulating them to

apply for jobs in the organization (Flippo and

57

Edwin 1984 141) No element of the career

service system is more important than the

recruitment policyrdquo (Commission of

Inquiry on Public Service Personnel 193537

quoted in Stall 196251) 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)

58

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 partymdashas opposed to a system of awarding

offices on the basis of merit independent of

political activityrsquo15

Legal Basis for BCS Recruitment Policy

lsquoThe constitution of Bangladesh has granted

equal employment opportunities for citizens The

constitution declares ldquoThere shall be equality

of opportunity for all citizens in respect of

employment or office in the service of the

Republicrdquo (Article 29 [1]) ldquoNo citizen shall

on the grounds only of religion race caste

59

sex or place of birth be ineligible for or

discriminated against in respect of any

employment or office in the service of the

Republicrdquo (Article 29 [2]) However under clause

(3) of the same Article the constitution has

provided certain exceptions that read ldquoNothing

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

60

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 servicesrsquo 16

61

Recommendations Julian Paul Assange an

Australian computer programmer

politicalinternet activist publisher and

journalist and founder of WikiLeaks supports

the free dissemination of government data17 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

62

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

Thatrsquos 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

63

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 abolished18

64

Besides these quota system should be abolished

as our Constitution or any law has not given the

definition and the factors of opting lsquobackward

sectionrsquo of the citizens Article 29(3)(a) of

our constitution though provides the quota

system for lsquobackward sectionrsquo 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 sonsrsquo being poor are not getting the said

benefit and hence Professor M Abdul Wahhab

65

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

ordersrules 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

66

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

67

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 ldquothough 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 art29 (1) amp29(2) it merely confers an

enabling power But as it an exception to the

guarantee of art29 (1) amp29(2) it should not be

68

interpreted or given effect to in such a way as

to nullify the guarantee under art29 (1)

amp29(2) The Indian Supreme Court held that

reservation in excess of 50 would be

unconstitutional20

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 lsquonotrsquo and hence ldquowe are to consider

the meaning of lsquobackward sectionrsquo Art 29 is

comparable with art16 of the Indian

Constitution which uses the expression lsquobackward

classrsquo where as the expression used in art

29(3) is backward section The Indian Supreme

Court has interpreted the expression lsquobackward

classrsquo in several decisions Those decisions may

69

be helpful but not decisive in interpreting

lsquobackward sectionrsquo 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

70

33 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 statusetc)22

But unfortunately

there is no hard and fast and transparent

principle for doing the transfer of the civil

71

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 workplace23

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 ie what quality is considered is to

72

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

73

determined and if it is taken or done there

will be no request or lobby for the transfer and

harassment

34 Promotion procedure and

recommendation

The word lsquopromotionrsquo 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

Bangladesh24

74

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

75

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

76

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

77

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

35 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

Itrsquos not what you want in life but itrsquos

knowing how to reach it

78

Itrsquos not where you want to go but itrsquos knowing

how to get there

Itrsquos not how high you want to rise but itrsquos

knowing how to take off

It may not be quite the outcome you were aiming

for but it will be an outcome

Itrsquos not what you dream of doing but itrsquos

having the knowledge to do it

Its not a set of goals but itrsquos more like a

vision

79

Itrsquos not the goal you set but itrsquos 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 Departments26

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

80

Recommendation

Training should be given to the civil servants

for realizing the matter that embodied in art21

(2) of the Constitution of the Peoplersquos 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

36 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

81

said word lsquoaccountability 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 ldquowatchdogrdquo units to scrutinize

and hold departments accountable legitimacy of

82

these commissions is built upon their

independence as it avoids any conflicts of

interests27

There are various types of accountability ie

(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

lsquoParliaments are key actors in what has

been termed the lsquochain of

83

accountabilityrsquo 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 lsquosociety driven horizontal

84

accountabilityrsquo 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 ndashno

matter how defined ndash parliaments are one

of the institutions through which

diagonal accountability can be

exercisedrsquo27

However the civil servants should be

accountable by any or all means of

accountability

85

4 Judicial Service of Bangladesh

41 Legal framework

Article 137 of the Constitution also deals with

the term lsquolegal frameworkrsquo 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

itsrsquo judgment passed in Civil Appeal no79 of

1999 commonly known in the Masder Hossainrsquos case

that-

ldquoIt is declared that the word ldquoappointmentsrdquo 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

86

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

ldquoBangladesh Judicial Service Commission has been

established in 2007 by the rule lsquo বাংলােদশ

জিডিসয়াল সািভস কিমশন িবিধমালা ২০০৭ rsquo ie

87

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

88

Law Faculty of any one of three leading public

university ie 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 Secretariatrdquo 28

42 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

89

voice According to Rule 5 of OgraveevsjvDagger`k RywWwmqvj

mvwfcopyDaggermi cOumlDaggerek cDagger` wbDaggerqvM welqK AvDagger`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

90

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 32 are applicable with equitable

equality

43 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

91

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 33 is

applicable with equitable equality

44 Promotion procedure and recommendations

The promotion of sub-ordinate Courtrsquos judges are

in fact depended on the Annual Confidential

92

Reports (ACRs) There is no examination system

for getting the promotion in the sub-

ordinate judiciary

lsquoPresently 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

93

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 linersquo29

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-

ldquoConfidential reports should set out distinctly

and tersely sufficient particulars and it is

essential that they should be clear and definite

94

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 Divisionrdquo 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

95

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 34 is

applicable with equitable equality

45 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

96

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 skills30

Recommendation

The quality of training provided by JATI should

be improved A training need- assessment of the

subordinate court judges could be undertaken

97

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

98

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

subordinatecourts31

99

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

51 Ethical education

100

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 publics trust

and confidence in government by demonstrating

the highest standards of professional

competence efficiency and effectiveness

101

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

102

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

103

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

104

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 assets32 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

52 Use of technology

105

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 peoplersquos 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 lsquoThe Law of

Civil Procedurersquo first edition 2006 volume 1

page iii that

106

ldquoFor 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 lawyerrdquo However

the corruption of the court staff and the

offices of the civil servants can be controlled

easily by using technology ie 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

107

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

108

53 Check and balance

The theory of separation of powers was given by

the Charles-Louis de Secondat baron de La Bregravede

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 lsquothe spirit of

lawsrsquo that

lsquoI have not drawn my principles from my

prejudices but from the nature of thingsrdquo 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

109

Conclusion

In conclusion it can be reminded that 3rd

paragraph of the preamble of our constitution

provides that

lsquoFurther 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 citizensrsquo

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

110

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 p1 see also Mahmudul Islam-

Constitutional law of Bangladesh second edition

p1

2 httpenwikipediaorgwikiConstitution

111

3 httplegal-

dictionarythefreedictionarycomconstitution

4 httpwwwthefreedictionarycomframework

5 httpwwwmacmillandictionarycomdictionarybri

tishframework

6 httpwwwegyankoshacinbitstream

7 httpwwwbanglapediaorghttpdocsHTE_0079HTM

8 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

9 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

10 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

11 httpwwwbpscgovbd2011

12 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

13 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

14 httpwwwrhdgovbdRulesAndRegulationsView_Ov

erviewaspRef=A

112

15 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

16 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

17 wwwforbescomprofilejulian-assange

18 httpwwwti-bangladeshorgresearchES_PSCpdf

19 httpwwwnapsipagorgPDFABDUL_WAHHABpdf see

also Khan Akbar Ali and Kazi Rakibuddin Ahmad

March 2008 ldquoQuota System for Civil Service

Recruitment in Bangladesh An Exploratory

Analysisrdquo 2008 available at http

wwwbpscgovbddocuments news25906 newsdoc

20 Mahmudul Islam- Constitutional law of Bangladesh

second edition p171 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 p171 see also Indra Sawhney v

India AIR 1993 SC 477

113

22 httpwwwmopagovbdindexphpoption=com_conte

ntamptask=viewampid=377ampItemid=419

23 httpwwwvsrhhrCustomPagesStaticHRVFilesL

egislation__Civil-Servants-Actpdf

24 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

25 httptraininganddevelopmentnaukrihubcomtrain

inghtml

26 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

27 httpsiteresourcesworldbankorgPUBLICSECTORAN

DGOVERNANCEResourcesAccountabilityGovernancepd

f

28 httpwwwjscbdorgbdb_functionphp

29 httpwwwigsbracuacbdUserFilesFilearchive

_fileJudiciary_Policy_Notepdf

30 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

114

31 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

32 httpwwwoecdorgdataoecd625735521740pdf

Page 41: The constitutional framework of public administration in bangladesh

41

the Supreme Court but litigation may be

very slow in 1987 there were 29 Supreme

Court judges dealing with 21600 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

42

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

43

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

44

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

45

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 government9

3 Civil Service of Bangladesh

31 Legal framework

46

Article 137 of the constitution of the Peoplersquos

Republic of Bangladesh deals with the term

lsquolegal frameworkrsquo of civil service of

Bangladesh lsquoThe implementation of government

policies and projects is the duty of the

Bangladesh Civil Service a corps of trained

administrators who form the nations 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

47

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

48

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

49

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 75 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

50

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 Bangladesh10

32 Recruitment procedure and

recommendations

The Bangladesh Public Service Commission (BPSC)

is a quasi judicial body established in 1972

under the Constitution of the Peoples Republic

51

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 Honble President

of the Republic11 Presidential Order No 34 (on

May 9 1972) PSC Ordinance No LVII of 1977 BCS

Recruitment Rules of 1981 PSC Officers amp

52

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 appointment12

The cadres and entry posts of the

Bangladesh Civil Service

General cadres

1 BCS (Administration) Assistant Commissioner)

53

2 BCS (Police) Assistant Superintendent of Police

3 BCS (Audit amp Accounts) Assistant Accountant General

4 BCS (Economic) Assistant Chief

5 BCS (Customs amp Excise) Assistant Commissioner

(Customs amp 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 amp

Export Equivalent Posts

11 BCS (Postal) Assistant Post Master General

Equivalent Posts

12 BCS (Railway Transportation amp Commercial)

Assistant Traffic Superintendent

54

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 amp Highways) Assistant Engineer

4 BCS (Telecommunications) Assistant Divisional

Engineer

5 BCS (Public Health Engineering) Assistant Engineer

55

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

Officer13

Recruitment

56

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 amp 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 appointment14

lsquoRecruitment is the process of searching for

prospective employees and stimulating them to

apply for jobs in the organization (Flippo and

57

Edwin 1984 141) No element of the career

service system is more important than the

recruitment policyrdquo (Commission of

Inquiry on Public Service Personnel 193537

quoted in Stall 196251) 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)

58

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 partymdashas opposed to a system of awarding

offices on the basis of merit independent of

political activityrsquo15

Legal Basis for BCS Recruitment Policy

lsquoThe constitution of Bangladesh has granted

equal employment opportunities for citizens The

constitution declares ldquoThere shall be equality

of opportunity for all citizens in respect of

employment or office in the service of the

Republicrdquo (Article 29 [1]) ldquoNo citizen shall

on the grounds only of religion race caste

59

sex or place of birth be ineligible for or

discriminated against in respect of any

employment or office in the service of the

Republicrdquo (Article 29 [2]) However under clause

(3) of the same Article the constitution has

provided certain exceptions that read ldquoNothing

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

60

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 servicesrsquo 16

61

Recommendations Julian Paul Assange an

Australian computer programmer

politicalinternet activist publisher and

journalist and founder of WikiLeaks supports

the free dissemination of government data17 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

62

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

Thatrsquos 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

63

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 abolished18

64

Besides these quota system should be abolished

as our Constitution or any law has not given the

definition and the factors of opting lsquobackward

sectionrsquo of the citizens Article 29(3)(a) of

our constitution though provides the quota

system for lsquobackward sectionrsquo 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 sonsrsquo being poor are not getting the said

benefit and hence Professor M Abdul Wahhab

65

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

ordersrules 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

66

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

67

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 ldquothough 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 art29 (1) amp29(2) it merely confers an

enabling power But as it an exception to the

guarantee of art29 (1) amp29(2) it should not be

68

interpreted or given effect to in such a way as

to nullify the guarantee under art29 (1)

amp29(2) The Indian Supreme Court held that

reservation in excess of 50 would be

unconstitutional20

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 lsquonotrsquo and hence ldquowe are to consider

the meaning of lsquobackward sectionrsquo Art 29 is

comparable with art16 of the Indian

Constitution which uses the expression lsquobackward

classrsquo where as the expression used in art

29(3) is backward section The Indian Supreme

Court has interpreted the expression lsquobackward

classrsquo in several decisions Those decisions may

69

be helpful but not decisive in interpreting

lsquobackward sectionrsquo 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

70

33 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 statusetc)22

But unfortunately

there is no hard and fast and transparent

principle for doing the transfer of the civil

71

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 workplace23

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 ie what quality is considered is to

72

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

73

determined and if it is taken or done there

will be no request or lobby for the transfer and

harassment

34 Promotion procedure and

recommendation

The word lsquopromotionrsquo 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

Bangladesh24

74

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

75

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

76

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

77

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

35 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

Itrsquos not what you want in life but itrsquos

knowing how to reach it

78

Itrsquos not where you want to go but itrsquos knowing

how to get there

Itrsquos not how high you want to rise but itrsquos

knowing how to take off

It may not be quite the outcome you were aiming

for but it will be an outcome

Itrsquos not what you dream of doing but itrsquos

having the knowledge to do it

Its not a set of goals but itrsquos more like a

vision

79

Itrsquos not the goal you set but itrsquos 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 Departments26

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

80

Recommendation

Training should be given to the civil servants

for realizing the matter that embodied in art21

(2) of the Constitution of the Peoplersquos 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

36 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

81

said word lsquoaccountability 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 ldquowatchdogrdquo units to scrutinize

and hold departments accountable legitimacy of

82

these commissions is built upon their

independence as it avoids any conflicts of

interests27

There are various types of accountability ie

(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

lsquoParliaments are key actors in what has

been termed the lsquochain of

83

accountabilityrsquo 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 lsquosociety driven horizontal

84

accountabilityrsquo 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 ndashno

matter how defined ndash parliaments are one

of the institutions through which

diagonal accountability can be

exercisedrsquo27

However the civil servants should be

accountable by any or all means of

accountability

85

4 Judicial Service of Bangladesh

41 Legal framework

Article 137 of the Constitution also deals with

the term lsquolegal frameworkrsquo 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

itsrsquo judgment passed in Civil Appeal no79 of

1999 commonly known in the Masder Hossainrsquos case

that-

ldquoIt is declared that the word ldquoappointmentsrdquo 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

86

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

ldquoBangladesh Judicial Service Commission has been

established in 2007 by the rule lsquo বাংলােদশ

জিডিসয়াল সািভস কিমশন িবিধমালা ২০০৭ rsquo ie

87

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

88

Law Faculty of any one of three leading public

university ie 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 Secretariatrdquo 28

42 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

89

voice According to Rule 5 of OgraveevsjvDagger`k RywWwmqvj

mvwfcopyDaggermi cOumlDaggerek cDagger` wbDaggerqvM welqK AvDagger`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

90

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 32 are applicable with equitable

equality

43 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

91

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 33 is

applicable with equitable equality

44 Promotion procedure and recommendations

The promotion of sub-ordinate Courtrsquos judges are

in fact depended on the Annual Confidential

92

Reports (ACRs) There is no examination system

for getting the promotion in the sub-

ordinate judiciary

lsquoPresently 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

93

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 linersquo29

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-

ldquoConfidential reports should set out distinctly

and tersely sufficient particulars and it is

essential that they should be clear and definite

94

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 Divisionrdquo 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

95

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 34 is

applicable with equitable equality

45 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

96

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 skills30

Recommendation

The quality of training provided by JATI should

be improved A training need- assessment of the

subordinate court judges could be undertaken

97

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

98

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

subordinatecourts31

99

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

51 Ethical education

100

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 publics trust

and confidence in government by demonstrating

the highest standards of professional

competence efficiency and effectiveness

101

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

102

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

103

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

104

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 assets32 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

52 Use of technology

105

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 peoplersquos 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 lsquoThe Law of

Civil Procedurersquo first edition 2006 volume 1

page iii that

106

ldquoFor 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 lawyerrdquo However

the corruption of the court staff and the

offices of the civil servants can be controlled

easily by using technology ie 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

107

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

108

53 Check and balance

The theory of separation of powers was given by

the Charles-Louis de Secondat baron de La Bregravede

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 lsquothe spirit of

lawsrsquo that

lsquoI have not drawn my principles from my

prejudices but from the nature of thingsrdquo 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

109

Conclusion

In conclusion it can be reminded that 3rd

paragraph of the preamble of our constitution

provides that

lsquoFurther 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 citizensrsquo

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

110

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 p1 see also Mahmudul Islam-

Constitutional law of Bangladesh second edition

p1

2 httpenwikipediaorgwikiConstitution

111

3 httplegal-

dictionarythefreedictionarycomconstitution

4 httpwwwthefreedictionarycomframework

5 httpwwwmacmillandictionarycomdictionarybri

tishframework

6 httpwwwegyankoshacinbitstream

7 httpwwwbanglapediaorghttpdocsHTE_0079HTM

8 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

9 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

10 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

11 httpwwwbpscgovbd2011

12 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

13 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

14 httpwwwrhdgovbdRulesAndRegulationsView_Ov

erviewaspRef=A

112

15 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

16 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

17 wwwforbescomprofilejulian-assange

18 httpwwwti-bangladeshorgresearchES_PSCpdf

19 httpwwwnapsipagorgPDFABDUL_WAHHABpdf see

also Khan Akbar Ali and Kazi Rakibuddin Ahmad

March 2008 ldquoQuota System for Civil Service

Recruitment in Bangladesh An Exploratory

Analysisrdquo 2008 available at http

wwwbpscgovbddocuments news25906 newsdoc

20 Mahmudul Islam- Constitutional law of Bangladesh

second edition p171 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 p171 see also Indra Sawhney v

India AIR 1993 SC 477

113

22 httpwwwmopagovbdindexphpoption=com_conte

ntamptask=viewampid=377ampItemid=419

23 httpwwwvsrhhrCustomPagesStaticHRVFilesL

egislation__Civil-Servants-Actpdf

24 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

25 httptraininganddevelopmentnaukrihubcomtrain

inghtml

26 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

27 httpsiteresourcesworldbankorgPUBLICSECTORAN

DGOVERNANCEResourcesAccountabilityGovernancepd

f

28 httpwwwjscbdorgbdb_functionphp

29 httpwwwigsbracuacbdUserFilesFilearchive

_fileJudiciary_Policy_Notepdf

30 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

114

31 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

32 httpwwwoecdorgdataoecd625735521740pdf

Page 42: The constitutional framework of public administration in bangladesh

42

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

43

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

44

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

45

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 government9

3 Civil Service of Bangladesh

31 Legal framework

46

Article 137 of the constitution of the Peoplersquos

Republic of Bangladesh deals with the term

lsquolegal frameworkrsquo of civil service of

Bangladesh lsquoThe implementation of government

policies and projects is the duty of the

Bangladesh Civil Service a corps of trained

administrators who form the nations 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

47

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

48

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

49

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 75 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

50

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 Bangladesh10

32 Recruitment procedure and

recommendations

The Bangladesh Public Service Commission (BPSC)

is a quasi judicial body established in 1972

under the Constitution of the Peoples Republic

51

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 Honble President

of the Republic11 Presidential Order No 34 (on

May 9 1972) PSC Ordinance No LVII of 1977 BCS

Recruitment Rules of 1981 PSC Officers amp

52

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 appointment12

The cadres and entry posts of the

Bangladesh Civil Service

General cadres

1 BCS (Administration) Assistant Commissioner)

53

2 BCS (Police) Assistant Superintendent of Police

3 BCS (Audit amp Accounts) Assistant Accountant General

4 BCS (Economic) Assistant Chief

5 BCS (Customs amp Excise) Assistant Commissioner

(Customs amp 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 amp

Export Equivalent Posts

11 BCS (Postal) Assistant Post Master General

Equivalent Posts

12 BCS (Railway Transportation amp Commercial)

Assistant Traffic Superintendent

54

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 amp Highways) Assistant Engineer

4 BCS (Telecommunications) Assistant Divisional

Engineer

5 BCS (Public Health Engineering) Assistant Engineer

55

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

Officer13

Recruitment

56

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 amp 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 appointment14

lsquoRecruitment is the process of searching for

prospective employees and stimulating them to

apply for jobs in the organization (Flippo and

57

Edwin 1984 141) No element of the career

service system is more important than the

recruitment policyrdquo (Commission of

Inquiry on Public Service Personnel 193537

quoted in Stall 196251) 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)

58

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 partymdashas opposed to a system of awarding

offices on the basis of merit independent of

political activityrsquo15

Legal Basis for BCS Recruitment Policy

lsquoThe constitution of Bangladesh has granted

equal employment opportunities for citizens The

constitution declares ldquoThere shall be equality

of opportunity for all citizens in respect of

employment or office in the service of the

Republicrdquo (Article 29 [1]) ldquoNo citizen shall

on the grounds only of religion race caste

59

sex or place of birth be ineligible for or

discriminated against in respect of any

employment or office in the service of the

Republicrdquo (Article 29 [2]) However under clause

(3) of the same Article the constitution has

provided certain exceptions that read ldquoNothing

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

60

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 servicesrsquo 16

61

Recommendations Julian Paul Assange an

Australian computer programmer

politicalinternet activist publisher and

journalist and founder of WikiLeaks supports

the free dissemination of government data17 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

62

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

Thatrsquos 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

63

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 abolished18

64

Besides these quota system should be abolished

as our Constitution or any law has not given the

definition and the factors of opting lsquobackward

sectionrsquo of the citizens Article 29(3)(a) of

our constitution though provides the quota

system for lsquobackward sectionrsquo 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 sonsrsquo being poor are not getting the said

benefit and hence Professor M Abdul Wahhab

65

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

ordersrules 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

66

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

67

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 ldquothough 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 art29 (1) amp29(2) it merely confers an

enabling power But as it an exception to the

guarantee of art29 (1) amp29(2) it should not be

68

interpreted or given effect to in such a way as

to nullify the guarantee under art29 (1)

amp29(2) The Indian Supreme Court held that

reservation in excess of 50 would be

unconstitutional20

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 lsquonotrsquo and hence ldquowe are to consider

the meaning of lsquobackward sectionrsquo Art 29 is

comparable with art16 of the Indian

Constitution which uses the expression lsquobackward

classrsquo where as the expression used in art

29(3) is backward section The Indian Supreme

Court has interpreted the expression lsquobackward

classrsquo in several decisions Those decisions may

69

be helpful but not decisive in interpreting

lsquobackward sectionrsquo 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

70

33 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 statusetc)22

But unfortunately

there is no hard and fast and transparent

principle for doing the transfer of the civil

71

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 workplace23

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 ie what quality is considered is to

72

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

73

determined and if it is taken or done there

will be no request or lobby for the transfer and

harassment

34 Promotion procedure and

recommendation

The word lsquopromotionrsquo 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

Bangladesh24

74

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

75

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

76

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

77

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

35 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

Itrsquos not what you want in life but itrsquos

knowing how to reach it

78

Itrsquos not where you want to go but itrsquos knowing

how to get there

Itrsquos not how high you want to rise but itrsquos

knowing how to take off

It may not be quite the outcome you were aiming

for but it will be an outcome

Itrsquos not what you dream of doing but itrsquos

having the knowledge to do it

Its not a set of goals but itrsquos more like a

vision

79

Itrsquos not the goal you set but itrsquos 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 Departments26

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

80

Recommendation

Training should be given to the civil servants

for realizing the matter that embodied in art21

(2) of the Constitution of the Peoplersquos 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

36 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

81

said word lsquoaccountability 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 ldquowatchdogrdquo units to scrutinize

and hold departments accountable legitimacy of

82

these commissions is built upon their

independence as it avoids any conflicts of

interests27

There are various types of accountability ie

(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

lsquoParliaments are key actors in what has

been termed the lsquochain of

83

accountabilityrsquo 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 lsquosociety driven horizontal

84

accountabilityrsquo 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 ndashno

matter how defined ndash parliaments are one

of the institutions through which

diagonal accountability can be

exercisedrsquo27

However the civil servants should be

accountable by any or all means of

accountability

85

4 Judicial Service of Bangladesh

41 Legal framework

Article 137 of the Constitution also deals with

the term lsquolegal frameworkrsquo 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

itsrsquo judgment passed in Civil Appeal no79 of

1999 commonly known in the Masder Hossainrsquos case

that-

ldquoIt is declared that the word ldquoappointmentsrdquo 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

86

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

ldquoBangladesh Judicial Service Commission has been

established in 2007 by the rule lsquo বাংলােদশ

জিডিসয়াল সািভস কিমশন িবিধমালা ২০০৭ rsquo ie

87

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

88

Law Faculty of any one of three leading public

university ie 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 Secretariatrdquo 28

42 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

89

voice According to Rule 5 of OgraveevsjvDagger`k RywWwmqvj

mvwfcopyDaggermi cOumlDaggerek cDagger` wbDaggerqvM welqK AvDagger`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

90

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 32 are applicable with equitable

equality

43 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

91

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 33 is

applicable with equitable equality

44 Promotion procedure and recommendations

The promotion of sub-ordinate Courtrsquos judges are

in fact depended on the Annual Confidential

92

Reports (ACRs) There is no examination system

for getting the promotion in the sub-

ordinate judiciary

lsquoPresently 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

93

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 linersquo29

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-

ldquoConfidential reports should set out distinctly

and tersely sufficient particulars and it is

essential that they should be clear and definite

94

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 Divisionrdquo 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

95

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 34 is

applicable with equitable equality

45 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

96

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 skills30

Recommendation

The quality of training provided by JATI should

be improved A training need- assessment of the

subordinate court judges could be undertaken

97

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

98

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

subordinatecourts31

99

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

51 Ethical education

100

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 publics trust

and confidence in government by demonstrating

the highest standards of professional

competence efficiency and effectiveness

101

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

102

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

103

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

104

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 assets32 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

52 Use of technology

105

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 peoplersquos 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 lsquoThe Law of

Civil Procedurersquo first edition 2006 volume 1

page iii that

106

ldquoFor 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 lawyerrdquo However

the corruption of the court staff and the

offices of the civil servants can be controlled

easily by using technology ie 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

107

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

108

53 Check and balance

The theory of separation of powers was given by

the Charles-Louis de Secondat baron de La Bregravede

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 lsquothe spirit of

lawsrsquo that

lsquoI have not drawn my principles from my

prejudices but from the nature of thingsrdquo 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

109

Conclusion

In conclusion it can be reminded that 3rd

paragraph of the preamble of our constitution

provides that

lsquoFurther 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 citizensrsquo

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

110

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 p1 see also Mahmudul Islam-

Constitutional law of Bangladesh second edition

p1

2 httpenwikipediaorgwikiConstitution

111

3 httplegal-

dictionarythefreedictionarycomconstitution

4 httpwwwthefreedictionarycomframework

5 httpwwwmacmillandictionarycomdictionarybri

tishframework

6 httpwwwegyankoshacinbitstream

7 httpwwwbanglapediaorghttpdocsHTE_0079HTM

8 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

9 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

10 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

11 httpwwwbpscgovbd2011

12 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

13 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

14 httpwwwrhdgovbdRulesAndRegulationsView_Ov

erviewaspRef=A

112

15 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

16 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

17 wwwforbescomprofilejulian-assange

18 httpwwwti-bangladeshorgresearchES_PSCpdf

19 httpwwwnapsipagorgPDFABDUL_WAHHABpdf see

also Khan Akbar Ali and Kazi Rakibuddin Ahmad

March 2008 ldquoQuota System for Civil Service

Recruitment in Bangladesh An Exploratory

Analysisrdquo 2008 available at http

wwwbpscgovbddocuments news25906 newsdoc

20 Mahmudul Islam- Constitutional law of Bangladesh

second edition p171 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 p171 see also Indra Sawhney v

India AIR 1993 SC 477

113

22 httpwwwmopagovbdindexphpoption=com_conte

ntamptask=viewampid=377ampItemid=419

23 httpwwwvsrhhrCustomPagesStaticHRVFilesL

egislation__Civil-Servants-Actpdf

24 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

25 httptraininganddevelopmentnaukrihubcomtrain

inghtml

26 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

27 httpsiteresourcesworldbankorgPUBLICSECTORAN

DGOVERNANCEResourcesAccountabilityGovernancepd

f

28 httpwwwjscbdorgbdb_functionphp

29 httpwwwigsbracuacbdUserFilesFilearchive

_fileJudiciary_Policy_Notepdf

30 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

114

31 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

32 httpwwwoecdorgdataoecd625735521740pdf

Page 43: The constitutional framework of public administration in bangladesh

43

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

44

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

45

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 government9

3 Civil Service of Bangladesh

31 Legal framework

46

Article 137 of the constitution of the Peoplersquos

Republic of Bangladesh deals with the term

lsquolegal frameworkrsquo of civil service of

Bangladesh lsquoThe implementation of government

policies and projects is the duty of the

Bangladesh Civil Service a corps of trained

administrators who form the nations 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

47

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

48

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

49

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 75 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

50

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 Bangladesh10

32 Recruitment procedure and

recommendations

The Bangladesh Public Service Commission (BPSC)

is a quasi judicial body established in 1972

under the Constitution of the Peoples Republic

51

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 Honble President

of the Republic11 Presidential Order No 34 (on

May 9 1972) PSC Ordinance No LVII of 1977 BCS

Recruitment Rules of 1981 PSC Officers amp

52

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 appointment12

The cadres and entry posts of the

Bangladesh Civil Service

General cadres

1 BCS (Administration) Assistant Commissioner)

53

2 BCS (Police) Assistant Superintendent of Police

3 BCS (Audit amp Accounts) Assistant Accountant General

4 BCS (Economic) Assistant Chief

5 BCS (Customs amp Excise) Assistant Commissioner

(Customs amp 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 amp

Export Equivalent Posts

11 BCS (Postal) Assistant Post Master General

Equivalent Posts

12 BCS (Railway Transportation amp Commercial)

Assistant Traffic Superintendent

54

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 amp Highways) Assistant Engineer

4 BCS (Telecommunications) Assistant Divisional

Engineer

5 BCS (Public Health Engineering) Assistant Engineer

55

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

Officer13

Recruitment

56

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 amp 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 appointment14

lsquoRecruitment is the process of searching for

prospective employees and stimulating them to

apply for jobs in the organization (Flippo and

57

Edwin 1984 141) No element of the career

service system is more important than the

recruitment policyrdquo (Commission of

Inquiry on Public Service Personnel 193537

quoted in Stall 196251) 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)

58

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 partymdashas opposed to a system of awarding

offices on the basis of merit independent of

political activityrsquo15

Legal Basis for BCS Recruitment Policy

lsquoThe constitution of Bangladesh has granted

equal employment opportunities for citizens The

constitution declares ldquoThere shall be equality

of opportunity for all citizens in respect of

employment or office in the service of the

Republicrdquo (Article 29 [1]) ldquoNo citizen shall

on the grounds only of religion race caste

59

sex or place of birth be ineligible for or

discriminated against in respect of any

employment or office in the service of the

Republicrdquo (Article 29 [2]) However under clause

(3) of the same Article the constitution has

provided certain exceptions that read ldquoNothing

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

60

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 servicesrsquo 16

61

Recommendations Julian Paul Assange an

Australian computer programmer

politicalinternet activist publisher and

journalist and founder of WikiLeaks supports

the free dissemination of government data17 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

62

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

Thatrsquos 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

63

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 abolished18

64

Besides these quota system should be abolished

as our Constitution or any law has not given the

definition and the factors of opting lsquobackward

sectionrsquo of the citizens Article 29(3)(a) of

our constitution though provides the quota

system for lsquobackward sectionrsquo 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 sonsrsquo being poor are not getting the said

benefit and hence Professor M Abdul Wahhab

65

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

ordersrules 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

66

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

67

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 ldquothough 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 art29 (1) amp29(2) it merely confers an

enabling power But as it an exception to the

guarantee of art29 (1) amp29(2) it should not be

68

interpreted or given effect to in such a way as

to nullify the guarantee under art29 (1)

amp29(2) The Indian Supreme Court held that

reservation in excess of 50 would be

unconstitutional20

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 lsquonotrsquo and hence ldquowe are to consider

the meaning of lsquobackward sectionrsquo Art 29 is

comparable with art16 of the Indian

Constitution which uses the expression lsquobackward

classrsquo where as the expression used in art

29(3) is backward section The Indian Supreme

Court has interpreted the expression lsquobackward

classrsquo in several decisions Those decisions may

69

be helpful but not decisive in interpreting

lsquobackward sectionrsquo 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

70

33 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 statusetc)22

But unfortunately

there is no hard and fast and transparent

principle for doing the transfer of the civil

71

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 workplace23

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 ie what quality is considered is to

72

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

73

determined and if it is taken or done there

will be no request or lobby for the transfer and

harassment

34 Promotion procedure and

recommendation

The word lsquopromotionrsquo 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

Bangladesh24

74

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

75

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

76

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

77

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

35 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

Itrsquos not what you want in life but itrsquos

knowing how to reach it

78

Itrsquos not where you want to go but itrsquos knowing

how to get there

Itrsquos not how high you want to rise but itrsquos

knowing how to take off

It may not be quite the outcome you were aiming

for but it will be an outcome

Itrsquos not what you dream of doing but itrsquos

having the knowledge to do it

Its not a set of goals but itrsquos more like a

vision

79

Itrsquos not the goal you set but itrsquos 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 Departments26

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

80

Recommendation

Training should be given to the civil servants

for realizing the matter that embodied in art21

(2) of the Constitution of the Peoplersquos 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

36 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

81

said word lsquoaccountability 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 ldquowatchdogrdquo units to scrutinize

and hold departments accountable legitimacy of

82

these commissions is built upon their

independence as it avoids any conflicts of

interests27

There are various types of accountability ie

(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

lsquoParliaments are key actors in what has

been termed the lsquochain of

83

accountabilityrsquo 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 lsquosociety driven horizontal

84

accountabilityrsquo 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 ndashno

matter how defined ndash parliaments are one

of the institutions through which

diagonal accountability can be

exercisedrsquo27

However the civil servants should be

accountable by any or all means of

accountability

85

4 Judicial Service of Bangladesh

41 Legal framework

Article 137 of the Constitution also deals with

the term lsquolegal frameworkrsquo 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

itsrsquo judgment passed in Civil Appeal no79 of

1999 commonly known in the Masder Hossainrsquos case

that-

ldquoIt is declared that the word ldquoappointmentsrdquo 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

86

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

ldquoBangladesh Judicial Service Commission has been

established in 2007 by the rule lsquo বাংলােদশ

জিডিসয়াল সািভস কিমশন িবিধমালা ২০০৭ rsquo ie

87

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

88

Law Faculty of any one of three leading public

university ie 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 Secretariatrdquo 28

42 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

89

voice According to Rule 5 of OgraveevsjvDagger`k RywWwmqvj

mvwfcopyDaggermi cOumlDaggerek cDagger` wbDaggerqvM welqK AvDagger`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

90

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 32 are applicable with equitable

equality

43 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

91

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 33 is

applicable with equitable equality

44 Promotion procedure and recommendations

The promotion of sub-ordinate Courtrsquos judges are

in fact depended on the Annual Confidential

92

Reports (ACRs) There is no examination system

for getting the promotion in the sub-

ordinate judiciary

lsquoPresently 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

93

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 linersquo29

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-

ldquoConfidential reports should set out distinctly

and tersely sufficient particulars and it is

essential that they should be clear and definite

94

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 Divisionrdquo 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

95

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 34 is

applicable with equitable equality

45 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

96

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 skills30

Recommendation

The quality of training provided by JATI should

be improved A training need- assessment of the

subordinate court judges could be undertaken

97

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

98

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

subordinatecourts31

99

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

51 Ethical education

100

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 publics trust

and confidence in government by demonstrating

the highest standards of professional

competence efficiency and effectiveness

101

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

102

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

103

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

104

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 assets32 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

52 Use of technology

105

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 peoplersquos 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 lsquoThe Law of

Civil Procedurersquo first edition 2006 volume 1

page iii that

106

ldquoFor 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 lawyerrdquo However

the corruption of the court staff and the

offices of the civil servants can be controlled

easily by using technology ie 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

107

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

108

53 Check and balance

The theory of separation of powers was given by

the Charles-Louis de Secondat baron de La Bregravede

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 lsquothe spirit of

lawsrsquo that

lsquoI have not drawn my principles from my

prejudices but from the nature of thingsrdquo 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

109

Conclusion

In conclusion it can be reminded that 3rd

paragraph of the preamble of our constitution

provides that

lsquoFurther 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 citizensrsquo

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

110

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 p1 see also Mahmudul Islam-

Constitutional law of Bangladesh second edition

p1

2 httpenwikipediaorgwikiConstitution

111

3 httplegal-

dictionarythefreedictionarycomconstitution

4 httpwwwthefreedictionarycomframework

5 httpwwwmacmillandictionarycomdictionarybri

tishframework

6 httpwwwegyankoshacinbitstream

7 httpwwwbanglapediaorghttpdocsHTE_0079HTM

8 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

9 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

10 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

11 httpwwwbpscgovbd2011

12 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

13 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

14 httpwwwrhdgovbdRulesAndRegulationsView_Ov

erviewaspRef=A

112

15 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

16 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

17 wwwforbescomprofilejulian-assange

18 httpwwwti-bangladeshorgresearchES_PSCpdf

19 httpwwwnapsipagorgPDFABDUL_WAHHABpdf see

also Khan Akbar Ali and Kazi Rakibuddin Ahmad

March 2008 ldquoQuota System for Civil Service

Recruitment in Bangladesh An Exploratory

Analysisrdquo 2008 available at http

wwwbpscgovbddocuments news25906 newsdoc

20 Mahmudul Islam- Constitutional law of Bangladesh

second edition p171 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 p171 see also Indra Sawhney v

India AIR 1993 SC 477

113

22 httpwwwmopagovbdindexphpoption=com_conte

ntamptask=viewampid=377ampItemid=419

23 httpwwwvsrhhrCustomPagesStaticHRVFilesL

egislation__Civil-Servants-Actpdf

24 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

25 httptraininganddevelopmentnaukrihubcomtrain

inghtml

26 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

27 httpsiteresourcesworldbankorgPUBLICSECTORAN

DGOVERNANCEResourcesAccountabilityGovernancepd

f

28 httpwwwjscbdorgbdb_functionphp

29 httpwwwigsbracuacbdUserFilesFilearchive

_fileJudiciary_Policy_Notepdf

30 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

114

31 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

32 httpwwwoecdorgdataoecd625735521740pdf

Page 44: The constitutional framework of public administration in bangladesh

44

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

45

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 government9

3 Civil Service of Bangladesh

31 Legal framework

46

Article 137 of the constitution of the Peoplersquos

Republic of Bangladesh deals with the term

lsquolegal frameworkrsquo of civil service of

Bangladesh lsquoThe implementation of government

policies and projects is the duty of the

Bangladesh Civil Service a corps of trained

administrators who form the nations 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

47

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

48

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

49

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 75 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

50

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 Bangladesh10

32 Recruitment procedure and

recommendations

The Bangladesh Public Service Commission (BPSC)

is a quasi judicial body established in 1972

under the Constitution of the Peoples Republic

51

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 Honble President

of the Republic11 Presidential Order No 34 (on

May 9 1972) PSC Ordinance No LVII of 1977 BCS

Recruitment Rules of 1981 PSC Officers amp

52

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 appointment12

The cadres and entry posts of the

Bangladesh Civil Service

General cadres

1 BCS (Administration) Assistant Commissioner)

53

2 BCS (Police) Assistant Superintendent of Police

3 BCS (Audit amp Accounts) Assistant Accountant General

4 BCS (Economic) Assistant Chief

5 BCS (Customs amp Excise) Assistant Commissioner

(Customs amp 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 amp

Export Equivalent Posts

11 BCS (Postal) Assistant Post Master General

Equivalent Posts

12 BCS (Railway Transportation amp Commercial)

Assistant Traffic Superintendent

54

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 amp Highways) Assistant Engineer

4 BCS (Telecommunications) Assistant Divisional

Engineer

5 BCS (Public Health Engineering) Assistant Engineer

55

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

Officer13

Recruitment

56

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 amp 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 appointment14

lsquoRecruitment is the process of searching for

prospective employees and stimulating them to

apply for jobs in the organization (Flippo and

57

Edwin 1984 141) No element of the career

service system is more important than the

recruitment policyrdquo (Commission of

Inquiry on Public Service Personnel 193537

quoted in Stall 196251) 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)

58

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 partymdashas opposed to a system of awarding

offices on the basis of merit independent of

political activityrsquo15

Legal Basis for BCS Recruitment Policy

lsquoThe constitution of Bangladesh has granted

equal employment opportunities for citizens The

constitution declares ldquoThere shall be equality

of opportunity for all citizens in respect of

employment or office in the service of the

Republicrdquo (Article 29 [1]) ldquoNo citizen shall

on the grounds only of religion race caste

59

sex or place of birth be ineligible for or

discriminated against in respect of any

employment or office in the service of the

Republicrdquo (Article 29 [2]) However under clause

(3) of the same Article the constitution has

provided certain exceptions that read ldquoNothing

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

60

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 servicesrsquo 16

61

Recommendations Julian Paul Assange an

Australian computer programmer

politicalinternet activist publisher and

journalist and founder of WikiLeaks supports

the free dissemination of government data17 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

62

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

Thatrsquos 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

63

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 abolished18

64

Besides these quota system should be abolished

as our Constitution or any law has not given the

definition and the factors of opting lsquobackward

sectionrsquo of the citizens Article 29(3)(a) of

our constitution though provides the quota

system for lsquobackward sectionrsquo 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 sonsrsquo being poor are not getting the said

benefit and hence Professor M Abdul Wahhab

65

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

ordersrules 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

66

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

67

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 ldquothough 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 art29 (1) amp29(2) it merely confers an

enabling power But as it an exception to the

guarantee of art29 (1) amp29(2) it should not be

68

interpreted or given effect to in such a way as

to nullify the guarantee under art29 (1)

amp29(2) The Indian Supreme Court held that

reservation in excess of 50 would be

unconstitutional20

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 lsquonotrsquo and hence ldquowe are to consider

the meaning of lsquobackward sectionrsquo Art 29 is

comparable with art16 of the Indian

Constitution which uses the expression lsquobackward

classrsquo where as the expression used in art

29(3) is backward section The Indian Supreme

Court has interpreted the expression lsquobackward

classrsquo in several decisions Those decisions may

69

be helpful but not decisive in interpreting

lsquobackward sectionrsquo 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

70

33 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 statusetc)22

But unfortunately

there is no hard and fast and transparent

principle for doing the transfer of the civil

71

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 workplace23

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 ie what quality is considered is to

72

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

73

determined and if it is taken or done there

will be no request or lobby for the transfer and

harassment

34 Promotion procedure and

recommendation

The word lsquopromotionrsquo 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

Bangladesh24

74

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

75

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

76

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

77

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

35 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

Itrsquos not what you want in life but itrsquos

knowing how to reach it

78

Itrsquos not where you want to go but itrsquos knowing

how to get there

Itrsquos not how high you want to rise but itrsquos

knowing how to take off

It may not be quite the outcome you were aiming

for but it will be an outcome

Itrsquos not what you dream of doing but itrsquos

having the knowledge to do it

Its not a set of goals but itrsquos more like a

vision

79

Itrsquos not the goal you set but itrsquos 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 Departments26

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

80

Recommendation

Training should be given to the civil servants

for realizing the matter that embodied in art21

(2) of the Constitution of the Peoplersquos 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

36 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

81

said word lsquoaccountability 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 ldquowatchdogrdquo units to scrutinize

and hold departments accountable legitimacy of

82

these commissions is built upon their

independence as it avoids any conflicts of

interests27

There are various types of accountability ie

(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

lsquoParliaments are key actors in what has

been termed the lsquochain of

83

accountabilityrsquo 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 lsquosociety driven horizontal

84

accountabilityrsquo 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 ndashno

matter how defined ndash parliaments are one

of the institutions through which

diagonal accountability can be

exercisedrsquo27

However the civil servants should be

accountable by any or all means of

accountability

85

4 Judicial Service of Bangladesh

41 Legal framework

Article 137 of the Constitution also deals with

the term lsquolegal frameworkrsquo 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

itsrsquo judgment passed in Civil Appeal no79 of

1999 commonly known in the Masder Hossainrsquos case

that-

ldquoIt is declared that the word ldquoappointmentsrdquo 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

86

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

ldquoBangladesh Judicial Service Commission has been

established in 2007 by the rule lsquo বাংলােদশ

জিডিসয়াল সািভস কিমশন িবিধমালা ২০০৭ rsquo ie

87

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

88

Law Faculty of any one of three leading public

university ie 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 Secretariatrdquo 28

42 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

89

voice According to Rule 5 of OgraveevsjvDagger`k RywWwmqvj

mvwfcopyDaggermi cOumlDaggerek cDagger` wbDaggerqvM welqK AvDagger`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

90

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 32 are applicable with equitable

equality

43 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

91

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 33 is

applicable with equitable equality

44 Promotion procedure and recommendations

The promotion of sub-ordinate Courtrsquos judges are

in fact depended on the Annual Confidential

92

Reports (ACRs) There is no examination system

for getting the promotion in the sub-

ordinate judiciary

lsquoPresently 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

93

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 linersquo29

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-

ldquoConfidential reports should set out distinctly

and tersely sufficient particulars and it is

essential that they should be clear and definite

94

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 Divisionrdquo 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

95

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 34 is

applicable with equitable equality

45 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

96

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 skills30

Recommendation

The quality of training provided by JATI should

be improved A training need- assessment of the

subordinate court judges could be undertaken

97

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

98

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

subordinatecourts31

99

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

51 Ethical education

100

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 publics trust

and confidence in government by demonstrating

the highest standards of professional

competence efficiency and effectiveness

101

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

102

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

103

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

104

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 assets32 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

52 Use of technology

105

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 peoplersquos 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 lsquoThe Law of

Civil Procedurersquo first edition 2006 volume 1

page iii that

106

ldquoFor 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 lawyerrdquo However

the corruption of the court staff and the

offices of the civil servants can be controlled

easily by using technology ie 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

107

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

108

53 Check and balance

The theory of separation of powers was given by

the Charles-Louis de Secondat baron de La Bregravede

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 lsquothe spirit of

lawsrsquo that

lsquoI have not drawn my principles from my

prejudices but from the nature of thingsrdquo 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

109

Conclusion

In conclusion it can be reminded that 3rd

paragraph of the preamble of our constitution

provides that

lsquoFurther 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 citizensrsquo

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

110

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 p1 see also Mahmudul Islam-

Constitutional law of Bangladesh second edition

p1

2 httpenwikipediaorgwikiConstitution

111

3 httplegal-

dictionarythefreedictionarycomconstitution

4 httpwwwthefreedictionarycomframework

5 httpwwwmacmillandictionarycomdictionarybri

tishframework

6 httpwwwegyankoshacinbitstream

7 httpwwwbanglapediaorghttpdocsHTE_0079HTM

8 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

9 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

10 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

11 httpwwwbpscgovbd2011

12 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

13 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

14 httpwwwrhdgovbdRulesAndRegulationsView_Ov

erviewaspRef=A

112

15 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

16 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

17 wwwforbescomprofilejulian-assange

18 httpwwwti-bangladeshorgresearchES_PSCpdf

19 httpwwwnapsipagorgPDFABDUL_WAHHABpdf see

also Khan Akbar Ali and Kazi Rakibuddin Ahmad

March 2008 ldquoQuota System for Civil Service

Recruitment in Bangladesh An Exploratory

Analysisrdquo 2008 available at http

wwwbpscgovbddocuments news25906 newsdoc

20 Mahmudul Islam- Constitutional law of Bangladesh

second edition p171 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 p171 see also Indra Sawhney v

India AIR 1993 SC 477

113

22 httpwwwmopagovbdindexphpoption=com_conte

ntamptask=viewampid=377ampItemid=419

23 httpwwwvsrhhrCustomPagesStaticHRVFilesL

egislation__Civil-Servants-Actpdf

24 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

25 httptraininganddevelopmentnaukrihubcomtrain

inghtml

26 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

27 httpsiteresourcesworldbankorgPUBLICSECTORAN

DGOVERNANCEResourcesAccountabilityGovernancepd

f

28 httpwwwjscbdorgbdb_functionphp

29 httpwwwigsbracuacbdUserFilesFilearchive

_fileJudiciary_Policy_Notepdf

30 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

114

31 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

32 httpwwwoecdorgdataoecd625735521740pdf

Page 45: The constitutional framework of public administration in bangladesh

45

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 government9

3 Civil Service of Bangladesh

31 Legal framework

46

Article 137 of the constitution of the Peoplersquos

Republic of Bangladesh deals with the term

lsquolegal frameworkrsquo of civil service of

Bangladesh lsquoThe implementation of government

policies and projects is the duty of the

Bangladesh Civil Service a corps of trained

administrators who form the nations 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

47

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

48

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

49

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 75 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

50

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 Bangladesh10

32 Recruitment procedure and

recommendations

The Bangladesh Public Service Commission (BPSC)

is a quasi judicial body established in 1972

under the Constitution of the Peoples Republic

51

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 Honble President

of the Republic11 Presidential Order No 34 (on

May 9 1972) PSC Ordinance No LVII of 1977 BCS

Recruitment Rules of 1981 PSC Officers amp

52

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 appointment12

The cadres and entry posts of the

Bangladesh Civil Service

General cadres

1 BCS (Administration) Assistant Commissioner)

53

2 BCS (Police) Assistant Superintendent of Police

3 BCS (Audit amp Accounts) Assistant Accountant General

4 BCS (Economic) Assistant Chief

5 BCS (Customs amp Excise) Assistant Commissioner

(Customs amp 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 amp

Export Equivalent Posts

11 BCS (Postal) Assistant Post Master General

Equivalent Posts

12 BCS (Railway Transportation amp Commercial)

Assistant Traffic Superintendent

54

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 amp Highways) Assistant Engineer

4 BCS (Telecommunications) Assistant Divisional

Engineer

5 BCS (Public Health Engineering) Assistant Engineer

55

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

Officer13

Recruitment

56

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 amp 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 appointment14

lsquoRecruitment is the process of searching for

prospective employees and stimulating them to

apply for jobs in the organization (Flippo and

57

Edwin 1984 141) No element of the career

service system is more important than the

recruitment policyrdquo (Commission of

Inquiry on Public Service Personnel 193537

quoted in Stall 196251) 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)

58

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 partymdashas opposed to a system of awarding

offices on the basis of merit independent of

political activityrsquo15

Legal Basis for BCS Recruitment Policy

lsquoThe constitution of Bangladesh has granted

equal employment opportunities for citizens The

constitution declares ldquoThere shall be equality

of opportunity for all citizens in respect of

employment or office in the service of the

Republicrdquo (Article 29 [1]) ldquoNo citizen shall

on the grounds only of religion race caste

59

sex or place of birth be ineligible for or

discriminated against in respect of any

employment or office in the service of the

Republicrdquo (Article 29 [2]) However under clause

(3) of the same Article the constitution has

provided certain exceptions that read ldquoNothing

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

60

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 servicesrsquo 16

61

Recommendations Julian Paul Assange an

Australian computer programmer

politicalinternet activist publisher and

journalist and founder of WikiLeaks supports

the free dissemination of government data17 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

62

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

Thatrsquos 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

63

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 abolished18

64

Besides these quota system should be abolished

as our Constitution or any law has not given the

definition and the factors of opting lsquobackward

sectionrsquo of the citizens Article 29(3)(a) of

our constitution though provides the quota

system for lsquobackward sectionrsquo 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 sonsrsquo being poor are not getting the said

benefit and hence Professor M Abdul Wahhab

65

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

ordersrules 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

66

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

67

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 ldquothough 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 art29 (1) amp29(2) it merely confers an

enabling power But as it an exception to the

guarantee of art29 (1) amp29(2) it should not be

68

interpreted or given effect to in such a way as

to nullify the guarantee under art29 (1)

amp29(2) The Indian Supreme Court held that

reservation in excess of 50 would be

unconstitutional20

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 lsquonotrsquo and hence ldquowe are to consider

the meaning of lsquobackward sectionrsquo Art 29 is

comparable with art16 of the Indian

Constitution which uses the expression lsquobackward

classrsquo where as the expression used in art

29(3) is backward section The Indian Supreme

Court has interpreted the expression lsquobackward

classrsquo in several decisions Those decisions may

69

be helpful but not decisive in interpreting

lsquobackward sectionrsquo 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

70

33 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 statusetc)22

But unfortunately

there is no hard and fast and transparent

principle for doing the transfer of the civil

71

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 workplace23

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 ie what quality is considered is to

72

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

73

determined and if it is taken or done there

will be no request or lobby for the transfer and

harassment

34 Promotion procedure and

recommendation

The word lsquopromotionrsquo 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

Bangladesh24

74

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

75

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

76

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

77

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

35 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

Itrsquos not what you want in life but itrsquos

knowing how to reach it

78

Itrsquos not where you want to go but itrsquos knowing

how to get there

Itrsquos not how high you want to rise but itrsquos

knowing how to take off

It may not be quite the outcome you were aiming

for but it will be an outcome

Itrsquos not what you dream of doing but itrsquos

having the knowledge to do it

Its not a set of goals but itrsquos more like a

vision

79

Itrsquos not the goal you set but itrsquos 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 Departments26

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

80

Recommendation

Training should be given to the civil servants

for realizing the matter that embodied in art21

(2) of the Constitution of the Peoplersquos 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

36 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

81

said word lsquoaccountability 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 ldquowatchdogrdquo units to scrutinize

and hold departments accountable legitimacy of

82

these commissions is built upon their

independence as it avoids any conflicts of

interests27

There are various types of accountability ie

(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

lsquoParliaments are key actors in what has

been termed the lsquochain of

83

accountabilityrsquo 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 lsquosociety driven horizontal

84

accountabilityrsquo 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 ndashno

matter how defined ndash parliaments are one

of the institutions through which

diagonal accountability can be

exercisedrsquo27

However the civil servants should be

accountable by any or all means of

accountability

85

4 Judicial Service of Bangladesh

41 Legal framework

Article 137 of the Constitution also deals with

the term lsquolegal frameworkrsquo 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

itsrsquo judgment passed in Civil Appeal no79 of

1999 commonly known in the Masder Hossainrsquos case

that-

ldquoIt is declared that the word ldquoappointmentsrdquo 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

86

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

ldquoBangladesh Judicial Service Commission has been

established in 2007 by the rule lsquo বাংলােদশ

জিডিসয়াল সািভস কিমশন িবিধমালা ২০০৭ rsquo ie

87

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

88

Law Faculty of any one of three leading public

university ie 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 Secretariatrdquo 28

42 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

89

voice According to Rule 5 of OgraveevsjvDagger`k RywWwmqvj

mvwfcopyDaggermi cOumlDaggerek cDagger` wbDaggerqvM welqK AvDagger`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

90

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 32 are applicable with equitable

equality

43 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

91

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 33 is

applicable with equitable equality

44 Promotion procedure and recommendations

The promotion of sub-ordinate Courtrsquos judges are

in fact depended on the Annual Confidential

92

Reports (ACRs) There is no examination system

for getting the promotion in the sub-

ordinate judiciary

lsquoPresently 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

93

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 linersquo29

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-

ldquoConfidential reports should set out distinctly

and tersely sufficient particulars and it is

essential that they should be clear and definite

94

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 Divisionrdquo 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

95

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 34 is

applicable with equitable equality

45 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

96

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 skills30

Recommendation

The quality of training provided by JATI should

be improved A training need- assessment of the

subordinate court judges could be undertaken

97

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

98

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

subordinatecourts31

99

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

51 Ethical education

100

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 publics trust

and confidence in government by demonstrating

the highest standards of professional

competence efficiency and effectiveness

101

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

102

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

103

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

104

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 assets32 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

52 Use of technology

105

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 peoplersquos 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 lsquoThe Law of

Civil Procedurersquo first edition 2006 volume 1

page iii that

106

ldquoFor 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 lawyerrdquo However

the corruption of the court staff and the

offices of the civil servants can be controlled

easily by using technology ie 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

107

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

108

53 Check and balance

The theory of separation of powers was given by

the Charles-Louis de Secondat baron de La Bregravede

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 lsquothe spirit of

lawsrsquo that

lsquoI have not drawn my principles from my

prejudices but from the nature of thingsrdquo 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

109

Conclusion

In conclusion it can be reminded that 3rd

paragraph of the preamble of our constitution

provides that

lsquoFurther 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 citizensrsquo

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

110

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 p1 see also Mahmudul Islam-

Constitutional law of Bangladesh second edition

p1

2 httpenwikipediaorgwikiConstitution

111

3 httplegal-

dictionarythefreedictionarycomconstitution

4 httpwwwthefreedictionarycomframework

5 httpwwwmacmillandictionarycomdictionarybri

tishframework

6 httpwwwegyankoshacinbitstream

7 httpwwwbanglapediaorghttpdocsHTE_0079HTM

8 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

9 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

10 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

11 httpwwwbpscgovbd2011

12 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

13 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

14 httpwwwrhdgovbdRulesAndRegulationsView_Ov

erviewaspRef=A

112

15 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

16 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

17 wwwforbescomprofilejulian-assange

18 httpwwwti-bangladeshorgresearchES_PSCpdf

19 httpwwwnapsipagorgPDFABDUL_WAHHABpdf see

also Khan Akbar Ali and Kazi Rakibuddin Ahmad

March 2008 ldquoQuota System for Civil Service

Recruitment in Bangladesh An Exploratory

Analysisrdquo 2008 available at http

wwwbpscgovbddocuments news25906 newsdoc

20 Mahmudul Islam- Constitutional law of Bangladesh

second edition p171 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 p171 see also Indra Sawhney v

India AIR 1993 SC 477

113

22 httpwwwmopagovbdindexphpoption=com_conte

ntamptask=viewampid=377ampItemid=419

23 httpwwwvsrhhrCustomPagesStaticHRVFilesL

egislation__Civil-Servants-Actpdf

24 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

25 httptraininganddevelopmentnaukrihubcomtrain

inghtml

26 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

27 httpsiteresourcesworldbankorgPUBLICSECTORAN

DGOVERNANCEResourcesAccountabilityGovernancepd

f

28 httpwwwjscbdorgbdb_functionphp

29 httpwwwigsbracuacbdUserFilesFilearchive

_fileJudiciary_Policy_Notepdf

30 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

114

31 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

32 httpwwwoecdorgdataoecd625735521740pdf

Page 46: The constitutional framework of public administration in bangladesh

46

Article 137 of the constitution of the Peoplersquos

Republic of Bangladesh deals with the term

lsquolegal frameworkrsquo of civil service of

Bangladesh lsquoThe implementation of government

policies and projects is the duty of the

Bangladesh Civil Service a corps of trained

administrators who form the nations 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

47

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

48

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

49

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 75 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

50

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 Bangladesh10

32 Recruitment procedure and

recommendations

The Bangladesh Public Service Commission (BPSC)

is a quasi judicial body established in 1972

under the Constitution of the Peoples Republic

51

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 Honble President

of the Republic11 Presidential Order No 34 (on

May 9 1972) PSC Ordinance No LVII of 1977 BCS

Recruitment Rules of 1981 PSC Officers amp

52

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 appointment12

The cadres and entry posts of the

Bangladesh Civil Service

General cadres

1 BCS (Administration) Assistant Commissioner)

53

2 BCS (Police) Assistant Superintendent of Police

3 BCS (Audit amp Accounts) Assistant Accountant General

4 BCS (Economic) Assistant Chief

5 BCS (Customs amp Excise) Assistant Commissioner

(Customs amp 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 amp

Export Equivalent Posts

11 BCS (Postal) Assistant Post Master General

Equivalent Posts

12 BCS (Railway Transportation amp Commercial)

Assistant Traffic Superintendent

54

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 amp Highways) Assistant Engineer

4 BCS (Telecommunications) Assistant Divisional

Engineer

5 BCS (Public Health Engineering) Assistant Engineer

55

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

Officer13

Recruitment

56

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 amp 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 appointment14

lsquoRecruitment is the process of searching for

prospective employees and stimulating them to

apply for jobs in the organization (Flippo and

57

Edwin 1984 141) No element of the career

service system is more important than the

recruitment policyrdquo (Commission of

Inquiry on Public Service Personnel 193537

quoted in Stall 196251) 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)

58

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 partymdashas opposed to a system of awarding

offices on the basis of merit independent of

political activityrsquo15

Legal Basis for BCS Recruitment Policy

lsquoThe constitution of Bangladesh has granted

equal employment opportunities for citizens The

constitution declares ldquoThere shall be equality

of opportunity for all citizens in respect of

employment or office in the service of the

Republicrdquo (Article 29 [1]) ldquoNo citizen shall

on the grounds only of religion race caste

59

sex or place of birth be ineligible for or

discriminated against in respect of any

employment or office in the service of the

Republicrdquo (Article 29 [2]) However under clause

(3) of the same Article the constitution has

provided certain exceptions that read ldquoNothing

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

60

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 servicesrsquo 16

61

Recommendations Julian Paul Assange an

Australian computer programmer

politicalinternet activist publisher and

journalist and founder of WikiLeaks supports

the free dissemination of government data17 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

62

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

Thatrsquos 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

63

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 abolished18

64

Besides these quota system should be abolished

as our Constitution or any law has not given the

definition and the factors of opting lsquobackward

sectionrsquo of the citizens Article 29(3)(a) of

our constitution though provides the quota

system for lsquobackward sectionrsquo 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 sonsrsquo being poor are not getting the said

benefit and hence Professor M Abdul Wahhab

65

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

ordersrules 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

66

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

67

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 ldquothough 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 art29 (1) amp29(2) it merely confers an

enabling power But as it an exception to the

guarantee of art29 (1) amp29(2) it should not be

68

interpreted or given effect to in such a way as

to nullify the guarantee under art29 (1)

amp29(2) The Indian Supreme Court held that

reservation in excess of 50 would be

unconstitutional20

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 lsquonotrsquo and hence ldquowe are to consider

the meaning of lsquobackward sectionrsquo Art 29 is

comparable with art16 of the Indian

Constitution which uses the expression lsquobackward

classrsquo where as the expression used in art

29(3) is backward section The Indian Supreme

Court has interpreted the expression lsquobackward

classrsquo in several decisions Those decisions may

69

be helpful but not decisive in interpreting

lsquobackward sectionrsquo 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

70

33 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 statusetc)22

But unfortunately

there is no hard and fast and transparent

principle for doing the transfer of the civil

71

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 workplace23

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 ie what quality is considered is to

72

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

73

determined and if it is taken or done there

will be no request or lobby for the transfer and

harassment

34 Promotion procedure and

recommendation

The word lsquopromotionrsquo 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

Bangladesh24

74

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

75

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

76

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

77

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

35 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

Itrsquos not what you want in life but itrsquos

knowing how to reach it

78

Itrsquos not where you want to go but itrsquos knowing

how to get there

Itrsquos not how high you want to rise but itrsquos

knowing how to take off

It may not be quite the outcome you were aiming

for but it will be an outcome

Itrsquos not what you dream of doing but itrsquos

having the knowledge to do it

Its not a set of goals but itrsquos more like a

vision

79

Itrsquos not the goal you set but itrsquos 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 Departments26

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

80

Recommendation

Training should be given to the civil servants

for realizing the matter that embodied in art21

(2) of the Constitution of the Peoplersquos 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

36 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

81

said word lsquoaccountability 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 ldquowatchdogrdquo units to scrutinize

and hold departments accountable legitimacy of

82

these commissions is built upon their

independence as it avoids any conflicts of

interests27

There are various types of accountability ie

(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

lsquoParliaments are key actors in what has

been termed the lsquochain of

83

accountabilityrsquo 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 lsquosociety driven horizontal

84

accountabilityrsquo 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 ndashno

matter how defined ndash parliaments are one

of the institutions through which

diagonal accountability can be

exercisedrsquo27

However the civil servants should be

accountable by any or all means of

accountability

85

4 Judicial Service of Bangladesh

41 Legal framework

Article 137 of the Constitution also deals with

the term lsquolegal frameworkrsquo 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

itsrsquo judgment passed in Civil Appeal no79 of

1999 commonly known in the Masder Hossainrsquos case

that-

ldquoIt is declared that the word ldquoappointmentsrdquo 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

86

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

ldquoBangladesh Judicial Service Commission has been

established in 2007 by the rule lsquo বাংলােদশ

জিডিসয়াল সািভস কিমশন িবিধমালা ২০০৭ rsquo ie

87

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

88

Law Faculty of any one of three leading public

university ie 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 Secretariatrdquo 28

42 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

89

voice According to Rule 5 of OgraveevsjvDagger`k RywWwmqvj

mvwfcopyDaggermi cOumlDaggerek cDagger` wbDaggerqvM welqK AvDagger`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

90

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 32 are applicable with equitable

equality

43 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

91

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 33 is

applicable with equitable equality

44 Promotion procedure and recommendations

The promotion of sub-ordinate Courtrsquos judges are

in fact depended on the Annual Confidential

92

Reports (ACRs) There is no examination system

for getting the promotion in the sub-

ordinate judiciary

lsquoPresently 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

93

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 linersquo29

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-

ldquoConfidential reports should set out distinctly

and tersely sufficient particulars and it is

essential that they should be clear and definite

94

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 Divisionrdquo 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

95

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 34 is

applicable with equitable equality

45 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

96

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 skills30

Recommendation

The quality of training provided by JATI should

be improved A training need- assessment of the

subordinate court judges could be undertaken

97

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

98

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

subordinatecourts31

99

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

51 Ethical education

100

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 publics trust

and confidence in government by demonstrating

the highest standards of professional

competence efficiency and effectiveness

101

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

102

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

103

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

104

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 assets32 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

52 Use of technology

105

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 peoplersquos 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 lsquoThe Law of

Civil Procedurersquo first edition 2006 volume 1

page iii that

106

ldquoFor 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 lawyerrdquo However

the corruption of the court staff and the

offices of the civil servants can be controlled

easily by using technology ie 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

107

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

108

53 Check and balance

The theory of separation of powers was given by

the Charles-Louis de Secondat baron de La Bregravede

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 lsquothe spirit of

lawsrsquo that

lsquoI have not drawn my principles from my

prejudices but from the nature of thingsrdquo 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

109

Conclusion

In conclusion it can be reminded that 3rd

paragraph of the preamble of our constitution

provides that

lsquoFurther 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 citizensrsquo

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

110

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 p1 see also Mahmudul Islam-

Constitutional law of Bangladesh second edition

p1

2 httpenwikipediaorgwikiConstitution

111

3 httplegal-

dictionarythefreedictionarycomconstitution

4 httpwwwthefreedictionarycomframework

5 httpwwwmacmillandictionarycomdictionarybri

tishframework

6 httpwwwegyankoshacinbitstream

7 httpwwwbanglapediaorghttpdocsHTE_0079HTM

8 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

9 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

10 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

11 httpwwwbpscgovbd2011

12 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

13 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

14 httpwwwrhdgovbdRulesAndRegulationsView_Ov

erviewaspRef=A

112

15 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

16 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

17 wwwforbescomprofilejulian-assange

18 httpwwwti-bangladeshorgresearchES_PSCpdf

19 httpwwwnapsipagorgPDFABDUL_WAHHABpdf see

also Khan Akbar Ali and Kazi Rakibuddin Ahmad

March 2008 ldquoQuota System for Civil Service

Recruitment in Bangladesh An Exploratory

Analysisrdquo 2008 available at http

wwwbpscgovbddocuments news25906 newsdoc

20 Mahmudul Islam- Constitutional law of Bangladesh

second edition p171 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 p171 see also Indra Sawhney v

India AIR 1993 SC 477

113

22 httpwwwmopagovbdindexphpoption=com_conte

ntamptask=viewampid=377ampItemid=419

23 httpwwwvsrhhrCustomPagesStaticHRVFilesL

egislation__Civil-Servants-Actpdf

24 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

25 httptraininganddevelopmentnaukrihubcomtrain

inghtml

26 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

27 httpsiteresourcesworldbankorgPUBLICSECTORAN

DGOVERNANCEResourcesAccountabilityGovernancepd

f

28 httpwwwjscbdorgbdb_functionphp

29 httpwwwigsbracuacbdUserFilesFilearchive

_fileJudiciary_Policy_Notepdf

30 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

114

31 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

32 httpwwwoecdorgdataoecd625735521740pdf

Page 47: The constitutional framework of public administration in bangladesh

47

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

48

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

49

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 75 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

50

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 Bangladesh10

32 Recruitment procedure and

recommendations

The Bangladesh Public Service Commission (BPSC)

is a quasi judicial body established in 1972

under the Constitution of the Peoples Republic

51

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 Honble President

of the Republic11 Presidential Order No 34 (on

May 9 1972) PSC Ordinance No LVII of 1977 BCS

Recruitment Rules of 1981 PSC Officers amp

52

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 appointment12

The cadres and entry posts of the

Bangladesh Civil Service

General cadres

1 BCS (Administration) Assistant Commissioner)

53

2 BCS (Police) Assistant Superintendent of Police

3 BCS (Audit amp Accounts) Assistant Accountant General

4 BCS (Economic) Assistant Chief

5 BCS (Customs amp Excise) Assistant Commissioner

(Customs amp 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 amp

Export Equivalent Posts

11 BCS (Postal) Assistant Post Master General

Equivalent Posts

12 BCS (Railway Transportation amp Commercial)

Assistant Traffic Superintendent

54

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 amp Highways) Assistant Engineer

4 BCS (Telecommunications) Assistant Divisional

Engineer

5 BCS (Public Health Engineering) Assistant Engineer

55

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

Officer13

Recruitment

56

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 amp 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 appointment14

lsquoRecruitment is the process of searching for

prospective employees and stimulating them to

apply for jobs in the organization (Flippo and

57

Edwin 1984 141) No element of the career

service system is more important than the

recruitment policyrdquo (Commission of

Inquiry on Public Service Personnel 193537

quoted in Stall 196251) 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)

58

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 partymdashas opposed to a system of awarding

offices on the basis of merit independent of

political activityrsquo15

Legal Basis for BCS Recruitment Policy

lsquoThe constitution of Bangladesh has granted

equal employment opportunities for citizens The

constitution declares ldquoThere shall be equality

of opportunity for all citizens in respect of

employment or office in the service of the

Republicrdquo (Article 29 [1]) ldquoNo citizen shall

on the grounds only of religion race caste

59

sex or place of birth be ineligible for or

discriminated against in respect of any

employment or office in the service of the

Republicrdquo (Article 29 [2]) However under clause

(3) of the same Article the constitution has

provided certain exceptions that read ldquoNothing

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

60

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 servicesrsquo 16

61

Recommendations Julian Paul Assange an

Australian computer programmer

politicalinternet activist publisher and

journalist and founder of WikiLeaks supports

the free dissemination of government data17 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

62

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

Thatrsquos 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

63

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 abolished18

64

Besides these quota system should be abolished

as our Constitution or any law has not given the

definition and the factors of opting lsquobackward

sectionrsquo of the citizens Article 29(3)(a) of

our constitution though provides the quota

system for lsquobackward sectionrsquo 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 sonsrsquo being poor are not getting the said

benefit and hence Professor M Abdul Wahhab

65

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

ordersrules 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

66

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

67

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 ldquothough 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 art29 (1) amp29(2) it merely confers an

enabling power But as it an exception to the

guarantee of art29 (1) amp29(2) it should not be

68

interpreted or given effect to in such a way as

to nullify the guarantee under art29 (1)

amp29(2) The Indian Supreme Court held that

reservation in excess of 50 would be

unconstitutional20

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 lsquonotrsquo and hence ldquowe are to consider

the meaning of lsquobackward sectionrsquo Art 29 is

comparable with art16 of the Indian

Constitution which uses the expression lsquobackward

classrsquo where as the expression used in art

29(3) is backward section The Indian Supreme

Court has interpreted the expression lsquobackward

classrsquo in several decisions Those decisions may

69

be helpful but not decisive in interpreting

lsquobackward sectionrsquo 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

70

33 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 statusetc)22

But unfortunately

there is no hard and fast and transparent

principle for doing the transfer of the civil

71

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 workplace23

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 ie what quality is considered is to

72

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

73

determined and if it is taken or done there

will be no request or lobby for the transfer and

harassment

34 Promotion procedure and

recommendation

The word lsquopromotionrsquo 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

Bangladesh24

74

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

75

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

76

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

77

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

35 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

Itrsquos not what you want in life but itrsquos

knowing how to reach it

78

Itrsquos not where you want to go but itrsquos knowing

how to get there

Itrsquos not how high you want to rise but itrsquos

knowing how to take off

It may not be quite the outcome you were aiming

for but it will be an outcome

Itrsquos not what you dream of doing but itrsquos

having the knowledge to do it

Its not a set of goals but itrsquos more like a

vision

79

Itrsquos not the goal you set but itrsquos 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 Departments26

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

80

Recommendation

Training should be given to the civil servants

for realizing the matter that embodied in art21

(2) of the Constitution of the Peoplersquos 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

36 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

81

said word lsquoaccountability 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 ldquowatchdogrdquo units to scrutinize

and hold departments accountable legitimacy of

82

these commissions is built upon their

independence as it avoids any conflicts of

interests27

There are various types of accountability ie

(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

lsquoParliaments are key actors in what has

been termed the lsquochain of

83

accountabilityrsquo 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 lsquosociety driven horizontal

84

accountabilityrsquo 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 ndashno

matter how defined ndash parliaments are one

of the institutions through which

diagonal accountability can be

exercisedrsquo27

However the civil servants should be

accountable by any or all means of

accountability

85

4 Judicial Service of Bangladesh

41 Legal framework

Article 137 of the Constitution also deals with

the term lsquolegal frameworkrsquo 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

itsrsquo judgment passed in Civil Appeal no79 of

1999 commonly known in the Masder Hossainrsquos case

that-

ldquoIt is declared that the word ldquoappointmentsrdquo 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

86

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

ldquoBangladesh Judicial Service Commission has been

established in 2007 by the rule lsquo বাংলােদশ

জিডিসয়াল সািভস কিমশন িবিধমালা ২০০৭ rsquo ie

87

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

88

Law Faculty of any one of three leading public

university ie 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 Secretariatrdquo 28

42 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

89

voice According to Rule 5 of OgraveevsjvDagger`k RywWwmqvj

mvwfcopyDaggermi cOumlDaggerek cDagger` wbDaggerqvM welqK AvDagger`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

90

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 32 are applicable with equitable

equality

43 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

91

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 33 is

applicable with equitable equality

44 Promotion procedure and recommendations

The promotion of sub-ordinate Courtrsquos judges are

in fact depended on the Annual Confidential

92

Reports (ACRs) There is no examination system

for getting the promotion in the sub-

ordinate judiciary

lsquoPresently 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

93

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 linersquo29

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-

ldquoConfidential reports should set out distinctly

and tersely sufficient particulars and it is

essential that they should be clear and definite

94

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 Divisionrdquo 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

95

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 34 is

applicable with equitable equality

45 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

96

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 skills30

Recommendation

The quality of training provided by JATI should

be improved A training need- assessment of the

subordinate court judges could be undertaken

97

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

98

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

subordinatecourts31

99

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

51 Ethical education

100

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 publics trust

and confidence in government by demonstrating

the highest standards of professional

competence efficiency and effectiveness

101

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

102

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

103

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

104

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 assets32 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

52 Use of technology

105

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 peoplersquos 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 lsquoThe Law of

Civil Procedurersquo first edition 2006 volume 1

page iii that

106

ldquoFor 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 lawyerrdquo However

the corruption of the court staff and the

offices of the civil servants can be controlled

easily by using technology ie 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

107

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

108

53 Check and balance

The theory of separation of powers was given by

the Charles-Louis de Secondat baron de La Bregravede

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 lsquothe spirit of

lawsrsquo that

lsquoI have not drawn my principles from my

prejudices but from the nature of thingsrdquo 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

109

Conclusion

In conclusion it can be reminded that 3rd

paragraph of the preamble of our constitution

provides that

lsquoFurther 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 citizensrsquo

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

110

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 p1 see also Mahmudul Islam-

Constitutional law of Bangladesh second edition

p1

2 httpenwikipediaorgwikiConstitution

111

3 httplegal-

dictionarythefreedictionarycomconstitution

4 httpwwwthefreedictionarycomframework

5 httpwwwmacmillandictionarycomdictionarybri

tishframework

6 httpwwwegyankoshacinbitstream

7 httpwwwbanglapediaorghttpdocsHTE_0079HTM

8 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

9 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

10 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

11 httpwwwbpscgovbd2011

12 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

13 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

14 httpwwwrhdgovbdRulesAndRegulationsView_Ov

erviewaspRef=A

112

15 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

16 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

17 wwwforbescomprofilejulian-assange

18 httpwwwti-bangladeshorgresearchES_PSCpdf

19 httpwwwnapsipagorgPDFABDUL_WAHHABpdf see

also Khan Akbar Ali and Kazi Rakibuddin Ahmad

March 2008 ldquoQuota System for Civil Service

Recruitment in Bangladesh An Exploratory

Analysisrdquo 2008 available at http

wwwbpscgovbddocuments news25906 newsdoc

20 Mahmudul Islam- Constitutional law of Bangladesh

second edition p171 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 p171 see also Indra Sawhney v

India AIR 1993 SC 477

113

22 httpwwwmopagovbdindexphpoption=com_conte

ntamptask=viewampid=377ampItemid=419

23 httpwwwvsrhhrCustomPagesStaticHRVFilesL

egislation__Civil-Servants-Actpdf

24 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

25 httptraininganddevelopmentnaukrihubcomtrain

inghtml

26 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

27 httpsiteresourcesworldbankorgPUBLICSECTORAN

DGOVERNANCEResourcesAccountabilityGovernancepd

f

28 httpwwwjscbdorgbdb_functionphp

29 httpwwwigsbracuacbdUserFilesFilearchive

_fileJudiciary_Policy_Notepdf

30 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

114

31 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

32 httpwwwoecdorgdataoecd625735521740pdf

Page 48: The constitutional framework of public administration in bangladesh

48

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

49

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 75 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

50

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 Bangladesh10

32 Recruitment procedure and

recommendations

The Bangladesh Public Service Commission (BPSC)

is a quasi judicial body established in 1972

under the Constitution of the Peoples Republic

51

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 Honble President

of the Republic11 Presidential Order No 34 (on

May 9 1972) PSC Ordinance No LVII of 1977 BCS

Recruitment Rules of 1981 PSC Officers amp

52

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 appointment12

The cadres and entry posts of the

Bangladesh Civil Service

General cadres

1 BCS (Administration) Assistant Commissioner)

53

2 BCS (Police) Assistant Superintendent of Police

3 BCS (Audit amp Accounts) Assistant Accountant General

4 BCS (Economic) Assistant Chief

5 BCS (Customs amp Excise) Assistant Commissioner

(Customs amp 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 amp

Export Equivalent Posts

11 BCS (Postal) Assistant Post Master General

Equivalent Posts

12 BCS (Railway Transportation amp Commercial)

Assistant Traffic Superintendent

54

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 amp Highways) Assistant Engineer

4 BCS (Telecommunications) Assistant Divisional

Engineer

5 BCS (Public Health Engineering) Assistant Engineer

55

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

Officer13

Recruitment

56

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 amp 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 appointment14

lsquoRecruitment is the process of searching for

prospective employees and stimulating them to

apply for jobs in the organization (Flippo and

57

Edwin 1984 141) No element of the career

service system is more important than the

recruitment policyrdquo (Commission of

Inquiry on Public Service Personnel 193537

quoted in Stall 196251) 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)

58

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 partymdashas opposed to a system of awarding

offices on the basis of merit independent of

political activityrsquo15

Legal Basis for BCS Recruitment Policy

lsquoThe constitution of Bangladesh has granted

equal employment opportunities for citizens The

constitution declares ldquoThere shall be equality

of opportunity for all citizens in respect of

employment or office in the service of the

Republicrdquo (Article 29 [1]) ldquoNo citizen shall

on the grounds only of religion race caste

59

sex or place of birth be ineligible for or

discriminated against in respect of any

employment or office in the service of the

Republicrdquo (Article 29 [2]) However under clause

(3) of the same Article the constitution has

provided certain exceptions that read ldquoNothing

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

60

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 servicesrsquo 16

61

Recommendations Julian Paul Assange an

Australian computer programmer

politicalinternet activist publisher and

journalist and founder of WikiLeaks supports

the free dissemination of government data17 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

62

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

Thatrsquos 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

63

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 abolished18

64

Besides these quota system should be abolished

as our Constitution or any law has not given the

definition and the factors of opting lsquobackward

sectionrsquo of the citizens Article 29(3)(a) of

our constitution though provides the quota

system for lsquobackward sectionrsquo 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 sonsrsquo being poor are not getting the said

benefit and hence Professor M Abdul Wahhab

65

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

ordersrules 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

66

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

67

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 ldquothough 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 art29 (1) amp29(2) it merely confers an

enabling power But as it an exception to the

guarantee of art29 (1) amp29(2) it should not be

68

interpreted or given effect to in such a way as

to nullify the guarantee under art29 (1)

amp29(2) The Indian Supreme Court held that

reservation in excess of 50 would be

unconstitutional20

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 lsquonotrsquo and hence ldquowe are to consider

the meaning of lsquobackward sectionrsquo Art 29 is

comparable with art16 of the Indian

Constitution which uses the expression lsquobackward

classrsquo where as the expression used in art

29(3) is backward section The Indian Supreme

Court has interpreted the expression lsquobackward

classrsquo in several decisions Those decisions may

69

be helpful but not decisive in interpreting

lsquobackward sectionrsquo 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

70

33 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 statusetc)22

But unfortunately

there is no hard and fast and transparent

principle for doing the transfer of the civil

71

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 workplace23

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 ie what quality is considered is to

72

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

73

determined and if it is taken or done there

will be no request or lobby for the transfer and

harassment

34 Promotion procedure and

recommendation

The word lsquopromotionrsquo 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

Bangladesh24

74

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

75

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

76

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

77

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

35 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

Itrsquos not what you want in life but itrsquos

knowing how to reach it

78

Itrsquos not where you want to go but itrsquos knowing

how to get there

Itrsquos not how high you want to rise but itrsquos

knowing how to take off

It may not be quite the outcome you were aiming

for but it will be an outcome

Itrsquos not what you dream of doing but itrsquos

having the knowledge to do it

Its not a set of goals but itrsquos more like a

vision

79

Itrsquos not the goal you set but itrsquos 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 Departments26

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

80

Recommendation

Training should be given to the civil servants

for realizing the matter that embodied in art21

(2) of the Constitution of the Peoplersquos 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

36 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

81

said word lsquoaccountability 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 ldquowatchdogrdquo units to scrutinize

and hold departments accountable legitimacy of

82

these commissions is built upon their

independence as it avoids any conflicts of

interests27

There are various types of accountability ie

(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

lsquoParliaments are key actors in what has

been termed the lsquochain of

83

accountabilityrsquo 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 lsquosociety driven horizontal

84

accountabilityrsquo 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 ndashno

matter how defined ndash parliaments are one

of the institutions through which

diagonal accountability can be

exercisedrsquo27

However the civil servants should be

accountable by any or all means of

accountability

85

4 Judicial Service of Bangladesh

41 Legal framework

Article 137 of the Constitution also deals with

the term lsquolegal frameworkrsquo 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

itsrsquo judgment passed in Civil Appeal no79 of

1999 commonly known in the Masder Hossainrsquos case

that-

ldquoIt is declared that the word ldquoappointmentsrdquo 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

86

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

ldquoBangladesh Judicial Service Commission has been

established in 2007 by the rule lsquo বাংলােদশ

জিডিসয়াল সািভস কিমশন িবিধমালা ২০০৭ rsquo ie

87

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

88

Law Faculty of any one of three leading public

university ie 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 Secretariatrdquo 28

42 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

89

voice According to Rule 5 of OgraveevsjvDagger`k RywWwmqvj

mvwfcopyDaggermi cOumlDaggerek cDagger` wbDaggerqvM welqK AvDagger`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

90

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 32 are applicable with equitable

equality

43 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

91

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 33 is

applicable with equitable equality

44 Promotion procedure and recommendations

The promotion of sub-ordinate Courtrsquos judges are

in fact depended on the Annual Confidential

92

Reports (ACRs) There is no examination system

for getting the promotion in the sub-

ordinate judiciary

lsquoPresently 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

93

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 linersquo29

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-

ldquoConfidential reports should set out distinctly

and tersely sufficient particulars and it is

essential that they should be clear and definite

94

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 Divisionrdquo 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

95

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 34 is

applicable with equitable equality

45 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

96

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 skills30

Recommendation

The quality of training provided by JATI should

be improved A training need- assessment of the

subordinate court judges could be undertaken

97

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

98

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

subordinatecourts31

99

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

51 Ethical education

100

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 publics trust

and confidence in government by demonstrating

the highest standards of professional

competence efficiency and effectiveness

101

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

102

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

103

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

104

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 assets32 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

52 Use of technology

105

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 peoplersquos 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 lsquoThe Law of

Civil Procedurersquo first edition 2006 volume 1

page iii that

106

ldquoFor 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 lawyerrdquo However

the corruption of the court staff and the

offices of the civil servants can be controlled

easily by using technology ie 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

107

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

108

53 Check and balance

The theory of separation of powers was given by

the Charles-Louis de Secondat baron de La Bregravede

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 lsquothe spirit of

lawsrsquo that

lsquoI have not drawn my principles from my

prejudices but from the nature of thingsrdquo 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

109

Conclusion

In conclusion it can be reminded that 3rd

paragraph of the preamble of our constitution

provides that

lsquoFurther 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 citizensrsquo

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

110

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 p1 see also Mahmudul Islam-

Constitutional law of Bangladesh second edition

p1

2 httpenwikipediaorgwikiConstitution

111

3 httplegal-

dictionarythefreedictionarycomconstitution

4 httpwwwthefreedictionarycomframework

5 httpwwwmacmillandictionarycomdictionarybri

tishframework

6 httpwwwegyankoshacinbitstream

7 httpwwwbanglapediaorghttpdocsHTE_0079HTM

8 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

9 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

10 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

11 httpwwwbpscgovbd2011

12 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

13 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

14 httpwwwrhdgovbdRulesAndRegulationsView_Ov

erviewaspRef=A

112

15 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

16 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

17 wwwforbescomprofilejulian-assange

18 httpwwwti-bangladeshorgresearchES_PSCpdf

19 httpwwwnapsipagorgPDFABDUL_WAHHABpdf see

also Khan Akbar Ali and Kazi Rakibuddin Ahmad

March 2008 ldquoQuota System for Civil Service

Recruitment in Bangladesh An Exploratory

Analysisrdquo 2008 available at http

wwwbpscgovbddocuments news25906 newsdoc

20 Mahmudul Islam- Constitutional law of Bangladesh

second edition p171 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 p171 see also Indra Sawhney v

India AIR 1993 SC 477

113

22 httpwwwmopagovbdindexphpoption=com_conte

ntamptask=viewampid=377ampItemid=419

23 httpwwwvsrhhrCustomPagesStaticHRVFilesL

egislation__Civil-Servants-Actpdf

24 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

25 httptraininganddevelopmentnaukrihubcomtrain

inghtml

26 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

27 httpsiteresourcesworldbankorgPUBLICSECTORAN

DGOVERNANCEResourcesAccountabilityGovernancepd

f

28 httpwwwjscbdorgbdb_functionphp

29 httpwwwigsbracuacbdUserFilesFilearchive

_fileJudiciary_Policy_Notepdf

30 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

114

31 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

32 httpwwwoecdorgdataoecd625735521740pdf

Page 49: The constitutional framework of public administration in bangladesh

49

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 75 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

50

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 Bangladesh10

32 Recruitment procedure and

recommendations

The Bangladesh Public Service Commission (BPSC)

is a quasi judicial body established in 1972

under the Constitution of the Peoples Republic

51

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 Honble President

of the Republic11 Presidential Order No 34 (on

May 9 1972) PSC Ordinance No LVII of 1977 BCS

Recruitment Rules of 1981 PSC Officers amp

52

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 appointment12

The cadres and entry posts of the

Bangladesh Civil Service

General cadres

1 BCS (Administration) Assistant Commissioner)

53

2 BCS (Police) Assistant Superintendent of Police

3 BCS (Audit amp Accounts) Assistant Accountant General

4 BCS (Economic) Assistant Chief

5 BCS (Customs amp Excise) Assistant Commissioner

(Customs amp 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 amp

Export Equivalent Posts

11 BCS (Postal) Assistant Post Master General

Equivalent Posts

12 BCS (Railway Transportation amp Commercial)

Assistant Traffic Superintendent

54

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 amp Highways) Assistant Engineer

4 BCS (Telecommunications) Assistant Divisional

Engineer

5 BCS (Public Health Engineering) Assistant Engineer

55

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

Officer13

Recruitment

56

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 amp 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 appointment14

lsquoRecruitment is the process of searching for

prospective employees and stimulating them to

apply for jobs in the organization (Flippo and

57

Edwin 1984 141) No element of the career

service system is more important than the

recruitment policyrdquo (Commission of

Inquiry on Public Service Personnel 193537

quoted in Stall 196251) 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)

58

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 partymdashas opposed to a system of awarding

offices on the basis of merit independent of

political activityrsquo15

Legal Basis for BCS Recruitment Policy

lsquoThe constitution of Bangladesh has granted

equal employment opportunities for citizens The

constitution declares ldquoThere shall be equality

of opportunity for all citizens in respect of

employment or office in the service of the

Republicrdquo (Article 29 [1]) ldquoNo citizen shall

on the grounds only of religion race caste

59

sex or place of birth be ineligible for or

discriminated against in respect of any

employment or office in the service of the

Republicrdquo (Article 29 [2]) However under clause

(3) of the same Article the constitution has

provided certain exceptions that read ldquoNothing

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

60

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 servicesrsquo 16

61

Recommendations Julian Paul Assange an

Australian computer programmer

politicalinternet activist publisher and

journalist and founder of WikiLeaks supports

the free dissemination of government data17 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

62

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

Thatrsquos 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

63

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 abolished18

64

Besides these quota system should be abolished

as our Constitution or any law has not given the

definition and the factors of opting lsquobackward

sectionrsquo of the citizens Article 29(3)(a) of

our constitution though provides the quota

system for lsquobackward sectionrsquo 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 sonsrsquo being poor are not getting the said

benefit and hence Professor M Abdul Wahhab

65

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

ordersrules 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

66

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

67

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 ldquothough 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 art29 (1) amp29(2) it merely confers an

enabling power But as it an exception to the

guarantee of art29 (1) amp29(2) it should not be

68

interpreted or given effect to in such a way as

to nullify the guarantee under art29 (1)

amp29(2) The Indian Supreme Court held that

reservation in excess of 50 would be

unconstitutional20

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 lsquonotrsquo and hence ldquowe are to consider

the meaning of lsquobackward sectionrsquo Art 29 is

comparable with art16 of the Indian

Constitution which uses the expression lsquobackward

classrsquo where as the expression used in art

29(3) is backward section The Indian Supreme

Court has interpreted the expression lsquobackward

classrsquo in several decisions Those decisions may

69

be helpful but not decisive in interpreting

lsquobackward sectionrsquo 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

70

33 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 statusetc)22

But unfortunately

there is no hard and fast and transparent

principle for doing the transfer of the civil

71

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 workplace23

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 ie what quality is considered is to

72

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

73

determined and if it is taken or done there

will be no request or lobby for the transfer and

harassment

34 Promotion procedure and

recommendation

The word lsquopromotionrsquo 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

Bangladesh24

74

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

75

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

76

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

77

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

35 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

Itrsquos not what you want in life but itrsquos

knowing how to reach it

78

Itrsquos not where you want to go but itrsquos knowing

how to get there

Itrsquos not how high you want to rise but itrsquos

knowing how to take off

It may not be quite the outcome you were aiming

for but it will be an outcome

Itrsquos not what you dream of doing but itrsquos

having the knowledge to do it

Its not a set of goals but itrsquos more like a

vision

79

Itrsquos not the goal you set but itrsquos 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 Departments26

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

80

Recommendation

Training should be given to the civil servants

for realizing the matter that embodied in art21

(2) of the Constitution of the Peoplersquos 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

36 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

81

said word lsquoaccountability 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 ldquowatchdogrdquo units to scrutinize

and hold departments accountable legitimacy of

82

these commissions is built upon their

independence as it avoids any conflicts of

interests27

There are various types of accountability ie

(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

lsquoParliaments are key actors in what has

been termed the lsquochain of

83

accountabilityrsquo 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 lsquosociety driven horizontal

84

accountabilityrsquo 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 ndashno

matter how defined ndash parliaments are one

of the institutions through which

diagonal accountability can be

exercisedrsquo27

However the civil servants should be

accountable by any or all means of

accountability

85

4 Judicial Service of Bangladesh

41 Legal framework

Article 137 of the Constitution also deals with

the term lsquolegal frameworkrsquo 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

itsrsquo judgment passed in Civil Appeal no79 of

1999 commonly known in the Masder Hossainrsquos case

that-

ldquoIt is declared that the word ldquoappointmentsrdquo 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

86

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

ldquoBangladesh Judicial Service Commission has been

established in 2007 by the rule lsquo বাংলােদশ

জিডিসয়াল সািভস কিমশন িবিধমালা ২০০৭ rsquo ie

87

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

88

Law Faculty of any one of three leading public

university ie 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 Secretariatrdquo 28

42 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

89

voice According to Rule 5 of OgraveevsjvDagger`k RywWwmqvj

mvwfcopyDaggermi cOumlDaggerek cDagger` wbDaggerqvM welqK AvDagger`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

90

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 32 are applicable with equitable

equality

43 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

91

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 33 is

applicable with equitable equality

44 Promotion procedure and recommendations

The promotion of sub-ordinate Courtrsquos judges are

in fact depended on the Annual Confidential

92

Reports (ACRs) There is no examination system

for getting the promotion in the sub-

ordinate judiciary

lsquoPresently 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

93

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 linersquo29

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-

ldquoConfidential reports should set out distinctly

and tersely sufficient particulars and it is

essential that they should be clear and definite

94

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 Divisionrdquo 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

95

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 34 is

applicable with equitable equality

45 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

96

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 skills30

Recommendation

The quality of training provided by JATI should

be improved A training need- assessment of the

subordinate court judges could be undertaken

97

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

98

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

subordinatecourts31

99

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

51 Ethical education

100

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 publics trust

and confidence in government by demonstrating

the highest standards of professional

competence efficiency and effectiveness

101

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

102

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

103

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

104

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 assets32 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

52 Use of technology

105

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 peoplersquos 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 lsquoThe Law of

Civil Procedurersquo first edition 2006 volume 1

page iii that

106

ldquoFor 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 lawyerrdquo However

the corruption of the court staff and the

offices of the civil servants can be controlled

easily by using technology ie 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

107

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

108

53 Check and balance

The theory of separation of powers was given by

the Charles-Louis de Secondat baron de La Bregravede

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 lsquothe spirit of

lawsrsquo that

lsquoI have not drawn my principles from my

prejudices but from the nature of thingsrdquo 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

109

Conclusion

In conclusion it can be reminded that 3rd

paragraph of the preamble of our constitution

provides that

lsquoFurther 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 citizensrsquo

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

110

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 p1 see also Mahmudul Islam-

Constitutional law of Bangladesh second edition

p1

2 httpenwikipediaorgwikiConstitution

111

3 httplegal-

dictionarythefreedictionarycomconstitution

4 httpwwwthefreedictionarycomframework

5 httpwwwmacmillandictionarycomdictionarybri

tishframework

6 httpwwwegyankoshacinbitstream

7 httpwwwbanglapediaorghttpdocsHTE_0079HTM

8 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

9 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

10 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

11 httpwwwbpscgovbd2011

12 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

13 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

14 httpwwwrhdgovbdRulesAndRegulationsView_Ov

erviewaspRef=A

112

15 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

16 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

17 wwwforbescomprofilejulian-assange

18 httpwwwti-bangladeshorgresearchES_PSCpdf

19 httpwwwnapsipagorgPDFABDUL_WAHHABpdf see

also Khan Akbar Ali and Kazi Rakibuddin Ahmad

March 2008 ldquoQuota System for Civil Service

Recruitment in Bangladesh An Exploratory

Analysisrdquo 2008 available at http

wwwbpscgovbddocuments news25906 newsdoc

20 Mahmudul Islam- Constitutional law of Bangladesh

second edition p171 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 p171 see also Indra Sawhney v

India AIR 1993 SC 477

113

22 httpwwwmopagovbdindexphpoption=com_conte

ntamptask=viewampid=377ampItemid=419

23 httpwwwvsrhhrCustomPagesStaticHRVFilesL

egislation__Civil-Servants-Actpdf

24 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

25 httptraininganddevelopmentnaukrihubcomtrain

inghtml

26 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

27 httpsiteresourcesworldbankorgPUBLICSECTORAN

DGOVERNANCEResourcesAccountabilityGovernancepd

f

28 httpwwwjscbdorgbdb_functionphp

29 httpwwwigsbracuacbdUserFilesFilearchive

_fileJudiciary_Policy_Notepdf

30 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

114

31 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

32 httpwwwoecdorgdataoecd625735521740pdf

Page 50: The constitutional framework of public administration in bangladesh

50

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 Bangladesh10

32 Recruitment procedure and

recommendations

The Bangladesh Public Service Commission (BPSC)

is a quasi judicial body established in 1972

under the Constitution of the Peoples Republic

51

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 Honble President

of the Republic11 Presidential Order No 34 (on

May 9 1972) PSC Ordinance No LVII of 1977 BCS

Recruitment Rules of 1981 PSC Officers amp

52

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 appointment12

The cadres and entry posts of the

Bangladesh Civil Service

General cadres

1 BCS (Administration) Assistant Commissioner)

53

2 BCS (Police) Assistant Superintendent of Police

3 BCS (Audit amp Accounts) Assistant Accountant General

4 BCS (Economic) Assistant Chief

5 BCS (Customs amp Excise) Assistant Commissioner

(Customs amp 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 amp

Export Equivalent Posts

11 BCS (Postal) Assistant Post Master General

Equivalent Posts

12 BCS (Railway Transportation amp Commercial)

Assistant Traffic Superintendent

54

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 amp Highways) Assistant Engineer

4 BCS (Telecommunications) Assistant Divisional

Engineer

5 BCS (Public Health Engineering) Assistant Engineer

55

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

Officer13

Recruitment

56

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 amp 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 appointment14

lsquoRecruitment is the process of searching for

prospective employees and stimulating them to

apply for jobs in the organization (Flippo and

57

Edwin 1984 141) No element of the career

service system is more important than the

recruitment policyrdquo (Commission of

Inquiry on Public Service Personnel 193537

quoted in Stall 196251) 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)

58

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 partymdashas opposed to a system of awarding

offices on the basis of merit independent of

political activityrsquo15

Legal Basis for BCS Recruitment Policy

lsquoThe constitution of Bangladesh has granted

equal employment opportunities for citizens The

constitution declares ldquoThere shall be equality

of opportunity for all citizens in respect of

employment or office in the service of the

Republicrdquo (Article 29 [1]) ldquoNo citizen shall

on the grounds only of religion race caste

59

sex or place of birth be ineligible for or

discriminated against in respect of any

employment or office in the service of the

Republicrdquo (Article 29 [2]) However under clause

(3) of the same Article the constitution has

provided certain exceptions that read ldquoNothing

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

60

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 servicesrsquo 16

61

Recommendations Julian Paul Assange an

Australian computer programmer

politicalinternet activist publisher and

journalist and founder of WikiLeaks supports

the free dissemination of government data17 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

62

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

Thatrsquos 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

63

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 abolished18

64

Besides these quota system should be abolished

as our Constitution or any law has not given the

definition and the factors of opting lsquobackward

sectionrsquo of the citizens Article 29(3)(a) of

our constitution though provides the quota

system for lsquobackward sectionrsquo 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 sonsrsquo being poor are not getting the said

benefit and hence Professor M Abdul Wahhab

65

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

ordersrules 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

66

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

67

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 ldquothough 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 art29 (1) amp29(2) it merely confers an

enabling power But as it an exception to the

guarantee of art29 (1) amp29(2) it should not be

68

interpreted or given effect to in such a way as

to nullify the guarantee under art29 (1)

amp29(2) The Indian Supreme Court held that

reservation in excess of 50 would be

unconstitutional20

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 lsquonotrsquo and hence ldquowe are to consider

the meaning of lsquobackward sectionrsquo Art 29 is

comparable with art16 of the Indian

Constitution which uses the expression lsquobackward

classrsquo where as the expression used in art

29(3) is backward section The Indian Supreme

Court has interpreted the expression lsquobackward

classrsquo in several decisions Those decisions may

69

be helpful but not decisive in interpreting

lsquobackward sectionrsquo 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

70

33 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 statusetc)22

But unfortunately

there is no hard and fast and transparent

principle for doing the transfer of the civil

71

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 workplace23

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 ie what quality is considered is to

72

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

73

determined and if it is taken or done there

will be no request or lobby for the transfer and

harassment

34 Promotion procedure and

recommendation

The word lsquopromotionrsquo 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

Bangladesh24

74

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

75

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

76

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

77

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

35 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

Itrsquos not what you want in life but itrsquos

knowing how to reach it

78

Itrsquos not where you want to go but itrsquos knowing

how to get there

Itrsquos not how high you want to rise but itrsquos

knowing how to take off

It may not be quite the outcome you were aiming

for but it will be an outcome

Itrsquos not what you dream of doing but itrsquos

having the knowledge to do it

Its not a set of goals but itrsquos more like a

vision

79

Itrsquos not the goal you set but itrsquos 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 Departments26

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

80

Recommendation

Training should be given to the civil servants

for realizing the matter that embodied in art21

(2) of the Constitution of the Peoplersquos 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

36 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

81

said word lsquoaccountability 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 ldquowatchdogrdquo units to scrutinize

and hold departments accountable legitimacy of

82

these commissions is built upon their

independence as it avoids any conflicts of

interests27

There are various types of accountability ie

(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

lsquoParliaments are key actors in what has

been termed the lsquochain of

83

accountabilityrsquo 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 lsquosociety driven horizontal

84

accountabilityrsquo 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 ndashno

matter how defined ndash parliaments are one

of the institutions through which

diagonal accountability can be

exercisedrsquo27

However the civil servants should be

accountable by any or all means of

accountability

85

4 Judicial Service of Bangladesh

41 Legal framework

Article 137 of the Constitution also deals with

the term lsquolegal frameworkrsquo 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

itsrsquo judgment passed in Civil Appeal no79 of

1999 commonly known in the Masder Hossainrsquos case

that-

ldquoIt is declared that the word ldquoappointmentsrdquo 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

86

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

ldquoBangladesh Judicial Service Commission has been

established in 2007 by the rule lsquo বাংলােদশ

জিডিসয়াল সািভস কিমশন িবিধমালা ২০০৭ rsquo ie

87

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

88

Law Faculty of any one of three leading public

university ie 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 Secretariatrdquo 28

42 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

89

voice According to Rule 5 of OgraveevsjvDagger`k RywWwmqvj

mvwfcopyDaggermi cOumlDaggerek cDagger` wbDaggerqvM welqK AvDagger`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

90

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 32 are applicable with equitable

equality

43 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

91

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 33 is

applicable with equitable equality

44 Promotion procedure and recommendations

The promotion of sub-ordinate Courtrsquos judges are

in fact depended on the Annual Confidential

92

Reports (ACRs) There is no examination system

for getting the promotion in the sub-

ordinate judiciary

lsquoPresently 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

93

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 linersquo29

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-

ldquoConfidential reports should set out distinctly

and tersely sufficient particulars and it is

essential that they should be clear and definite

94

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 Divisionrdquo 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

95

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 34 is

applicable with equitable equality

45 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

96

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 skills30

Recommendation

The quality of training provided by JATI should

be improved A training need- assessment of the

subordinate court judges could be undertaken

97

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

98

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

subordinatecourts31

99

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

51 Ethical education

100

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 publics trust

and confidence in government by demonstrating

the highest standards of professional

competence efficiency and effectiveness

101

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

102

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

103

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

104

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 assets32 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

52 Use of technology

105

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 peoplersquos 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 lsquoThe Law of

Civil Procedurersquo first edition 2006 volume 1

page iii that

106

ldquoFor 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 lawyerrdquo However

the corruption of the court staff and the

offices of the civil servants can be controlled

easily by using technology ie 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

107

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

108

53 Check and balance

The theory of separation of powers was given by

the Charles-Louis de Secondat baron de La Bregravede

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 lsquothe spirit of

lawsrsquo that

lsquoI have not drawn my principles from my

prejudices but from the nature of thingsrdquo 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

109

Conclusion

In conclusion it can be reminded that 3rd

paragraph of the preamble of our constitution

provides that

lsquoFurther 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 citizensrsquo

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

110

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 p1 see also Mahmudul Islam-

Constitutional law of Bangladesh second edition

p1

2 httpenwikipediaorgwikiConstitution

111

3 httplegal-

dictionarythefreedictionarycomconstitution

4 httpwwwthefreedictionarycomframework

5 httpwwwmacmillandictionarycomdictionarybri

tishframework

6 httpwwwegyankoshacinbitstream

7 httpwwwbanglapediaorghttpdocsHTE_0079HTM

8 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

9 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

10 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

11 httpwwwbpscgovbd2011

12 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

13 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

14 httpwwwrhdgovbdRulesAndRegulationsView_Ov

erviewaspRef=A

112

15 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

16 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

17 wwwforbescomprofilejulian-assange

18 httpwwwti-bangladeshorgresearchES_PSCpdf

19 httpwwwnapsipagorgPDFABDUL_WAHHABpdf see

also Khan Akbar Ali and Kazi Rakibuddin Ahmad

March 2008 ldquoQuota System for Civil Service

Recruitment in Bangladesh An Exploratory

Analysisrdquo 2008 available at http

wwwbpscgovbddocuments news25906 newsdoc

20 Mahmudul Islam- Constitutional law of Bangladesh

second edition p171 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 p171 see also Indra Sawhney v

India AIR 1993 SC 477

113

22 httpwwwmopagovbdindexphpoption=com_conte

ntamptask=viewampid=377ampItemid=419

23 httpwwwvsrhhrCustomPagesStaticHRVFilesL

egislation__Civil-Servants-Actpdf

24 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

25 httptraininganddevelopmentnaukrihubcomtrain

inghtml

26 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

27 httpsiteresourcesworldbankorgPUBLICSECTORAN

DGOVERNANCEResourcesAccountabilityGovernancepd

f

28 httpwwwjscbdorgbdb_functionphp

29 httpwwwigsbracuacbdUserFilesFilearchive

_fileJudiciary_Policy_Notepdf

30 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

114

31 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

32 httpwwwoecdorgdataoecd625735521740pdf

Page 51: The constitutional framework of public administration in bangladesh

51

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 Honble President

of the Republic11 Presidential Order No 34 (on

May 9 1972) PSC Ordinance No LVII of 1977 BCS

Recruitment Rules of 1981 PSC Officers amp

52

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 appointment12

The cadres and entry posts of the

Bangladesh Civil Service

General cadres

1 BCS (Administration) Assistant Commissioner)

53

2 BCS (Police) Assistant Superintendent of Police

3 BCS (Audit amp Accounts) Assistant Accountant General

4 BCS (Economic) Assistant Chief

5 BCS (Customs amp Excise) Assistant Commissioner

(Customs amp 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 amp

Export Equivalent Posts

11 BCS (Postal) Assistant Post Master General

Equivalent Posts

12 BCS (Railway Transportation amp Commercial)

Assistant Traffic Superintendent

54

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 amp Highways) Assistant Engineer

4 BCS (Telecommunications) Assistant Divisional

Engineer

5 BCS (Public Health Engineering) Assistant Engineer

55

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

Officer13

Recruitment

56

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 amp 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 appointment14

lsquoRecruitment is the process of searching for

prospective employees and stimulating them to

apply for jobs in the organization (Flippo and

57

Edwin 1984 141) No element of the career

service system is more important than the

recruitment policyrdquo (Commission of

Inquiry on Public Service Personnel 193537

quoted in Stall 196251) 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)

58

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 partymdashas opposed to a system of awarding

offices on the basis of merit independent of

political activityrsquo15

Legal Basis for BCS Recruitment Policy

lsquoThe constitution of Bangladesh has granted

equal employment opportunities for citizens The

constitution declares ldquoThere shall be equality

of opportunity for all citizens in respect of

employment or office in the service of the

Republicrdquo (Article 29 [1]) ldquoNo citizen shall

on the grounds only of religion race caste

59

sex or place of birth be ineligible for or

discriminated against in respect of any

employment or office in the service of the

Republicrdquo (Article 29 [2]) However under clause

(3) of the same Article the constitution has

provided certain exceptions that read ldquoNothing

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

60

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 servicesrsquo 16

61

Recommendations Julian Paul Assange an

Australian computer programmer

politicalinternet activist publisher and

journalist and founder of WikiLeaks supports

the free dissemination of government data17 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

62

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

Thatrsquos 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

63

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 abolished18

64

Besides these quota system should be abolished

as our Constitution or any law has not given the

definition and the factors of opting lsquobackward

sectionrsquo of the citizens Article 29(3)(a) of

our constitution though provides the quota

system for lsquobackward sectionrsquo 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 sonsrsquo being poor are not getting the said

benefit and hence Professor M Abdul Wahhab

65

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

ordersrules 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

66

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

67

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 ldquothough 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 art29 (1) amp29(2) it merely confers an

enabling power But as it an exception to the

guarantee of art29 (1) amp29(2) it should not be

68

interpreted or given effect to in such a way as

to nullify the guarantee under art29 (1)

amp29(2) The Indian Supreme Court held that

reservation in excess of 50 would be

unconstitutional20

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 lsquonotrsquo and hence ldquowe are to consider

the meaning of lsquobackward sectionrsquo Art 29 is

comparable with art16 of the Indian

Constitution which uses the expression lsquobackward

classrsquo where as the expression used in art

29(3) is backward section The Indian Supreme

Court has interpreted the expression lsquobackward

classrsquo in several decisions Those decisions may

69

be helpful but not decisive in interpreting

lsquobackward sectionrsquo 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

70

33 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 statusetc)22

But unfortunately

there is no hard and fast and transparent

principle for doing the transfer of the civil

71

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 workplace23

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 ie what quality is considered is to

72

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

73

determined and if it is taken or done there

will be no request or lobby for the transfer and

harassment

34 Promotion procedure and

recommendation

The word lsquopromotionrsquo 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

Bangladesh24

74

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

75

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

76

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

77

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

35 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

Itrsquos not what you want in life but itrsquos

knowing how to reach it

78

Itrsquos not where you want to go but itrsquos knowing

how to get there

Itrsquos not how high you want to rise but itrsquos

knowing how to take off

It may not be quite the outcome you were aiming

for but it will be an outcome

Itrsquos not what you dream of doing but itrsquos

having the knowledge to do it

Its not a set of goals but itrsquos more like a

vision

79

Itrsquos not the goal you set but itrsquos 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 Departments26

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

80

Recommendation

Training should be given to the civil servants

for realizing the matter that embodied in art21

(2) of the Constitution of the Peoplersquos 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

36 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

81

said word lsquoaccountability 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 ldquowatchdogrdquo units to scrutinize

and hold departments accountable legitimacy of

82

these commissions is built upon their

independence as it avoids any conflicts of

interests27

There are various types of accountability ie

(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

lsquoParliaments are key actors in what has

been termed the lsquochain of

83

accountabilityrsquo 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 lsquosociety driven horizontal

84

accountabilityrsquo 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 ndashno

matter how defined ndash parliaments are one

of the institutions through which

diagonal accountability can be

exercisedrsquo27

However the civil servants should be

accountable by any or all means of

accountability

85

4 Judicial Service of Bangladesh

41 Legal framework

Article 137 of the Constitution also deals with

the term lsquolegal frameworkrsquo 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

itsrsquo judgment passed in Civil Appeal no79 of

1999 commonly known in the Masder Hossainrsquos case

that-

ldquoIt is declared that the word ldquoappointmentsrdquo 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

86

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

ldquoBangladesh Judicial Service Commission has been

established in 2007 by the rule lsquo বাংলােদশ

জিডিসয়াল সািভস কিমশন িবিধমালা ২০০৭ rsquo ie

87

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

88

Law Faculty of any one of three leading public

university ie 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 Secretariatrdquo 28

42 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

89

voice According to Rule 5 of OgraveevsjvDagger`k RywWwmqvj

mvwfcopyDaggermi cOumlDaggerek cDagger` wbDaggerqvM welqK AvDagger`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

90

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 32 are applicable with equitable

equality

43 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

91

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 33 is

applicable with equitable equality

44 Promotion procedure and recommendations

The promotion of sub-ordinate Courtrsquos judges are

in fact depended on the Annual Confidential

92

Reports (ACRs) There is no examination system

for getting the promotion in the sub-

ordinate judiciary

lsquoPresently 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

93

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 linersquo29

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-

ldquoConfidential reports should set out distinctly

and tersely sufficient particulars and it is

essential that they should be clear and definite

94

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 Divisionrdquo 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

95

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 34 is

applicable with equitable equality

45 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

96

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 skills30

Recommendation

The quality of training provided by JATI should

be improved A training need- assessment of the

subordinate court judges could be undertaken

97

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

98

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

subordinatecourts31

99

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

51 Ethical education

100

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 publics trust

and confidence in government by demonstrating

the highest standards of professional

competence efficiency and effectiveness

101

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

102

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

103

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

104

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 assets32 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

52 Use of technology

105

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 peoplersquos 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 lsquoThe Law of

Civil Procedurersquo first edition 2006 volume 1

page iii that

106

ldquoFor 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 lawyerrdquo However

the corruption of the court staff and the

offices of the civil servants can be controlled

easily by using technology ie 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

107

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

108

53 Check and balance

The theory of separation of powers was given by

the Charles-Louis de Secondat baron de La Bregravede

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 lsquothe spirit of

lawsrsquo that

lsquoI have not drawn my principles from my

prejudices but from the nature of thingsrdquo 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

109

Conclusion

In conclusion it can be reminded that 3rd

paragraph of the preamble of our constitution

provides that

lsquoFurther 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 citizensrsquo

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

110

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 p1 see also Mahmudul Islam-

Constitutional law of Bangladesh second edition

p1

2 httpenwikipediaorgwikiConstitution

111

3 httplegal-

dictionarythefreedictionarycomconstitution

4 httpwwwthefreedictionarycomframework

5 httpwwwmacmillandictionarycomdictionarybri

tishframework

6 httpwwwegyankoshacinbitstream

7 httpwwwbanglapediaorghttpdocsHTE_0079HTM

8 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

9 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

10 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

11 httpwwwbpscgovbd2011

12 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

13 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

14 httpwwwrhdgovbdRulesAndRegulationsView_Ov

erviewaspRef=A

112

15 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

16 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

17 wwwforbescomprofilejulian-assange

18 httpwwwti-bangladeshorgresearchES_PSCpdf

19 httpwwwnapsipagorgPDFABDUL_WAHHABpdf see

also Khan Akbar Ali and Kazi Rakibuddin Ahmad

March 2008 ldquoQuota System for Civil Service

Recruitment in Bangladesh An Exploratory

Analysisrdquo 2008 available at http

wwwbpscgovbddocuments news25906 newsdoc

20 Mahmudul Islam- Constitutional law of Bangladesh

second edition p171 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 p171 see also Indra Sawhney v

India AIR 1993 SC 477

113

22 httpwwwmopagovbdindexphpoption=com_conte

ntamptask=viewampid=377ampItemid=419

23 httpwwwvsrhhrCustomPagesStaticHRVFilesL

egislation__Civil-Servants-Actpdf

24 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

25 httptraininganddevelopmentnaukrihubcomtrain

inghtml

26 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

27 httpsiteresourcesworldbankorgPUBLICSECTORAN

DGOVERNANCEResourcesAccountabilityGovernancepd

f

28 httpwwwjscbdorgbdb_functionphp

29 httpwwwigsbracuacbdUserFilesFilearchive

_fileJudiciary_Policy_Notepdf

30 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

114

31 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

32 httpwwwoecdorgdataoecd625735521740pdf

Page 52: The constitutional framework of public administration in bangladesh

52

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 appointment12

The cadres and entry posts of the

Bangladesh Civil Service

General cadres

1 BCS (Administration) Assistant Commissioner)

53

2 BCS (Police) Assistant Superintendent of Police

3 BCS (Audit amp Accounts) Assistant Accountant General

4 BCS (Economic) Assistant Chief

5 BCS (Customs amp Excise) Assistant Commissioner

(Customs amp 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 amp

Export Equivalent Posts

11 BCS (Postal) Assistant Post Master General

Equivalent Posts

12 BCS (Railway Transportation amp Commercial)

Assistant Traffic Superintendent

54

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 amp Highways) Assistant Engineer

4 BCS (Telecommunications) Assistant Divisional

Engineer

5 BCS (Public Health Engineering) Assistant Engineer

55

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

Officer13

Recruitment

56

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 amp 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 appointment14

lsquoRecruitment is the process of searching for

prospective employees and stimulating them to

apply for jobs in the organization (Flippo and

57

Edwin 1984 141) No element of the career

service system is more important than the

recruitment policyrdquo (Commission of

Inquiry on Public Service Personnel 193537

quoted in Stall 196251) 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)

58

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 partymdashas opposed to a system of awarding

offices on the basis of merit independent of

political activityrsquo15

Legal Basis for BCS Recruitment Policy

lsquoThe constitution of Bangladesh has granted

equal employment opportunities for citizens The

constitution declares ldquoThere shall be equality

of opportunity for all citizens in respect of

employment or office in the service of the

Republicrdquo (Article 29 [1]) ldquoNo citizen shall

on the grounds only of religion race caste

59

sex or place of birth be ineligible for or

discriminated against in respect of any

employment or office in the service of the

Republicrdquo (Article 29 [2]) However under clause

(3) of the same Article the constitution has

provided certain exceptions that read ldquoNothing

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

60

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 servicesrsquo 16

61

Recommendations Julian Paul Assange an

Australian computer programmer

politicalinternet activist publisher and

journalist and founder of WikiLeaks supports

the free dissemination of government data17 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

62

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

Thatrsquos 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

63

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 abolished18

64

Besides these quota system should be abolished

as our Constitution or any law has not given the

definition and the factors of opting lsquobackward

sectionrsquo of the citizens Article 29(3)(a) of

our constitution though provides the quota

system for lsquobackward sectionrsquo 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 sonsrsquo being poor are not getting the said

benefit and hence Professor M Abdul Wahhab

65

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

ordersrules 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

66

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

67

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 ldquothough 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 art29 (1) amp29(2) it merely confers an

enabling power But as it an exception to the

guarantee of art29 (1) amp29(2) it should not be

68

interpreted or given effect to in such a way as

to nullify the guarantee under art29 (1)

amp29(2) The Indian Supreme Court held that

reservation in excess of 50 would be

unconstitutional20

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 lsquonotrsquo and hence ldquowe are to consider

the meaning of lsquobackward sectionrsquo Art 29 is

comparable with art16 of the Indian

Constitution which uses the expression lsquobackward

classrsquo where as the expression used in art

29(3) is backward section The Indian Supreme

Court has interpreted the expression lsquobackward

classrsquo in several decisions Those decisions may

69

be helpful but not decisive in interpreting

lsquobackward sectionrsquo 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

70

33 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 statusetc)22

But unfortunately

there is no hard and fast and transparent

principle for doing the transfer of the civil

71

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 workplace23

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 ie what quality is considered is to

72

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

73

determined and if it is taken or done there

will be no request or lobby for the transfer and

harassment

34 Promotion procedure and

recommendation

The word lsquopromotionrsquo 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

Bangladesh24

74

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

75

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

76

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

77

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

35 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

Itrsquos not what you want in life but itrsquos

knowing how to reach it

78

Itrsquos not where you want to go but itrsquos knowing

how to get there

Itrsquos not how high you want to rise but itrsquos

knowing how to take off

It may not be quite the outcome you were aiming

for but it will be an outcome

Itrsquos not what you dream of doing but itrsquos

having the knowledge to do it

Its not a set of goals but itrsquos more like a

vision

79

Itrsquos not the goal you set but itrsquos 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 Departments26

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

80

Recommendation

Training should be given to the civil servants

for realizing the matter that embodied in art21

(2) of the Constitution of the Peoplersquos 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

36 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

81

said word lsquoaccountability 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 ldquowatchdogrdquo units to scrutinize

and hold departments accountable legitimacy of

82

these commissions is built upon their

independence as it avoids any conflicts of

interests27

There are various types of accountability ie

(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

lsquoParliaments are key actors in what has

been termed the lsquochain of

83

accountabilityrsquo 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 lsquosociety driven horizontal

84

accountabilityrsquo 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 ndashno

matter how defined ndash parliaments are one

of the institutions through which

diagonal accountability can be

exercisedrsquo27

However the civil servants should be

accountable by any or all means of

accountability

85

4 Judicial Service of Bangladesh

41 Legal framework

Article 137 of the Constitution also deals with

the term lsquolegal frameworkrsquo 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

itsrsquo judgment passed in Civil Appeal no79 of

1999 commonly known in the Masder Hossainrsquos case

that-

ldquoIt is declared that the word ldquoappointmentsrdquo 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

86

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

ldquoBangladesh Judicial Service Commission has been

established in 2007 by the rule lsquo বাংলােদশ

জিডিসয়াল সািভস কিমশন িবিধমালা ২০০৭ rsquo ie

87

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

88

Law Faculty of any one of three leading public

university ie 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 Secretariatrdquo 28

42 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

89

voice According to Rule 5 of OgraveevsjvDagger`k RywWwmqvj

mvwfcopyDaggermi cOumlDaggerek cDagger` wbDaggerqvM welqK AvDagger`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

90

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 32 are applicable with equitable

equality

43 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

91

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 33 is

applicable with equitable equality

44 Promotion procedure and recommendations

The promotion of sub-ordinate Courtrsquos judges are

in fact depended on the Annual Confidential

92

Reports (ACRs) There is no examination system

for getting the promotion in the sub-

ordinate judiciary

lsquoPresently 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

93

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 linersquo29

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-

ldquoConfidential reports should set out distinctly

and tersely sufficient particulars and it is

essential that they should be clear and definite

94

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 Divisionrdquo 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

95

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 34 is

applicable with equitable equality

45 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

96

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 skills30

Recommendation

The quality of training provided by JATI should

be improved A training need- assessment of the

subordinate court judges could be undertaken

97

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

98

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

subordinatecourts31

99

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

51 Ethical education

100

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 publics trust

and confidence in government by demonstrating

the highest standards of professional

competence efficiency and effectiveness

101

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

102

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

103

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

104

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 assets32 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

52 Use of technology

105

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 peoplersquos 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 lsquoThe Law of

Civil Procedurersquo first edition 2006 volume 1

page iii that

106

ldquoFor 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 lawyerrdquo However

the corruption of the court staff and the

offices of the civil servants can be controlled

easily by using technology ie 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

107

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

108

53 Check and balance

The theory of separation of powers was given by

the Charles-Louis de Secondat baron de La Bregravede

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 lsquothe spirit of

lawsrsquo that

lsquoI have not drawn my principles from my

prejudices but from the nature of thingsrdquo 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

109

Conclusion

In conclusion it can be reminded that 3rd

paragraph of the preamble of our constitution

provides that

lsquoFurther 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 citizensrsquo

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

110

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 p1 see also Mahmudul Islam-

Constitutional law of Bangladesh second edition

p1

2 httpenwikipediaorgwikiConstitution

111

3 httplegal-

dictionarythefreedictionarycomconstitution

4 httpwwwthefreedictionarycomframework

5 httpwwwmacmillandictionarycomdictionarybri

tishframework

6 httpwwwegyankoshacinbitstream

7 httpwwwbanglapediaorghttpdocsHTE_0079HTM

8 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

9 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

10 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

11 httpwwwbpscgovbd2011

12 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

13 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

14 httpwwwrhdgovbdRulesAndRegulationsView_Ov

erviewaspRef=A

112

15 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

16 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

17 wwwforbescomprofilejulian-assange

18 httpwwwti-bangladeshorgresearchES_PSCpdf

19 httpwwwnapsipagorgPDFABDUL_WAHHABpdf see

also Khan Akbar Ali and Kazi Rakibuddin Ahmad

March 2008 ldquoQuota System for Civil Service

Recruitment in Bangladesh An Exploratory

Analysisrdquo 2008 available at http

wwwbpscgovbddocuments news25906 newsdoc

20 Mahmudul Islam- Constitutional law of Bangladesh

second edition p171 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 p171 see also Indra Sawhney v

India AIR 1993 SC 477

113

22 httpwwwmopagovbdindexphpoption=com_conte

ntamptask=viewampid=377ampItemid=419

23 httpwwwvsrhhrCustomPagesStaticHRVFilesL

egislation__Civil-Servants-Actpdf

24 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

25 httptraininganddevelopmentnaukrihubcomtrain

inghtml

26 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

27 httpsiteresourcesworldbankorgPUBLICSECTORAN

DGOVERNANCEResourcesAccountabilityGovernancepd

f

28 httpwwwjscbdorgbdb_functionphp

29 httpwwwigsbracuacbdUserFilesFilearchive

_fileJudiciary_Policy_Notepdf

30 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

114

31 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

32 httpwwwoecdorgdataoecd625735521740pdf

Page 53: The constitutional framework of public administration in bangladesh

53

2 BCS (Police) Assistant Superintendent of Police

3 BCS (Audit amp Accounts) Assistant Accountant General

4 BCS (Economic) Assistant Chief

5 BCS (Customs amp Excise) Assistant Commissioner

(Customs amp 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 amp

Export Equivalent Posts

11 BCS (Postal) Assistant Post Master General

Equivalent Posts

12 BCS (Railway Transportation amp Commercial)

Assistant Traffic Superintendent

54

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 amp Highways) Assistant Engineer

4 BCS (Telecommunications) Assistant Divisional

Engineer

5 BCS (Public Health Engineering) Assistant Engineer

55

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

Officer13

Recruitment

56

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 amp 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 appointment14

lsquoRecruitment is the process of searching for

prospective employees and stimulating them to

apply for jobs in the organization (Flippo and

57

Edwin 1984 141) No element of the career

service system is more important than the

recruitment policyrdquo (Commission of

Inquiry on Public Service Personnel 193537

quoted in Stall 196251) 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)

58

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 partymdashas opposed to a system of awarding

offices on the basis of merit independent of

political activityrsquo15

Legal Basis for BCS Recruitment Policy

lsquoThe constitution of Bangladesh has granted

equal employment opportunities for citizens The

constitution declares ldquoThere shall be equality

of opportunity for all citizens in respect of

employment or office in the service of the

Republicrdquo (Article 29 [1]) ldquoNo citizen shall

on the grounds only of religion race caste

59

sex or place of birth be ineligible for or

discriminated against in respect of any

employment or office in the service of the

Republicrdquo (Article 29 [2]) However under clause

(3) of the same Article the constitution has

provided certain exceptions that read ldquoNothing

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

60

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 servicesrsquo 16

61

Recommendations Julian Paul Assange an

Australian computer programmer

politicalinternet activist publisher and

journalist and founder of WikiLeaks supports

the free dissemination of government data17 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

62

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

Thatrsquos 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

63

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 abolished18

64

Besides these quota system should be abolished

as our Constitution or any law has not given the

definition and the factors of opting lsquobackward

sectionrsquo of the citizens Article 29(3)(a) of

our constitution though provides the quota

system for lsquobackward sectionrsquo 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 sonsrsquo being poor are not getting the said

benefit and hence Professor M Abdul Wahhab

65

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

ordersrules 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

66

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

67

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 ldquothough 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 art29 (1) amp29(2) it merely confers an

enabling power But as it an exception to the

guarantee of art29 (1) amp29(2) it should not be

68

interpreted or given effect to in such a way as

to nullify the guarantee under art29 (1)

amp29(2) The Indian Supreme Court held that

reservation in excess of 50 would be

unconstitutional20

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 lsquonotrsquo and hence ldquowe are to consider

the meaning of lsquobackward sectionrsquo Art 29 is

comparable with art16 of the Indian

Constitution which uses the expression lsquobackward

classrsquo where as the expression used in art

29(3) is backward section The Indian Supreme

Court has interpreted the expression lsquobackward

classrsquo in several decisions Those decisions may

69

be helpful but not decisive in interpreting

lsquobackward sectionrsquo 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

70

33 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 statusetc)22

But unfortunately

there is no hard and fast and transparent

principle for doing the transfer of the civil

71

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 workplace23

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 ie what quality is considered is to

72

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

73

determined and if it is taken or done there

will be no request or lobby for the transfer and

harassment

34 Promotion procedure and

recommendation

The word lsquopromotionrsquo 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

Bangladesh24

74

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

75

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

76

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

77

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

35 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

Itrsquos not what you want in life but itrsquos

knowing how to reach it

78

Itrsquos not where you want to go but itrsquos knowing

how to get there

Itrsquos not how high you want to rise but itrsquos

knowing how to take off

It may not be quite the outcome you were aiming

for but it will be an outcome

Itrsquos not what you dream of doing but itrsquos

having the knowledge to do it

Its not a set of goals but itrsquos more like a

vision

79

Itrsquos not the goal you set but itrsquos 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 Departments26

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

80

Recommendation

Training should be given to the civil servants

for realizing the matter that embodied in art21

(2) of the Constitution of the Peoplersquos 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

36 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

81

said word lsquoaccountability 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 ldquowatchdogrdquo units to scrutinize

and hold departments accountable legitimacy of

82

these commissions is built upon their

independence as it avoids any conflicts of

interests27

There are various types of accountability ie

(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

lsquoParliaments are key actors in what has

been termed the lsquochain of

83

accountabilityrsquo 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 lsquosociety driven horizontal

84

accountabilityrsquo 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 ndashno

matter how defined ndash parliaments are one

of the institutions through which

diagonal accountability can be

exercisedrsquo27

However the civil servants should be

accountable by any or all means of

accountability

85

4 Judicial Service of Bangladesh

41 Legal framework

Article 137 of the Constitution also deals with

the term lsquolegal frameworkrsquo 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

itsrsquo judgment passed in Civil Appeal no79 of

1999 commonly known in the Masder Hossainrsquos case

that-

ldquoIt is declared that the word ldquoappointmentsrdquo 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

86

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

ldquoBangladesh Judicial Service Commission has been

established in 2007 by the rule lsquo বাংলােদশ

জিডিসয়াল সািভস কিমশন িবিধমালা ২০০৭ rsquo ie

87

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

88

Law Faculty of any one of three leading public

university ie 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 Secretariatrdquo 28

42 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

89

voice According to Rule 5 of OgraveevsjvDagger`k RywWwmqvj

mvwfcopyDaggermi cOumlDaggerek cDagger` wbDaggerqvM welqK AvDagger`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

90

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 32 are applicable with equitable

equality

43 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

91

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 33 is

applicable with equitable equality

44 Promotion procedure and recommendations

The promotion of sub-ordinate Courtrsquos judges are

in fact depended on the Annual Confidential

92

Reports (ACRs) There is no examination system

for getting the promotion in the sub-

ordinate judiciary

lsquoPresently 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

93

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 linersquo29

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-

ldquoConfidential reports should set out distinctly

and tersely sufficient particulars and it is

essential that they should be clear and definite

94

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 Divisionrdquo 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

95

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 34 is

applicable with equitable equality

45 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

96

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 skills30

Recommendation

The quality of training provided by JATI should

be improved A training need- assessment of the

subordinate court judges could be undertaken

97

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

98

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

subordinatecourts31

99

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

51 Ethical education

100

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 publics trust

and confidence in government by demonstrating

the highest standards of professional

competence efficiency and effectiveness

101

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

102

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

103

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

104

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 assets32 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

52 Use of technology

105

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 peoplersquos 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 lsquoThe Law of

Civil Procedurersquo first edition 2006 volume 1

page iii that

106

ldquoFor 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 lawyerrdquo However

the corruption of the court staff and the

offices of the civil servants can be controlled

easily by using technology ie 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

107

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

108

53 Check and balance

The theory of separation of powers was given by

the Charles-Louis de Secondat baron de La Bregravede

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 lsquothe spirit of

lawsrsquo that

lsquoI have not drawn my principles from my

prejudices but from the nature of thingsrdquo 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

109

Conclusion

In conclusion it can be reminded that 3rd

paragraph of the preamble of our constitution

provides that

lsquoFurther 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 citizensrsquo

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

110

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 p1 see also Mahmudul Islam-

Constitutional law of Bangladesh second edition

p1

2 httpenwikipediaorgwikiConstitution

111

3 httplegal-

dictionarythefreedictionarycomconstitution

4 httpwwwthefreedictionarycomframework

5 httpwwwmacmillandictionarycomdictionarybri

tishframework

6 httpwwwegyankoshacinbitstream

7 httpwwwbanglapediaorghttpdocsHTE_0079HTM

8 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

9 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

10 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

11 httpwwwbpscgovbd2011

12 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

13 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

14 httpwwwrhdgovbdRulesAndRegulationsView_Ov

erviewaspRef=A

112

15 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

16 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

17 wwwforbescomprofilejulian-assange

18 httpwwwti-bangladeshorgresearchES_PSCpdf

19 httpwwwnapsipagorgPDFABDUL_WAHHABpdf see

also Khan Akbar Ali and Kazi Rakibuddin Ahmad

March 2008 ldquoQuota System for Civil Service

Recruitment in Bangladesh An Exploratory

Analysisrdquo 2008 available at http

wwwbpscgovbddocuments news25906 newsdoc

20 Mahmudul Islam- Constitutional law of Bangladesh

second edition p171 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 p171 see also Indra Sawhney v

India AIR 1993 SC 477

113

22 httpwwwmopagovbdindexphpoption=com_conte

ntamptask=viewampid=377ampItemid=419

23 httpwwwvsrhhrCustomPagesStaticHRVFilesL

egislation__Civil-Servants-Actpdf

24 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

25 httptraininganddevelopmentnaukrihubcomtrain

inghtml

26 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

27 httpsiteresourcesworldbankorgPUBLICSECTORAN

DGOVERNANCEResourcesAccountabilityGovernancepd

f

28 httpwwwjscbdorgbdb_functionphp

29 httpwwwigsbracuacbdUserFilesFilearchive

_fileJudiciary_Policy_Notepdf

30 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

114

31 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

32 httpwwwoecdorgdataoecd625735521740pdf

Page 54: The constitutional framework of public administration in bangladesh

54

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 amp Highways) Assistant Engineer

4 BCS (Telecommunications) Assistant Divisional

Engineer

5 BCS (Public Health Engineering) Assistant Engineer

55

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

Officer13

Recruitment

56

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 amp 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 appointment14

lsquoRecruitment is the process of searching for

prospective employees and stimulating them to

apply for jobs in the organization (Flippo and

57

Edwin 1984 141) No element of the career

service system is more important than the

recruitment policyrdquo (Commission of

Inquiry on Public Service Personnel 193537

quoted in Stall 196251) 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)

58

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 partymdashas opposed to a system of awarding

offices on the basis of merit independent of

political activityrsquo15

Legal Basis for BCS Recruitment Policy

lsquoThe constitution of Bangladesh has granted

equal employment opportunities for citizens The

constitution declares ldquoThere shall be equality

of opportunity for all citizens in respect of

employment or office in the service of the

Republicrdquo (Article 29 [1]) ldquoNo citizen shall

on the grounds only of religion race caste

59

sex or place of birth be ineligible for or

discriminated against in respect of any

employment or office in the service of the

Republicrdquo (Article 29 [2]) However under clause

(3) of the same Article the constitution has

provided certain exceptions that read ldquoNothing

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

60

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 servicesrsquo 16

61

Recommendations Julian Paul Assange an

Australian computer programmer

politicalinternet activist publisher and

journalist and founder of WikiLeaks supports

the free dissemination of government data17 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

62

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

Thatrsquos 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

63

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 abolished18

64

Besides these quota system should be abolished

as our Constitution or any law has not given the

definition and the factors of opting lsquobackward

sectionrsquo of the citizens Article 29(3)(a) of

our constitution though provides the quota

system for lsquobackward sectionrsquo 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 sonsrsquo being poor are not getting the said

benefit and hence Professor M Abdul Wahhab

65

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

ordersrules 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

66

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

67

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 ldquothough 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 art29 (1) amp29(2) it merely confers an

enabling power But as it an exception to the

guarantee of art29 (1) amp29(2) it should not be

68

interpreted or given effect to in such a way as

to nullify the guarantee under art29 (1)

amp29(2) The Indian Supreme Court held that

reservation in excess of 50 would be

unconstitutional20

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 lsquonotrsquo and hence ldquowe are to consider

the meaning of lsquobackward sectionrsquo Art 29 is

comparable with art16 of the Indian

Constitution which uses the expression lsquobackward

classrsquo where as the expression used in art

29(3) is backward section The Indian Supreme

Court has interpreted the expression lsquobackward

classrsquo in several decisions Those decisions may

69

be helpful but not decisive in interpreting

lsquobackward sectionrsquo 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

70

33 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 statusetc)22

But unfortunately

there is no hard and fast and transparent

principle for doing the transfer of the civil

71

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 workplace23

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 ie what quality is considered is to

72

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

73

determined and if it is taken or done there

will be no request or lobby for the transfer and

harassment

34 Promotion procedure and

recommendation

The word lsquopromotionrsquo 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

Bangladesh24

74

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

75

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

76

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

77

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

35 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

Itrsquos not what you want in life but itrsquos

knowing how to reach it

78

Itrsquos not where you want to go but itrsquos knowing

how to get there

Itrsquos not how high you want to rise but itrsquos

knowing how to take off

It may not be quite the outcome you were aiming

for but it will be an outcome

Itrsquos not what you dream of doing but itrsquos

having the knowledge to do it

Its not a set of goals but itrsquos more like a

vision

79

Itrsquos not the goal you set but itrsquos 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 Departments26

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

80

Recommendation

Training should be given to the civil servants

for realizing the matter that embodied in art21

(2) of the Constitution of the Peoplersquos 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

36 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

81

said word lsquoaccountability 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 ldquowatchdogrdquo units to scrutinize

and hold departments accountable legitimacy of

82

these commissions is built upon their

independence as it avoids any conflicts of

interests27

There are various types of accountability ie

(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

lsquoParliaments are key actors in what has

been termed the lsquochain of

83

accountabilityrsquo 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 lsquosociety driven horizontal

84

accountabilityrsquo 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 ndashno

matter how defined ndash parliaments are one

of the institutions through which

diagonal accountability can be

exercisedrsquo27

However the civil servants should be

accountable by any or all means of

accountability

85

4 Judicial Service of Bangladesh

41 Legal framework

Article 137 of the Constitution also deals with

the term lsquolegal frameworkrsquo 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

itsrsquo judgment passed in Civil Appeal no79 of

1999 commonly known in the Masder Hossainrsquos case

that-

ldquoIt is declared that the word ldquoappointmentsrdquo 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

86

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

ldquoBangladesh Judicial Service Commission has been

established in 2007 by the rule lsquo বাংলােদশ

জিডিসয়াল সািভস কিমশন িবিধমালা ২০০৭ rsquo ie

87

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

88

Law Faculty of any one of three leading public

university ie 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 Secretariatrdquo 28

42 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

89

voice According to Rule 5 of OgraveevsjvDagger`k RywWwmqvj

mvwfcopyDaggermi cOumlDaggerek cDagger` wbDaggerqvM welqK AvDagger`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

90

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 32 are applicable with equitable

equality

43 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

91

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 33 is

applicable with equitable equality

44 Promotion procedure and recommendations

The promotion of sub-ordinate Courtrsquos judges are

in fact depended on the Annual Confidential

92

Reports (ACRs) There is no examination system

for getting the promotion in the sub-

ordinate judiciary

lsquoPresently 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

93

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 linersquo29

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-

ldquoConfidential reports should set out distinctly

and tersely sufficient particulars and it is

essential that they should be clear and definite

94

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 Divisionrdquo 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

95

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 34 is

applicable with equitable equality

45 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

96

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 skills30

Recommendation

The quality of training provided by JATI should

be improved A training need- assessment of the

subordinate court judges could be undertaken

97

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

98

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

subordinatecourts31

99

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

51 Ethical education

100

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 publics trust

and confidence in government by demonstrating

the highest standards of professional

competence efficiency and effectiveness

101

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

102

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

103

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

104

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 assets32 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

52 Use of technology

105

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 peoplersquos 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 lsquoThe Law of

Civil Procedurersquo first edition 2006 volume 1

page iii that

106

ldquoFor 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 lawyerrdquo However

the corruption of the court staff and the

offices of the civil servants can be controlled

easily by using technology ie 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

107

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

108

53 Check and balance

The theory of separation of powers was given by

the Charles-Louis de Secondat baron de La Bregravede

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 lsquothe spirit of

lawsrsquo that

lsquoI have not drawn my principles from my

prejudices but from the nature of thingsrdquo 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

109

Conclusion

In conclusion it can be reminded that 3rd

paragraph of the preamble of our constitution

provides that

lsquoFurther 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 citizensrsquo

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

110

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 p1 see also Mahmudul Islam-

Constitutional law of Bangladesh second edition

p1

2 httpenwikipediaorgwikiConstitution

111

3 httplegal-

dictionarythefreedictionarycomconstitution

4 httpwwwthefreedictionarycomframework

5 httpwwwmacmillandictionarycomdictionarybri

tishframework

6 httpwwwegyankoshacinbitstream

7 httpwwwbanglapediaorghttpdocsHTE_0079HTM

8 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

9 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

10 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

11 httpwwwbpscgovbd2011

12 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

13 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

14 httpwwwrhdgovbdRulesAndRegulationsView_Ov

erviewaspRef=A

112

15 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

16 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

17 wwwforbescomprofilejulian-assange

18 httpwwwti-bangladeshorgresearchES_PSCpdf

19 httpwwwnapsipagorgPDFABDUL_WAHHABpdf see

also Khan Akbar Ali and Kazi Rakibuddin Ahmad

March 2008 ldquoQuota System for Civil Service

Recruitment in Bangladesh An Exploratory

Analysisrdquo 2008 available at http

wwwbpscgovbddocuments news25906 newsdoc

20 Mahmudul Islam- Constitutional law of Bangladesh

second edition p171 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 p171 see also Indra Sawhney v

India AIR 1993 SC 477

113

22 httpwwwmopagovbdindexphpoption=com_conte

ntamptask=viewampid=377ampItemid=419

23 httpwwwvsrhhrCustomPagesStaticHRVFilesL

egislation__Civil-Servants-Actpdf

24 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

25 httptraininganddevelopmentnaukrihubcomtrain

inghtml

26 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

27 httpsiteresourcesworldbankorgPUBLICSECTORAN

DGOVERNANCEResourcesAccountabilityGovernancepd

f

28 httpwwwjscbdorgbdb_functionphp

29 httpwwwigsbracuacbdUserFilesFilearchive

_fileJudiciary_Policy_Notepdf

30 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

114

31 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

32 httpwwwoecdorgdataoecd625735521740pdf

Page 55: The constitutional framework of public administration in bangladesh

55

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

Officer13

Recruitment

56

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 amp 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 appointment14

lsquoRecruitment is the process of searching for

prospective employees and stimulating them to

apply for jobs in the organization (Flippo and

57

Edwin 1984 141) No element of the career

service system is more important than the

recruitment policyrdquo (Commission of

Inquiry on Public Service Personnel 193537

quoted in Stall 196251) 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)

58

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 partymdashas opposed to a system of awarding

offices on the basis of merit independent of

political activityrsquo15

Legal Basis for BCS Recruitment Policy

lsquoThe constitution of Bangladesh has granted

equal employment opportunities for citizens The

constitution declares ldquoThere shall be equality

of opportunity for all citizens in respect of

employment or office in the service of the

Republicrdquo (Article 29 [1]) ldquoNo citizen shall

on the grounds only of religion race caste

59

sex or place of birth be ineligible for or

discriminated against in respect of any

employment or office in the service of the

Republicrdquo (Article 29 [2]) However under clause

(3) of the same Article the constitution has

provided certain exceptions that read ldquoNothing

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

60

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 servicesrsquo 16

61

Recommendations Julian Paul Assange an

Australian computer programmer

politicalinternet activist publisher and

journalist and founder of WikiLeaks supports

the free dissemination of government data17 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

62

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

Thatrsquos 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

63

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 abolished18

64

Besides these quota system should be abolished

as our Constitution or any law has not given the

definition and the factors of opting lsquobackward

sectionrsquo of the citizens Article 29(3)(a) of

our constitution though provides the quota

system for lsquobackward sectionrsquo 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 sonsrsquo being poor are not getting the said

benefit and hence Professor M Abdul Wahhab

65

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

ordersrules 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

66

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

67

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 ldquothough 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 art29 (1) amp29(2) it merely confers an

enabling power But as it an exception to the

guarantee of art29 (1) amp29(2) it should not be

68

interpreted or given effect to in such a way as

to nullify the guarantee under art29 (1)

amp29(2) The Indian Supreme Court held that

reservation in excess of 50 would be

unconstitutional20

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 lsquonotrsquo and hence ldquowe are to consider

the meaning of lsquobackward sectionrsquo Art 29 is

comparable with art16 of the Indian

Constitution which uses the expression lsquobackward

classrsquo where as the expression used in art

29(3) is backward section The Indian Supreme

Court has interpreted the expression lsquobackward

classrsquo in several decisions Those decisions may

69

be helpful but not decisive in interpreting

lsquobackward sectionrsquo 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

70

33 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 statusetc)22

But unfortunately

there is no hard and fast and transparent

principle for doing the transfer of the civil

71

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 workplace23

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 ie what quality is considered is to

72

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

73

determined and if it is taken or done there

will be no request or lobby for the transfer and

harassment

34 Promotion procedure and

recommendation

The word lsquopromotionrsquo 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

Bangladesh24

74

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

75

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

76

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

77

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

35 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

Itrsquos not what you want in life but itrsquos

knowing how to reach it

78

Itrsquos not where you want to go but itrsquos knowing

how to get there

Itrsquos not how high you want to rise but itrsquos

knowing how to take off

It may not be quite the outcome you were aiming

for but it will be an outcome

Itrsquos not what you dream of doing but itrsquos

having the knowledge to do it

Its not a set of goals but itrsquos more like a

vision

79

Itrsquos not the goal you set but itrsquos 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 Departments26

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

80

Recommendation

Training should be given to the civil servants

for realizing the matter that embodied in art21

(2) of the Constitution of the Peoplersquos 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

36 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

81

said word lsquoaccountability 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 ldquowatchdogrdquo units to scrutinize

and hold departments accountable legitimacy of

82

these commissions is built upon their

independence as it avoids any conflicts of

interests27

There are various types of accountability ie

(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

lsquoParliaments are key actors in what has

been termed the lsquochain of

83

accountabilityrsquo 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 lsquosociety driven horizontal

84

accountabilityrsquo 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 ndashno

matter how defined ndash parliaments are one

of the institutions through which

diagonal accountability can be

exercisedrsquo27

However the civil servants should be

accountable by any or all means of

accountability

85

4 Judicial Service of Bangladesh

41 Legal framework

Article 137 of the Constitution also deals with

the term lsquolegal frameworkrsquo 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

itsrsquo judgment passed in Civil Appeal no79 of

1999 commonly known in the Masder Hossainrsquos case

that-

ldquoIt is declared that the word ldquoappointmentsrdquo 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

86

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

ldquoBangladesh Judicial Service Commission has been

established in 2007 by the rule lsquo বাংলােদশ

জিডিসয়াল সািভস কিমশন িবিধমালা ২০০৭ rsquo ie

87

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

88

Law Faculty of any one of three leading public

university ie 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 Secretariatrdquo 28

42 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

89

voice According to Rule 5 of OgraveevsjvDagger`k RywWwmqvj

mvwfcopyDaggermi cOumlDaggerek cDagger` wbDaggerqvM welqK AvDagger`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

90

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 32 are applicable with equitable

equality

43 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

91

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 33 is

applicable with equitable equality

44 Promotion procedure and recommendations

The promotion of sub-ordinate Courtrsquos judges are

in fact depended on the Annual Confidential

92

Reports (ACRs) There is no examination system

for getting the promotion in the sub-

ordinate judiciary

lsquoPresently 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

93

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 linersquo29

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-

ldquoConfidential reports should set out distinctly

and tersely sufficient particulars and it is

essential that they should be clear and definite

94

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 Divisionrdquo 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

95

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 34 is

applicable with equitable equality

45 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

96

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 skills30

Recommendation

The quality of training provided by JATI should

be improved A training need- assessment of the

subordinate court judges could be undertaken

97

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

98

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

subordinatecourts31

99

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

51 Ethical education

100

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 publics trust

and confidence in government by demonstrating

the highest standards of professional

competence efficiency and effectiveness

101

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

102

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

103

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

104

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 assets32 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

52 Use of technology

105

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 peoplersquos 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 lsquoThe Law of

Civil Procedurersquo first edition 2006 volume 1

page iii that

106

ldquoFor 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 lawyerrdquo However

the corruption of the court staff and the

offices of the civil servants can be controlled

easily by using technology ie 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

107

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

108

53 Check and balance

The theory of separation of powers was given by

the Charles-Louis de Secondat baron de La Bregravede

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 lsquothe spirit of

lawsrsquo that

lsquoI have not drawn my principles from my

prejudices but from the nature of thingsrdquo 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

109

Conclusion

In conclusion it can be reminded that 3rd

paragraph of the preamble of our constitution

provides that

lsquoFurther 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 citizensrsquo

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

110

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 p1 see also Mahmudul Islam-

Constitutional law of Bangladesh second edition

p1

2 httpenwikipediaorgwikiConstitution

111

3 httplegal-

dictionarythefreedictionarycomconstitution

4 httpwwwthefreedictionarycomframework

5 httpwwwmacmillandictionarycomdictionarybri

tishframework

6 httpwwwegyankoshacinbitstream

7 httpwwwbanglapediaorghttpdocsHTE_0079HTM

8 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

9 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

10 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

11 httpwwwbpscgovbd2011

12 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

13 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

14 httpwwwrhdgovbdRulesAndRegulationsView_Ov

erviewaspRef=A

112

15 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

16 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

17 wwwforbescomprofilejulian-assange

18 httpwwwti-bangladeshorgresearchES_PSCpdf

19 httpwwwnapsipagorgPDFABDUL_WAHHABpdf see

also Khan Akbar Ali and Kazi Rakibuddin Ahmad

March 2008 ldquoQuota System for Civil Service

Recruitment in Bangladesh An Exploratory

Analysisrdquo 2008 available at http

wwwbpscgovbddocuments news25906 newsdoc

20 Mahmudul Islam- Constitutional law of Bangladesh

second edition p171 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 p171 see also Indra Sawhney v

India AIR 1993 SC 477

113

22 httpwwwmopagovbdindexphpoption=com_conte

ntamptask=viewampid=377ampItemid=419

23 httpwwwvsrhhrCustomPagesStaticHRVFilesL

egislation__Civil-Servants-Actpdf

24 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

25 httptraininganddevelopmentnaukrihubcomtrain

inghtml

26 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

27 httpsiteresourcesworldbankorgPUBLICSECTORAN

DGOVERNANCEResourcesAccountabilityGovernancepd

f

28 httpwwwjscbdorgbdb_functionphp

29 httpwwwigsbracuacbdUserFilesFilearchive

_fileJudiciary_Policy_Notepdf

30 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

114

31 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

32 httpwwwoecdorgdataoecd625735521740pdf

Page 56: The constitutional framework of public administration in bangladesh

56

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 amp 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 appointment14

lsquoRecruitment is the process of searching for

prospective employees and stimulating them to

apply for jobs in the organization (Flippo and

57

Edwin 1984 141) No element of the career

service system is more important than the

recruitment policyrdquo (Commission of

Inquiry on Public Service Personnel 193537

quoted in Stall 196251) 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)

58

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 partymdashas opposed to a system of awarding

offices on the basis of merit independent of

political activityrsquo15

Legal Basis for BCS Recruitment Policy

lsquoThe constitution of Bangladesh has granted

equal employment opportunities for citizens The

constitution declares ldquoThere shall be equality

of opportunity for all citizens in respect of

employment or office in the service of the

Republicrdquo (Article 29 [1]) ldquoNo citizen shall

on the grounds only of religion race caste

59

sex or place of birth be ineligible for or

discriminated against in respect of any

employment or office in the service of the

Republicrdquo (Article 29 [2]) However under clause

(3) of the same Article the constitution has

provided certain exceptions that read ldquoNothing

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

60

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 servicesrsquo 16

61

Recommendations Julian Paul Assange an

Australian computer programmer

politicalinternet activist publisher and

journalist and founder of WikiLeaks supports

the free dissemination of government data17 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

62

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

Thatrsquos 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

63

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 abolished18

64

Besides these quota system should be abolished

as our Constitution or any law has not given the

definition and the factors of opting lsquobackward

sectionrsquo of the citizens Article 29(3)(a) of

our constitution though provides the quota

system for lsquobackward sectionrsquo 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 sonsrsquo being poor are not getting the said

benefit and hence Professor M Abdul Wahhab

65

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

ordersrules 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

66

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

67

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 ldquothough 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 art29 (1) amp29(2) it merely confers an

enabling power But as it an exception to the

guarantee of art29 (1) amp29(2) it should not be

68

interpreted or given effect to in such a way as

to nullify the guarantee under art29 (1)

amp29(2) The Indian Supreme Court held that

reservation in excess of 50 would be

unconstitutional20

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 lsquonotrsquo and hence ldquowe are to consider

the meaning of lsquobackward sectionrsquo Art 29 is

comparable with art16 of the Indian

Constitution which uses the expression lsquobackward

classrsquo where as the expression used in art

29(3) is backward section The Indian Supreme

Court has interpreted the expression lsquobackward

classrsquo in several decisions Those decisions may

69

be helpful but not decisive in interpreting

lsquobackward sectionrsquo 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

70

33 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 statusetc)22

But unfortunately

there is no hard and fast and transparent

principle for doing the transfer of the civil

71

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 workplace23

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 ie what quality is considered is to

72

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

73

determined and if it is taken or done there

will be no request or lobby for the transfer and

harassment

34 Promotion procedure and

recommendation

The word lsquopromotionrsquo 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

Bangladesh24

74

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

75

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

76

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

77

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

35 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

Itrsquos not what you want in life but itrsquos

knowing how to reach it

78

Itrsquos not where you want to go but itrsquos knowing

how to get there

Itrsquos not how high you want to rise but itrsquos

knowing how to take off

It may not be quite the outcome you were aiming

for but it will be an outcome

Itrsquos not what you dream of doing but itrsquos

having the knowledge to do it

Its not a set of goals but itrsquos more like a

vision

79

Itrsquos not the goal you set but itrsquos 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 Departments26

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

80

Recommendation

Training should be given to the civil servants

for realizing the matter that embodied in art21

(2) of the Constitution of the Peoplersquos 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

36 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

81

said word lsquoaccountability 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 ldquowatchdogrdquo units to scrutinize

and hold departments accountable legitimacy of

82

these commissions is built upon their

independence as it avoids any conflicts of

interests27

There are various types of accountability ie

(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

lsquoParliaments are key actors in what has

been termed the lsquochain of

83

accountabilityrsquo 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 lsquosociety driven horizontal

84

accountabilityrsquo 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 ndashno

matter how defined ndash parliaments are one

of the institutions through which

diagonal accountability can be

exercisedrsquo27

However the civil servants should be

accountable by any or all means of

accountability

85

4 Judicial Service of Bangladesh

41 Legal framework

Article 137 of the Constitution also deals with

the term lsquolegal frameworkrsquo 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

itsrsquo judgment passed in Civil Appeal no79 of

1999 commonly known in the Masder Hossainrsquos case

that-

ldquoIt is declared that the word ldquoappointmentsrdquo 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

86

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

ldquoBangladesh Judicial Service Commission has been

established in 2007 by the rule lsquo বাংলােদশ

জিডিসয়াল সািভস কিমশন িবিধমালা ২০০৭ rsquo ie

87

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

88

Law Faculty of any one of three leading public

university ie 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 Secretariatrdquo 28

42 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

89

voice According to Rule 5 of OgraveevsjvDagger`k RywWwmqvj

mvwfcopyDaggermi cOumlDaggerek cDagger` wbDaggerqvM welqK AvDagger`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

90

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 32 are applicable with equitable

equality

43 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

91

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 33 is

applicable with equitable equality

44 Promotion procedure and recommendations

The promotion of sub-ordinate Courtrsquos judges are

in fact depended on the Annual Confidential

92

Reports (ACRs) There is no examination system

for getting the promotion in the sub-

ordinate judiciary

lsquoPresently 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

93

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 linersquo29

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-

ldquoConfidential reports should set out distinctly

and tersely sufficient particulars and it is

essential that they should be clear and definite

94

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 Divisionrdquo 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

95

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 34 is

applicable with equitable equality

45 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

96

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 skills30

Recommendation

The quality of training provided by JATI should

be improved A training need- assessment of the

subordinate court judges could be undertaken

97

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

98

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

subordinatecourts31

99

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

51 Ethical education

100

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 publics trust

and confidence in government by demonstrating

the highest standards of professional

competence efficiency and effectiveness

101

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

102

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

103

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

104

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 assets32 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

52 Use of technology

105

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 peoplersquos 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 lsquoThe Law of

Civil Procedurersquo first edition 2006 volume 1

page iii that

106

ldquoFor 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 lawyerrdquo However

the corruption of the court staff and the

offices of the civil servants can be controlled

easily by using technology ie 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

107

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

108

53 Check and balance

The theory of separation of powers was given by

the Charles-Louis de Secondat baron de La Bregravede

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 lsquothe spirit of

lawsrsquo that

lsquoI have not drawn my principles from my

prejudices but from the nature of thingsrdquo 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

109

Conclusion

In conclusion it can be reminded that 3rd

paragraph of the preamble of our constitution

provides that

lsquoFurther 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 citizensrsquo

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

110

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 p1 see also Mahmudul Islam-

Constitutional law of Bangladesh second edition

p1

2 httpenwikipediaorgwikiConstitution

111

3 httplegal-

dictionarythefreedictionarycomconstitution

4 httpwwwthefreedictionarycomframework

5 httpwwwmacmillandictionarycomdictionarybri

tishframework

6 httpwwwegyankoshacinbitstream

7 httpwwwbanglapediaorghttpdocsHTE_0079HTM

8 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

9 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

10 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

11 httpwwwbpscgovbd2011

12 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

13 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

14 httpwwwrhdgovbdRulesAndRegulationsView_Ov

erviewaspRef=A

112

15 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

16 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

17 wwwforbescomprofilejulian-assange

18 httpwwwti-bangladeshorgresearchES_PSCpdf

19 httpwwwnapsipagorgPDFABDUL_WAHHABpdf see

also Khan Akbar Ali and Kazi Rakibuddin Ahmad

March 2008 ldquoQuota System for Civil Service

Recruitment in Bangladesh An Exploratory

Analysisrdquo 2008 available at http

wwwbpscgovbddocuments news25906 newsdoc

20 Mahmudul Islam- Constitutional law of Bangladesh

second edition p171 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 p171 see also Indra Sawhney v

India AIR 1993 SC 477

113

22 httpwwwmopagovbdindexphpoption=com_conte

ntamptask=viewampid=377ampItemid=419

23 httpwwwvsrhhrCustomPagesStaticHRVFilesL

egislation__Civil-Servants-Actpdf

24 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

25 httptraininganddevelopmentnaukrihubcomtrain

inghtml

26 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

27 httpsiteresourcesworldbankorgPUBLICSECTORAN

DGOVERNANCEResourcesAccountabilityGovernancepd

f

28 httpwwwjscbdorgbdb_functionphp

29 httpwwwigsbracuacbdUserFilesFilearchive

_fileJudiciary_Policy_Notepdf

30 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

114

31 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

32 httpwwwoecdorgdataoecd625735521740pdf

Page 57: The constitutional framework of public administration in bangladesh

57

Edwin 1984 141) No element of the career

service system is more important than the

recruitment policyrdquo (Commission of

Inquiry on Public Service Personnel 193537

quoted in Stall 196251) 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)

58

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 partymdashas opposed to a system of awarding

offices on the basis of merit independent of

political activityrsquo15

Legal Basis for BCS Recruitment Policy

lsquoThe constitution of Bangladesh has granted

equal employment opportunities for citizens The

constitution declares ldquoThere shall be equality

of opportunity for all citizens in respect of

employment or office in the service of the

Republicrdquo (Article 29 [1]) ldquoNo citizen shall

on the grounds only of religion race caste

59

sex or place of birth be ineligible for or

discriminated against in respect of any

employment or office in the service of the

Republicrdquo (Article 29 [2]) However under clause

(3) of the same Article the constitution has

provided certain exceptions that read ldquoNothing

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

60

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 servicesrsquo 16

61

Recommendations Julian Paul Assange an

Australian computer programmer

politicalinternet activist publisher and

journalist and founder of WikiLeaks supports

the free dissemination of government data17 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

62

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

Thatrsquos 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

63

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 abolished18

64

Besides these quota system should be abolished

as our Constitution or any law has not given the

definition and the factors of opting lsquobackward

sectionrsquo of the citizens Article 29(3)(a) of

our constitution though provides the quota

system for lsquobackward sectionrsquo 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 sonsrsquo being poor are not getting the said

benefit and hence Professor M Abdul Wahhab

65

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

ordersrules 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

66

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

67

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 ldquothough 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 art29 (1) amp29(2) it merely confers an

enabling power But as it an exception to the

guarantee of art29 (1) amp29(2) it should not be

68

interpreted or given effect to in such a way as

to nullify the guarantee under art29 (1)

amp29(2) The Indian Supreme Court held that

reservation in excess of 50 would be

unconstitutional20

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 lsquonotrsquo and hence ldquowe are to consider

the meaning of lsquobackward sectionrsquo Art 29 is

comparable with art16 of the Indian

Constitution which uses the expression lsquobackward

classrsquo where as the expression used in art

29(3) is backward section The Indian Supreme

Court has interpreted the expression lsquobackward

classrsquo in several decisions Those decisions may

69

be helpful but not decisive in interpreting

lsquobackward sectionrsquo 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

70

33 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 statusetc)22

But unfortunately

there is no hard and fast and transparent

principle for doing the transfer of the civil

71

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 workplace23

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 ie what quality is considered is to

72

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

73

determined and if it is taken or done there

will be no request or lobby for the transfer and

harassment

34 Promotion procedure and

recommendation

The word lsquopromotionrsquo 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

Bangladesh24

74

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

75

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

76

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

77

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

35 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

Itrsquos not what you want in life but itrsquos

knowing how to reach it

78

Itrsquos not where you want to go but itrsquos knowing

how to get there

Itrsquos not how high you want to rise but itrsquos

knowing how to take off

It may not be quite the outcome you were aiming

for but it will be an outcome

Itrsquos not what you dream of doing but itrsquos

having the knowledge to do it

Its not a set of goals but itrsquos more like a

vision

79

Itrsquos not the goal you set but itrsquos 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 Departments26

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

80

Recommendation

Training should be given to the civil servants

for realizing the matter that embodied in art21

(2) of the Constitution of the Peoplersquos 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

36 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

81

said word lsquoaccountability 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 ldquowatchdogrdquo units to scrutinize

and hold departments accountable legitimacy of

82

these commissions is built upon their

independence as it avoids any conflicts of

interests27

There are various types of accountability ie

(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

lsquoParliaments are key actors in what has

been termed the lsquochain of

83

accountabilityrsquo 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 lsquosociety driven horizontal

84

accountabilityrsquo 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 ndashno

matter how defined ndash parliaments are one

of the institutions through which

diagonal accountability can be

exercisedrsquo27

However the civil servants should be

accountable by any or all means of

accountability

85

4 Judicial Service of Bangladesh

41 Legal framework

Article 137 of the Constitution also deals with

the term lsquolegal frameworkrsquo 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

itsrsquo judgment passed in Civil Appeal no79 of

1999 commonly known in the Masder Hossainrsquos case

that-

ldquoIt is declared that the word ldquoappointmentsrdquo 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

86

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

ldquoBangladesh Judicial Service Commission has been

established in 2007 by the rule lsquo বাংলােদশ

জিডিসয়াল সািভস কিমশন িবিধমালা ২০০৭ rsquo ie

87

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

88

Law Faculty of any one of three leading public

university ie 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 Secretariatrdquo 28

42 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

89

voice According to Rule 5 of OgraveevsjvDagger`k RywWwmqvj

mvwfcopyDaggermi cOumlDaggerek cDagger` wbDaggerqvM welqK AvDagger`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

90

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 32 are applicable with equitable

equality

43 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

91

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 33 is

applicable with equitable equality

44 Promotion procedure and recommendations

The promotion of sub-ordinate Courtrsquos judges are

in fact depended on the Annual Confidential

92

Reports (ACRs) There is no examination system

for getting the promotion in the sub-

ordinate judiciary

lsquoPresently 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

93

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 linersquo29

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-

ldquoConfidential reports should set out distinctly

and tersely sufficient particulars and it is

essential that they should be clear and definite

94

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 Divisionrdquo 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

95

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 34 is

applicable with equitable equality

45 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

96

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 skills30

Recommendation

The quality of training provided by JATI should

be improved A training need- assessment of the

subordinate court judges could be undertaken

97

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

98

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

subordinatecourts31

99

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

51 Ethical education

100

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 publics trust

and confidence in government by demonstrating

the highest standards of professional

competence efficiency and effectiveness

101

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

102

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

103

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

104

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 assets32 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

52 Use of technology

105

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 peoplersquos 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 lsquoThe Law of

Civil Procedurersquo first edition 2006 volume 1

page iii that

106

ldquoFor 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 lawyerrdquo However

the corruption of the court staff and the

offices of the civil servants can be controlled

easily by using technology ie 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

107

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

108

53 Check and balance

The theory of separation of powers was given by

the Charles-Louis de Secondat baron de La Bregravede

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 lsquothe spirit of

lawsrsquo that

lsquoI have not drawn my principles from my

prejudices but from the nature of thingsrdquo 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

109

Conclusion

In conclusion it can be reminded that 3rd

paragraph of the preamble of our constitution

provides that

lsquoFurther 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 citizensrsquo

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

110

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 p1 see also Mahmudul Islam-

Constitutional law of Bangladesh second edition

p1

2 httpenwikipediaorgwikiConstitution

111

3 httplegal-

dictionarythefreedictionarycomconstitution

4 httpwwwthefreedictionarycomframework

5 httpwwwmacmillandictionarycomdictionarybri

tishframework

6 httpwwwegyankoshacinbitstream

7 httpwwwbanglapediaorghttpdocsHTE_0079HTM

8 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

9 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

10 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

11 httpwwwbpscgovbd2011

12 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

13 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

14 httpwwwrhdgovbdRulesAndRegulationsView_Ov

erviewaspRef=A

112

15 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

16 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

17 wwwforbescomprofilejulian-assange

18 httpwwwti-bangladeshorgresearchES_PSCpdf

19 httpwwwnapsipagorgPDFABDUL_WAHHABpdf see

also Khan Akbar Ali and Kazi Rakibuddin Ahmad

March 2008 ldquoQuota System for Civil Service

Recruitment in Bangladesh An Exploratory

Analysisrdquo 2008 available at http

wwwbpscgovbddocuments news25906 newsdoc

20 Mahmudul Islam- Constitutional law of Bangladesh

second edition p171 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 p171 see also Indra Sawhney v

India AIR 1993 SC 477

113

22 httpwwwmopagovbdindexphpoption=com_conte

ntamptask=viewampid=377ampItemid=419

23 httpwwwvsrhhrCustomPagesStaticHRVFilesL

egislation__Civil-Servants-Actpdf

24 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

25 httptraininganddevelopmentnaukrihubcomtrain

inghtml

26 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

27 httpsiteresourcesworldbankorgPUBLICSECTORAN

DGOVERNANCEResourcesAccountabilityGovernancepd

f

28 httpwwwjscbdorgbdb_functionphp

29 httpwwwigsbracuacbdUserFilesFilearchive

_fileJudiciary_Policy_Notepdf

30 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

114

31 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

32 httpwwwoecdorgdataoecd625735521740pdf

Page 58: The constitutional framework of public administration in bangladesh

58

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 partymdashas opposed to a system of awarding

offices on the basis of merit independent of

political activityrsquo15

Legal Basis for BCS Recruitment Policy

lsquoThe constitution of Bangladesh has granted

equal employment opportunities for citizens The

constitution declares ldquoThere shall be equality

of opportunity for all citizens in respect of

employment or office in the service of the

Republicrdquo (Article 29 [1]) ldquoNo citizen shall

on the grounds only of religion race caste

59

sex or place of birth be ineligible for or

discriminated against in respect of any

employment or office in the service of the

Republicrdquo (Article 29 [2]) However under clause

(3) of the same Article the constitution has

provided certain exceptions that read ldquoNothing

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

60

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 servicesrsquo 16

61

Recommendations Julian Paul Assange an

Australian computer programmer

politicalinternet activist publisher and

journalist and founder of WikiLeaks supports

the free dissemination of government data17 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

62

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

Thatrsquos 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

63

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 abolished18

64

Besides these quota system should be abolished

as our Constitution or any law has not given the

definition and the factors of opting lsquobackward

sectionrsquo of the citizens Article 29(3)(a) of

our constitution though provides the quota

system for lsquobackward sectionrsquo 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 sonsrsquo being poor are not getting the said

benefit and hence Professor M Abdul Wahhab

65

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

ordersrules 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

66

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

67

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 ldquothough 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 art29 (1) amp29(2) it merely confers an

enabling power But as it an exception to the

guarantee of art29 (1) amp29(2) it should not be

68

interpreted or given effect to in such a way as

to nullify the guarantee under art29 (1)

amp29(2) The Indian Supreme Court held that

reservation in excess of 50 would be

unconstitutional20

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 lsquonotrsquo and hence ldquowe are to consider

the meaning of lsquobackward sectionrsquo Art 29 is

comparable with art16 of the Indian

Constitution which uses the expression lsquobackward

classrsquo where as the expression used in art

29(3) is backward section The Indian Supreme

Court has interpreted the expression lsquobackward

classrsquo in several decisions Those decisions may

69

be helpful but not decisive in interpreting

lsquobackward sectionrsquo 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

70

33 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 statusetc)22

But unfortunately

there is no hard and fast and transparent

principle for doing the transfer of the civil

71

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 workplace23

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 ie what quality is considered is to

72

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

73

determined and if it is taken or done there

will be no request or lobby for the transfer and

harassment

34 Promotion procedure and

recommendation

The word lsquopromotionrsquo 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

Bangladesh24

74

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

75

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

76

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

77

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

35 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

Itrsquos not what you want in life but itrsquos

knowing how to reach it

78

Itrsquos not where you want to go but itrsquos knowing

how to get there

Itrsquos not how high you want to rise but itrsquos

knowing how to take off

It may not be quite the outcome you were aiming

for but it will be an outcome

Itrsquos not what you dream of doing but itrsquos

having the knowledge to do it

Its not a set of goals but itrsquos more like a

vision

79

Itrsquos not the goal you set but itrsquos 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 Departments26

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

80

Recommendation

Training should be given to the civil servants

for realizing the matter that embodied in art21

(2) of the Constitution of the Peoplersquos 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

36 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

81

said word lsquoaccountability 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 ldquowatchdogrdquo units to scrutinize

and hold departments accountable legitimacy of

82

these commissions is built upon their

independence as it avoids any conflicts of

interests27

There are various types of accountability ie

(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

lsquoParliaments are key actors in what has

been termed the lsquochain of

83

accountabilityrsquo 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 lsquosociety driven horizontal

84

accountabilityrsquo 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 ndashno

matter how defined ndash parliaments are one

of the institutions through which

diagonal accountability can be

exercisedrsquo27

However the civil servants should be

accountable by any or all means of

accountability

85

4 Judicial Service of Bangladesh

41 Legal framework

Article 137 of the Constitution also deals with

the term lsquolegal frameworkrsquo 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

itsrsquo judgment passed in Civil Appeal no79 of

1999 commonly known in the Masder Hossainrsquos case

that-

ldquoIt is declared that the word ldquoappointmentsrdquo 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

86

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

ldquoBangladesh Judicial Service Commission has been

established in 2007 by the rule lsquo বাংলােদশ

জিডিসয়াল সািভস কিমশন িবিধমালা ২০০৭ rsquo ie

87

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

88

Law Faculty of any one of three leading public

university ie 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 Secretariatrdquo 28

42 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

89

voice According to Rule 5 of OgraveevsjvDagger`k RywWwmqvj

mvwfcopyDaggermi cOumlDaggerek cDagger` wbDaggerqvM welqK AvDagger`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

90

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 32 are applicable with equitable

equality

43 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

91

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 33 is

applicable with equitable equality

44 Promotion procedure and recommendations

The promotion of sub-ordinate Courtrsquos judges are

in fact depended on the Annual Confidential

92

Reports (ACRs) There is no examination system

for getting the promotion in the sub-

ordinate judiciary

lsquoPresently 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

93

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 linersquo29

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-

ldquoConfidential reports should set out distinctly

and tersely sufficient particulars and it is

essential that they should be clear and definite

94

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 Divisionrdquo 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

95

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 34 is

applicable with equitable equality

45 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

96

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 skills30

Recommendation

The quality of training provided by JATI should

be improved A training need- assessment of the

subordinate court judges could be undertaken

97

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

98

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

subordinatecourts31

99

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

51 Ethical education

100

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 publics trust

and confidence in government by demonstrating

the highest standards of professional

competence efficiency and effectiveness

101

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

102

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

103

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

104

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 assets32 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

52 Use of technology

105

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 peoplersquos 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 lsquoThe Law of

Civil Procedurersquo first edition 2006 volume 1

page iii that

106

ldquoFor 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 lawyerrdquo However

the corruption of the court staff and the

offices of the civil servants can be controlled

easily by using technology ie 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

107

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

108

53 Check and balance

The theory of separation of powers was given by

the Charles-Louis de Secondat baron de La Bregravede

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 lsquothe spirit of

lawsrsquo that

lsquoI have not drawn my principles from my

prejudices but from the nature of thingsrdquo 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

109

Conclusion

In conclusion it can be reminded that 3rd

paragraph of the preamble of our constitution

provides that

lsquoFurther 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 citizensrsquo

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

110

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 p1 see also Mahmudul Islam-

Constitutional law of Bangladesh second edition

p1

2 httpenwikipediaorgwikiConstitution

111

3 httplegal-

dictionarythefreedictionarycomconstitution

4 httpwwwthefreedictionarycomframework

5 httpwwwmacmillandictionarycomdictionarybri

tishframework

6 httpwwwegyankoshacinbitstream

7 httpwwwbanglapediaorghttpdocsHTE_0079HTM

8 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

9 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

10 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

11 httpwwwbpscgovbd2011

12 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

13 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

14 httpwwwrhdgovbdRulesAndRegulationsView_Ov

erviewaspRef=A

112

15 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

16 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

17 wwwforbescomprofilejulian-assange

18 httpwwwti-bangladeshorgresearchES_PSCpdf

19 httpwwwnapsipagorgPDFABDUL_WAHHABpdf see

also Khan Akbar Ali and Kazi Rakibuddin Ahmad

March 2008 ldquoQuota System for Civil Service

Recruitment in Bangladesh An Exploratory

Analysisrdquo 2008 available at http

wwwbpscgovbddocuments news25906 newsdoc

20 Mahmudul Islam- Constitutional law of Bangladesh

second edition p171 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 p171 see also Indra Sawhney v

India AIR 1993 SC 477

113

22 httpwwwmopagovbdindexphpoption=com_conte

ntamptask=viewampid=377ampItemid=419

23 httpwwwvsrhhrCustomPagesStaticHRVFilesL

egislation__Civil-Servants-Actpdf

24 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

25 httptraininganddevelopmentnaukrihubcomtrain

inghtml

26 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

27 httpsiteresourcesworldbankorgPUBLICSECTORAN

DGOVERNANCEResourcesAccountabilityGovernancepd

f

28 httpwwwjscbdorgbdb_functionphp

29 httpwwwigsbracuacbdUserFilesFilearchive

_fileJudiciary_Policy_Notepdf

30 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

114

31 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

32 httpwwwoecdorgdataoecd625735521740pdf

Page 59: The constitutional framework of public administration in bangladesh

59

sex or place of birth be ineligible for or

discriminated against in respect of any

employment or office in the service of the

Republicrdquo (Article 29 [2]) However under clause

(3) of the same Article the constitution has

provided certain exceptions that read ldquoNothing

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

60

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 servicesrsquo 16

61

Recommendations Julian Paul Assange an

Australian computer programmer

politicalinternet activist publisher and

journalist and founder of WikiLeaks supports

the free dissemination of government data17 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

62

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

Thatrsquos 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

63

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 abolished18

64

Besides these quota system should be abolished

as our Constitution or any law has not given the

definition and the factors of opting lsquobackward

sectionrsquo of the citizens Article 29(3)(a) of

our constitution though provides the quota

system for lsquobackward sectionrsquo 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 sonsrsquo being poor are not getting the said

benefit and hence Professor M Abdul Wahhab

65

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

ordersrules 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

66

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

67

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 ldquothough 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 art29 (1) amp29(2) it merely confers an

enabling power But as it an exception to the

guarantee of art29 (1) amp29(2) it should not be

68

interpreted or given effect to in such a way as

to nullify the guarantee under art29 (1)

amp29(2) The Indian Supreme Court held that

reservation in excess of 50 would be

unconstitutional20

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 lsquonotrsquo and hence ldquowe are to consider

the meaning of lsquobackward sectionrsquo Art 29 is

comparable with art16 of the Indian

Constitution which uses the expression lsquobackward

classrsquo where as the expression used in art

29(3) is backward section The Indian Supreme

Court has interpreted the expression lsquobackward

classrsquo in several decisions Those decisions may

69

be helpful but not decisive in interpreting

lsquobackward sectionrsquo 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

70

33 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 statusetc)22

But unfortunately

there is no hard and fast and transparent

principle for doing the transfer of the civil

71

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 workplace23

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 ie what quality is considered is to

72

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

73

determined and if it is taken or done there

will be no request or lobby for the transfer and

harassment

34 Promotion procedure and

recommendation

The word lsquopromotionrsquo 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

Bangladesh24

74

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

75

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

76

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

77

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

35 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

Itrsquos not what you want in life but itrsquos

knowing how to reach it

78

Itrsquos not where you want to go but itrsquos knowing

how to get there

Itrsquos not how high you want to rise but itrsquos

knowing how to take off

It may not be quite the outcome you were aiming

for but it will be an outcome

Itrsquos not what you dream of doing but itrsquos

having the knowledge to do it

Its not a set of goals but itrsquos more like a

vision

79

Itrsquos not the goal you set but itrsquos 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 Departments26

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

80

Recommendation

Training should be given to the civil servants

for realizing the matter that embodied in art21

(2) of the Constitution of the Peoplersquos 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

36 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

81

said word lsquoaccountability 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 ldquowatchdogrdquo units to scrutinize

and hold departments accountable legitimacy of

82

these commissions is built upon their

independence as it avoids any conflicts of

interests27

There are various types of accountability ie

(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

lsquoParliaments are key actors in what has

been termed the lsquochain of

83

accountabilityrsquo 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 lsquosociety driven horizontal

84

accountabilityrsquo 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 ndashno

matter how defined ndash parliaments are one

of the institutions through which

diagonal accountability can be

exercisedrsquo27

However the civil servants should be

accountable by any or all means of

accountability

85

4 Judicial Service of Bangladesh

41 Legal framework

Article 137 of the Constitution also deals with

the term lsquolegal frameworkrsquo 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

itsrsquo judgment passed in Civil Appeal no79 of

1999 commonly known in the Masder Hossainrsquos case

that-

ldquoIt is declared that the word ldquoappointmentsrdquo 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

86

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

ldquoBangladesh Judicial Service Commission has been

established in 2007 by the rule lsquo বাংলােদশ

জিডিসয়াল সািভস কিমশন িবিধমালা ২০০৭ rsquo ie

87

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

88

Law Faculty of any one of three leading public

university ie 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 Secretariatrdquo 28

42 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

89

voice According to Rule 5 of OgraveevsjvDagger`k RywWwmqvj

mvwfcopyDaggermi cOumlDaggerek cDagger` wbDaggerqvM welqK AvDagger`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

90

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 32 are applicable with equitable

equality

43 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

91

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 33 is

applicable with equitable equality

44 Promotion procedure and recommendations

The promotion of sub-ordinate Courtrsquos judges are

in fact depended on the Annual Confidential

92

Reports (ACRs) There is no examination system

for getting the promotion in the sub-

ordinate judiciary

lsquoPresently 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

93

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 linersquo29

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-

ldquoConfidential reports should set out distinctly

and tersely sufficient particulars and it is

essential that they should be clear and definite

94

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 Divisionrdquo 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

95

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 34 is

applicable with equitable equality

45 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

96

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 skills30

Recommendation

The quality of training provided by JATI should

be improved A training need- assessment of the

subordinate court judges could be undertaken

97

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

98

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

subordinatecourts31

99

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

51 Ethical education

100

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 publics trust

and confidence in government by demonstrating

the highest standards of professional

competence efficiency and effectiveness

101

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

102

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

103

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

104

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 assets32 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

52 Use of technology

105

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 peoplersquos 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 lsquoThe Law of

Civil Procedurersquo first edition 2006 volume 1

page iii that

106

ldquoFor 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 lawyerrdquo However

the corruption of the court staff and the

offices of the civil servants can be controlled

easily by using technology ie 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

107

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

108

53 Check and balance

The theory of separation of powers was given by

the Charles-Louis de Secondat baron de La Bregravede

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 lsquothe spirit of

lawsrsquo that

lsquoI have not drawn my principles from my

prejudices but from the nature of thingsrdquo 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

109

Conclusion

In conclusion it can be reminded that 3rd

paragraph of the preamble of our constitution

provides that

lsquoFurther 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 citizensrsquo

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

110

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 p1 see also Mahmudul Islam-

Constitutional law of Bangladesh second edition

p1

2 httpenwikipediaorgwikiConstitution

111

3 httplegal-

dictionarythefreedictionarycomconstitution

4 httpwwwthefreedictionarycomframework

5 httpwwwmacmillandictionarycomdictionarybri

tishframework

6 httpwwwegyankoshacinbitstream

7 httpwwwbanglapediaorghttpdocsHTE_0079HTM

8 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

9 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

10 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

11 httpwwwbpscgovbd2011

12 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

13 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

14 httpwwwrhdgovbdRulesAndRegulationsView_Ov

erviewaspRef=A

112

15 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

16 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

17 wwwforbescomprofilejulian-assange

18 httpwwwti-bangladeshorgresearchES_PSCpdf

19 httpwwwnapsipagorgPDFABDUL_WAHHABpdf see

also Khan Akbar Ali and Kazi Rakibuddin Ahmad

March 2008 ldquoQuota System for Civil Service

Recruitment in Bangladesh An Exploratory

Analysisrdquo 2008 available at http

wwwbpscgovbddocuments news25906 newsdoc

20 Mahmudul Islam- Constitutional law of Bangladesh

second edition p171 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 p171 see also Indra Sawhney v

India AIR 1993 SC 477

113

22 httpwwwmopagovbdindexphpoption=com_conte

ntamptask=viewampid=377ampItemid=419

23 httpwwwvsrhhrCustomPagesStaticHRVFilesL

egislation__Civil-Servants-Actpdf

24 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

25 httptraininganddevelopmentnaukrihubcomtrain

inghtml

26 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

27 httpsiteresourcesworldbankorgPUBLICSECTORAN

DGOVERNANCEResourcesAccountabilityGovernancepd

f

28 httpwwwjscbdorgbdb_functionphp

29 httpwwwigsbracuacbdUserFilesFilearchive

_fileJudiciary_Policy_Notepdf

30 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

114

31 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

32 httpwwwoecdorgdataoecd625735521740pdf

Page 60: The constitutional framework of public administration in bangladesh

60

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 servicesrsquo 16

61

Recommendations Julian Paul Assange an

Australian computer programmer

politicalinternet activist publisher and

journalist and founder of WikiLeaks supports

the free dissemination of government data17 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

62

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

Thatrsquos 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

63

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 abolished18

64

Besides these quota system should be abolished

as our Constitution or any law has not given the

definition and the factors of opting lsquobackward

sectionrsquo of the citizens Article 29(3)(a) of

our constitution though provides the quota

system for lsquobackward sectionrsquo 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 sonsrsquo being poor are not getting the said

benefit and hence Professor M Abdul Wahhab

65

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

ordersrules 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

66

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

67

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 ldquothough 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 art29 (1) amp29(2) it merely confers an

enabling power But as it an exception to the

guarantee of art29 (1) amp29(2) it should not be

68

interpreted or given effect to in such a way as

to nullify the guarantee under art29 (1)

amp29(2) The Indian Supreme Court held that

reservation in excess of 50 would be

unconstitutional20

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 lsquonotrsquo and hence ldquowe are to consider

the meaning of lsquobackward sectionrsquo Art 29 is

comparable with art16 of the Indian

Constitution which uses the expression lsquobackward

classrsquo where as the expression used in art

29(3) is backward section The Indian Supreme

Court has interpreted the expression lsquobackward

classrsquo in several decisions Those decisions may

69

be helpful but not decisive in interpreting

lsquobackward sectionrsquo 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

70

33 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 statusetc)22

But unfortunately

there is no hard and fast and transparent

principle for doing the transfer of the civil

71

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 workplace23

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 ie what quality is considered is to

72

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

73

determined and if it is taken or done there

will be no request or lobby for the transfer and

harassment

34 Promotion procedure and

recommendation

The word lsquopromotionrsquo 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

Bangladesh24

74

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

75

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

76

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

77

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

35 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

Itrsquos not what you want in life but itrsquos

knowing how to reach it

78

Itrsquos not where you want to go but itrsquos knowing

how to get there

Itrsquos not how high you want to rise but itrsquos

knowing how to take off

It may not be quite the outcome you were aiming

for but it will be an outcome

Itrsquos not what you dream of doing but itrsquos

having the knowledge to do it

Its not a set of goals but itrsquos more like a

vision

79

Itrsquos not the goal you set but itrsquos 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 Departments26

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

80

Recommendation

Training should be given to the civil servants

for realizing the matter that embodied in art21

(2) of the Constitution of the Peoplersquos 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

36 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

81

said word lsquoaccountability 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 ldquowatchdogrdquo units to scrutinize

and hold departments accountable legitimacy of

82

these commissions is built upon their

independence as it avoids any conflicts of

interests27

There are various types of accountability ie

(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

lsquoParliaments are key actors in what has

been termed the lsquochain of

83

accountabilityrsquo 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 lsquosociety driven horizontal

84

accountabilityrsquo 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 ndashno

matter how defined ndash parliaments are one

of the institutions through which

diagonal accountability can be

exercisedrsquo27

However the civil servants should be

accountable by any or all means of

accountability

85

4 Judicial Service of Bangladesh

41 Legal framework

Article 137 of the Constitution also deals with

the term lsquolegal frameworkrsquo 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

itsrsquo judgment passed in Civil Appeal no79 of

1999 commonly known in the Masder Hossainrsquos case

that-

ldquoIt is declared that the word ldquoappointmentsrdquo 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

86

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

ldquoBangladesh Judicial Service Commission has been

established in 2007 by the rule lsquo বাংলােদশ

জিডিসয়াল সািভস কিমশন িবিধমালা ২০০৭ rsquo ie

87

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

88

Law Faculty of any one of three leading public

university ie 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 Secretariatrdquo 28

42 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

89

voice According to Rule 5 of OgraveevsjvDagger`k RywWwmqvj

mvwfcopyDaggermi cOumlDaggerek cDagger` wbDaggerqvM welqK AvDagger`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

90

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 32 are applicable with equitable

equality

43 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

91

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 33 is

applicable with equitable equality

44 Promotion procedure and recommendations

The promotion of sub-ordinate Courtrsquos judges are

in fact depended on the Annual Confidential

92

Reports (ACRs) There is no examination system

for getting the promotion in the sub-

ordinate judiciary

lsquoPresently 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

93

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 linersquo29

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-

ldquoConfidential reports should set out distinctly

and tersely sufficient particulars and it is

essential that they should be clear and definite

94

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 Divisionrdquo 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

95

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 34 is

applicable with equitable equality

45 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

96

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 skills30

Recommendation

The quality of training provided by JATI should

be improved A training need- assessment of the

subordinate court judges could be undertaken

97

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

98

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

subordinatecourts31

99

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

51 Ethical education

100

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 publics trust

and confidence in government by demonstrating

the highest standards of professional

competence efficiency and effectiveness

101

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

102

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

103

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

104

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 assets32 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

52 Use of technology

105

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 peoplersquos 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 lsquoThe Law of

Civil Procedurersquo first edition 2006 volume 1

page iii that

106

ldquoFor 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 lawyerrdquo However

the corruption of the court staff and the

offices of the civil servants can be controlled

easily by using technology ie 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

107

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

108

53 Check and balance

The theory of separation of powers was given by

the Charles-Louis de Secondat baron de La Bregravede

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 lsquothe spirit of

lawsrsquo that

lsquoI have not drawn my principles from my

prejudices but from the nature of thingsrdquo 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

109

Conclusion

In conclusion it can be reminded that 3rd

paragraph of the preamble of our constitution

provides that

lsquoFurther 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 citizensrsquo

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

110

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 p1 see also Mahmudul Islam-

Constitutional law of Bangladesh second edition

p1

2 httpenwikipediaorgwikiConstitution

111

3 httplegal-

dictionarythefreedictionarycomconstitution

4 httpwwwthefreedictionarycomframework

5 httpwwwmacmillandictionarycomdictionarybri

tishframework

6 httpwwwegyankoshacinbitstream

7 httpwwwbanglapediaorghttpdocsHTE_0079HTM

8 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

9 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

10 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

11 httpwwwbpscgovbd2011

12 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

13 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

14 httpwwwrhdgovbdRulesAndRegulationsView_Ov

erviewaspRef=A

112

15 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

16 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

17 wwwforbescomprofilejulian-assange

18 httpwwwti-bangladeshorgresearchES_PSCpdf

19 httpwwwnapsipagorgPDFABDUL_WAHHABpdf see

also Khan Akbar Ali and Kazi Rakibuddin Ahmad

March 2008 ldquoQuota System for Civil Service

Recruitment in Bangladesh An Exploratory

Analysisrdquo 2008 available at http

wwwbpscgovbddocuments news25906 newsdoc

20 Mahmudul Islam- Constitutional law of Bangladesh

second edition p171 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 p171 see also Indra Sawhney v

India AIR 1993 SC 477

113

22 httpwwwmopagovbdindexphpoption=com_conte

ntamptask=viewampid=377ampItemid=419

23 httpwwwvsrhhrCustomPagesStaticHRVFilesL

egislation__Civil-Servants-Actpdf

24 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

25 httptraininganddevelopmentnaukrihubcomtrain

inghtml

26 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

27 httpsiteresourcesworldbankorgPUBLICSECTORAN

DGOVERNANCEResourcesAccountabilityGovernancepd

f

28 httpwwwjscbdorgbdb_functionphp

29 httpwwwigsbracuacbdUserFilesFilearchive

_fileJudiciary_Policy_Notepdf

30 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

114

31 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

32 httpwwwoecdorgdataoecd625735521740pdf

Page 61: The constitutional framework of public administration in bangladesh

61

Recommendations Julian Paul Assange an

Australian computer programmer

politicalinternet activist publisher and

journalist and founder of WikiLeaks supports

the free dissemination of government data17 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

62

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

Thatrsquos 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

63

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 abolished18

64

Besides these quota system should be abolished

as our Constitution or any law has not given the

definition and the factors of opting lsquobackward

sectionrsquo of the citizens Article 29(3)(a) of

our constitution though provides the quota

system for lsquobackward sectionrsquo 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 sonsrsquo being poor are not getting the said

benefit and hence Professor M Abdul Wahhab

65

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

ordersrules 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

66

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

67

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 ldquothough 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 art29 (1) amp29(2) it merely confers an

enabling power But as it an exception to the

guarantee of art29 (1) amp29(2) it should not be

68

interpreted or given effect to in such a way as

to nullify the guarantee under art29 (1)

amp29(2) The Indian Supreme Court held that

reservation in excess of 50 would be

unconstitutional20

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 lsquonotrsquo and hence ldquowe are to consider

the meaning of lsquobackward sectionrsquo Art 29 is

comparable with art16 of the Indian

Constitution which uses the expression lsquobackward

classrsquo where as the expression used in art

29(3) is backward section The Indian Supreme

Court has interpreted the expression lsquobackward

classrsquo in several decisions Those decisions may

69

be helpful but not decisive in interpreting

lsquobackward sectionrsquo 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

70

33 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 statusetc)22

But unfortunately

there is no hard and fast and transparent

principle for doing the transfer of the civil

71

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 workplace23

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 ie what quality is considered is to

72

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

73

determined and if it is taken or done there

will be no request or lobby for the transfer and

harassment

34 Promotion procedure and

recommendation

The word lsquopromotionrsquo 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

Bangladesh24

74

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

75

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

76

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

77

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

35 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

Itrsquos not what you want in life but itrsquos

knowing how to reach it

78

Itrsquos not where you want to go but itrsquos knowing

how to get there

Itrsquos not how high you want to rise but itrsquos

knowing how to take off

It may not be quite the outcome you were aiming

for but it will be an outcome

Itrsquos not what you dream of doing but itrsquos

having the knowledge to do it

Its not a set of goals but itrsquos more like a

vision

79

Itrsquos not the goal you set but itrsquos 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 Departments26

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

80

Recommendation

Training should be given to the civil servants

for realizing the matter that embodied in art21

(2) of the Constitution of the Peoplersquos 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

36 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

81

said word lsquoaccountability 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 ldquowatchdogrdquo units to scrutinize

and hold departments accountable legitimacy of

82

these commissions is built upon their

independence as it avoids any conflicts of

interests27

There are various types of accountability ie

(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

lsquoParliaments are key actors in what has

been termed the lsquochain of

83

accountabilityrsquo 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 lsquosociety driven horizontal

84

accountabilityrsquo 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 ndashno

matter how defined ndash parliaments are one

of the institutions through which

diagonal accountability can be

exercisedrsquo27

However the civil servants should be

accountable by any or all means of

accountability

85

4 Judicial Service of Bangladesh

41 Legal framework

Article 137 of the Constitution also deals with

the term lsquolegal frameworkrsquo 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

itsrsquo judgment passed in Civil Appeal no79 of

1999 commonly known in the Masder Hossainrsquos case

that-

ldquoIt is declared that the word ldquoappointmentsrdquo 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

86

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

ldquoBangladesh Judicial Service Commission has been

established in 2007 by the rule lsquo বাংলােদশ

জিডিসয়াল সািভস কিমশন িবিধমালা ২০০৭ rsquo ie

87

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

88

Law Faculty of any one of three leading public

university ie 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 Secretariatrdquo 28

42 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

89

voice According to Rule 5 of OgraveevsjvDagger`k RywWwmqvj

mvwfcopyDaggermi cOumlDaggerek cDagger` wbDaggerqvM welqK AvDagger`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

90

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 32 are applicable with equitable

equality

43 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

91

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 33 is

applicable with equitable equality

44 Promotion procedure and recommendations

The promotion of sub-ordinate Courtrsquos judges are

in fact depended on the Annual Confidential

92

Reports (ACRs) There is no examination system

for getting the promotion in the sub-

ordinate judiciary

lsquoPresently 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

93

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 linersquo29

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-

ldquoConfidential reports should set out distinctly

and tersely sufficient particulars and it is

essential that they should be clear and definite

94

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 Divisionrdquo 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

95

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 34 is

applicable with equitable equality

45 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

96

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 skills30

Recommendation

The quality of training provided by JATI should

be improved A training need- assessment of the

subordinate court judges could be undertaken

97

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

98

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

subordinatecourts31

99

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

51 Ethical education

100

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 publics trust

and confidence in government by demonstrating

the highest standards of professional

competence efficiency and effectiveness

101

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

102

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

103

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

104

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 assets32 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

52 Use of technology

105

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 peoplersquos 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 lsquoThe Law of

Civil Procedurersquo first edition 2006 volume 1

page iii that

106

ldquoFor 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 lawyerrdquo However

the corruption of the court staff and the

offices of the civil servants can be controlled

easily by using technology ie 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

107

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

108

53 Check and balance

The theory of separation of powers was given by

the Charles-Louis de Secondat baron de La Bregravede

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 lsquothe spirit of

lawsrsquo that

lsquoI have not drawn my principles from my

prejudices but from the nature of thingsrdquo 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

109

Conclusion

In conclusion it can be reminded that 3rd

paragraph of the preamble of our constitution

provides that

lsquoFurther 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 citizensrsquo

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

110

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 p1 see also Mahmudul Islam-

Constitutional law of Bangladesh second edition

p1

2 httpenwikipediaorgwikiConstitution

111

3 httplegal-

dictionarythefreedictionarycomconstitution

4 httpwwwthefreedictionarycomframework

5 httpwwwmacmillandictionarycomdictionarybri

tishframework

6 httpwwwegyankoshacinbitstream

7 httpwwwbanglapediaorghttpdocsHTE_0079HTM

8 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

9 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

10 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

11 httpwwwbpscgovbd2011

12 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

13 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

14 httpwwwrhdgovbdRulesAndRegulationsView_Ov

erviewaspRef=A

112

15 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

16 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

17 wwwforbescomprofilejulian-assange

18 httpwwwti-bangladeshorgresearchES_PSCpdf

19 httpwwwnapsipagorgPDFABDUL_WAHHABpdf see

also Khan Akbar Ali and Kazi Rakibuddin Ahmad

March 2008 ldquoQuota System for Civil Service

Recruitment in Bangladesh An Exploratory

Analysisrdquo 2008 available at http

wwwbpscgovbddocuments news25906 newsdoc

20 Mahmudul Islam- Constitutional law of Bangladesh

second edition p171 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 p171 see also Indra Sawhney v

India AIR 1993 SC 477

113

22 httpwwwmopagovbdindexphpoption=com_conte

ntamptask=viewampid=377ampItemid=419

23 httpwwwvsrhhrCustomPagesStaticHRVFilesL

egislation__Civil-Servants-Actpdf

24 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

25 httptraininganddevelopmentnaukrihubcomtrain

inghtml

26 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

27 httpsiteresourcesworldbankorgPUBLICSECTORAN

DGOVERNANCEResourcesAccountabilityGovernancepd

f

28 httpwwwjscbdorgbdb_functionphp

29 httpwwwigsbracuacbdUserFilesFilearchive

_fileJudiciary_Policy_Notepdf

30 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

114

31 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

32 httpwwwoecdorgdataoecd625735521740pdf

Page 62: The constitutional framework of public administration in bangladesh

62

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

Thatrsquos 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

63

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 abolished18

64

Besides these quota system should be abolished

as our Constitution or any law has not given the

definition and the factors of opting lsquobackward

sectionrsquo of the citizens Article 29(3)(a) of

our constitution though provides the quota

system for lsquobackward sectionrsquo 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 sonsrsquo being poor are not getting the said

benefit and hence Professor M Abdul Wahhab

65

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

ordersrules 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

66

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

67

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 ldquothough 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 art29 (1) amp29(2) it merely confers an

enabling power But as it an exception to the

guarantee of art29 (1) amp29(2) it should not be

68

interpreted or given effect to in such a way as

to nullify the guarantee under art29 (1)

amp29(2) The Indian Supreme Court held that

reservation in excess of 50 would be

unconstitutional20

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 lsquonotrsquo and hence ldquowe are to consider

the meaning of lsquobackward sectionrsquo Art 29 is

comparable with art16 of the Indian

Constitution which uses the expression lsquobackward

classrsquo where as the expression used in art

29(3) is backward section The Indian Supreme

Court has interpreted the expression lsquobackward

classrsquo in several decisions Those decisions may

69

be helpful but not decisive in interpreting

lsquobackward sectionrsquo 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

70

33 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 statusetc)22

But unfortunately

there is no hard and fast and transparent

principle for doing the transfer of the civil

71

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 workplace23

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 ie what quality is considered is to

72

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

73

determined and if it is taken or done there

will be no request or lobby for the transfer and

harassment

34 Promotion procedure and

recommendation

The word lsquopromotionrsquo 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

Bangladesh24

74

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

75

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

76

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

77

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

35 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

Itrsquos not what you want in life but itrsquos

knowing how to reach it

78

Itrsquos not where you want to go but itrsquos knowing

how to get there

Itrsquos not how high you want to rise but itrsquos

knowing how to take off

It may not be quite the outcome you were aiming

for but it will be an outcome

Itrsquos not what you dream of doing but itrsquos

having the knowledge to do it

Its not a set of goals but itrsquos more like a

vision

79

Itrsquos not the goal you set but itrsquos 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 Departments26

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

80

Recommendation

Training should be given to the civil servants

for realizing the matter that embodied in art21

(2) of the Constitution of the Peoplersquos 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

36 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

81

said word lsquoaccountability 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 ldquowatchdogrdquo units to scrutinize

and hold departments accountable legitimacy of

82

these commissions is built upon their

independence as it avoids any conflicts of

interests27

There are various types of accountability ie

(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

lsquoParliaments are key actors in what has

been termed the lsquochain of

83

accountabilityrsquo 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 lsquosociety driven horizontal

84

accountabilityrsquo 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 ndashno

matter how defined ndash parliaments are one

of the institutions through which

diagonal accountability can be

exercisedrsquo27

However the civil servants should be

accountable by any or all means of

accountability

85

4 Judicial Service of Bangladesh

41 Legal framework

Article 137 of the Constitution also deals with

the term lsquolegal frameworkrsquo 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

itsrsquo judgment passed in Civil Appeal no79 of

1999 commonly known in the Masder Hossainrsquos case

that-

ldquoIt is declared that the word ldquoappointmentsrdquo 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

86

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

ldquoBangladesh Judicial Service Commission has been

established in 2007 by the rule lsquo বাংলােদশ

জিডিসয়াল সািভস কিমশন িবিধমালা ২০০৭ rsquo ie

87

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

88

Law Faculty of any one of three leading public

university ie 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 Secretariatrdquo 28

42 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

89

voice According to Rule 5 of OgraveevsjvDagger`k RywWwmqvj

mvwfcopyDaggermi cOumlDaggerek cDagger` wbDaggerqvM welqK AvDagger`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

90

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 32 are applicable with equitable

equality

43 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

91

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 33 is

applicable with equitable equality

44 Promotion procedure and recommendations

The promotion of sub-ordinate Courtrsquos judges are

in fact depended on the Annual Confidential

92

Reports (ACRs) There is no examination system

for getting the promotion in the sub-

ordinate judiciary

lsquoPresently 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

93

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 linersquo29

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-

ldquoConfidential reports should set out distinctly

and tersely sufficient particulars and it is

essential that they should be clear and definite

94

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 Divisionrdquo 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

95

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 34 is

applicable with equitable equality

45 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

96

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 skills30

Recommendation

The quality of training provided by JATI should

be improved A training need- assessment of the

subordinate court judges could be undertaken

97

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

98

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

subordinatecourts31

99

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

51 Ethical education

100

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 publics trust

and confidence in government by demonstrating

the highest standards of professional

competence efficiency and effectiveness

101

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

102

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

103

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

104

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 assets32 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

52 Use of technology

105

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 peoplersquos 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 lsquoThe Law of

Civil Procedurersquo first edition 2006 volume 1

page iii that

106

ldquoFor 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 lawyerrdquo However

the corruption of the court staff and the

offices of the civil servants can be controlled

easily by using technology ie 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

107

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

108

53 Check and balance

The theory of separation of powers was given by

the Charles-Louis de Secondat baron de La Bregravede

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 lsquothe spirit of

lawsrsquo that

lsquoI have not drawn my principles from my

prejudices but from the nature of thingsrdquo 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

109

Conclusion

In conclusion it can be reminded that 3rd

paragraph of the preamble of our constitution

provides that

lsquoFurther 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 citizensrsquo

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

110

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 p1 see also Mahmudul Islam-

Constitutional law of Bangladesh second edition

p1

2 httpenwikipediaorgwikiConstitution

111

3 httplegal-

dictionarythefreedictionarycomconstitution

4 httpwwwthefreedictionarycomframework

5 httpwwwmacmillandictionarycomdictionarybri

tishframework

6 httpwwwegyankoshacinbitstream

7 httpwwwbanglapediaorghttpdocsHTE_0079HTM

8 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

9 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

10 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

11 httpwwwbpscgovbd2011

12 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

13 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

14 httpwwwrhdgovbdRulesAndRegulationsView_Ov

erviewaspRef=A

112

15 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

16 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

17 wwwforbescomprofilejulian-assange

18 httpwwwti-bangladeshorgresearchES_PSCpdf

19 httpwwwnapsipagorgPDFABDUL_WAHHABpdf see

also Khan Akbar Ali and Kazi Rakibuddin Ahmad

March 2008 ldquoQuota System for Civil Service

Recruitment in Bangladesh An Exploratory

Analysisrdquo 2008 available at http

wwwbpscgovbddocuments news25906 newsdoc

20 Mahmudul Islam- Constitutional law of Bangladesh

second edition p171 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 p171 see also Indra Sawhney v

India AIR 1993 SC 477

113

22 httpwwwmopagovbdindexphpoption=com_conte

ntamptask=viewampid=377ampItemid=419

23 httpwwwvsrhhrCustomPagesStaticHRVFilesL

egislation__Civil-Servants-Actpdf

24 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

25 httptraininganddevelopmentnaukrihubcomtrain

inghtml

26 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

27 httpsiteresourcesworldbankorgPUBLICSECTORAN

DGOVERNANCEResourcesAccountabilityGovernancepd

f

28 httpwwwjscbdorgbdb_functionphp

29 httpwwwigsbracuacbdUserFilesFilearchive

_fileJudiciary_Policy_Notepdf

30 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

114

31 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

32 httpwwwoecdorgdataoecd625735521740pdf

Page 63: The constitutional framework of public administration in bangladesh

63

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 abolished18

64

Besides these quota system should be abolished

as our Constitution or any law has not given the

definition and the factors of opting lsquobackward

sectionrsquo of the citizens Article 29(3)(a) of

our constitution though provides the quota

system for lsquobackward sectionrsquo 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 sonsrsquo being poor are not getting the said

benefit and hence Professor M Abdul Wahhab

65

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

ordersrules 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

66

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

67

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 ldquothough 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 art29 (1) amp29(2) it merely confers an

enabling power But as it an exception to the

guarantee of art29 (1) amp29(2) it should not be

68

interpreted or given effect to in such a way as

to nullify the guarantee under art29 (1)

amp29(2) The Indian Supreme Court held that

reservation in excess of 50 would be

unconstitutional20

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 lsquonotrsquo and hence ldquowe are to consider

the meaning of lsquobackward sectionrsquo Art 29 is

comparable with art16 of the Indian

Constitution which uses the expression lsquobackward

classrsquo where as the expression used in art

29(3) is backward section The Indian Supreme

Court has interpreted the expression lsquobackward

classrsquo in several decisions Those decisions may

69

be helpful but not decisive in interpreting

lsquobackward sectionrsquo 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

70

33 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 statusetc)22

But unfortunately

there is no hard and fast and transparent

principle for doing the transfer of the civil

71

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 workplace23

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 ie what quality is considered is to

72

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

73

determined and if it is taken or done there

will be no request or lobby for the transfer and

harassment

34 Promotion procedure and

recommendation

The word lsquopromotionrsquo 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

Bangladesh24

74

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

75

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

76

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

77

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

35 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

Itrsquos not what you want in life but itrsquos

knowing how to reach it

78

Itrsquos not where you want to go but itrsquos knowing

how to get there

Itrsquos not how high you want to rise but itrsquos

knowing how to take off

It may not be quite the outcome you were aiming

for but it will be an outcome

Itrsquos not what you dream of doing but itrsquos

having the knowledge to do it

Its not a set of goals but itrsquos more like a

vision

79

Itrsquos not the goal you set but itrsquos 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 Departments26

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

80

Recommendation

Training should be given to the civil servants

for realizing the matter that embodied in art21

(2) of the Constitution of the Peoplersquos 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

36 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

81

said word lsquoaccountability 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 ldquowatchdogrdquo units to scrutinize

and hold departments accountable legitimacy of

82

these commissions is built upon their

independence as it avoids any conflicts of

interests27

There are various types of accountability ie

(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

lsquoParliaments are key actors in what has

been termed the lsquochain of

83

accountabilityrsquo 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 lsquosociety driven horizontal

84

accountabilityrsquo 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 ndashno

matter how defined ndash parliaments are one

of the institutions through which

diagonal accountability can be

exercisedrsquo27

However the civil servants should be

accountable by any or all means of

accountability

85

4 Judicial Service of Bangladesh

41 Legal framework

Article 137 of the Constitution also deals with

the term lsquolegal frameworkrsquo 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

itsrsquo judgment passed in Civil Appeal no79 of

1999 commonly known in the Masder Hossainrsquos case

that-

ldquoIt is declared that the word ldquoappointmentsrdquo 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

86

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

ldquoBangladesh Judicial Service Commission has been

established in 2007 by the rule lsquo বাংলােদশ

জিডিসয়াল সািভস কিমশন িবিধমালা ২০০৭ rsquo ie

87

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

88

Law Faculty of any one of three leading public

university ie 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 Secretariatrdquo 28

42 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

89

voice According to Rule 5 of OgraveevsjvDagger`k RywWwmqvj

mvwfcopyDaggermi cOumlDaggerek cDagger` wbDaggerqvM welqK AvDagger`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

90

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 32 are applicable with equitable

equality

43 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

91

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 33 is

applicable with equitable equality

44 Promotion procedure and recommendations

The promotion of sub-ordinate Courtrsquos judges are

in fact depended on the Annual Confidential

92

Reports (ACRs) There is no examination system

for getting the promotion in the sub-

ordinate judiciary

lsquoPresently 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

93

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 linersquo29

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-

ldquoConfidential reports should set out distinctly

and tersely sufficient particulars and it is

essential that they should be clear and definite

94

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 Divisionrdquo 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

95

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 34 is

applicable with equitable equality

45 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

96

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 skills30

Recommendation

The quality of training provided by JATI should

be improved A training need- assessment of the

subordinate court judges could be undertaken

97

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

98

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

subordinatecourts31

99

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

51 Ethical education

100

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 publics trust

and confidence in government by demonstrating

the highest standards of professional

competence efficiency and effectiveness

101

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

102

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

103

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

104

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 assets32 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

52 Use of technology

105

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 peoplersquos 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 lsquoThe Law of

Civil Procedurersquo first edition 2006 volume 1

page iii that

106

ldquoFor 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 lawyerrdquo However

the corruption of the court staff and the

offices of the civil servants can be controlled

easily by using technology ie 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

107

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

108

53 Check and balance

The theory of separation of powers was given by

the Charles-Louis de Secondat baron de La Bregravede

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 lsquothe spirit of

lawsrsquo that

lsquoI have not drawn my principles from my

prejudices but from the nature of thingsrdquo 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

109

Conclusion

In conclusion it can be reminded that 3rd

paragraph of the preamble of our constitution

provides that

lsquoFurther 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 citizensrsquo

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

110

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 p1 see also Mahmudul Islam-

Constitutional law of Bangladesh second edition

p1

2 httpenwikipediaorgwikiConstitution

111

3 httplegal-

dictionarythefreedictionarycomconstitution

4 httpwwwthefreedictionarycomframework

5 httpwwwmacmillandictionarycomdictionarybri

tishframework

6 httpwwwegyankoshacinbitstream

7 httpwwwbanglapediaorghttpdocsHTE_0079HTM

8 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

9 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

10 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

11 httpwwwbpscgovbd2011

12 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

13 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

14 httpwwwrhdgovbdRulesAndRegulationsView_Ov

erviewaspRef=A

112

15 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

16 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

17 wwwforbescomprofilejulian-assange

18 httpwwwti-bangladeshorgresearchES_PSCpdf

19 httpwwwnapsipagorgPDFABDUL_WAHHABpdf see

also Khan Akbar Ali and Kazi Rakibuddin Ahmad

March 2008 ldquoQuota System for Civil Service

Recruitment in Bangladesh An Exploratory

Analysisrdquo 2008 available at http

wwwbpscgovbddocuments news25906 newsdoc

20 Mahmudul Islam- Constitutional law of Bangladesh

second edition p171 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 p171 see also Indra Sawhney v

India AIR 1993 SC 477

113

22 httpwwwmopagovbdindexphpoption=com_conte

ntamptask=viewampid=377ampItemid=419

23 httpwwwvsrhhrCustomPagesStaticHRVFilesL

egislation__Civil-Servants-Actpdf

24 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

25 httptraininganddevelopmentnaukrihubcomtrain

inghtml

26 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

27 httpsiteresourcesworldbankorgPUBLICSECTORAN

DGOVERNANCEResourcesAccountabilityGovernancepd

f

28 httpwwwjscbdorgbdb_functionphp

29 httpwwwigsbracuacbdUserFilesFilearchive

_fileJudiciary_Policy_Notepdf

30 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

114

31 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

32 httpwwwoecdorgdataoecd625735521740pdf

Page 64: The constitutional framework of public administration in bangladesh

64

Besides these quota system should be abolished

as our Constitution or any law has not given the

definition and the factors of opting lsquobackward

sectionrsquo of the citizens Article 29(3)(a) of

our constitution though provides the quota

system for lsquobackward sectionrsquo 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 sonsrsquo being poor are not getting the said

benefit and hence Professor M Abdul Wahhab

65

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

ordersrules 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

66

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

67

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 ldquothough 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 art29 (1) amp29(2) it merely confers an

enabling power But as it an exception to the

guarantee of art29 (1) amp29(2) it should not be

68

interpreted or given effect to in such a way as

to nullify the guarantee under art29 (1)

amp29(2) The Indian Supreme Court held that

reservation in excess of 50 would be

unconstitutional20

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 lsquonotrsquo and hence ldquowe are to consider

the meaning of lsquobackward sectionrsquo Art 29 is

comparable with art16 of the Indian

Constitution which uses the expression lsquobackward

classrsquo where as the expression used in art

29(3) is backward section The Indian Supreme

Court has interpreted the expression lsquobackward

classrsquo in several decisions Those decisions may

69

be helpful but not decisive in interpreting

lsquobackward sectionrsquo 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

70

33 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 statusetc)22

But unfortunately

there is no hard and fast and transparent

principle for doing the transfer of the civil

71

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 workplace23

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 ie what quality is considered is to

72

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

73

determined and if it is taken or done there

will be no request or lobby for the transfer and

harassment

34 Promotion procedure and

recommendation

The word lsquopromotionrsquo 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

Bangladesh24

74

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

75

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

76

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

77

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

35 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

Itrsquos not what you want in life but itrsquos

knowing how to reach it

78

Itrsquos not where you want to go but itrsquos knowing

how to get there

Itrsquos not how high you want to rise but itrsquos

knowing how to take off

It may not be quite the outcome you were aiming

for but it will be an outcome

Itrsquos not what you dream of doing but itrsquos

having the knowledge to do it

Its not a set of goals but itrsquos more like a

vision

79

Itrsquos not the goal you set but itrsquos 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 Departments26

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

80

Recommendation

Training should be given to the civil servants

for realizing the matter that embodied in art21

(2) of the Constitution of the Peoplersquos 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

36 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

81

said word lsquoaccountability 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 ldquowatchdogrdquo units to scrutinize

and hold departments accountable legitimacy of

82

these commissions is built upon their

independence as it avoids any conflicts of

interests27

There are various types of accountability ie

(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

lsquoParliaments are key actors in what has

been termed the lsquochain of

83

accountabilityrsquo 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 lsquosociety driven horizontal

84

accountabilityrsquo 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 ndashno

matter how defined ndash parliaments are one

of the institutions through which

diagonal accountability can be

exercisedrsquo27

However the civil servants should be

accountable by any or all means of

accountability

85

4 Judicial Service of Bangladesh

41 Legal framework

Article 137 of the Constitution also deals with

the term lsquolegal frameworkrsquo 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

itsrsquo judgment passed in Civil Appeal no79 of

1999 commonly known in the Masder Hossainrsquos case

that-

ldquoIt is declared that the word ldquoappointmentsrdquo 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

86

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

ldquoBangladesh Judicial Service Commission has been

established in 2007 by the rule lsquo বাংলােদশ

জিডিসয়াল সািভস কিমশন িবিধমালা ২০০৭ rsquo ie

87

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

88

Law Faculty of any one of three leading public

university ie 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 Secretariatrdquo 28

42 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

89

voice According to Rule 5 of OgraveevsjvDagger`k RywWwmqvj

mvwfcopyDaggermi cOumlDaggerek cDagger` wbDaggerqvM welqK AvDagger`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

90

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 32 are applicable with equitable

equality

43 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

91

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 33 is

applicable with equitable equality

44 Promotion procedure and recommendations

The promotion of sub-ordinate Courtrsquos judges are

in fact depended on the Annual Confidential

92

Reports (ACRs) There is no examination system

for getting the promotion in the sub-

ordinate judiciary

lsquoPresently 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

93

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 linersquo29

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-

ldquoConfidential reports should set out distinctly

and tersely sufficient particulars and it is

essential that they should be clear and definite

94

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 Divisionrdquo 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

95

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 34 is

applicable with equitable equality

45 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

96

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 skills30

Recommendation

The quality of training provided by JATI should

be improved A training need- assessment of the

subordinate court judges could be undertaken

97

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

98

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

subordinatecourts31

99

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

51 Ethical education

100

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 publics trust

and confidence in government by demonstrating

the highest standards of professional

competence efficiency and effectiveness

101

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

102

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

103

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

104

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 assets32 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

52 Use of technology

105

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 peoplersquos 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 lsquoThe Law of

Civil Procedurersquo first edition 2006 volume 1

page iii that

106

ldquoFor 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 lawyerrdquo However

the corruption of the court staff and the

offices of the civil servants can be controlled

easily by using technology ie 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

107

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

108

53 Check and balance

The theory of separation of powers was given by

the Charles-Louis de Secondat baron de La Bregravede

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 lsquothe spirit of

lawsrsquo that

lsquoI have not drawn my principles from my

prejudices but from the nature of thingsrdquo 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

109

Conclusion

In conclusion it can be reminded that 3rd

paragraph of the preamble of our constitution

provides that

lsquoFurther 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 citizensrsquo

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

110

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 p1 see also Mahmudul Islam-

Constitutional law of Bangladesh second edition

p1

2 httpenwikipediaorgwikiConstitution

111

3 httplegal-

dictionarythefreedictionarycomconstitution

4 httpwwwthefreedictionarycomframework

5 httpwwwmacmillandictionarycomdictionarybri

tishframework

6 httpwwwegyankoshacinbitstream

7 httpwwwbanglapediaorghttpdocsHTE_0079HTM

8 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

9 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

10 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

11 httpwwwbpscgovbd2011

12 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

13 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

14 httpwwwrhdgovbdRulesAndRegulationsView_Ov

erviewaspRef=A

112

15 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

16 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

17 wwwforbescomprofilejulian-assange

18 httpwwwti-bangladeshorgresearchES_PSCpdf

19 httpwwwnapsipagorgPDFABDUL_WAHHABpdf see

also Khan Akbar Ali and Kazi Rakibuddin Ahmad

March 2008 ldquoQuota System for Civil Service

Recruitment in Bangladesh An Exploratory

Analysisrdquo 2008 available at http

wwwbpscgovbddocuments news25906 newsdoc

20 Mahmudul Islam- Constitutional law of Bangladesh

second edition p171 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 p171 see also Indra Sawhney v

India AIR 1993 SC 477

113

22 httpwwwmopagovbdindexphpoption=com_conte

ntamptask=viewampid=377ampItemid=419

23 httpwwwvsrhhrCustomPagesStaticHRVFilesL

egislation__Civil-Servants-Actpdf

24 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

25 httptraininganddevelopmentnaukrihubcomtrain

inghtml

26 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

27 httpsiteresourcesworldbankorgPUBLICSECTORAN

DGOVERNANCEResourcesAccountabilityGovernancepd

f

28 httpwwwjscbdorgbdb_functionphp

29 httpwwwigsbracuacbdUserFilesFilearchive

_fileJudiciary_Policy_Notepdf

30 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

114

31 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

32 httpwwwoecdorgdataoecd625735521740pdf

Page 65: The constitutional framework of public administration in bangladesh

65

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

ordersrules 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

66

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

67

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 ldquothough 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 art29 (1) amp29(2) it merely confers an

enabling power But as it an exception to the

guarantee of art29 (1) amp29(2) it should not be

68

interpreted or given effect to in such a way as

to nullify the guarantee under art29 (1)

amp29(2) The Indian Supreme Court held that

reservation in excess of 50 would be

unconstitutional20

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 lsquonotrsquo and hence ldquowe are to consider

the meaning of lsquobackward sectionrsquo Art 29 is

comparable with art16 of the Indian

Constitution which uses the expression lsquobackward

classrsquo where as the expression used in art

29(3) is backward section The Indian Supreme

Court has interpreted the expression lsquobackward

classrsquo in several decisions Those decisions may

69

be helpful but not decisive in interpreting

lsquobackward sectionrsquo 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

70

33 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 statusetc)22

But unfortunately

there is no hard and fast and transparent

principle for doing the transfer of the civil

71

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 workplace23

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 ie what quality is considered is to

72

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

73

determined and if it is taken or done there

will be no request or lobby for the transfer and

harassment

34 Promotion procedure and

recommendation

The word lsquopromotionrsquo 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

Bangladesh24

74

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

75

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

76

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

77

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

35 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

Itrsquos not what you want in life but itrsquos

knowing how to reach it

78

Itrsquos not where you want to go but itrsquos knowing

how to get there

Itrsquos not how high you want to rise but itrsquos

knowing how to take off

It may not be quite the outcome you were aiming

for but it will be an outcome

Itrsquos not what you dream of doing but itrsquos

having the knowledge to do it

Its not a set of goals but itrsquos more like a

vision

79

Itrsquos not the goal you set but itrsquos 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 Departments26

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

80

Recommendation

Training should be given to the civil servants

for realizing the matter that embodied in art21

(2) of the Constitution of the Peoplersquos 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

36 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

81

said word lsquoaccountability 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 ldquowatchdogrdquo units to scrutinize

and hold departments accountable legitimacy of

82

these commissions is built upon their

independence as it avoids any conflicts of

interests27

There are various types of accountability ie

(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

lsquoParliaments are key actors in what has

been termed the lsquochain of

83

accountabilityrsquo 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 lsquosociety driven horizontal

84

accountabilityrsquo 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 ndashno

matter how defined ndash parliaments are one

of the institutions through which

diagonal accountability can be

exercisedrsquo27

However the civil servants should be

accountable by any or all means of

accountability

85

4 Judicial Service of Bangladesh

41 Legal framework

Article 137 of the Constitution also deals with

the term lsquolegal frameworkrsquo 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

itsrsquo judgment passed in Civil Appeal no79 of

1999 commonly known in the Masder Hossainrsquos case

that-

ldquoIt is declared that the word ldquoappointmentsrdquo 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

86

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

ldquoBangladesh Judicial Service Commission has been

established in 2007 by the rule lsquo বাংলােদশ

জিডিসয়াল সািভস কিমশন িবিধমালা ২০০৭ rsquo ie

87

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

88

Law Faculty of any one of three leading public

university ie 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 Secretariatrdquo 28

42 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

89

voice According to Rule 5 of OgraveevsjvDagger`k RywWwmqvj

mvwfcopyDaggermi cOumlDaggerek cDagger` wbDaggerqvM welqK AvDagger`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

90

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 32 are applicable with equitable

equality

43 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

91

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 33 is

applicable with equitable equality

44 Promotion procedure and recommendations

The promotion of sub-ordinate Courtrsquos judges are

in fact depended on the Annual Confidential

92

Reports (ACRs) There is no examination system

for getting the promotion in the sub-

ordinate judiciary

lsquoPresently 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

93

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 linersquo29

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-

ldquoConfidential reports should set out distinctly

and tersely sufficient particulars and it is

essential that they should be clear and definite

94

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 Divisionrdquo 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

95

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 34 is

applicable with equitable equality

45 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

96

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 skills30

Recommendation

The quality of training provided by JATI should

be improved A training need- assessment of the

subordinate court judges could be undertaken

97

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

98

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

subordinatecourts31

99

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

51 Ethical education

100

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 publics trust

and confidence in government by demonstrating

the highest standards of professional

competence efficiency and effectiveness

101

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

102

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

103

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

104

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 assets32 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

52 Use of technology

105

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 peoplersquos 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 lsquoThe Law of

Civil Procedurersquo first edition 2006 volume 1

page iii that

106

ldquoFor 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 lawyerrdquo However

the corruption of the court staff and the

offices of the civil servants can be controlled

easily by using technology ie 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

107

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

108

53 Check and balance

The theory of separation of powers was given by

the Charles-Louis de Secondat baron de La Bregravede

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 lsquothe spirit of

lawsrsquo that

lsquoI have not drawn my principles from my

prejudices but from the nature of thingsrdquo 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

109

Conclusion

In conclusion it can be reminded that 3rd

paragraph of the preamble of our constitution

provides that

lsquoFurther 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 citizensrsquo

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

110

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 p1 see also Mahmudul Islam-

Constitutional law of Bangladesh second edition

p1

2 httpenwikipediaorgwikiConstitution

111

3 httplegal-

dictionarythefreedictionarycomconstitution

4 httpwwwthefreedictionarycomframework

5 httpwwwmacmillandictionarycomdictionarybri

tishframework

6 httpwwwegyankoshacinbitstream

7 httpwwwbanglapediaorghttpdocsHTE_0079HTM

8 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

9 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

10 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

11 httpwwwbpscgovbd2011

12 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

13 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

14 httpwwwrhdgovbdRulesAndRegulationsView_Ov

erviewaspRef=A

112

15 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

16 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

17 wwwforbescomprofilejulian-assange

18 httpwwwti-bangladeshorgresearchES_PSCpdf

19 httpwwwnapsipagorgPDFABDUL_WAHHABpdf see

also Khan Akbar Ali and Kazi Rakibuddin Ahmad

March 2008 ldquoQuota System for Civil Service

Recruitment in Bangladesh An Exploratory

Analysisrdquo 2008 available at http

wwwbpscgovbddocuments news25906 newsdoc

20 Mahmudul Islam- Constitutional law of Bangladesh

second edition p171 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 p171 see also Indra Sawhney v

India AIR 1993 SC 477

113

22 httpwwwmopagovbdindexphpoption=com_conte

ntamptask=viewampid=377ampItemid=419

23 httpwwwvsrhhrCustomPagesStaticHRVFilesL

egislation__Civil-Servants-Actpdf

24 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

25 httptraininganddevelopmentnaukrihubcomtrain

inghtml

26 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

27 httpsiteresourcesworldbankorgPUBLICSECTORAN

DGOVERNANCEResourcesAccountabilityGovernancepd

f

28 httpwwwjscbdorgbdb_functionphp

29 httpwwwigsbracuacbdUserFilesFilearchive

_fileJudiciary_Policy_Notepdf

30 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

114

31 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

32 httpwwwoecdorgdataoecd625735521740pdf

Page 66: The constitutional framework of public administration in bangladesh

66

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

67

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 ldquothough 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 art29 (1) amp29(2) it merely confers an

enabling power But as it an exception to the

guarantee of art29 (1) amp29(2) it should not be

68

interpreted or given effect to in such a way as

to nullify the guarantee under art29 (1)

amp29(2) The Indian Supreme Court held that

reservation in excess of 50 would be

unconstitutional20

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 lsquonotrsquo and hence ldquowe are to consider

the meaning of lsquobackward sectionrsquo Art 29 is

comparable with art16 of the Indian

Constitution which uses the expression lsquobackward

classrsquo where as the expression used in art

29(3) is backward section The Indian Supreme

Court has interpreted the expression lsquobackward

classrsquo in several decisions Those decisions may

69

be helpful but not decisive in interpreting

lsquobackward sectionrsquo 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

70

33 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 statusetc)22

But unfortunately

there is no hard and fast and transparent

principle for doing the transfer of the civil

71

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 workplace23

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 ie what quality is considered is to

72

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

73

determined and if it is taken or done there

will be no request or lobby for the transfer and

harassment

34 Promotion procedure and

recommendation

The word lsquopromotionrsquo 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

Bangladesh24

74

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

75

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

76

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

77

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

35 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

Itrsquos not what you want in life but itrsquos

knowing how to reach it

78

Itrsquos not where you want to go but itrsquos knowing

how to get there

Itrsquos not how high you want to rise but itrsquos

knowing how to take off

It may not be quite the outcome you were aiming

for but it will be an outcome

Itrsquos not what you dream of doing but itrsquos

having the knowledge to do it

Its not a set of goals but itrsquos more like a

vision

79

Itrsquos not the goal you set but itrsquos 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 Departments26

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

80

Recommendation

Training should be given to the civil servants

for realizing the matter that embodied in art21

(2) of the Constitution of the Peoplersquos 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

36 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

81

said word lsquoaccountability 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 ldquowatchdogrdquo units to scrutinize

and hold departments accountable legitimacy of

82

these commissions is built upon their

independence as it avoids any conflicts of

interests27

There are various types of accountability ie

(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

lsquoParliaments are key actors in what has

been termed the lsquochain of

83

accountabilityrsquo 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 lsquosociety driven horizontal

84

accountabilityrsquo 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 ndashno

matter how defined ndash parliaments are one

of the institutions through which

diagonal accountability can be

exercisedrsquo27

However the civil servants should be

accountable by any or all means of

accountability

85

4 Judicial Service of Bangladesh

41 Legal framework

Article 137 of the Constitution also deals with

the term lsquolegal frameworkrsquo 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

itsrsquo judgment passed in Civil Appeal no79 of

1999 commonly known in the Masder Hossainrsquos case

that-

ldquoIt is declared that the word ldquoappointmentsrdquo 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

86

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

ldquoBangladesh Judicial Service Commission has been

established in 2007 by the rule lsquo বাংলােদশ

জিডিসয়াল সািভস কিমশন িবিধমালা ২০০৭ rsquo ie

87

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

88

Law Faculty of any one of three leading public

university ie 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 Secretariatrdquo 28

42 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

89

voice According to Rule 5 of OgraveevsjvDagger`k RywWwmqvj

mvwfcopyDaggermi cOumlDaggerek cDagger` wbDaggerqvM welqK AvDagger`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

90

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 32 are applicable with equitable

equality

43 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

91

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 33 is

applicable with equitable equality

44 Promotion procedure and recommendations

The promotion of sub-ordinate Courtrsquos judges are

in fact depended on the Annual Confidential

92

Reports (ACRs) There is no examination system

for getting the promotion in the sub-

ordinate judiciary

lsquoPresently 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

93

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 linersquo29

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-

ldquoConfidential reports should set out distinctly

and tersely sufficient particulars and it is

essential that they should be clear and definite

94

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 Divisionrdquo 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

95

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 34 is

applicable with equitable equality

45 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

96

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 skills30

Recommendation

The quality of training provided by JATI should

be improved A training need- assessment of the

subordinate court judges could be undertaken

97

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

98

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

subordinatecourts31

99

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

51 Ethical education

100

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 publics trust

and confidence in government by demonstrating

the highest standards of professional

competence efficiency and effectiveness

101

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

102

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

103

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

104

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 assets32 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

52 Use of technology

105

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 peoplersquos 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 lsquoThe Law of

Civil Procedurersquo first edition 2006 volume 1

page iii that

106

ldquoFor 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 lawyerrdquo However

the corruption of the court staff and the

offices of the civil servants can be controlled

easily by using technology ie 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

107

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

108

53 Check and balance

The theory of separation of powers was given by

the Charles-Louis de Secondat baron de La Bregravede

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 lsquothe spirit of

lawsrsquo that

lsquoI have not drawn my principles from my

prejudices but from the nature of thingsrdquo 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

109

Conclusion

In conclusion it can be reminded that 3rd

paragraph of the preamble of our constitution

provides that

lsquoFurther 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 citizensrsquo

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

110

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 p1 see also Mahmudul Islam-

Constitutional law of Bangladesh second edition

p1

2 httpenwikipediaorgwikiConstitution

111

3 httplegal-

dictionarythefreedictionarycomconstitution

4 httpwwwthefreedictionarycomframework

5 httpwwwmacmillandictionarycomdictionarybri

tishframework

6 httpwwwegyankoshacinbitstream

7 httpwwwbanglapediaorghttpdocsHTE_0079HTM

8 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

9 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

10 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

11 httpwwwbpscgovbd2011

12 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

13 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

14 httpwwwrhdgovbdRulesAndRegulationsView_Ov

erviewaspRef=A

112

15 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

16 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

17 wwwforbescomprofilejulian-assange

18 httpwwwti-bangladeshorgresearchES_PSCpdf

19 httpwwwnapsipagorgPDFABDUL_WAHHABpdf see

also Khan Akbar Ali and Kazi Rakibuddin Ahmad

March 2008 ldquoQuota System for Civil Service

Recruitment in Bangladesh An Exploratory

Analysisrdquo 2008 available at http

wwwbpscgovbddocuments news25906 newsdoc

20 Mahmudul Islam- Constitutional law of Bangladesh

second edition p171 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 p171 see also Indra Sawhney v

India AIR 1993 SC 477

113

22 httpwwwmopagovbdindexphpoption=com_conte

ntamptask=viewampid=377ampItemid=419

23 httpwwwvsrhhrCustomPagesStaticHRVFilesL

egislation__Civil-Servants-Actpdf

24 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

25 httptraininganddevelopmentnaukrihubcomtrain

inghtml

26 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

27 httpsiteresourcesworldbankorgPUBLICSECTORAN

DGOVERNANCEResourcesAccountabilityGovernancepd

f

28 httpwwwjscbdorgbdb_functionphp

29 httpwwwigsbracuacbdUserFilesFilearchive

_fileJudiciary_Policy_Notepdf

30 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

114

31 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

32 httpwwwoecdorgdataoecd625735521740pdf

Page 67: The constitutional framework of public administration in bangladesh

67

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 ldquothough 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 art29 (1) amp29(2) it merely confers an

enabling power But as it an exception to the

guarantee of art29 (1) amp29(2) it should not be

68

interpreted or given effect to in such a way as

to nullify the guarantee under art29 (1)

amp29(2) The Indian Supreme Court held that

reservation in excess of 50 would be

unconstitutional20

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 lsquonotrsquo and hence ldquowe are to consider

the meaning of lsquobackward sectionrsquo Art 29 is

comparable with art16 of the Indian

Constitution which uses the expression lsquobackward

classrsquo where as the expression used in art

29(3) is backward section The Indian Supreme

Court has interpreted the expression lsquobackward

classrsquo in several decisions Those decisions may

69

be helpful but not decisive in interpreting

lsquobackward sectionrsquo 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

70

33 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 statusetc)22

But unfortunately

there is no hard and fast and transparent

principle for doing the transfer of the civil

71

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 workplace23

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 ie what quality is considered is to

72

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

73

determined and if it is taken or done there

will be no request or lobby for the transfer and

harassment

34 Promotion procedure and

recommendation

The word lsquopromotionrsquo 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

Bangladesh24

74

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

75

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

76

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

77

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

35 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

Itrsquos not what you want in life but itrsquos

knowing how to reach it

78

Itrsquos not where you want to go but itrsquos knowing

how to get there

Itrsquos not how high you want to rise but itrsquos

knowing how to take off

It may not be quite the outcome you were aiming

for but it will be an outcome

Itrsquos not what you dream of doing but itrsquos

having the knowledge to do it

Its not a set of goals but itrsquos more like a

vision

79

Itrsquos not the goal you set but itrsquos 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 Departments26

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

80

Recommendation

Training should be given to the civil servants

for realizing the matter that embodied in art21

(2) of the Constitution of the Peoplersquos 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

36 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

81

said word lsquoaccountability 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 ldquowatchdogrdquo units to scrutinize

and hold departments accountable legitimacy of

82

these commissions is built upon their

independence as it avoids any conflicts of

interests27

There are various types of accountability ie

(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

lsquoParliaments are key actors in what has

been termed the lsquochain of

83

accountabilityrsquo 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 lsquosociety driven horizontal

84

accountabilityrsquo 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 ndashno

matter how defined ndash parliaments are one

of the institutions through which

diagonal accountability can be

exercisedrsquo27

However the civil servants should be

accountable by any or all means of

accountability

85

4 Judicial Service of Bangladesh

41 Legal framework

Article 137 of the Constitution also deals with

the term lsquolegal frameworkrsquo 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

itsrsquo judgment passed in Civil Appeal no79 of

1999 commonly known in the Masder Hossainrsquos case

that-

ldquoIt is declared that the word ldquoappointmentsrdquo 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

86

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

ldquoBangladesh Judicial Service Commission has been

established in 2007 by the rule lsquo বাংলােদশ

জিডিসয়াল সািভস কিমশন িবিধমালা ২০০৭ rsquo ie

87

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

88

Law Faculty of any one of three leading public

university ie 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 Secretariatrdquo 28

42 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

89

voice According to Rule 5 of OgraveevsjvDagger`k RywWwmqvj

mvwfcopyDaggermi cOumlDaggerek cDagger` wbDaggerqvM welqK AvDagger`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

90

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 32 are applicable with equitable

equality

43 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

91

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 33 is

applicable with equitable equality

44 Promotion procedure and recommendations

The promotion of sub-ordinate Courtrsquos judges are

in fact depended on the Annual Confidential

92

Reports (ACRs) There is no examination system

for getting the promotion in the sub-

ordinate judiciary

lsquoPresently 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

93

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 linersquo29

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-

ldquoConfidential reports should set out distinctly

and tersely sufficient particulars and it is

essential that they should be clear and definite

94

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 Divisionrdquo 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

95

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 34 is

applicable with equitable equality

45 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

96

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 skills30

Recommendation

The quality of training provided by JATI should

be improved A training need- assessment of the

subordinate court judges could be undertaken

97

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

98

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

subordinatecourts31

99

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

51 Ethical education

100

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 publics trust

and confidence in government by demonstrating

the highest standards of professional

competence efficiency and effectiveness

101

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

102

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

103

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

104

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 assets32 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

52 Use of technology

105

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 peoplersquos 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 lsquoThe Law of

Civil Procedurersquo first edition 2006 volume 1

page iii that

106

ldquoFor 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 lawyerrdquo However

the corruption of the court staff and the

offices of the civil servants can be controlled

easily by using technology ie 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

107

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

108

53 Check and balance

The theory of separation of powers was given by

the Charles-Louis de Secondat baron de La Bregravede

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 lsquothe spirit of

lawsrsquo that

lsquoI have not drawn my principles from my

prejudices but from the nature of thingsrdquo 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

109

Conclusion

In conclusion it can be reminded that 3rd

paragraph of the preamble of our constitution

provides that

lsquoFurther 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 citizensrsquo

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

110

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 p1 see also Mahmudul Islam-

Constitutional law of Bangladesh second edition

p1

2 httpenwikipediaorgwikiConstitution

111

3 httplegal-

dictionarythefreedictionarycomconstitution

4 httpwwwthefreedictionarycomframework

5 httpwwwmacmillandictionarycomdictionarybri

tishframework

6 httpwwwegyankoshacinbitstream

7 httpwwwbanglapediaorghttpdocsHTE_0079HTM

8 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

9 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

10 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

11 httpwwwbpscgovbd2011

12 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

13 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

14 httpwwwrhdgovbdRulesAndRegulationsView_Ov

erviewaspRef=A

112

15 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

16 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

17 wwwforbescomprofilejulian-assange

18 httpwwwti-bangladeshorgresearchES_PSCpdf

19 httpwwwnapsipagorgPDFABDUL_WAHHABpdf see

also Khan Akbar Ali and Kazi Rakibuddin Ahmad

March 2008 ldquoQuota System for Civil Service

Recruitment in Bangladesh An Exploratory

Analysisrdquo 2008 available at http

wwwbpscgovbddocuments news25906 newsdoc

20 Mahmudul Islam- Constitutional law of Bangladesh

second edition p171 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 p171 see also Indra Sawhney v

India AIR 1993 SC 477

113

22 httpwwwmopagovbdindexphpoption=com_conte

ntamptask=viewampid=377ampItemid=419

23 httpwwwvsrhhrCustomPagesStaticHRVFilesL

egislation__Civil-Servants-Actpdf

24 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

25 httptraininganddevelopmentnaukrihubcomtrain

inghtml

26 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

27 httpsiteresourcesworldbankorgPUBLICSECTORAN

DGOVERNANCEResourcesAccountabilityGovernancepd

f

28 httpwwwjscbdorgbdb_functionphp

29 httpwwwigsbracuacbdUserFilesFilearchive

_fileJudiciary_Policy_Notepdf

30 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

114

31 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

32 httpwwwoecdorgdataoecd625735521740pdf

Page 68: The constitutional framework of public administration in bangladesh

68

interpreted or given effect to in such a way as

to nullify the guarantee under art29 (1)

amp29(2) The Indian Supreme Court held that

reservation in excess of 50 would be

unconstitutional20

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 lsquonotrsquo and hence ldquowe are to consider

the meaning of lsquobackward sectionrsquo Art 29 is

comparable with art16 of the Indian

Constitution which uses the expression lsquobackward

classrsquo where as the expression used in art

29(3) is backward section The Indian Supreme

Court has interpreted the expression lsquobackward

classrsquo in several decisions Those decisions may

69

be helpful but not decisive in interpreting

lsquobackward sectionrsquo 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

70

33 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 statusetc)22

But unfortunately

there is no hard and fast and transparent

principle for doing the transfer of the civil

71

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 workplace23

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 ie what quality is considered is to

72

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

73

determined and if it is taken or done there

will be no request or lobby for the transfer and

harassment

34 Promotion procedure and

recommendation

The word lsquopromotionrsquo 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

Bangladesh24

74

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

75

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

76

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

77

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

35 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

Itrsquos not what you want in life but itrsquos

knowing how to reach it

78

Itrsquos not where you want to go but itrsquos knowing

how to get there

Itrsquos not how high you want to rise but itrsquos

knowing how to take off

It may not be quite the outcome you were aiming

for but it will be an outcome

Itrsquos not what you dream of doing but itrsquos

having the knowledge to do it

Its not a set of goals but itrsquos more like a

vision

79

Itrsquos not the goal you set but itrsquos 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 Departments26

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

80

Recommendation

Training should be given to the civil servants

for realizing the matter that embodied in art21

(2) of the Constitution of the Peoplersquos 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

36 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

81

said word lsquoaccountability 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 ldquowatchdogrdquo units to scrutinize

and hold departments accountable legitimacy of

82

these commissions is built upon their

independence as it avoids any conflicts of

interests27

There are various types of accountability ie

(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

lsquoParliaments are key actors in what has

been termed the lsquochain of

83

accountabilityrsquo 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 lsquosociety driven horizontal

84

accountabilityrsquo 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 ndashno

matter how defined ndash parliaments are one

of the institutions through which

diagonal accountability can be

exercisedrsquo27

However the civil servants should be

accountable by any or all means of

accountability

85

4 Judicial Service of Bangladesh

41 Legal framework

Article 137 of the Constitution also deals with

the term lsquolegal frameworkrsquo 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

itsrsquo judgment passed in Civil Appeal no79 of

1999 commonly known in the Masder Hossainrsquos case

that-

ldquoIt is declared that the word ldquoappointmentsrdquo 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

86

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

ldquoBangladesh Judicial Service Commission has been

established in 2007 by the rule lsquo বাংলােদশ

জিডিসয়াল সািভস কিমশন িবিধমালা ২০০৭ rsquo ie

87

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

88

Law Faculty of any one of three leading public

university ie 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 Secretariatrdquo 28

42 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

89

voice According to Rule 5 of OgraveevsjvDagger`k RywWwmqvj

mvwfcopyDaggermi cOumlDaggerek cDagger` wbDaggerqvM welqK AvDagger`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

90

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 32 are applicable with equitable

equality

43 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

91

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 33 is

applicable with equitable equality

44 Promotion procedure and recommendations

The promotion of sub-ordinate Courtrsquos judges are

in fact depended on the Annual Confidential

92

Reports (ACRs) There is no examination system

for getting the promotion in the sub-

ordinate judiciary

lsquoPresently 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

93

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 linersquo29

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-

ldquoConfidential reports should set out distinctly

and tersely sufficient particulars and it is

essential that they should be clear and definite

94

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 Divisionrdquo 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

95

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 34 is

applicable with equitable equality

45 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

96

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 skills30

Recommendation

The quality of training provided by JATI should

be improved A training need- assessment of the

subordinate court judges could be undertaken

97

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

98

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

subordinatecourts31

99

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

51 Ethical education

100

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 publics trust

and confidence in government by demonstrating

the highest standards of professional

competence efficiency and effectiveness

101

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

102

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

103

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

104

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 assets32 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

52 Use of technology

105

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 peoplersquos 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 lsquoThe Law of

Civil Procedurersquo first edition 2006 volume 1

page iii that

106

ldquoFor 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 lawyerrdquo However

the corruption of the court staff and the

offices of the civil servants can be controlled

easily by using technology ie 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

107

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

108

53 Check and balance

The theory of separation of powers was given by

the Charles-Louis de Secondat baron de La Bregravede

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 lsquothe spirit of

lawsrsquo that

lsquoI have not drawn my principles from my

prejudices but from the nature of thingsrdquo 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

109

Conclusion

In conclusion it can be reminded that 3rd

paragraph of the preamble of our constitution

provides that

lsquoFurther 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 citizensrsquo

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

110

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 p1 see also Mahmudul Islam-

Constitutional law of Bangladesh second edition

p1

2 httpenwikipediaorgwikiConstitution

111

3 httplegal-

dictionarythefreedictionarycomconstitution

4 httpwwwthefreedictionarycomframework

5 httpwwwmacmillandictionarycomdictionarybri

tishframework

6 httpwwwegyankoshacinbitstream

7 httpwwwbanglapediaorghttpdocsHTE_0079HTM

8 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

9 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

10 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

11 httpwwwbpscgovbd2011

12 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

13 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

14 httpwwwrhdgovbdRulesAndRegulationsView_Ov

erviewaspRef=A

112

15 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

16 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

17 wwwforbescomprofilejulian-assange

18 httpwwwti-bangladeshorgresearchES_PSCpdf

19 httpwwwnapsipagorgPDFABDUL_WAHHABpdf see

also Khan Akbar Ali and Kazi Rakibuddin Ahmad

March 2008 ldquoQuota System for Civil Service

Recruitment in Bangladesh An Exploratory

Analysisrdquo 2008 available at http

wwwbpscgovbddocuments news25906 newsdoc

20 Mahmudul Islam- Constitutional law of Bangladesh

second edition p171 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 p171 see also Indra Sawhney v

India AIR 1993 SC 477

113

22 httpwwwmopagovbdindexphpoption=com_conte

ntamptask=viewampid=377ampItemid=419

23 httpwwwvsrhhrCustomPagesStaticHRVFilesL

egislation__Civil-Servants-Actpdf

24 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

25 httptraininganddevelopmentnaukrihubcomtrain

inghtml

26 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

27 httpsiteresourcesworldbankorgPUBLICSECTORAN

DGOVERNANCEResourcesAccountabilityGovernancepd

f

28 httpwwwjscbdorgbdb_functionphp

29 httpwwwigsbracuacbdUserFilesFilearchive

_fileJudiciary_Policy_Notepdf

30 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

114

31 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

32 httpwwwoecdorgdataoecd625735521740pdf

Page 69: The constitutional framework of public administration in bangladesh

69

be helpful but not decisive in interpreting

lsquobackward sectionrsquo 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

70

33 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 statusetc)22

But unfortunately

there is no hard and fast and transparent

principle for doing the transfer of the civil

71

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 workplace23

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 ie what quality is considered is to

72

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

73

determined and if it is taken or done there

will be no request or lobby for the transfer and

harassment

34 Promotion procedure and

recommendation

The word lsquopromotionrsquo 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

Bangladesh24

74

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

75

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

76

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

77

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

35 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

Itrsquos not what you want in life but itrsquos

knowing how to reach it

78

Itrsquos not where you want to go but itrsquos knowing

how to get there

Itrsquos not how high you want to rise but itrsquos

knowing how to take off

It may not be quite the outcome you were aiming

for but it will be an outcome

Itrsquos not what you dream of doing but itrsquos

having the knowledge to do it

Its not a set of goals but itrsquos more like a

vision

79

Itrsquos not the goal you set but itrsquos 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 Departments26

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

80

Recommendation

Training should be given to the civil servants

for realizing the matter that embodied in art21

(2) of the Constitution of the Peoplersquos 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

36 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

81

said word lsquoaccountability 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 ldquowatchdogrdquo units to scrutinize

and hold departments accountable legitimacy of

82

these commissions is built upon their

independence as it avoids any conflicts of

interests27

There are various types of accountability ie

(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

lsquoParliaments are key actors in what has

been termed the lsquochain of

83

accountabilityrsquo 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 lsquosociety driven horizontal

84

accountabilityrsquo 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 ndashno

matter how defined ndash parliaments are one

of the institutions through which

diagonal accountability can be

exercisedrsquo27

However the civil servants should be

accountable by any or all means of

accountability

85

4 Judicial Service of Bangladesh

41 Legal framework

Article 137 of the Constitution also deals with

the term lsquolegal frameworkrsquo 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

itsrsquo judgment passed in Civil Appeal no79 of

1999 commonly known in the Masder Hossainrsquos case

that-

ldquoIt is declared that the word ldquoappointmentsrdquo 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

86

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

ldquoBangladesh Judicial Service Commission has been

established in 2007 by the rule lsquo বাংলােদশ

জিডিসয়াল সািভস কিমশন িবিধমালা ২০০৭ rsquo ie

87

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

88

Law Faculty of any one of three leading public

university ie 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 Secretariatrdquo 28

42 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

89

voice According to Rule 5 of OgraveevsjvDagger`k RywWwmqvj

mvwfcopyDaggermi cOumlDaggerek cDagger` wbDaggerqvM welqK AvDagger`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

90

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 32 are applicable with equitable

equality

43 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

91

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 33 is

applicable with equitable equality

44 Promotion procedure and recommendations

The promotion of sub-ordinate Courtrsquos judges are

in fact depended on the Annual Confidential

92

Reports (ACRs) There is no examination system

for getting the promotion in the sub-

ordinate judiciary

lsquoPresently 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

93

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 linersquo29

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-

ldquoConfidential reports should set out distinctly

and tersely sufficient particulars and it is

essential that they should be clear and definite

94

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 Divisionrdquo 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

95

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 34 is

applicable with equitable equality

45 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

96

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 skills30

Recommendation

The quality of training provided by JATI should

be improved A training need- assessment of the

subordinate court judges could be undertaken

97

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

98

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

subordinatecourts31

99

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

51 Ethical education

100

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 publics trust

and confidence in government by demonstrating

the highest standards of professional

competence efficiency and effectiveness

101

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

102

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

103

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

104

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 assets32 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

52 Use of technology

105

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 peoplersquos 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 lsquoThe Law of

Civil Procedurersquo first edition 2006 volume 1

page iii that

106

ldquoFor 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 lawyerrdquo However

the corruption of the court staff and the

offices of the civil servants can be controlled

easily by using technology ie 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

107

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

108

53 Check and balance

The theory of separation of powers was given by

the Charles-Louis de Secondat baron de La Bregravede

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 lsquothe spirit of

lawsrsquo that

lsquoI have not drawn my principles from my

prejudices but from the nature of thingsrdquo 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

109

Conclusion

In conclusion it can be reminded that 3rd

paragraph of the preamble of our constitution

provides that

lsquoFurther 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 citizensrsquo

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

110

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 p1 see also Mahmudul Islam-

Constitutional law of Bangladesh second edition

p1

2 httpenwikipediaorgwikiConstitution

111

3 httplegal-

dictionarythefreedictionarycomconstitution

4 httpwwwthefreedictionarycomframework

5 httpwwwmacmillandictionarycomdictionarybri

tishframework

6 httpwwwegyankoshacinbitstream

7 httpwwwbanglapediaorghttpdocsHTE_0079HTM

8 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

9 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

10 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

11 httpwwwbpscgovbd2011

12 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

13 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

14 httpwwwrhdgovbdRulesAndRegulationsView_Ov

erviewaspRef=A

112

15 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

16 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

17 wwwforbescomprofilejulian-assange

18 httpwwwti-bangladeshorgresearchES_PSCpdf

19 httpwwwnapsipagorgPDFABDUL_WAHHABpdf see

also Khan Akbar Ali and Kazi Rakibuddin Ahmad

March 2008 ldquoQuota System for Civil Service

Recruitment in Bangladesh An Exploratory

Analysisrdquo 2008 available at http

wwwbpscgovbddocuments news25906 newsdoc

20 Mahmudul Islam- Constitutional law of Bangladesh

second edition p171 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 p171 see also Indra Sawhney v

India AIR 1993 SC 477

113

22 httpwwwmopagovbdindexphpoption=com_conte

ntamptask=viewampid=377ampItemid=419

23 httpwwwvsrhhrCustomPagesStaticHRVFilesL

egislation__Civil-Servants-Actpdf

24 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

25 httptraininganddevelopmentnaukrihubcomtrain

inghtml

26 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

27 httpsiteresourcesworldbankorgPUBLICSECTORAN

DGOVERNANCEResourcesAccountabilityGovernancepd

f

28 httpwwwjscbdorgbdb_functionphp

29 httpwwwigsbracuacbdUserFilesFilearchive

_fileJudiciary_Policy_Notepdf

30 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

114

31 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

32 httpwwwoecdorgdataoecd625735521740pdf

Page 70: The constitutional framework of public administration in bangladesh

70

33 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 statusetc)22

But unfortunately

there is no hard and fast and transparent

principle for doing the transfer of the civil

71

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 workplace23

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 ie what quality is considered is to

72

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

73

determined and if it is taken or done there

will be no request or lobby for the transfer and

harassment

34 Promotion procedure and

recommendation

The word lsquopromotionrsquo 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

Bangladesh24

74

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

75

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

76

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

77

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

35 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

Itrsquos not what you want in life but itrsquos

knowing how to reach it

78

Itrsquos not where you want to go but itrsquos knowing

how to get there

Itrsquos not how high you want to rise but itrsquos

knowing how to take off

It may not be quite the outcome you were aiming

for but it will be an outcome

Itrsquos not what you dream of doing but itrsquos

having the knowledge to do it

Its not a set of goals but itrsquos more like a

vision

79

Itrsquos not the goal you set but itrsquos 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 Departments26

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

80

Recommendation

Training should be given to the civil servants

for realizing the matter that embodied in art21

(2) of the Constitution of the Peoplersquos 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

36 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

81

said word lsquoaccountability 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 ldquowatchdogrdquo units to scrutinize

and hold departments accountable legitimacy of

82

these commissions is built upon their

independence as it avoids any conflicts of

interests27

There are various types of accountability ie

(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

lsquoParliaments are key actors in what has

been termed the lsquochain of

83

accountabilityrsquo 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 lsquosociety driven horizontal

84

accountabilityrsquo 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 ndashno

matter how defined ndash parliaments are one

of the institutions through which

diagonal accountability can be

exercisedrsquo27

However the civil servants should be

accountable by any or all means of

accountability

85

4 Judicial Service of Bangladesh

41 Legal framework

Article 137 of the Constitution also deals with

the term lsquolegal frameworkrsquo 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

itsrsquo judgment passed in Civil Appeal no79 of

1999 commonly known in the Masder Hossainrsquos case

that-

ldquoIt is declared that the word ldquoappointmentsrdquo 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

86

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

ldquoBangladesh Judicial Service Commission has been

established in 2007 by the rule lsquo বাংলােদশ

জিডিসয়াল সািভস কিমশন িবিধমালা ২০০৭ rsquo ie

87

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

88

Law Faculty of any one of three leading public

university ie 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 Secretariatrdquo 28

42 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

89

voice According to Rule 5 of OgraveevsjvDagger`k RywWwmqvj

mvwfcopyDaggermi cOumlDaggerek cDagger` wbDaggerqvM welqK AvDagger`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

90

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 32 are applicable with equitable

equality

43 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

91

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 33 is

applicable with equitable equality

44 Promotion procedure and recommendations

The promotion of sub-ordinate Courtrsquos judges are

in fact depended on the Annual Confidential

92

Reports (ACRs) There is no examination system

for getting the promotion in the sub-

ordinate judiciary

lsquoPresently 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

93

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 linersquo29

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-

ldquoConfidential reports should set out distinctly

and tersely sufficient particulars and it is

essential that they should be clear and definite

94

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 Divisionrdquo 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

95

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 34 is

applicable with equitable equality

45 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

96

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 skills30

Recommendation

The quality of training provided by JATI should

be improved A training need- assessment of the

subordinate court judges could be undertaken

97

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

98

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

subordinatecourts31

99

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

51 Ethical education

100

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 publics trust

and confidence in government by demonstrating

the highest standards of professional

competence efficiency and effectiveness

101

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

102

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

103

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

104

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 assets32 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

52 Use of technology

105

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 peoplersquos 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 lsquoThe Law of

Civil Procedurersquo first edition 2006 volume 1

page iii that

106

ldquoFor 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 lawyerrdquo However

the corruption of the court staff and the

offices of the civil servants can be controlled

easily by using technology ie 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

107

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

108

53 Check and balance

The theory of separation of powers was given by

the Charles-Louis de Secondat baron de La Bregravede

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 lsquothe spirit of

lawsrsquo that

lsquoI have not drawn my principles from my

prejudices but from the nature of thingsrdquo 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

109

Conclusion

In conclusion it can be reminded that 3rd

paragraph of the preamble of our constitution

provides that

lsquoFurther 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 citizensrsquo

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

110

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 p1 see also Mahmudul Islam-

Constitutional law of Bangladesh second edition

p1

2 httpenwikipediaorgwikiConstitution

111

3 httplegal-

dictionarythefreedictionarycomconstitution

4 httpwwwthefreedictionarycomframework

5 httpwwwmacmillandictionarycomdictionarybri

tishframework

6 httpwwwegyankoshacinbitstream

7 httpwwwbanglapediaorghttpdocsHTE_0079HTM

8 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

9 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

10 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

11 httpwwwbpscgovbd2011

12 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

13 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

14 httpwwwrhdgovbdRulesAndRegulationsView_Ov

erviewaspRef=A

112

15 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

16 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

17 wwwforbescomprofilejulian-assange

18 httpwwwti-bangladeshorgresearchES_PSCpdf

19 httpwwwnapsipagorgPDFABDUL_WAHHABpdf see

also Khan Akbar Ali and Kazi Rakibuddin Ahmad

March 2008 ldquoQuota System for Civil Service

Recruitment in Bangladesh An Exploratory

Analysisrdquo 2008 available at http

wwwbpscgovbddocuments news25906 newsdoc

20 Mahmudul Islam- Constitutional law of Bangladesh

second edition p171 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 p171 see also Indra Sawhney v

India AIR 1993 SC 477

113

22 httpwwwmopagovbdindexphpoption=com_conte

ntamptask=viewampid=377ampItemid=419

23 httpwwwvsrhhrCustomPagesStaticHRVFilesL

egislation__Civil-Servants-Actpdf

24 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

25 httptraininganddevelopmentnaukrihubcomtrain

inghtml

26 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

27 httpsiteresourcesworldbankorgPUBLICSECTORAN

DGOVERNANCEResourcesAccountabilityGovernancepd

f

28 httpwwwjscbdorgbdb_functionphp

29 httpwwwigsbracuacbdUserFilesFilearchive

_fileJudiciary_Policy_Notepdf

30 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

114

31 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

32 httpwwwoecdorgdataoecd625735521740pdf

Page 71: The constitutional framework of public administration in bangladesh

71

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 workplace23

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 ie what quality is considered is to

72

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

73

determined and if it is taken or done there

will be no request or lobby for the transfer and

harassment

34 Promotion procedure and

recommendation

The word lsquopromotionrsquo 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

Bangladesh24

74

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

75

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

76

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

77

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

35 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

Itrsquos not what you want in life but itrsquos

knowing how to reach it

78

Itrsquos not where you want to go but itrsquos knowing

how to get there

Itrsquos not how high you want to rise but itrsquos

knowing how to take off

It may not be quite the outcome you were aiming

for but it will be an outcome

Itrsquos not what you dream of doing but itrsquos

having the knowledge to do it

Its not a set of goals but itrsquos more like a

vision

79

Itrsquos not the goal you set but itrsquos 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 Departments26

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

80

Recommendation

Training should be given to the civil servants

for realizing the matter that embodied in art21

(2) of the Constitution of the Peoplersquos 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

36 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

81

said word lsquoaccountability 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 ldquowatchdogrdquo units to scrutinize

and hold departments accountable legitimacy of

82

these commissions is built upon their

independence as it avoids any conflicts of

interests27

There are various types of accountability ie

(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

lsquoParliaments are key actors in what has

been termed the lsquochain of

83

accountabilityrsquo 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 lsquosociety driven horizontal

84

accountabilityrsquo 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 ndashno

matter how defined ndash parliaments are one

of the institutions through which

diagonal accountability can be

exercisedrsquo27

However the civil servants should be

accountable by any or all means of

accountability

85

4 Judicial Service of Bangladesh

41 Legal framework

Article 137 of the Constitution also deals with

the term lsquolegal frameworkrsquo 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

itsrsquo judgment passed in Civil Appeal no79 of

1999 commonly known in the Masder Hossainrsquos case

that-

ldquoIt is declared that the word ldquoappointmentsrdquo 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

86

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

ldquoBangladesh Judicial Service Commission has been

established in 2007 by the rule lsquo বাংলােদশ

জিডিসয়াল সািভস কিমশন িবিধমালা ২০০৭ rsquo ie

87

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

88

Law Faculty of any one of three leading public

university ie 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 Secretariatrdquo 28

42 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

89

voice According to Rule 5 of OgraveevsjvDagger`k RywWwmqvj

mvwfcopyDaggermi cOumlDaggerek cDagger` wbDaggerqvM welqK AvDagger`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

90

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 32 are applicable with equitable

equality

43 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

91

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 33 is

applicable with equitable equality

44 Promotion procedure and recommendations

The promotion of sub-ordinate Courtrsquos judges are

in fact depended on the Annual Confidential

92

Reports (ACRs) There is no examination system

for getting the promotion in the sub-

ordinate judiciary

lsquoPresently 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

93

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 linersquo29

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-

ldquoConfidential reports should set out distinctly

and tersely sufficient particulars and it is

essential that they should be clear and definite

94

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 Divisionrdquo 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

95

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 34 is

applicable with equitable equality

45 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

96

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 skills30

Recommendation

The quality of training provided by JATI should

be improved A training need- assessment of the

subordinate court judges could be undertaken

97

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

98

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

subordinatecourts31

99

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

51 Ethical education

100

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 publics trust

and confidence in government by demonstrating

the highest standards of professional

competence efficiency and effectiveness

101

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

102

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

103

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

104

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 assets32 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

52 Use of technology

105

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 peoplersquos 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 lsquoThe Law of

Civil Procedurersquo first edition 2006 volume 1

page iii that

106

ldquoFor 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 lawyerrdquo However

the corruption of the court staff and the

offices of the civil servants can be controlled

easily by using technology ie 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

107

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

108

53 Check and balance

The theory of separation of powers was given by

the Charles-Louis de Secondat baron de La Bregravede

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 lsquothe spirit of

lawsrsquo that

lsquoI have not drawn my principles from my

prejudices but from the nature of thingsrdquo 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

109

Conclusion

In conclusion it can be reminded that 3rd

paragraph of the preamble of our constitution

provides that

lsquoFurther 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 citizensrsquo

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

110

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 p1 see also Mahmudul Islam-

Constitutional law of Bangladesh second edition

p1

2 httpenwikipediaorgwikiConstitution

111

3 httplegal-

dictionarythefreedictionarycomconstitution

4 httpwwwthefreedictionarycomframework

5 httpwwwmacmillandictionarycomdictionarybri

tishframework

6 httpwwwegyankoshacinbitstream

7 httpwwwbanglapediaorghttpdocsHTE_0079HTM

8 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

9 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

10 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

11 httpwwwbpscgovbd2011

12 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

13 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

14 httpwwwrhdgovbdRulesAndRegulationsView_Ov

erviewaspRef=A

112

15 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

16 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

17 wwwforbescomprofilejulian-assange

18 httpwwwti-bangladeshorgresearchES_PSCpdf

19 httpwwwnapsipagorgPDFABDUL_WAHHABpdf see

also Khan Akbar Ali and Kazi Rakibuddin Ahmad

March 2008 ldquoQuota System for Civil Service

Recruitment in Bangladesh An Exploratory

Analysisrdquo 2008 available at http

wwwbpscgovbddocuments news25906 newsdoc

20 Mahmudul Islam- Constitutional law of Bangladesh

second edition p171 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 p171 see also Indra Sawhney v

India AIR 1993 SC 477

113

22 httpwwwmopagovbdindexphpoption=com_conte

ntamptask=viewampid=377ampItemid=419

23 httpwwwvsrhhrCustomPagesStaticHRVFilesL

egislation__Civil-Servants-Actpdf

24 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

25 httptraininganddevelopmentnaukrihubcomtrain

inghtml

26 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

27 httpsiteresourcesworldbankorgPUBLICSECTORAN

DGOVERNANCEResourcesAccountabilityGovernancepd

f

28 httpwwwjscbdorgbdb_functionphp

29 httpwwwigsbracuacbdUserFilesFilearchive

_fileJudiciary_Policy_Notepdf

30 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

114

31 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

32 httpwwwoecdorgdataoecd625735521740pdf

Page 72: The constitutional framework of public administration in bangladesh

72

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

73

determined and if it is taken or done there

will be no request or lobby for the transfer and

harassment

34 Promotion procedure and

recommendation

The word lsquopromotionrsquo 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

Bangladesh24

74

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

75

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

76

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

77

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

35 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

Itrsquos not what you want in life but itrsquos

knowing how to reach it

78

Itrsquos not where you want to go but itrsquos knowing

how to get there

Itrsquos not how high you want to rise but itrsquos

knowing how to take off

It may not be quite the outcome you were aiming

for but it will be an outcome

Itrsquos not what you dream of doing but itrsquos

having the knowledge to do it

Its not a set of goals but itrsquos more like a

vision

79

Itrsquos not the goal you set but itrsquos 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 Departments26

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

80

Recommendation

Training should be given to the civil servants

for realizing the matter that embodied in art21

(2) of the Constitution of the Peoplersquos 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

36 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

81

said word lsquoaccountability 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 ldquowatchdogrdquo units to scrutinize

and hold departments accountable legitimacy of

82

these commissions is built upon their

independence as it avoids any conflicts of

interests27

There are various types of accountability ie

(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

lsquoParliaments are key actors in what has

been termed the lsquochain of

83

accountabilityrsquo 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 lsquosociety driven horizontal

84

accountabilityrsquo 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 ndashno

matter how defined ndash parliaments are one

of the institutions through which

diagonal accountability can be

exercisedrsquo27

However the civil servants should be

accountable by any or all means of

accountability

85

4 Judicial Service of Bangladesh

41 Legal framework

Article 137 of the Constitution also deals with

the term lsquolegal frameworkrsquo 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

itsrsquo judgment passed in Civil Appeal no79 of

1999 commonly known in the Masder Hossainrsquos case

that-

ldquoIt is declared that the word ldquoappointmentsrdquo 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

86

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

ldquoBangladesh Judicial Service Commission has been

established in 2007 by the rule lsquo বাংলােদশ

জিডিসয়াল সািভস কিমশন িবিধমালা ২০০৭ rsquo ie

87

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

88

Law Faculty of any one of three leading public

university ie 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 Secretariatrdquo 28

42 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

89

voice According to Rule 5 of OgraveevsjvDagger`k RywWwmqvj

mvwfcopyDaggermi cOumlDaggerek cDagger` wbDaggerqvM welqK AvDagger`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

90

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 32 are applicable with equitable

equality

43 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

91

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 33 is

applicable with equitable equality

44 Promotion procedure and recommendations

The promotion of sub-ordinate Courtrsquos judges are

in fact depended on the Annual Confidential

92

Reports (ACRs) There is no examination system

for getting the promotion in the sub-

ordinate judiciary

lsquoPresently 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

93

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 linersquo29

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-

ldquoConfidential reports should set out distinctly

and tersely sufficient particulars and it is

essential that they should be clear and definite

94

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 Divisionrdquo 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

95

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 34 is

applicable with equitable equality

45 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

96

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 skills30

Recommendation

The quality of training provided by JATI should

be improved A training need- assessment of the

subordinate court judges could be undertaken

97

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

98

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

subordinatecourts31

99

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

51 Ethical education

100

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 publics trust

and confidence in government by demonstrating

the highest standards of professional

competence efficiency and effectiveness

101

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

102

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

103

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

104

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 assets32 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

52 Use of technology

105

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 peoplersquos 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 lsquoThe Law of

Civil Procedurersquo first edition 2006 volume 1

page iii that

106

ldquoFor 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 lawyerrdquo However

the corruption of the court staff and the

offices of the civil servants can be controlled

easily by using technology ie 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

107

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

108

53 Check and balance

The theory of separation of powers was given by

the Charles-Louis de Secondat baron de La Bregravede

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 lsquothe spirit of

lawsrsquo that

lsquoI have not drawn my principles from my

prejudices but from the nature of thingsrdquo 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

109

Conclusion

In conclusion it can be reminded that 3rd

paragraph of the preamble of our constitution

provides that

lsquoFurther 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 citizensrsquo

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

110

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 p1 see also Mahmudul Islam-

Constitutional law of Bangladesh second edition

p1

2 httpenwikipediaorgwikiConstitution

111

3 httplegal-

dictionarythefreedictionarycomconstitution

4 httpwwwthefreedictionarycomframework

5 httpwwwmacmillandictionarycomdictionarybri

tishframework

6 httpwwwegyankoshacinbitstream

7 httpwwwbanglapediaorghttpdocsHTE_0079HTM

8 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

9 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

10 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

11 httpwwwbpscgovbd2011

12 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

13 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

14 httpwwwrhdgovbdRulesAndRegulationsView_Ov

erviewaspRef=A

112

15 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

16 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

17 wwwforbescomprofilejulian-assange

18 httpwwwti-bangladeshorgresearchES_PSCpdf

19 httpwwwnapsipagorgPDFABDUL_WAHHABpdf see

also Khan Akbar Ali and Kazi Rakibuddin Ahmad

March 2008 ldquoQuota System for Civil Service

Recruitment in Bangladesh An Exploratory

Analysisrdquo 2008 available at http

wwwbpscgovbddocuments news25906 newsdoc

20 Mahmudul Islam- Constitutional law of Bangladesh

second edition p171 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 p171 see also Indra Sawhney v

India AIR 1993 SC 477

113

22 httpwwwmopagovbdindexphpoption=com_conte

ntamptask=viewampid=377ampItemid=419

23 httpwwwvsrhhrCustomPagesStaticHRVFilesL

egislation__Civil-Servants-Actpdf

24 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

25 httptraininganddevelopmentnaukrihubcomtrain

inghtml

26 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

27 httpsiteresourcesworldbankorgPUBLICSECTORAN

DGOVERNANCEResourcesAccountabilityGovernancepd

f

28 httpwwwjscbdorgbdb_functionphp

29 httpwwwigsbracuacbdUserFilesFilearchive

_fileJudiciary_Policy_Notepdf

30 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

114

31 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

32 httpwwwoecdorgdataoecd625735521740pdf

Page 73: The constitutional framework of public administration in bangladesh

73

determined and if it is taken or done there

will be no request or lobby for the transfer and

harassment

34 Promotion procedure and

recommendation

The word lsquopromotionrsquo 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

Bangladesh24

74

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

75

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

76

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

77

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

35 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

Itrsquos not what you want in life but itrsquos

knowing how to reach it

78

Itrsquos not where you want to go but itrsquos knowing

how to get there

Itrsquos not how high you want to rise but itrsquos

knowing how to take off

It may not be quite the outcome you were aiming

for but it will be an outcome

Itrsquos not what you dream of doing but itrsquos

having the knowledge to do it

Its not a set of goals but itrsquos more like a

vision

79

Itrsquos not the goal you set but itrsquos 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 Departments26

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

80

Recommendation

Training should be given to the civil servants

for realizing the matter that embodied in art21

(2) of the Constitution of the Peoplersquos 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

36 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

81

said word lsquoaccountability 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 ldquowatchdogrdquo units to scrutinize

and hold departments accountable legitimacy of

82

these commissions is built upon their

independence as it avoids any conflicts of

interests27

There are various types of accountability ie

(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

lsquoParliaments are key actors in what has

been termed the lsquochain of

83

accountabilityrsquo 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 lsquosociety driven horizontal

84

accountabilityrsquo 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 ndashno

matter how defined ndash parliaments are one

of the institutions through which

diagonal accountability can be

exercisedrsquo27

However the civil servants should be

accountable by any or all means of

accountability

85

4 Judicial Service of Bangladesh

41 Legal framework

Article 137 of the Constitution also deals with

the term lsquolegal frameworkrsquo 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

itsrsquo judgment passed in Civil Appeal no79 of

1999 commonly known in the Masder Hossainrsquos case

that-

ldquoIt is declared that the word ldquoappointmentsrdquo 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

86

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

ldquoBangladesh Judicial Service Commission has been

established in 2007 by the rule lsquo বাংলােদশ

জিডিসয়াল সািভস কিমশন িবিধমালা ২০০৭ rsquo ie

87

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

88

Law Faculty of any one of three leading public

university ie 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 Secretariatrdquo 28

42 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

89

voice According to Rule 5 of OgraveevsjvDagger`k RywWwmqvj

mvwfcopyDaggermi cOumlDaggerek cDagger` wbDaggerqvM welqK AvDagger`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

90

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 32 are applicable with equitable

equality

43 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

91

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 33 is

applicable with equitable equality

44 Promotion procedure and recommendations

The promotion of sub-ordinate Courtrsquos judges are

in fact depended on the Annual Confidential

92

Reports (ACRs) There is no examination system

for getting the promotion in the sub-

ordinate judiciary

lsquoPresently 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

93

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 linersquo29

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-

ldquoConfidential reports should set out distinctly

and tersely sufficient particulars and it is

essential that they should be clear and definite

94

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 Divisionrdquo 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

95

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 34 is

applicable with equitable equality

45 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

96

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 skills30

Recommendation

The quality of training provided by JATI should

be improved A training need- assessment of the

subordinate court judges could be undertaken

97

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

98

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

subordinatecourts31

99

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

51 Ethical education

100

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 publics trust

and confidence in government by demonstrating

the highest standards of professional

competence efficiency and effectiveness

101

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

102

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

103

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

104

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 assets32 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

52 Use of technology

105

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 peoplersquos 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 lsquoThe Law of

Civil Procedurersquo first edition 2006 volume 1

page iii that

106

ldquoFor 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 lawyerrdquo However

the corruption of the court staff and the

offices of the civil servants can be controlled

easily by using technology ie 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

107

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

108

53 Check and balance

The theory of separation of powers was given by

the Charles-Louis de Secondat baron de La Bregravede

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 lsquothe spirit of

lawsrsquo that

lsquoI have not drawn my principles from my

prejudices but from the nature of thingsrdquo 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

109

Conclusion

In conclusion it can be reminded that 3rd

paragraph of the preamble of our constitution

provides that

lsquoFurther 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 citizensrsquo

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

110

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 p1 see also Mahmudul Islam-

Constitutional law of Bangladesh second edition

p1

2 httpenwikipediaorgwikiConstitution

111

3 httplegal-

dictionarythefreedictionarycomconstitution

4 httpwwwthefreedictionarycomframework

5 httpwwwmacmillandictionarycomdictionarybri

tishframework

6 httpwwwegyankoshacinbitstream

7 httpwwwbanglapediaorghttpdocsHTE_0079HTM

8 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

9 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

10 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

11 httpwwwbpscgovbd2011

12 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

13 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

14 httpwwwrhdgovbdRulesAndRegulationsView_Ov

erviewaspRef=A

112

15 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

16 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

17 wwwforbescomprofilejulian-assange

18 httpwwwti-bangladeshorgresearchES_PSCpdf

19 httpwwwnapsipagorgPDFABDUL_WAHHABpdf see

also Khan Akbar Ali and Kazi Rakibuddin Ahmad

March 2008 ldquoQuota System for Civil Service

Recruitment in Bangladesh An Exploratory

Analysisrdquo 2008 available at http

wwwbpscgovbddocuments news25906 newsdoc

20 Mahmudul Islam- Constitutional law of Bangladesh

second edition p171 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 p171 see also Indra Sawhney v

India AIR 1993 SC 477

113

22 httpwwwmopagovbdindexphpoption=com_conte

ntamptask=viewampid=377ampItemid=419

23 httpwwwvsrhhrCustomPagesStaticHRVFilesL

egislation__Civil-Servants-Actpdf

24 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

25 httptraininganddevelopmentnaukrihubcomtrain

inghtml

26 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

27 httpsiteresourcesworldbankorgPUBLICSECTORAN

DGOVERNANCEResourcesAccountabilityGovernancepd

f

28 httpwwwjscbdorgbdb_functionphp

29 httpwwwigsbracuacbdUserFilesFilearchive

_fileJudiciary_Policy_Notepdf

30 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

114

31 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

32 httpwwwoecdorgdataoecd625735521740pdf

Page 74: The constitutional framework of public administration in bangladesh

74

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

75

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

76

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

77

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

35 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

Itrsquos not what you want in life but itrsquos

knowing how to reach it

78

Itrsquos not where you want to go but itrsquos knowing

how to get there

Itrsquos not how high you want to rise but itrsquos

knowing how to take off

It may not be quite the outcome you were aiming

for but it will be an outcome

Itrsquos not what you dream of doing but itrsquos

having the knowledge to do it

Its not a set of goals but itrsquos more like a

vision

79

Itrsquos not the goal you set but itrsquos 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 Departments26

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

80

Recommendation

Training should be given to the civil servants

for realizing the matter that embodied in art21

(2) of the Constitution of the Peoplersquos 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

36 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

81

said word lsquoaccountability 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 ldquowatchdogrdquo units to scrutinize

and hold departments accountable legitimacy of

82

these commissions is built upon their

independence as it avoids any conflicts of

interests27

There are various types of accountability ie

(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

lsquoParliaments are key actors in what has

been termed the lsquochain of

83

accountabilityrsquo 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 lsquosociety driven horizontal

84

accountabilityrsquo 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 ndashno

matter how defined ndash parliaments are one

of the institutions through which

diagonal accountability can be

exercisedrsquo27

However the civil servants should be

accountable by any or all means of

accountability

85

4 Judicial Service of Bangladesh

41 Legal framework

Article 137 of the Constitution also deals with

the term lsquolegal frameworkrsquo 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

itsrsquo judgment passed in Civil Appeal no79 of

1999 commonly known in the Masder Hossainrsquos case

that-

ldquoIt is declared that the word ldquoappointmentsrdquo 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

86

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

ldquoBangladesh Judicial Service Commission has been

established in 2007 by the rule lsquo বাংলােদশ

জিডিসয়াল সািভস কিমশন িবিধমালা ২০০৭ rsquo ie

87

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

88

Law Faculty of any one of three leading public

university ie 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 Secretariatrdquo 28

42 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

89

voice According to Rule 5 of OgraveevsjvDagger`k RywWwmqvj

mvwfcopyDaggermi cOumlDaggerek cDagger` wbDaggerqvM welqK AvDagger`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

90

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 32 are applicable with equitable

equality

43 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

91

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 33 is

applicable with equitable equality

44 Promotion procedure and recommendations

The promotion of sub-ordinate Courtrsquos judges are

in fact depended on the Annual Confidential

92

Reports (ACRs) There is no examination system

for getting the promotion in the sub-

ordinate judiciary

lsquoPresently 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

93

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 linersquo29

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-

ldquoConfidential reports should set out distinctly

and tersely sufficient particulars and it is

essential that they should be clear and definite

94

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 Divisionrdquo 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

95

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 34 is

applicable with equitable equality

45 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

96

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 skills30

Recommendation

The quality of training provided by JATI should

be improved A training need- assessment of the

subordinate court judges could be undertaken

97

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

98

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

subordinatecourts31

99

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

51 Ethical education

100

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 publics trust

and confidence in government by demonstrating

the highest standards of professional

competence efficiency and effectiveness

101

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

102

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

103

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

104

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 assets32 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

52 Use of technology

105

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 peoplersquos 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 lsquoThe Law of

Civil Procedurersquo first edition 2006 volume 1

page iii that

106

ldquoFor 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 lawyerrdquo However

the corruption of the court staff and the

offices of the civil servants can be controlled

easily by using technology ie 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

107

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

108

53 Check and balance

The theory of separation of powers was given by

the Charles-Louis de Secondat baron de La Bregravede

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 lsquothe spirit of

lawsrsquo that

lsquoI have not drawn my principles from my

prejudices but from the nature of thingsrdquo 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

109

Conclusion

In conclusion it can be reminded that 3rd

paragraph of the preamble of our constitution

provides that

lsquoFurther 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 citizensrsquo

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

110

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 p1 see also Mahmudul Islam-

Constitutional law of Bangladesh second edition

p1

2 httpenwikipediaorgwikiConstitution

111

3 httplegal-

dictionarythefreedictionarycomconstitution

4 httpwwwthefreedictionarycomframework

5 httpwwwmacmillandictionarycomdictionarybri

tishframework

6 httpwwwegyankoshacinbitstream

7 httpwwwbanglapediaorghttpdocsHTE_0079HTM

8 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

9 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

10 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

11 httpwwwbpscgovbd2011

12 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

13 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

14 httpwwwrhdgovbdRulesAndRegulationsView_Ov

erviewaspRef=A

112

15 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

16 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

17 wwwforbescomprofilejulian-assange

18 httpwwwti-bangladeshorgresearchES_PSCpdf

19 httpwwwnapsipagorgPDFABDUL_WAHHABpdf see

also Khan Akbar Ali and Kazi Rakibuddin Ahmad

March 2008 ldquoQuota System for Civil Service

Recruitment in Bangladesh An Exploratory

Analysisrdquo 2008 available at http

wwwbpscgovbddocuments news25906 newsdoc

20 Mahmudul Islam- Constitutional law of Bangladesh

second edition p171 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 p171 see also Indra Sawhney v

India AIR 1993 SC 477

113

22 httpwwwmopagovbdindexphpoption=com_conte

ntamptask=viewampid=377ampItemid=419

23 httpwwwvsrhhrCustomPagesStaticHRVFilesL

egislation__Civil-Servants-Actpdf

24 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

25 httptraininganddevelopmentnaukrihubcomtrain

inghtml

26 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

27 httpsiteresourcesworldbankorgPUBLICSECTORAN

DGOVERNANCEResourcesAccountabilityGovernancepd

f

28 httpwwwjscbdorgbdb_functionphp

29 httpwwwigsbracuacbdUserFilesFilearchive

_fileJudiciary_Policy_Notepdf

30 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

114

31 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

32 httpwwwoecdorgdataoecd625735521740pdf

Page 75: The constitutional framework of public administration in bangladesh

75

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

76

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

77

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

35 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

Itrsquos not what you want in life but itrsquos

knowing how to reach it

78

Itrsquos not where you want to go but itrsquos knowing

how to get there

Itrsquos not how high you want to rise but itrsquos

knowing how to take off

It may not be quite the outcome you were aiming

for but it will be an outcome

Itrsquos not what you dream of doing but itrsquos

having the knowledge to do it

Its not a set of goals but itrsquos more like a

vision

79

Itrsquos not the goal you set but itrsquos 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 Departments26

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

80

Recommendation

Training should be given to the civil servants

for realizing the matter that embodied in art21

(2) of the Constitution of the Peoplersquos 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

36 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

81

said word lsquoaccountability 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 ldquowatchdogrdquo units to scrutinize

and hold departments accountable legitimacy of

82

these commissions is built upon their

independence as it avoids any conflicts of

interests27

There are various types of accountability ie

(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

lsquoParliaments are key actors in what has

been termed the lsquochain of

83

accountabilityrsquo 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 lsquosociety driven horizontal

84

accountabilityrsquo 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 ndashno

matter how defined ndash parliaments are one

of the institutions through which

diagonal accountability can be

exercisedrsquo27

However the civil servants should be

accountable by any or all means of

accountability

85

4 Judicial Service of Bangladesh

41 Legal framework

Article 137 of the Constitution also deals with

the term lsquolegal frameworkrsquo 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

itsrsquo judgment passed in Civil Appeal no79 of

1999 commonly known in the Masder Hossainrsquos case

that-

ldquoIt is declared that the word ldquoappointmentsrdquo 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

86

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

ldquoBangladesh Judicial Service Commission has been

established in 2007 by the rule lsquo বাংলােদশ

জিডিসয়াল সািভস কিমশন িবিধমালা ২০০৭ rsquo ie

87

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

88

Law Faculty of any one of three leading public

university ie 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 Secretariatrdquo 28

42 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

89

voice According to Rule 5 of OgraveevsjvDagger`k RywWwmqvj

mvwfcopyDaggermi cOumlDaggerek cDagger` wbDaggerqvM welqK AvDagger`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

90

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 32 are applicable with equitable

equality

43 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

91

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 33 is

applicable with equitable equality

44 Promotion procedure and recommendations

The promotion of sub-ordinate Courtrsquos judges are

in fact depended on the Annual Confidential

92

Reports (ACRs) There is no examination system

for getting the promotion in the sub-

ordinate judiciary

lsquoPresently 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

93

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 linersquo29

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-

ldquoConfidential reports should set out distinctly

and tersely sufficient particulars and it is

essential that they should be clear and definite

94

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 Divisionrdquo 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

95

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 34 is

applicable with equitable equality

45 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

96

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 skills30

Recommendation

The quality of training provided by JATI should

be improved A training need- assessment of the

subordinate court judges could be undertaken

97

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

98

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

subordinatecourts31

99

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

51 Ethical education

100

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 publics trust

and confidence in government by demonstrating

the highest standards of professional

competence efficiency and effectiveness

101

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

102

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

103

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

104

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 assets32 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

52 Use of technology

105

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 peoplersquos 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 lsquoThe Law of

Civil Procedurersquo first edition 2006 volume 1

page iii that

106

ldquoFor 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 lawyerrdquo However

the corruption of the court staff and the

offices of the civil servants can be controlled

easily by using technology ie 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

107

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

108

53 Check and balance

The theory of separation of powers was given by

the Charles-Louis de Secondat baron de La Bregravede

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 lsquothe spirit of

lawsrsquo that

lsquoI have not drawn my principles from my

prejudices but from the nature of thingsrdquo 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

109

Conclusion

In conclusion it can be reminded that 3rd

paragraph of the preamble of our constitution

provides that

lsquoFurther 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 citizensrsquo

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

110

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 p1 see also Mahmudul Islam-

Constitutional law of Bangladesh second edition

p1

2 httpenwikipediaorgwikiConstitution

111

3 httplegal-

dictionarythefreedictionarycomconstitution

4 httpwwwthefreedictionarycomframework

5 httpwwwmacmillandictionarycomdictionarybri

tishframework

6 httpwwwegyankoshacinbitstream

7 httpwwwbanglapediaorghttpdocsHTE_0079HTM

8 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

9 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

10 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

11 httpwwwbpscgovbd2011

12 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

13 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

14 httpwwwrhdgovbdRulesAndRegulationsView_Ov

erviewaspRef=A

112

15 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

16 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

17 wwwforbescomprofilejulian-assange

18 httpwwwti-bangladeshorgresearchES_PSCpdf

19 httpwwwnapsipagorgPDFABDUL_WAHHABpdf see

also Khan Akbar Ali and Kazi Rakibuddin Ahmad

March 2008 ldquoQuota System for Civil Service

Recruitment in Bangladesh An Exploratory

Analysisrdquo 2008 available at http

wwwbpscgovbddocuments news25906 newsdoc

20 Mahmudul Islam- Constitutional law of Bangladesh

second edition p171 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 p171 see also Indra Sawhney v

India AIR 1993 SC 477

113

22 httpwwwmopagovbdindexphpoption=com_conte

ntamptask=viewampid=377ampItemid=419

23 httpwwwvsrhhrCustomPagesStaticHRVFilesL

egislation__Civil-Servants-Actpdf

24 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

25 httptraininganddevelopmentnaukrihubcomtrain

inghtml

26 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

27 httpsiteresourcesworldbankorgPUBLICSECTORAN

DGOVERNANCEResourcesAccountabilityGovernancepd

f

28 httpwwwjscbdorgbdb_functionphp

29 httpwwwigsbracuacbdUserFilesFilearchive

_fileJudiciary_Policy_Notepdf

30 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

114

31 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

32 httpwwwoecdorgdataoecd625735521740pdf

Page 76: The constitutional framework of public administration in bangladesh

76

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

77

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

35 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

Itrsquos not what you want in life but itrsquos

knowing how to reach it

78

Itrsquos not where you want to go but itrsquos knowing

how to get there

Itrsquos not how high you want to rise but itrsquos

knowing how to take off

It may not be quite the outcome you were aiming

for but it will be an outcome

Itrsquos not what you dream of doing but itrsquos

having the knowledge to do it

Its not a set of goals but itrsquos more like a

vision

79

Itrsquos not the goal you set but itrsquos 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 Departments26

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

80

Recommendation

Training should be given to the civil servants

for realizing the matter that embodied in art21

(2) of the Constitution of the Peoplersquos 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

36 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

81

said word lsquoaccountability 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 ldquowatchdogrdquo units to scrutinize

and hold departments accountable legitimacy of

82

these commissions is built upon their

independence as it avoids any conflicts of

interests27

There are various types of accountability ie

(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

lsquoParliaments are key actors in what has

been termed the lsquochain of

83

accountabilityrsquo 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 lsquosociety driven horizontal

84

accountabilityrsquo 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 ndashno

matter how defined ndash parliaments are one

of the institutions through which

diagonal accountability can be

exercisedrsquo27

However the civil servants should be

accountable by any or all means of

accountability

85

4 Judicial Service of Bangladesh

41 Legal framework

Article 137 of the Constitution also deals with

the term lsquolegal frameworkrsquo 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

itsrsquo judgment passed in Civil Appeal no79 of

1999 commonly known in the Masder Hossainrsquos case

that-

ldquoIt is declared that the word ldquoappointmentsrdquo 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

86

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

ldquoBangladesh Judicial Service Commission has been

established in 2007 by the rule lsquo বাংলােদশ

জিডিসয়াল সািভস কিমশন িবিধমালা ২০০৭ rsquo ie

87

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

88

Law Faculty of any one of three leading public

university ie 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 Secretariatrdquo 28

42 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

89

voice According to Rule 5 of OgraveevsjvDagger`k RywWwmqvj

mvwfcopyDaggermi cOumlDaggerek cDagger` wbDaggerqvM welqK AvDagger`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

90

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 32 are applicable with equitable

equality

43 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

91

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 33 is

applicable with equitable equality

44 Promotion procedure and recommendations

The promotion of sub-ordinate Courtrsquos judges are

in fact depended on the Annual Confidential

92

Reports (ACRs) There is no examination system

for getting the promotion in the sub-

ordinate judiciary

lsquoPresently 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

93

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 linersquo29

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-

ldquoConfidential reports should set out distinctly

and tersely sufficient particulars and it is

essential that they should be clear and definite

94

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 Divisionrdquo 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

95

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 34 is

applicable with equitable equality

45 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

96

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 skills30

Recommendation

The quality of training provided by JATI should

be improved A training need- assessment of the

subordinate court judges could be undertaken

97

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

98

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

subordinatecourts31

99

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

51 Ethical education

100

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 publics trust

and confidence in government by demonstrating

the highest standards of professional

competence efficiency and effectiveness

101

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

102

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

103

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

104

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 assets32 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

52 Use of technology

105

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 peoplersquos 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 lsquoThe Law of

Civil Procedurersquo first edition 2006 volume 1

page iii that

106

ldquoFor 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 lawyerrdquo However

the corruption of the court staff and the

offices of the civil servants can be controlled

easily by using technology ie 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

107

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

108

53 Check and balance

The theory of separation of powers was given by

the Charles-Louis de Secondat baron de La Bregravede

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 lsquothe spirit of

lawsrsquo that

lsquoI have not drawn my principles from my

prejudices but from the nature of thingsrdquo 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

109

Conclusion

In conclusion it can be reminded that 3rd

paragraph of the preamble of our constitution

provides that

lsquoFurther 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 citizensrsquo

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

110

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 p1 see also Mahmudul Islam-

Constitutional law of Bangladesh second edition

p1

2 httpenwikipediaorgwikiConstitution

111

3 httplegal-

dictionarythefreedictionarycomconstitution

4 httpwwwthefreedictionarycomframework

5 httpwwwmacmillandictionarycomdictionarybri

tishframework

6 httpwwwegyankoshacinbitstream

7 httpwwwbanglapediaorghttpdocsHTE_0079HTM

8 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

9 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

10 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

11 httpwwwbpscgovbd2011

12 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

13 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

14 httpwwwrhdgovbdRulesAndRegulationsView_Ov

erviewaspRef=A

112

15 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

16 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

17 wwwforbescomprofilejulian-assange

18 httpwwwti-bangladeshorgresearchES_PSCpdf

19 httpwwwnapsipagorgPDFABDUL_WAHHABpdf see

also Khan Akbar Ali and Kazi Rakibuddin Ahmad

March 2008 ldquoQuota System for Civil Service

Recruitment in Bangladesh An Exploratory

Analysisrdquo 2008 available at http

wwwbpscgovbddocuments news25906 newsdoc

20 Mahmudul Islam- Constitutional law of Bangladesh

second edition p171 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 p171 see also Indra Sawhney v

India AIR 1993 SC 477

113

22 httpwwwmopagovbdindexphpoption=com_conte

ntamptask=viewampid=377ampItemid=419

23 httpwwwvsrhhrCustomPagesStaticHRVFilesL

egislation__Civil-Servants-Actpdf

24 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

25 httptraininganddevelopmentnaukrihubcomtrain

inghtml

26 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

27 httpsiteresourcesworldbankorgPUBLICSECTORAN

DGOVERNANCEResourcesAccountabilityGovernancepd

f

28 httpwwwjscbdorgbdb_functionphp

29 httpwwwigsbracuacbdUserFilesFilearchive

_fileJudiciary_Policy_Notepdf

30 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

114

31 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

32 httpwwwoecdorgdataoecd625735521740pdf

Page 77: The constitutional framework of public administration in bangladesh

77

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

35 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

Itrsquos not what you want in life but itrsquos

knowing how to reach it

78

Itrsquos not where you want to go but itrsquos knowing

how to get there

Itrsquos not how high you want to rise but itrsquos

knowing how to take off

It may not be quite the outcome you were aiming

for but it will be an outcome

Itrsquos not what you dream of doing but itrsquos

having the knowledge to do it

Its not a set of goals but itrsquos more like a

vision

79

Itrsquos not the goal you set but itrsquos 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 Departments26

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

80

Recommendation

Training should be given to the civil servants

for realizing the matter that embodied in art21

(2) of the Constitution of the Peoplersquos 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

36 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

81

said word lsquoaccountability 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 ldquowatchdogrdquo units to scrutinize

and hold departments accountable legitimacy of

82

these commissions is built upon their

independence as it avoids any conflicts of

interests27

There are various types of accountability ie

(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

lsquoParliaments are key actors in what has

been termed the lsquochain of

83

accountabilityrsquo 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 lsquosociety driven horizontal

84

accountabilityrsquo 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 ndashno

matter how defined ndash parliaments are one

of the institutions through which

diagonal accountability can be

exercisedrsquo27

However the civil servants should be

accountable by any or all means of

accountability

85

4 Judicial Service of Bangladesh

41 Legal framework

Article 137 of the Constitution also deals with

the term lsquolegal frameworkrsquo 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

itsrsquo judgment passed in Civil Appeal no79 of

1999 commonly known in the Masder Hossainrsquos case

that-

ldquoIt is declared that the word ldquoappointmentsrdquo 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

86

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

ldquoBangladesh Judicial Service Commission has been

established in 2007 by the rule lsquo বাংলােদশ

জিডিসয়াল সািভস কিমশন িবিধমালা ২০০৭ rsquo ie

87

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

88

Law Faculty of any one of three leading public

university ie 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 Secretariatrdquo 28

42 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

89

voice According to Rule 5 of OgraveevsjvDagger`k RywWwmqvj

mvwfcopyDaggermi cOumlDaggerek cDagger` wbDaggerqvM welqK AvDagger`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

90

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 32 are applicable with equitable

equality

43 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

91

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 33 is

applicable with equitable equality

44 Promotion procedure and recommendations

The promotion of sub-ordinate Courtrsquos judges are

in fact depended on the Annual Confidential

92

Reports (ACRs) There is no examination system

for getting the promotion in the sub-

ordinate judiciary

lsquoPresently 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

93

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 linersquo29

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-

ldquoConfidential reports should set out distinctly

and tersely sufficient particulars and it is

essential that they should be clear and definite

94

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 Divisionrdquo 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

95

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 34 is

applicable with equitable equality

45 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

96

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 skills30

Recommendation

The quality of training provided by JATI should

be improved A training need- assessment of the

subordinate court judges could be undertaken

97

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

98

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

subordinatecourts31

99

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

51 Ethical education

100

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 publics trust

and confidence in government by demonstrating

the highest standards of professional

competence efficiency and effectiveness

101

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

102

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

103

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

104

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 assets32 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

52 Use of technology

105

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 peoplersquos 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 lsquoThe Law of

Civil Procedurersquo first edition 2006 volume 1

page iii that

106

ldquoFor 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 lawyerrdquo However

the corruption of the court staff and the

offices of the civil servants can be controlled

easily by using technology ie 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

107

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

108

53 Check and balance

The theory of separation of powers was given by

the Charles-Louis de Secondat baron de La Bregravede

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 lsquothe spirit of

lawsrsquo that

lsquoI have not drawn my principles from my

prejudices but from the nature of thingsrdquo 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

109

Conclusion

In conclusion it can be reminded that 3rd

paragraph of the preamble of our constitution

provides that

lsquoFurther 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 citizensrsquo

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

110

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 p1 see also Mahmudul Islam-

Constitutional law of Bangladesh second edition

p1

2 httpenwikipediaorgwikiConstitution

111

3 httplegal-

dictionarythefreedictionarycomconstitution

4 httpwwwthefreedictionarycomframework

5 httpwwwmacmillandictionarycomdictionarybri

tishframework

6 httpwwwegyankoshacinbitstream

7 httpwwwbanglapediaorghttpdocsHTE_0079HTM

8 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

9 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

10 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

11 httpwwwbpscgovbd2011

12 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

13 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

14 httpwwwrhdgovbdRulesAndRegulationsView_Ov

erviewaspRef=A

112

15 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

16 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

17 wwwforbescomprofilejulian-assange

18 httpwwwti-bangladeshorgresearchES_PSCpdf

19 httpwwwnapsipagorgPDFABDUL_WAHHABpdf see

also Khan Akbar Ali and Kazi Rakibuddin Ahmad

March 2008 ldquoQuota System for Civil Service

Recruitment in Bangladesh An Exploratory

Analysisrdquo 2008 available at http

wwwbpscgovbddocuments news25906 newsdoc

20 Mahmudul Islam- Constitutional law of Bangladesh

second edition p171 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 p171 see also Indra Sawhney v

India AIR 1993 SC 477

113

22 httpwwwmopagovbdindexphpoption=com_conte

ntamptask=viewampid=377ampItemid=419

23 httpwwwvsrhhrCustomPagesStaticHRVFilesL

egislation__Civil-Servants-Actpdf

24 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

25 httptraininganddevelopmentnaukrihubcomtrain

inghtml

26 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

27 httpsiteresourcesworldbankorgPUBLICSECTORAN

DGOVERNANCEResourcesAccountabilityGovernancepd

f

28 httpwwwjscbdorgbdb_functionphp

29 httpwwwigsbracuacbdUserFilesFilearchive

_fileJudiciary_Policy_Notepdf

30 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

114

31 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

32 httpwwwoecdorgdataoecd625735521740pdf

Page 78: The constitutional framework of public administration in bangladesh

78

Itrsquos not where you want to go but itrsquos knowing

how to get there

Itrsquos not how high you want to rise but itrsquos

knowing how to take off

It may not be quite the outcome you were aiming

for but it will be an outcome

Itrsquos not what you dream of doing but itrsquos

having the knowledge to do it

Its not a set of goals but itrsquos more like a

vision

79

Itrsquos not the goal you set but itrsquos 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 Departments26

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

80

Recommendation

Training should be given to the civil servants

for realizing the matter that embodied in art21

(2) of the Constitution of the Peoplersquos 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

36 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

81

said word lsquoaccountability 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 ldquowatchdogrdquo units to scrutinize

and hold departments accountable legitimacy of

82

these commissions is built upon their

independence as it avoids any conflicts of

interests27

There are various types of accountability ie

(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

lsquoParliaments are key actors in what has

been termed the lsquochain of

83

accountabilityrsquo 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 lsquosociety driven horizontal

84

accountabilityrsquo 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 ndashno

matter how defined ndash parliaments are one

of the institutions through which

diagonal accountability can be

exercisedrsquo27

However the civil servants should be

accountable by any or all means of

accountability

85

4 Judicial Service of Bangladesh

41 Legal framework

Article 137 of the Constitution also deals with

the term lsquolegal frameworkrsquo 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

itsrsquo judgment passed in Civil Appeal no79 of

1999 commonly known in the Masder Hossainrsquos case

that-

ldquoIt is declared that the word ldquoappointmentsrdquo 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

86

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

ldquoBangladesh Judicial Service Commission has been

established in 2007 by the rule lsquo বাংলােদশ

জিডিসয়াল সািভস কিমশন িবিধমালা ২০০৭ rsquo ie

87

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

88

Law Faculty of any one of three leading public

university ie 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 Secretariatrdquo 28

42 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

89

voice According to Rule 5 of OgraveevsjvDagger`k RywWwmqvj

mvwfcopyDaggermi cOumlDaggerek cDagger` wbDaggerqvM welqK AvDagger`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

90

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 32 are applicable with equitable

equality

43 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

91

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 33 is

applicable with equitable equality

44 Promotion procedure and recommendations

The promotion of sub-ordinate Courtrsquos judges are

in fact depended on the Annual Confidential

92

Reports (ACRs) There is no examination system

for getting the promotion in the sub-

ordinate judiciary

lsquoPresently 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

93

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 linersquo29

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-

ldquoConfidential reports should set out distinctly

and tersely sufficient particulars and it is

essential that they should be clear and definite

94

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 Divisionrdquo 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

95

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 34 is

applicable with equitable equality

45 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

96

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 skills30

Recommendation

The quality of training provided by JATI should

be improved A training need- assessment of the

subordinate court judges could be undertaken

97

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

98

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

subordinatecourts31

99

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

51 Ethical education

100

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 publics trust

and confidence in government by demonstrating

the highest standards of professional

competence efficiency and effectiveness

101

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

102

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

103

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

104

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 assets32 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

52 Use of technology

105

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 peoplersquos 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 lsquoThe Law of

Civil Procedurersquo first edition 2006 volume 1

page iii that

106

ldquoFor 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 lawyerrdquo However

the corruption of the court staff and the

offices of the civil servants can be controlled

easily by using technology ie 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

107

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

108

53 Check and balance

The theory of separation of powers was given by

the Charles-Louis de Secondat baron de La Bregravede

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 lsquothe spirit of

lawsrsquo that

lsquoI have not drawn my principles from my

prejudices but from the nature of thingsrdquo 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

109

Conclusion

In conclusion it can be reminded that 3rd

paragraph of the preamble of our constitution

provides that

lsquoFurther 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 citizensrsquo

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

110

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 p1 see also Mahmudul Islam-

Constitutional law of Bangladesh second edition

p1

2 httpenwikipediaorgwikiConstitution

111

3 httplegal-

dictionarythefreedictionarycomconstitution

4 httpwwwthefreedictionarycomframework

5 httpwwwmacmillandictionarycomdictionarybri

tishframework

6 httpwwwegyankoshacinbitstream

7 httpwwwbanglapediaorghttpdocsHTE_0079HTM

8 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

9 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

10 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

11 httpwwwbpscgovbd2011

12 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

13 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

14 httpwwwrhdgovbdRulesAndRegulationsView_Ov

erviewaspRef=A

112

15 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

16 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

17 wwwforbescomprofilejulian-assange

18 httpwwwti-bangladeshorgresearchES_PSCpdf

19 httpwwwnapsipagorgPDFABDUL_WAHHABpdf see

also Khan Akbar Ali and Kazi Rakibuddin Ahmad

March 2008 ldquoQuota System for Civil Service

Recruitment in Bangladesh An Exploratory

Analysisrdquo 2008 available at http

wwwbpscgovbddocuments news25906 newsdoc

20 Mahmudul Islam- Constitutional law of Bangladesh

second edition p171 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 p171 see also Indra Sawhney v

India AIR 1993 SC 477

113

22 httpwwwmopagovbdindexphpoption=com_conte

ntamptask=viewampid=377ampItemid=419

23 httpwwwvsrhhrCustomPagesStaticHRVFilesL

egislation__Civil-Servants-Actpdf

24 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

25 httptraininganddevelopmentnaukrihubcomtrain

inghtml

26 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

27 httpsiteresourcesworldbankorgPUBLICSECTORAN

DGOVERNANCEResourcesAccountabilityGovernancepd

f

28 httpwwwjscbdorgbdb_functionphp

29 httpwwwigsbracuacbdUserFilesFilearchive

_fileJudiciary_Policy_Notepdf

30 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

114

31 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

32 httpwwwoecdorgdataoecd625735521740pdf

Page 79: The constitutional framework of public administration in bangladesh

79

Itrsquos not the goal you set but itrsquos 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 Departments26

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

80

Recommendation

Training should be given to the civil servants

for realizing the matter that embodied in art21

(2) of the Constitution of the Peoplersquos 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

36 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

81

said word lsquoaccountability 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 ldquowatchdogrdquo units to scrutinize

and hold departments accountable legitimacy of

82

these commissions is built upon their

independence as it avoids any conflicts of

interests27

There are various types of accountability ie

(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

lsquoParliaments are key actors in what has

been termed the lsquochain of

83

accountabilityrsquo 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 lsquosociety driven horizontal

84

accountabilityrsquo 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 ndashno

matter how defined ndash parliaments are one

of the institutions through which

diagonal accountability can be

exercisedrsquo27

However the civil servants should be

accountable by any or all means of

accountability

85

4 Judicial Service of Bangladesh

41 Legal framework

Article 137 of the Constitution also deals with

the term lsquolegal frameworkrsquo 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

itsrsquo judgment passed in Civil Appeal no79 of

1999 commonly known in the Masder Hossainrsquos case

that-

ldquoIt is declared that the word ldquoappointmentsrdquo 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

86

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

ldquoBangladesh Judicial Service Commission has been

established in 2007 by the rule lsquo বাংলােদশ

জিডিসয়াল সািভস কিমশন িবিধমালা ২০০৭ rsquo ie

87

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

88

Law Faculty of any one of three leading public

university ie 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 Secretariatrdquo 28

42 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

89

voice According to Rule 5 of OgraveevsjvDagger`k RywWwmqvj

mvwfcopyDaggermi cOumlDaggerek cDagger` wbDaggerqvM welqK AvDagger`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

90

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 32 are applicable with equitable

equality

43 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

91

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 33 is

applicable with equitable equality

44 Promotion procedure and recommendations

The promotion of sub-ordinate Courtrsquos judges are

in fact depended on the Annual Confidential

92

Reports (ACRs) There is no examination system

for getting the promotion in the sub-

ordinate judiciary

lsquoPresently 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

93

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 linersquo29

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-

ldquoConfidential reports should set out distinctly

and tersely sufficient particulars and it is

essential that they should be clear and definite

94

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 Divisionrdquo 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

95

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 34 is

applicable with equitable equality

45 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

96

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 skills30

Recommendation

The quality of training provided by JATI should

be improved A training need- assessment of the

subordinate court judges could be undertaken

97

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

98

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

subordinatecourts31

99

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

51 Ethical education

100

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 publics trust

and confidence in government by demonstrating

the highest standards of professional

competence efficiency and effectiveness

101

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

102

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

103

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

104

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 assets32 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

52 Use of technology

105

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 peoplersquos 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 lsquoThe Law of

Civil Procedurersquo first edition 2006 volume 1

page iii that

106

ldquoFor 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 lawyerrdquo However

the corruption of the court staff and the

offices of the civil servants can be controlled

easily by using technology ie 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

107

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

108

53 Check and balance

The theory of separation of powers was given by

the Charles-Louis de Secondat baron de La Bregravede

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 lsquothe spirit of

lawsrsquo that

lsquoI have not drawn my principles from my

prejudices but from the nature of thingsrdquo 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

109

Conclusion

In conclusion it can be reminded that 3rd

paragraph of the preamble of our constitution

provides that

lsquoFurther 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 citizensrsquo

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

110

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 p1 see also Mahmudul Islam-

Constitutional law of Bangladesh second edition

p1

2 httpenwikipediaorgwikiConstitution

111

3 httplegal-

dictionarythefreedictionarycomconstitution

4 httpwwwthefreedictionarycomframework

5 httpwwwmacmillandictionarycomdictionarybri

tishframework

6 httpwwwegyankoshacinbitstream

7 httpwwwbanglapediaorghttpdocsHTE_0079HTM

8 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

9 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

10 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

11 httpwwwbpscgovbd2011

12 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

13 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

14 httpwwwrhdgovbdRulesAndRegulationsView_Ov

erviewaspRef=A

112

15 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

16 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

17 wwwforbescomprofilejulian-assange

18 httpwwwti-bangladeshorgresearchES_PSCpdf

19 httpwwwnapsipagorgPDFABDUL_WAHHABpdf see

also Khan Akbar Ali and Kazi Rakibuddin Ahmad

March 2008 ldquoQuota System for Civil Service

Recruitment in Bangladesh An Exploratory

Analysisrdquo 2008 available at http

wwwbpscgovbddocuments news25906 newsdoc

20 Mahmudul Islam- Constitutional law of Bangladesh

second edition p171 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 p171 see also Indra Sawhney v

India AIR 1993 SC 477

113

22 httpwwwmopagovbdindexphpoption=com_conte

ntamptask=viewampid=377ampItemid=419

23 httpwwwvsrhhrCustomPagesStaticHRVFilesL

egislation__Civil-Servants-Actpdf

24 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

25 httptraininganddevelopmentnaukrihubcomtrain

inghtml

26 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

27 httpsiteresourcesworldbankorgPUBLICSECTORAN

DGOVERNANCEResourcesAccountabilityGovernancepd

f

28 httpwwwjscbdorgbdb_functionphp

29 httpwwwigsbracuacbdUserFilesFilearchive

_fileJudiciary_Policy_Notepdf

30 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

114

31 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

32 httpwwwoecdorgdataoecd625735521740pdf

Page 80: The constitutional framework of public administration in bangladesh

80

Recommendation

Training should be given to the civil servants

for realizing the matter that embodied in art21

(2) of the Constitution of the Peoplersquos 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

36 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

81

said word lsquoaccountability 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 ldquowatchdogrdquo units to scrutinize

and hold departments accountable legitimacy of

82

these commissions is built upon their

independence as it avoids any conflicts of

interests27

There are various types of accountability ie

(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

lsquoParliaments are key actors in what has

been termed the lsquochain of

83

accountabilityrsquo 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 lsquosociety driven horizontal

84

accountabilityrsquo 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 ndashno

matter how defined ndash parliaments are one

of the institutions through which

diagonal accountability can be

exercisedrsquo27

However the civil servants should be

accountable by any or all means of

accountability

85

4 Judicial Service of Bangladesh

41 Legal framework

Article 137 of the Constitution also deals with

the term lsquolegal frameworkrsquo 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

itsrsquo judgment passed in Civil Appeal no79 of

1999 commonly known in the Masder Hossainrsquos case

that-

ldquoIt is declared that the word ldquoappointmentsrdquo 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

86

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

ldquoBangladesh Judicial Service Commission has been

established in 2007 by the rule lsquo বাংলােদশ

জিডিসয়াল সািভস কিমশন িবিধমালা ২০০৭ rsquo ie

87

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

88

Law Faculty of any one of three leading public

university ie 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 Secretariatrdquo 28

42 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

89

voice According to Rule 5 of OgraveevsjvDagger`k RywWwmqvj

mvwfcopyDaggermi cOumlDaggerek cDagger` wbDaggerqvM welqK AvDagger`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

90

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 32 are applicable with equitable

equality

43 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

91

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 33 is

applicable with equitable equality

44 Promotion procedure and recommendations

The promotion of sub-ordinate Courtrsquos judges are

in fact depended on the Annual Confidential

92

Reports (ACRs) There is no examination system

for getting the promotion in the sub-

ordinate judiciary

lsquoPresently 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

93

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 linersquo29

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-

ldquoConfidential reports should set out distinctly

and tersely sufficient particulars and it is

essential that they should be clear and definite

94

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 Divisionrdquo 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

95

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 34 is

applicable with equitable equality

45 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

96

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 skills30

Recommendation

The quality of training provided by JATI should

be improved A training need- assessment of the

subordinate court judges could be undertaken

97

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

98

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

subordinatecourts31

99

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

51 Ethical education

100

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 publics trust

and confidence in government by demonstrating

the highest standards of professional

competence efficiency and effectiveness

101

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

102

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

103

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

104

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 assets32 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

52 Use of technology

105

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 peoplersquos 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 lsquoThe Law of

Civil Procedurersquo first edition 2006 volume 1

page iii that

106

ldquoFor 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 lawyerrdquo However

the corruption of the court staff and the

offices of the civil servants can be controlled

easily by using technology ie 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

107

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

108

53 Check and balance

The theory of separation of powers was given by

the Charles-Louis de Secondat baron de La Bregravede

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 lsquothe spirit of

lawsrsquo that

lsquoI have not drawn my principles from my

prejudices but from the nature of thingsrdquo 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

109

Conclusion

In conclusion it can be reminded that 3rd

paragraph of the preamble of our constitution

provides that

lsquoFurther 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 citizensrsquo

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

110

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 p1 see also Mahmudul Islam-

Constitutional law of Bangladesh second edition

p1

2 httpenwikipediaorgwikiConstitution

111

3 httplegal-

dictionarythefreedictionarycomconstitution

4 httpwwwthefreedictionarycomframework

5 httpwwwmacmillandictionarycomdictionarybri

tishframework

6 httpwwwegyankoshacinbitstream

7 httpwwwbanglapediaorghttpdocsHTE_0079HTM

8 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

9 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

10 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

11 httpwwwbpscgovbd2011

12 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

13 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

14 httpwwwrhdgovbdRulesAndRegulationsView_Ov

erviewaspRef=A

112

15 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

16 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

17 wwwforbescomprofilejulian-assange

18 httpwwwti-bangladeshorgresearchES_PSCpdf

19 httpwwwnapsipagorgPDFABDUL_WAHHABpdf see

also Khan Akbar Ali and Kazi Rakibuddin Ahmad

March 2008 ldquoQuota System for Civil Service

Recruitment in Bangladesh An Exploratory

Analysisrdquo 2008 available at http

wwwbpscgovbddocuments news25906 newsdoc

20 Mahmudul Islam- Constitutional law of Bangladesh

second edition p171 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 p171 see also Indra Sawhney v

India AIR 1993 SC 477

113

22 httpwwwmopagovbdindexphpoption=com_conte

ntamptask=viewampid=377ampItemid=419

23 httpwwwvsrhhrCustomPagesStaticHRVFilesL

egislation__Civil-Servants-Actpdf

24 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

25 httptraininganddevelopmentnaukrihubcomtrain

inghtml

26 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

27 httpsiteresourcesworldbankorgPUBLICSECTORAN

DGOVERNANCEResourcesAccountabilityGovernancepd

f

28 httpwwwjscbdorgbdb_functionphp

29 httpwwwigsbracuacbdUserFilesFilearchive

_fileJudiciary_Policy_Notepdf

30 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

114

31 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

32 httpwwwoecdorgdataoecd625735521740pdf

Page 81: The constitutional framework of public administration in bangladesh

81

said word lsquoaccountability 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 ldquowatchdogrdquo units to scrutinize

and hold departments accountable legitimacy of

82

these commissions is built upon their

independence as it avoids any conflicts of

interests27

There are various types of accountability ie

(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

lsquoParliaments are key actors in what has

been termed the lsquochain of

83

accountabilityrsquo 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 lsquosociety driven horizontal

84

accountabilityrsquo 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 ndashno

matter how defined ndash parliaments are one

of the institutions through which

diagonal accountability can be

exercisedrsquo27

However the civil servants should be

accountable by any or all means of

accountability

85

4 Judicial Service of Bangladesh

41 Legal framework

Article 137 of the Constitution also deals with

the term lsquolegal frameworkrsquo 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

itsrsquo judgment passed in Civil Appeal no79 of

1999 commonly known in the Masder Hossainrsquos case

that-

ldquoIt is declared that the word ldquoappointmentsrdquo 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

86

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

ldquoBangladesh Judicial Service Commission has been

established in 2007 by the rule lsquo বাংলােদশ

জিডিসয়াল সািভস কিমশন িবিধমালা ২০০৭ rsquo ie

87

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

88

Law Faculty of any one of three leading public

university ie 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 Secretariatrdquo 28

42 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

89

voice According to Rule 5 of OgraveevsjvDagger`k RywWwmqvj

mvwfcopyDaggermi cOumlDaggerek cDagger` wbDaggerqvM welqK AvDagger`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

90

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 32 are applicable with equitable

equality

43 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

91

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 33 is

applicable with equitable equality

44 Promotion procedure and recommendations

The promotion of sub-ordinate Courtrsquos judges are

in fact depended on the Annual Confidential

92

Reports (ACRs) There is no examination system

for getting the promotion in the sub-

ordinate judiciary

lsquoPresently 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

93

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 linersquo29

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-

ldquoConfidential reports should set out distinctly

and tersely sufficient particulars and it is

essential that they should be clear and definite

94

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 Divisionrdquo 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

95

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 34 is

applicable with equitable equality

45 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

96

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 skills30

Recommendation

The quality of training provided by JATI should

be improved A training need- assessment of the

subordinate court judges could be undertaken

97

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

98

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

subordinatecourts31

99

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

51 Ethical education

100

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 publics trust

and confidence in government by demonstrating

the highest standards of professional

competence efficiency and effectiveness

101

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

102

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

103

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

104

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 assets32 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

52 Use of technology

105

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 peoplersquos 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 lsquoThe Law of

Civil Procedurersquo first edition 2006 volume 1

page iii that

106

ldquoFor 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 lawyerrdquo However

the corruption of the court staff and the

offices of the civil servants can be controlled

easily by using technology ie 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

107

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

108

53 Check and balance

The theory of separation of powers was given by

the Charles-Louis de Secondat baron de La Bregravede

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 lsquothe spirit of

lawsrsquo that

lsquoI have not drawn my principles from my

prejudices but from the nature of thingsrdquo 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

109

Conclusion

In conclusion it can be reminded that 3rd

paragraph of the preamble of our constitution

provides that

lsquoFurther 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 citizensrsquo

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

110

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 p1 see also Mahmudul Islam-

Constitutional law of Bangladesh second edition

p1

2 httpenwikipediaorgwikiConstitution

111

3 httplegal-

dictionarythefreedictionarycomconstitution

4 httpwwwthefreedictionarycomframework

5 httpwwwmacmillandictionarycomdictionarybri

tishframework

6 httpwwwegyankoshacinbitstream

7 httpwwwbanglapediaorghttpdocsHTE_0079HTM

8 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

9 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

10 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

11 httpwwwbpscgovbd2011

12 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

13 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

14 httpwwwrhdgovbdRulesAndRegulationsView_Ov

erviewaspRef=A

112

15 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

16 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

17 wwwforbescomprofilejulian-assange

18 httpwwwti-bangladeshorgresearchES_PSCpdf

19 httpwwwnapsipagorgPDFABDUL_WAHHABpdf see

also Khan Akbar Ali and Kazi Rakibuddin Ahmad

March 2008 ldquoQuota System for Civil Service

Recruitment in Bangladesh An Exploratory

Analysisrdquo 2008 available at http

wwwbpscgovbddocuments news25906 newsdoc

20 Mahmudul Islam- Constitutional law of Bangladesh

second edition p171 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 p171 see also Indra Sawhney v

India AIR 1993 SC 477

113

22 httpwwwmopagovbdindexphpoption=com_conte

ntamptask=viewampid=377ampItemid=419

23 httpwwwvsrhhrCustomPagesStaticHRVFilesL

egislation__Civil-Servants-Actpdf

24 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

25 httptraininganddevelopmentnaukrihubcomtrain

inghtml

26 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

27 httpsiteresourcesworldbankorgPUBLICSECTORAN

DGOVERNANCEResourcesAccountabilityGovernancepd

f

28 httpwwwjscbdorgbdb_functionphp

29 httpwwwigsbracuacbdUserFilesFilearchive

_fileJudiciary_Policy_Notepdf

30 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

114

31 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

32 httpwwwoecdorgdataoecd625735521740pdf

Page 82: The constitutional framework of public administration in bangladesh

82

these commissions is built upon their

independence as it avoids any conflicts of

interests27

There are various types of accountability ie

(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

lsquoParliaments are key actors in what has

been termed the lsquochain of

83

accountabilityrsquo 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 lsquosociety driven horizontal

84

accountabilityrsquo 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 ndashno

matter how defined ndash parliaments are one

of the institutions through which

diagonal accountability can be

exercisedrsquo27

However the civil servants should be

accountable by any or all means of

accountability

85

4 Judicial Service of Bangladesh

41 Legal framework

Article 137 of the Constitution also deals with

the term lsquolegal frameworkrsquo 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

itsrsquo judgment passed in Civil Appeal no79 of

1999 commonly known in the Masder Hossainrsquos case

that-

ldquoIt is declared that the word ldquoappointmentsrdquo 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

86

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

ldquoBangladesh Judicial Service Commission has been

established in 2007 by the rule lsquo বাংলােদশ

জিডিসয়াল সািভস কিমশন িবিধমালা ২০০৭ rsquo ie

87

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

88

Law Faculty of any one of three leading public

university ie 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 Secretariatrdquo 28

42 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

89

voice According to Rule 5 of OgraveevsjvDagger`k RywWwmqvj

mvwfcopyDaggermi cOumlDaggerek cDagger` wbDaggerqvM welqK AvDagger`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

90

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 32 are applicable with equitable

equality

43 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

91

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 33 is

applicable with equitable equality

44 Promotion procedure and recommendations

The promotion of sub-ordinate Courtrsquos judges are

in fact depended on the Annual Confidential

92

Reports (ACRs) There is no examination system

for getting the promotion in the sub-

ordinate judiciary

lsquoPresently 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

93

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 linersquo29

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-

ldquoConfidential reports should set out distinctly

and tersely sufficient particulars and it is

essential that they should be clear and definite

94

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 Divisionrdquo 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

95

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 34 is

applicable with equitable equality

45 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

96

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 skills30

Recommendation

The quality of training provided by JATI should

be improved A training need- assessment of the

subordinate court judges could be undertaken

97

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

98

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

subordinatecourts31

99

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

51 Ethical education

100

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 publics trust

and confidence in government by demonstrating

the highest standards of professional

competence efficiency and effectiveness

101

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

102

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

103

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

104

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 assets32 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

52 Use of technology

105

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 peoplersquos 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 lsquoThe Law of

Civil Procedurersquo first edition 2006 volume 1

page iii that

106

ldquoFor 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 lawyerrdquo However

the corruption of the court staff and the

offices of the civil servants can be controlled

easily by using technology ie 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

107

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

108

53 Check and balance

The theory of separation of powers was given by

the Charles-Louis de Secondat baron de La Bregravede

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 lsquothe spirit of

lawsrsquo that

lsquoI have not drawn my principles from my

prejudices but from the nature of thingsrdquo 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

109

Conclusion

In conclusion it can be reminded that 3rd

paragraph of the preamble of our constitution

provides that

lsquoFurther 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 citizensrsquo

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

110

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 p1 see also Mahmudul Islam-

Constitutional law of Bangladesh second edition

p1

2 httpenwikipediaorgwikiConstitution

111

3 httplegal-

dictionarythefreedictionarycomconstitution

4 httpwwwthefreedictionarycomframework

5 httpwwwmacmillandictionarycomdictionarybri

tishframework

6 httpwwwegyankoshacinbitstream

7 httpwwwbanglapediaorghttpdocsHTE_0079HTM

8 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

9 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

10 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

11 httpwwwbpscgovbd2011

12 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

13 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

14 httpwwwrhdgovbdRulesAndRegulationsView_Ov

erviewaspRef=A

112

15 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

16 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

17 wwwforbescomprofilejulian-assange

18 httpwwwti-bangladeshorgresearchES_PSCpdf

19 httpwwwnapsipagorgPDFABDUL_WAHHABpdf see

also Khan Akbar Ali and Kazi Rakibuddin Ahmad

March 2008 ldquoQuota System for Civil Service

Recruitment in Bangladesh An Exploratory

Analysisrdquo 2008 available at http

wwwbpscgovbddocuments news25906 newsdoc

20 Mahmudul Islam- Constitutional law of Bangladesh

second edition p171 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 p171 see also Indra Sawhney v

India AIR 1993 SC 477

113

22 httpwwwmopagovbdindexphpoption=com_conte

ntamptask=viewampid=377ampItemid=419

23 httpwwwvsrhhrCustomPagesStaticHRVFilesL

egislation__Civil-Servants-Actpdf

24 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

25 httptraininganddevelopmentnaukrihubcomtrain

inghtml

26 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

27 httpsiteresourcesworldbankorgPUBLICSECTORAN

DGOVERNANCEResourcesAccountabilityGovernancepd

f

28 httpwwwjscbdorgbdb_functionphp

29 httpwwwigsbracuacbdUserFilesFilearchive

_fileJudiciary_Policy_Notepdf

30 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

114

31 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

32 httpwwwoecdorgdataoecd625735521740pdf

Page 83: The constitutional framework of public administration in bangladesh

83

accountabilityrsquo 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 lsquosociety driven horizontal

84

accountabilityrsquo 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 ndashno

matter how defined ndash parliaments are one

of the institutions through which

diagonal accountability can be

exercisedrsquo27

However the civil servants should be

accountable by any or all means of

accountability

85

4 Judicial Service of Bangladesh

41 Legal framework

Article 137 of the Constitution also deals with

the term lsquolegal frameworkrsquo 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

itsrsquo judgment passed in Civil Appeal no79 of

1999 commonly known in the Masder Hossainrsquos case

that-

ldquoIt is declared that the word ldquoappointmentsrdquo 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

86

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

ldquoBangladesh Judicial Service Commission has been

established in 2007 by the rule lsquo বাংলােদশ

জিডিসয়াল সািভস কিমশন িবিধমালা ২০০৭ rsquo ie

87

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

88

Law Faculty of any one of three leading public

university ie 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 Secretariatrdquo 28

42 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

89

voice According to Rule 5 of OgraveevsjvDagger`k RywWwmqvj

mvwfcopyDaggermi cOumlDaggerek cDagger` wbDaggerqvM welqK AvDagger`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

90

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 32 are applicable with equitable

equality

43 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

91

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 33 is

applicable with equitable equality

44 Promotion procedure and recommendations

The promotion of sub-ordinate Courtrsquos judges are

in fact depended on the Annual Confidential

92

Reports (ACRs) There is no examination system

for getting the promotion in the sub-

ordinate judiciary

lsquoPresently 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

93

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 linersquo29

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-

ldquoConfidential reports should set out distinctly

and tersely sufficient particulars and it is

essential that they should be clear and definite

94

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 Divisionrdquo 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

95

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 34 is

applicable with equitable equality

45 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

96

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 skills30

Recommendation

The quality of training provided by JATI should

be improved A training need- assessment of the

subordinate court judges could be undertaken

97

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

98

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

subordinatecourts31

99

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

51 Ethical education

100

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 publics trust

and confidence in government by demonstrating

the highest standards of professional

competence efficiency and effectiveness

101

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

102

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

103

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

104

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 assets32 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

52 Use of technology

105

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 peoplersquos 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 lsquoThe Law of

Civil Procedurersquo first edition 2006 volume 1

page iii that

106

ldquoFor 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 lawyerrdquo However

the corruption of the court staff and the

offices of the civil servants can be controlled

easily by using technology ie 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

107

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

108

53 Check and balance

The theory of separation of powers was given by

the Charles-Louis de Secondat baron de La Bregravede

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 lsquothe spirit of

lawsrsquo that

lsquoI have not drawn my principles from my

prejudices but from the nature of thingsrdquo 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

109

Conclusion

In conclusion it can be reminded that 3rd

paragraph of the preamble of our constitution

provides that

lsquoFurther 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 citizensrsquo

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

110

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 p1 see also Mahmudul Islam-

Constitutional law of Bangladesh second edition

p1

2 httpenwikipediaorgwikiConstitution

111

3 httplegal-

dictionarythefreedictionarycomconstitution

4 httpwwwthefreedictionarycomframework

5 httpwwwmacmillandictionarycomdictionarybri

tishframework

6 httpwwwegyankoshacinbitstream

7 httpwwwbanglapediaorghttpdocsHTE_0079HTM

8 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

9 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

10 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

11 httpwwwbpscgovbd2011

12 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

13 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

14 httpwwwrhdgovbdRulesAndRegulationsView_Ov

erviewaspRef=A

112

15 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

16 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

17 wwwforbescomprofilejulian-assange

18 httpwwwti-bangladeshorgresearchES_PSCpdf

19 httpwwwnapsipagorgPDFABDUL_WAHHABpdf see

also Khan Akbar Ali and Kazi Rakibuddin Ahmad

March 2008 ldquoQuota System for Civil Service

Recruitment in Bangladesh An Exploratory

Analysisrdquo 2008 available at http

wwwbpscgovbddocuments news25906 newsdoc

20 Mahmudul Islam- Constitutional law of Bangladesh

second edition p171 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 p171 see also Indra Sawhney v

India AIR 1993 SC 477

113

22 httpwwwmopagovbdindexphpoption=com_conte

ntamptask=viewampid=377ampItemid=419

23 httpwwwvsrhhrCustomPagesStaticHRVFilesL

egislation__Civil-Servants-Actpdf

24 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

25 httptraininganddevelopmentnaukrihubcomtrain

inghtml

26 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

27 httpsiteresourcesworldbankorgPUBLICSECTORAN

DGOVERNANCEResourcesAccountabilityGovernancepd

f

28 httpwwwjscbdorgbdb_functionphp

29 httpwwwigsbracuacbdUserFilesFilearchive

_fileJudiciary_Policy_Notepdf

30 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

114

31 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

32 httpwwwoecdorgdataoecd625735521740pdf

Page 84: The constitutional framework of public administration in bangladesh

84

accountabilityrsquo 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 ndashno

matter how defined ndash parliaments are one

of the institutions through which

diagonal accountability can be

exercisedrsquo27

However the civil servants should be

accountable by any or all means of

accountability

85

4 Judicial Service of Bangladesh

41 Legal framework

Article 137 of the Constitution also deals with

the term lsquolegal frameworkrsquo 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

itsrsquo judgment passed in Civil Appeal no79 of

1999 commonly known in the Masder Hossainrsquos case

that-

ldquoIt is declared that the word ldquoappointmentsrdquo 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

86

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

ldquoBangladesh Judicial Service Commission has been

established in 2007 by the rule lsquo বাংলােদশ

জিডিসয়াল সািভস কিমশন িবিধমালা ২০০৭ rsquo ie

87

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

88

Law Faculty of any one of three leading public

university ie 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 Secretariatrdquo 28

42 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

89

voice According to Rule 5 of OgraveevsjvDagger`k RywWwmqvj

mvwfcopyDaggermi cOumlDaggerek cDagger` wbDaggerqvM welqK AvDagger`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

90

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 32 are applicable with equitable

equality

43 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

91

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 33 is

applicable with equitable equality

44 Promotion procedure and recommendations

The promotion of sub-ordinate Courtrsquos judges are

in fact depended on the Annual Confidential

92

Reports (ACRs) There is no examination system

for getting the promotion in the sub-

ordinate judiciary

lsquoPresently 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

93

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 linersquo29

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-

ldquoConfidential reports should set out distinctly

and tersely sufficient particulars and it is

essential that they should be clear and definite

94

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 Divisionrdquo 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

95

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 34 is

applicable with equitable equality

45 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

96

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 skills30

Recommendation

The quality of training provided by JATI should

be improved A training need- assessment of the

subordinate court judges could be undertaken

97

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

98

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

subordinatecourts31

99

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

51 Ethical education

100

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 publics trust

and confidence in government by demonstrating

the highest standards of professional

competence efficiency and effectiveness

101

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

102

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

103

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

104

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 assets32 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

52 Use of technology

105

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 peoplersquos 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 lsquoThe Law of

Civil Procedurersquo first edition 2006 volume 1

page iii that

106

ldquoFor 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 lawyerrdquo However

the corruption of the court staff and the

offices of the civil servants can be controlled

easily by using technology ie 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

107

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

108

53 Check and balance

The theory of separation of powers was given by

the Charles-Louis de Secondat baron de La Bregravede

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 lsquothe spirit of

lawsrsquo that

lsquoI have not drawn my principles from my

prejudices but from the nature of thingsrdquo 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

109

Conclusion

In conclusion it can be reminded that 3rd

paragraph of the preamble of our constitution

provides that

lsquoFurther 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 citizensrsquo

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

110

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 p1 see also Mahmudul Islam-

Constitutional law of Bangladesh second edition

p1

2 httpenwikipediaorgwikiConstitution

111

3 httplegal-

dictionarythefreedictionarycomconstitution

4 httpwwwthefreedictionarycomframework

5 httpwwwmacmillandictionarycomdictionarybri

tishframework

6 httpwwwegyankoshacinbitstream

7 httpwwwbanglapediaorghttpdocsHTE_0079HTM

8 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

9 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

10 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

11 httpwwwbpscgovbd2011

12 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

13 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

14 httpwwwrhdgovbdRulesAndRegulationsView_Ov

erviewaspRef=A

112

15 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

16 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

17 wwwforbescomprofilejulian-assange

18 httpwwwti-bangladeshorgresearchES_PSCpdf

19 httpwwwnapsipagorgPDFABDUL_WAHHABpdf see

also Khan Akbar Ali and Kazi Rakibuddin Ahmad

March 2008 ldquoQuota System for Civil Service

Recruitment in Bangladesh An Exploratory

Analysisrdquo 2008 available at http

wwwbpscgovbddocuments news25906 newsdoc

20 Mahmudul Islam- Constitutional law of Bangladesh

second edition p171 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 p171 see also Indra Sawhney v

India AIR 1993 SC 477

113

22 httpwwwmopagovbdindexphpoption=com_conte

ntamptask=viewampid=377ampItemid=419

23 httpwwwvsrhhrCustomPagesStaticHRVFilesL

egislation__Civil-Servants-Actpdf

24 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

25 httptraininganddevelopmentnaukrihubcomtrain

inghtml

26 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

27 httpsiteresourcesworldbankorgPUBLICSECTORAN

DGOVERNANCEResourcesAccountabilityGovernancepd

f

28 httpwwwjscbdorgbdb_functionphp

29 httpwwwigsbracuacbdUserFilesFilearchive

_fileJudiciary_Policy_Notepdf

30 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

114

31 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

32 httpwwwoecdorgdataoecd625735521740pdf

Page 85: The constitutional framework of public administration in bangladesh

85

4 Judicial Service of Bangladesh

41 Legal framework

Article 137 of the Constitution also deals with

the term lsquolegal frameworkrsquo 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

itsrsquo judgment passed in Civil Appeal no79 of

1999 commonly known in the Masder Hossainrsquos case

that-

ldquoIt is declared that the word ldquoappointmentsrdquo 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

86

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

ldquoBangladesh Judicial Service Commission has been

established in 2007 by the rule lsquo বাংলােদশ

জিডিসয়াল সািভস কিমশন িবিধমালা ২০০৭ rsquo ie

87

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

88

Law Faculty of any one of three leading public

university ie 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 Secretariatrdquo 28

42 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

89

voice According to Rule 5 of OgraveevsjvDagger`k RywWwmqvj

mvwfcopyDaggermi cOumlDaggerek cDagger` wbDaggerqvM welqK AvDagger`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

90

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 32 are applicable with equitable

equality

43 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

91

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 33 is

applicable with equitable equality

44 Promotion procedure and recommendations

The promotion of sub-ordinate Courtrsquos judges are

in fact depended on the Annual Confidential

92

Reports (ACRs) There is no examination system

for getting the promotion in the sub-

ordinate judiciary

lsquoPresently 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

93

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 linersquo29

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-

ldquoConfidential reports should set out distinctly

and tersely sufficient particulars and it is

essential that they should be clear and definite

94

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 Divisionrdquo 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

95

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 34 is

applicable with equitable equality

45 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

96

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 skills30

Recommendation

The quality of training provided by JATI should

be improved A training need- assessment of the

subordinate court judges could be undertaken

97

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

98

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

subordinatecourts31

99

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

51 Ethical education

100

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 publics trust

and confidence in government by demonstrating

the highest standards of professional

competence efficiency and effectiveness

101

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

102

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

103

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

104

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 assets32 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

52 Use of technology

105

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 peoplersquos 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 lsquoThe Law of

Civil Procedurersquo first edition 2006 volume 1

page iii that

106

ldquoFor 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 lawyerrdquo However

the corruption of the court staff and the

offices of the civil servants can be controlled

easily by using technology ie 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

107

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

108

53 Check and balance

The theory of separation of powers was given by

the Charles-Louis de Secondat baron de La Bregravede

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 lsquothe spirit of

lawsrsquo that

lsquoI have not drawn my principles from my

prejudices but from the nature of thingsrdquo 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

109

Conclusion

In conclusion it can be reminded that 3rd

paragraph of the preamble of our constitution

provides that

lsquoFurther 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 citizensrsquo

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

110

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 p1 see also Mahmudul Islam-

Constitutional law of Bangladesh second edition

p1

2 httpenwikipediaorgwikiConstitution

111

3 httplegal-

dictionarythefreedictionarycomconstitution

4 httpwwwthefreedictionarycomframework

5 httpwwwmacmillandictionarycomdictionarybri

tishframework

6 httpwwwegyankoshacinbitstream

7 httpwwwbanglapediaorghttpdocsHTE_0079HTM

8 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

9 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

10 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

11 httpwwwbpscgovbd2011

12 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

13 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

14 httpwwwrhdgovbdRulesAndRegulationsView_Ov

erviewaspRef=A

112

15 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

16 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

17 wwwforbescomprofilejulian-assange

18 httpwwwti-bangladeshorgresearchES_PSCpdf

19 httpwwwnapsipagorgPDFABDUL_WAHHABpdf see

also Khan Akbar Ali and Kazi Rakibuddin Ahmad

March 2008 ldquoQuota System for Civil Service

Recruitment in Bangladesh An Exploratory

Analysisrdquo 2008 available at http

wwwbpscgovbddocuments news25906 newsdoc

20 Mahmudul Islam- Constitutional law of Bangladesh

second edition p171 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 p171 see also Indra Sawhney v

India AIR 1993 SC 477

113

22 httpwwwmopagovbdindexphpoption=com_conte

ntamptask=viewampid=377ampItemid=419

23 httpwwwvsrhhrCustomPagesStaticHRVFilesL

egislation__Civil-Servants-Actpdf

24 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

25 httptraininganddevelopmentnaukrihubcomtrain

inghtml

26 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

27 httpsiteresourcesworldbankorgPUBLICSECTORAN

DGOVERNANCEResourcesAccountabilityGovernancepd

f

28 httpwwwjscbdorgbdb_functionphp

29 httpwwwigsbracuacbdUserFilesFilearchive

_fileJudiciary_Policy_Notepdf

30 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

114

31 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

32 httpwwwoecdorgdataoecd625735521740pdf

Page 86: The constitutional framework of public administration in bangladesh

86

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

ldquoBangladesh Judicial Service Commission has been

established in 2007 by the rule lsquo বাংলােদশ

জিডিসয়াল সািভস কিমশন িবিধমালা ২০০৭ rsquo ie

87

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

88

Law Faculty of any one of three leading public

university ie 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 Secretariatrdquo 28

42 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

89

voice According to Rule 5 of OgraveevsjvDagger`k RywWwmqvj

mvwfcopyDaggermi cOumlDaggerek cDagger` wbDaggerqvM welqK AvDagger`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

90

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 32 are applicable with equitable

equality

43 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

91

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 33 is

applicable with equitable equality

44 Promotion procedure and recommendations

The promotion of sub-ordinate Courtrsquos judges are

in fact depended on the Annual Confidential

92

Reports (ACRs) There is no examination system

for getting the promotion in the sub-

ordinate judiciary

lsquoPresently 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

93

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 linersquo29

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-

ldquoConfidential reports should set out distinctly

and tersely sufficient particulars and it is

essential that they should be clear and definite

94

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 Divisionrdquo 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

95

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 34 is

applicable with equitable equality

45 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

96

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 skills30

Recommendation

The quality of training provided by JATI should

be improved A training need- assessment of the

subordinate court judges could be undertaken

97

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

98

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

subordinatecourts31

99

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

51 Ethical education

100

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 publics trust

and confidence in government by demonstrating

the highest standards of professional

competence efficiency and effectiveness

101

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

102

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

103

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

104

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 assets32 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

52 Use of technology

105

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 peoplersquos 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 lsquoThe Law of

Civil Procedurersquo first edition 2006 volume 1

page iii that

106

ldquoFor 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 lawyerrdquo However

the corruption of the court staff and the

offices of the civil servants can be controlled

easily by using technology ie 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

107

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

108

53 Check and balance

The theory of separation of powers was given by

the Charles-Louis de Secondat baron de La Bregravede

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 lsquothe spirit of

lawsrsquo that

lsquoI have not drawn my principles from my

prejudices but from the nature of thingsrdquo 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

109

Conclusion

In conclusion it can be reminded that 3rd

paragraph of the preamble of our constitution

provides that

lsquoFurther 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 citizensrsquo

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

110

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 p1 see also Mahmudul Islam-

Constitutional law of Bangladesh second edition

p1

2 httpenwikipediaorgwikiConstitution

111

3 httplegal-

dictionarythefreedictionarycomconstitution

4 httpwwwthefreedictionarycomframework

5 httpwwwmacmillandictionarycomdictionarybri

tishframework

6 httpwwwegyankoshacinbitstream

7 httpwwwbanglapediaorghttpdocsHTE_0079HTM

8 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

9 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

10 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

11 httpwwwbpscgovbd2011

12 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

13 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

14 httpwwwrhdgovbdRulesAndRegulationsView_Ov

erviewaspRef=A

112

15 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

16 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

17 wwwforbescomprofilejulian-assange

18 httpwwwti-bangladeshorgresearchES_PSCpdf

19 httpwwwnapsipagorgPDFABDUL_WAHHABpdf see

also Khan Akbar Ali and Kazi Rakibuddin Ahmad

March 2008 ldquoQuota System for Civil Service

Recruitment in Bangladesh An Exploratory

Analysisrdquo 2008 available at http

wwwbpscgovbddocuments news25906 newsdoc

20 Mahmudul Islam- Constitutional law of Bangladesh

second edition p171 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 p171 see also Indra Sawhney v

India AIR 1993 SC 477

113

22 httpwwwmopagovbdindexphpoption=com_conte

ntamptask=viewampid=377ampItemid=419

23 httpwwwvsrhhrCustomPagesStaticHRVFilesL

egislation__Civil-Servants-Actpdf

24 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

25 httptraininganddevelopmentnaukrihubcomtrain

inghtml

26 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

27 httpsiteresourcesworldbankorgPUBLICSECTORAN

DGOVERNANCEResourcesAccountabilityGovernancepd

f

28 httpwwwjscbdorgbdb_functionphp

29 httpwwwigsbracuacbdUserFilesFilearchive

_fileJudiciary_Policy_Notepdf

30 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

114

31 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

32 httpwwwoecdorgdataoecd625735521740pdf

Page 87: The constitutional framework of public administration in bangladesh

87

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

88

Law Faculty of any one of three leading public

university ie 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 Secretariatrdquo 28

42 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

89

voice According to Rule 5 of OgraveevsjvDagger`k RywWwmqvj

mvwfcopyDaggermi cOumlDaggerek cDagger` wbDaggerqvM welqK AvDagger`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

90

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 32 are applicable with equitable

equality

43 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

91

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 33 is

applicable with equitable equality

44 Promotion procedure and recommendations

The promotion of sub-ordinate Courtrsquos judges are

in fact depended on the Annual Confidential

92

Reports (ACRs) There is no examination system

for getting the promotion in the sub-

ordinate judiciary

lsquoPresently 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

93

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 linersquo29

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-

ldquoConfidential reports should set out distinctly

and tersely sufficient particulars and it is

essential that they should be clear and definite

94

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 Divisionrdquo 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

95

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 34 is

applicable with equitable equality

45 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

96

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 skills30

Recommendation

The quality of training provided by JATI should

be improved A training need- assessment of the

subordinate court judges could be undertaken

97

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

98

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

subordinatecourts31

99

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

51 Ethical education

100

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 publics trust

and confidence in government by demonstrating

the highest standards of professional

competence efficiency and effectiveness

101

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

102

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

103

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

104

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 assets32 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

52 Use of technology

105

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 peoplersquos 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 lsquoThe Law of

Civil Procedurersquo first edition 2006 volume 1

page iii that

106

ldquoFor 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 lawyerrdquo However

the corruption of the court staff and the

offices of the civil servants can be controlled

easily by using technology ie 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

107

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

108

53 Check and balance

The theory of separation of powers was given by

the Charles-Louis de Secondat baron de La Bregravede

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 lsquothe spirit of

lawsrsquo that

lsquoI have not drawn my principles from my

prejudices but from the nature of thingsrdquo 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

109

Conclusion

In conclusion it can be reminded that 3rd

paragraph of the preamble of our constitution

provides that

lsquoFurther 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 citizensrsquo

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

110

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 p1 see also Mahmudul Islam-

Constitutional law of Bangladesh second edition

p1

2 httpenwikipediaorgwikiConstitution

111

3 httplegal-

dictionarythefreedictionarycomconstitution

4 httpwwwthefreedictionarycomframework

5 httpwwwmacmillandictionarycomdictionarybri

tishframework

6 httpwwwegyankoshacinbitstream

7 httpwwwbanglapediaorghttpdocsHTE_0079HTM

8 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

9 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

10 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

11 httpwwwbpscgovbd2011

12 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

13 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

14 httpwwwrhdgovbdRulesAndRegulationsView_Ov

erviewaspRef=A

112

15 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

16 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

17 wwwforbescomprofilejulian-assange

18 httpwwwti-bangladeshorgresearchES_PSCpdf

19 httpwwwnapsipagorgPDFABDUL_WAHHABpdf see

also Khan Akbar Ali and Kazi Rakibuddin Ahmad

March 2008 ldquoQuota System for Civil Service

Recruitment in Bangladesh An Exploratory

Analysisrdquo 2008 available at http

wwwbpscgovbddocuments news25906 newsdoc

20 Mahmudul Islam- Constitutional law of Bangladesh

second edition p171 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 p171 see also Indra Sawhney v

India AIR 1993 SC 477

113

22 httpwwwmopagovbdindexphpoption=com_conte

ntamptask=viewampid=377ampItemid=419

23 httpwwwvsrhhrCustomPagesStaticHRVFilesL

egislation__Civil-Servants-Actpdf

24 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

25 httptraininganddevelopmentnaukrihubcomtrain

inghtml

26 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

27 httpsiteresourcesworldbankorgPUBLICSECTORAN

DGOVERNANCEResourcesAccountabilityGovernancepd

f

28 httpwwwjscbdorgbdb_functionphp

29 httpwwwigsbracuacbdUserFilesFilearchive

_fileJudiciary_Policy_Notepdf

30 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

114

31 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

32 httpwwwoecdorgdataoecd625735521740pdf

Page 88: The constitutional framework of public administration in bangladesh

88

Law Faculty of any one of three leading public

university ie 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 Secretariatrdquo 28

42 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

89

voice According to Rule 5 of OgraveevsjvDagger`k RywWwmqvj

mvwfcopyDaggermi cOumlDaggerek cDagger` wbDaggerqvM welqK AvDagger`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

90

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 32 are applicable with equitable

equality

43 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

91

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 33 is

applicable with equitable equality

44 Promotion procedure and recommendations

The promotion of sub-ordinate Courtrsquos judges are

in fact depended on the Annual Confidential

92

Reports (ACRs) There is no examination system

for getting the promotion in the sub-

ordinate judiciary

lsquoPresently 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

93

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 linersquo29

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-

ldquoConfidential reports should set out distinctly

and tersely sufficient particulars and it is

essential that they should be clear and definite

94

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 Divisionrdquo 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

95

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 34 is

applicable with equitable equality

45 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

96

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 skills30

Recommendation

The quality of training provided by JATI should

be improved A training need- assessment of the

subordinate court judges could be undertaken

97

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

98

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

subordinatecourts31

99

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

51 Ethical education

100

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 publics trust

and confidence in government by demonstrating

the highest standards of professional

competence efficiency and effectiveness

101

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

102

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

103

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

104

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 assets32 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

52 Use of technology

105

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 peoplersquos 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 lsquoThe Law of

Civil Procedurersquo first edition 2006 volume 1

page iii that

106

ldquoFor 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 lawyerrdquo However

the corruption of the court staff and the

offices of the civil servants can be controlled

easily by using technology ie 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

107

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

108

53 Check and balance

The theory of separation of powers was given by

the Charles-Louis de Secondat baron de La Bregravede

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 lsquothe spirit of

lawsrsquo that

lsquoI have not drawn my principles from my

prejudices but from the nature of thingsrdquo 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

109

Conclusion

In conclusion it can be reminded that 3rd

paragraph of the preamble of our constitution

provides that

lsquoFurther 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 citizensrsquo

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

110

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 p1 see also Mahmudul Islam-

Constitutional law of Bangladesh second edition

p1

2 httpenwikipediaorgwikiConstitution

111

3 httplegal-

dictionarythefreedictionarycomconstitution

4 httpwwwthefreedictionarycomframework

5 httpwwwmacmillandictionarycomdictionarybri

tishframework

6 httpwwwegyankoshacinbitstream

7 httpwwwbanglapediaorghttpdocsHTE_0079HTM

8 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

9 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

10 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

11 httpwwwbpscgovbd2011

12 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

13 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

14 httpwwwrhdgovbdRulesAndRegulationsView_Ov

erviewaspRef=A

112

15 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

16 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

17 wwwforbescomprofilejulian-assange

18 httpwwwti-bangladeshorgresearchES_PSCpdf

19 httpwwwnapsipagorgPDFABDUL_WAHHABpdf see

also Khan Akbar Ali and Kazi Rakibuddin Ahmad

March 2008 ldquoQuota System for Civil Service

Recruitment in Bangladesh An Exploratory

Analysisrdquo 2008 available at http

wwwbpscgovbddocuments news25906 newsdoc

20 Mahmudul Islam- Constitutional law of Bangladesh

second edition p171 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 p171 see also Indra Sawhney v

India AIR 1993 SC 477

113

22 httpwwwmopagovbdindexphpoption=com_conte

ntamptask=viewampid=377ampItemid=419

23 httpwwwvsrhhrCustomPagesStaticHRVFilesL

egislation__Civil-Servants-Actpdf

24 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

25 httptraininganddevelopmentnaukrihubcomtrain

inghtml

26 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

27 httpsiteresourcesworldbankorgPUBLICSECTORAN

DGOVERNANCEResourcesAccountabilityGovernancepd

f

28 httpwwwjscbdorgbdb_functionphp

29 httpwwwigsbracuacbdUserFilesFilearchive

_fileJudiciary_Policy_Notepdf

30 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

114

31 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

32 httpwwwoecdorgdataoecd625735521740pdf

Page 89: The constitutional framework of public administration in bangladesh

89

voice According to Rule 5 of OgraveevsjvDagger`k RywWwmqvj

mvwfcopyDaggermi cOumlDaggerek cDagger` wbDaggerqvM welqK AvDagger`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

90

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 32 are applicable with equitable

equality

43 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

91

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 33 is

applicable with equitable equality

44 Promotion procedure and recommendations

The promotion of sub-ordinate Courtrsquos judges are

in fact depended on the Annual Confidential

92

Reports (ACRs) There is no examination system

for getting the promotion in the sub-

ordinate judiciary

lsquoPresently 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

93

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 linersquo29

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-

ldquoConfidential reports should set out distinctly

and tersely sufficient particulars and it is

essential that they should be clear and definite

94

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 Divisionrdquo 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

95

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 34 is

applicable with equitable equality

45 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

96

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 skills30

Recommendation

The quality of training provided by JATI should

be improved A training need- assessment of the

subordinate court judges could be undertaken

97

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

98

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

subordinatecourts31

99

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

51 Ethical education

100

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 publics trust

and confidence in government by demonstrating

the highest standards of professional

competence efficiency and effectiveness

101

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

102

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

103

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

104

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 assets32 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

52 Use of technology

105

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 peoplersquos 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 lsquoThe Law of

Civil Procedurersquo first edition 2006 volume 1

page iii that

106

ldquoFor 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 lawyerrdquo However

the corruption of the court staff and the

offices of the civil servants can be controlled

easily by using technology ie 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

107

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

108

53 Check and balance

The theory of separation of powers was given by

the Charles-Louis de Secondat baron de La Bregravede

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 lsquothe spirit of

lawsrsquo that

lsquoI have not drawn my principles from my

prejudices but from the nature of thingsrdquo 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

109

Conclusion

In conclusion it can be reminded that 3rd

paragraph of the preamble of our constitution

provides that

lsquoFurther 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 citizensrsquo

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

110

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 p1 see also Mahmudul Islam-

Constitutional law of Bangladesh second edition

p1

2 httpenwikipediaorgwikiConstitution

111

3 httplegal-

dictionarythefreedictionarycomconstitution

4 httpwwwthefreedictionarycomframework

5 httpwwwmacmillandictionarycomdictionarybri

tishframework

6 httpwwwegyankoshacinbitstream

7 httpwwwbanglapediaorghttpdocsHTE_0079HTM

8 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

9 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

10 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

11 httpwwwbpscgovbd2011

12 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

13 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

14 httpwwwrhdgovbdRulesAndRegulationsView_Ov

erviewaspRef=A

112

15 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

16 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

17 wwwforbescomprofilejulian-assange

18 httpwwwti-bangladeshorgresearchES_PSCpdf

19 httpwwwnapsipagorgPDFABDUL_WAHHABpdf see

also Khan Akbar Ali and Kazi Rakibuddin Ahmad

March 2008 ldquoQuota System for Civil Service

Recruitment in Bangladesh An Exploratory

Analysisrdquo 2008 available at http

wwwbpscgovbddocuments news25906 newsdoc

20 Mahmudul Islam- Constitutional law of Bangladesh

second edition p171 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 p171 see also Indra Sawhney v

India AIR 1993 SC 477

113

22 httpwwwmopagovbdindexphpoption=com_conte

ntamptask=viewampid=377ampItemid=419

23 httpwwwvsrhhrCustomPagesStaticHRVFilesL

egislation__Civil-Servants-Actpdf

24 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

25 httptraininganddevelopmentnaukrihubcomtrain

inghtml

26 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

27 httpsiteresourcesworldbankorgPUBLICSECTORAN

DGOVERNANCEResourcesAccountabilityGovernancepd

f

28 httpwwwjscbdorgbdb_functionphp

29 httpwwwigsbracuacbdUserFilesFilearchive

_fileJudiciary_Policy_Notepdf

30 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

114

31 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

32 httpwwwoecdorgdataoecd625735521740pdf

Page 90: The constitutional framework of public administration in bangladesh

90

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 32 are applicable with equitable

equality

43 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

91

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 33 is

applicable with equitable equality

44 Promotion procedure and recommendations

The promotion of sub-ordinate Courtrsquos judges are

in fact depended on the Annual Confidential

92

Reports (ACRs) There is no examination system

for getting the promotion in the sub-

ordinate judiciary

lsquoPresently 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

93

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 linersquo29

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-

ldquoConfidential reports should set out distinctly

and tersely sufficient particulars and it is

essential that they should be clear and definite

94

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 Divisionrdquo 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

95

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 34 is

applicable with equitable equality

45 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

96

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 skills30

Recommendation

The quality of training provided by JATI should

be improved A training need- assessment of the

subordinate court judges could be undertaken

97

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

98

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

subordinatecourts31

99

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

51 Ethical education

100

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 publics trust

and confidence in government by demonstrating

the highest standards of professional

competence efficiency and effectiveness

101

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

102

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

103

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

104

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 assets32 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

52 Use of technology

105

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 peoplersquos 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 lsquoThe Law of

Civil Procedurersquo first edition 2006 volume 1

page iii that

106

ldquoFor 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 lawyerrdquo However

the corruption of the court staff and the

offices of the civil servants can be controlled

easily by using technology ie 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

107

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

108

53 Check and balance

The theory of separation of powers was given by

the Charles-Louis de Secondat baron de La Bregravede

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 lsquothe spirit of

lawsrsquo that

lsquoI have not drawn my principles from my

prejudices but from the nature of thingsrdquo 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

109

Conclusion

In conclusion it can be reminded that 3rd

paragraph of the preamble of our constitution

provides that

lsquoFurther 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 citizensrsquo

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

110

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 p1 see also Mahmudul Islam-

Constitutional law of Bangladesh second edition

p1

2 httpenwikipediaorgwikiConstitution

111

3 httplegal-

dictionarythefreedictionarycomconstitution

4 httpwwwthefreedictionarycomframework

5 httpwwwmacmillandictionarycomdictionarybri

tishframework

6 httpwwwegyankoshacinbitstream

7 httpwwwbanglapediaorghttpdocsHTE_0079HTM

8 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

9 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

10 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

11 httpwwwbpscgovbd2011

12 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

13 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

14 httpwwwrhdgovbdRulesAndRegulationsView_Ov

erviewaspRef=A

112

15 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

16 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

17 wwwforbescomprofilejulian-assange

18 httpwwwti-bangladeshorgresearchES_PSCpdf

19 httpwwwnapsipagorgPDFABDUL_WAHHABpdf see

also Khan Akbar Ali and Kazi Rakibuddin Ahmad

March 2008 ldquoQuota System for Civil Service

Recruitment in Bangladesh An Exploratory

Analysisrdquo 2008 available at http

wwwbpscgovbddocuments news25906 newsdoc

20 Mahmudul Islam- Constitutional law of Bangladesh

second edition p171 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 p171 see also Indra Sawhney v

India AIR 1993 SC 477

113

22 httpwwwmopagovbdindexphpoption=com_conte

ntamptask=viewampid=377ampItemid=419

23 httpwwwvsrhhrCustomPagesStaticHRVFilesL

egislation__Civil-Servants-Actpdf

24 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

25 httptraininganddevelopmentnaukrihubcomtrain

inghtml

26 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

27 httpsiteresourcesworldbankorgPUBLICSECTORAN

DGOVERNANCEResourcesAccountabilityGovernancepd

f

28 httpwwwjscbdorgbdb_functionphp

29 httpwwwigsbracuacbdUserFilesFilearchive

_fileJudiciary_Policy_Notepdf

30 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

114

31 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

32 httpwwwoecdorgdataoecd625735521740pdf

Page 91: The constitutional framework of public administration in bangladesh

91

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 33 is

applicable with equitable equality

44 Promotion procedure and recommendations

The promotion of sub-ordinate Courtrsquos judges are

in fact depended on the Annual Confidential

92

Reports (ACRs) There is no examination system

for getting the promotion in the sub-

ordinate judiciary

lsquoPresently 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

93

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 linersquo29

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-

ldquoConfidential reports should set out distinctly

and tersely sufficient particulars and it is

essential that they should be clear and definite

94

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 Divisionrdquo 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

95

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 34 is

applicable with equitable equality

45 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

96

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 skills30

Recommendation

The quality of training provided by JATI should

be improved A training need- assessment of the

subordinate court judges could be undertaken

97

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

98

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

subordinatecourts31

99

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

51 Ethical education

100

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 publics trust

and confidence in government by demonstrating

the highest standards of professional

competence efficiency and effectiveness

101

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

102

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

103

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

104

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 assets32 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

52 Use of technology

105

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 peoplersquos 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 lsquoThe Law of

Civil Procedurersquo first edition 2006 volume 1

page iii that

106

ldquoFor 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 lawyerrdquo However

the corruption of the court staff and the

offices of the civil servants can be controlled

easily by using technology ie 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

107

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

108

53 Check and balance

The theory of separation of powers was given by

the Charles-Louis de Secondat baron de La Bregravede

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 lsquothe spirit of

lawsrsquo that

lsquoI have not drawn my principles from my

prejudices but from the nature of thingsrdquo 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

109

Conclusion

In conclusion it can be reminded that 3rd

paragraph of the preamble of our constitution

provides that

lsquoFurther 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 citizensrsquo

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

110

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 p1 see also Mahmudul Islam-

Constitutional law of Bangladesh second edition

p1

2 httpenwikipediaorgwikiConstitution

111

3 httplegal-

dictionarythefreedictionarycomconstitution

4 httpwwwthefreedictionarycomframework

5 httpwwwmacmillandictionarycomdictionarybri

tishframework

6 httpwwwegyankoshacinbitstream

7 httpwwwbanglapediaorghttpdocsHTE_0079HTM

8 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

9 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

10 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

11 httpwwwbpscgovbd2011

12 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

13 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

14 httpwwwrhdgovbdRulesAndRegulationsView_Ov

erviewaspRef=A

112

15 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

16 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

17 wwwforbescomprofilejulian-assange

18 httpwwwti-bangladeshorgresearchES_PSCpdf

19 httpwwwnapsipagorgPDFABDUL_WAHHABpdf see

also Khan Akbar Ali and Kazi Rakibuddin Ahmad

March 2008 ldquoQuota System for Civil Service

Recruitment in Bangladesh An Exploratory

Analysisrdquo 2008 available at http

wwwbpscgovbddocuments news25906 newsdoc

20 Mahmudul Islam- Constitutional law of Bangladesh

second edition p171 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 p171 see also Indra Sawhney v

India AIR 1993 SC 477

113

22 httpwwwmopagovbdindexphpoption=com_conte

ntamptask=viewampid=377ampItemid=419

23 httpwwwvsrhhrCustomPagesStaticHRVFilesL

egislation__Civil-Servants-Actpdf

24 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

25 httptraininganddevelopmentnaukrihubcomtrain

inghtml

26 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

27 httpsiteresourcesworldbankorgPUBLICSECTORAN

DGOVERNANCEResourcesAccountabilityGovernancepd

f

28 httpwwwjscbdorgbdb_functionphp

29 httpwwwigsbracuacbdUserFilesFilearchive

_fileJudiciary_Policy_Notepdf

30 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

114

31 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

32 httpwwwoecdorgdataoecd625735521740pdf

Page 92: The constitutional framework of public administration in bangladesh

92

Reports (ACRs) There is no examination system

for getting the promotion in the sub-

ordinate judiciary

lsquoPresently 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

93

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 linersquo29

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-

ldquoConfidential reports should set out distinctly

and tersely sufficient particulars and it is

essential that they should be clear and definite

94

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 Divisionrdquo 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

95

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 34 is

applicable with equitable equality

45 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

96

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 skills30

Recommendation

The quality of training provided by JATI should

be improved A training need- assessment of the

subordinate court judges could be undertaken

97

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

98

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

subordinatecourts31

99

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

51 Ethical education

100

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 publics trust

and confidence in government by demonstrating

the highest standards of professional

competence efficiency and effectiveness

101

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

102

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

103

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

104

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 assets32 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

52 Use of technology

105

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 peoplersquos 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 lsquoThe Law of

Civil Procedurersquo first edition 2006 volume 1

page iii that

106

ldquoFor 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 lawyerrdquo However

the corruption of the court staff and the

offices of the civil servants can be controlled

easily by using technology ie 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

107

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

108

53 Check and balance

The theory of separation of powers was given by

the Charles-Louis de Secondat baron de La Bregravede

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 lsquothe spirit of

lawsrsquo that

lsquoI have not drawn my principles from my

prejudices but from the nature of thingsrdquo 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

109

Conclusion

In conclusion it can be reminded that 3rd

paragraph of the preamble of our constitution

provides that

lsquoFurther 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 citizensrsquo

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

110

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 p1 see also Mahmudul Islam-

Constitutional law of Bangladesh second edition

p1

2 httpenwikipediaorgwikiConstitution

111

3 httplegal-

dictionarythefreedictionarycomconstitution

4 httpwwwthefreedictionarycomframework

5 httpwwwmacmillandictionarycomdictionarybri

tishframework

6 httpwwwegyankoshacinbitstream

7 httpwwwbanglapediaorghttpdocsHTE_0079HTM

8 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

9 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

10 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

11 httpwwwbpscgovbd2011

12 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

13 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

14 httpwwwrhdgovbdRulesAndRegulationsView_Ov

erviewaspRef=A

112

15 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

16 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

17 wwwforbescomprofilejulian-assange

18 httpwwwti-bangladeshorgresearchES_PSCpdf

19 httpwwwnapsipagorgPDFABDUL_WAHHABpdf see

also Khan Akbar Ali and Kazi Rakibuddin Ahmad

March 2008 ldquoQuota System for Civil Service

Recruitment in Bangladesh An Exploratory

Analysisrdquo 2008 available at http

wwwbpscgovbddocuments news25906 newsdoc

20 Mahmudul Islam- Constitutional law of Bangladesh

second edition p171 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 p171 see also Indra Sawhney v

India AIR 1993 SC 477

113

22 httpwwwmopagovbdindexphpoption=com_conte

ntamptask=viewampid=377ampItemid=419

23 httpwwwvsrhhrCustomPagesStaticHRVFilesL

egislation__Civil-Servants-Actpdf

24 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

25 httptraininganddevelopmentnaukrihubcomtrain

inghtml

26 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

27 httpsiteresourcesworldbankorgPUBLICSECTORAN

DGOVERNANCEResourcesAccountabilityGovernancepd

f

28 httpwwwjscbdorgbdb_functionphp

29 httpwwwigsbracuacbdUserFilesFilearchive

_fileJudiciary_Policy_Notepdf

30 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

114

31 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

32 httpwwwoecdorgdataoecd625735521740pdf

Page 93: The constitutional framework of public administration in bangladesh

93

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 linersquo29

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-

ldquoConfidential reports should set out distinctly

and tersely sufficient particulars and it is

essential that they should be clear and definite

94

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 Divisionrdquo 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

95

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 34 is

applicable with equitable equality

45 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

96

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 skills30

Recommendation

The quality of training provided by JATI should

be improved A training need- assessment of the

subordinate court judges could be undertaken

97

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

98

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

subordinatecourts31

99

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

51 Ethical education

100

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 publics trust

and confidence in government by demonstrating

the highest standards of professional

competence efficiency and effectiveness

101

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

102

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

103

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

104

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 assets32 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

52 Use of technology

105

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 peoplersquos 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 lsquoThe Law of

Civil Procedurersquo first edition 2006 volume 1

page iii that

106

ldquoFor 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 lawyerrdquo However

the corruption of the court staff and the

offices of the civil servants can be controlled

easily by using technology ie 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

107

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

108

53 Check and balance

The theory of separation of powers was given by

the Charles-Louis de Secondat baron de La Bregravede

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 lsquothe spirit of

lawsrsquo that

lsquoI have not drawn my principles from my

prejudices but from the nature of thingsrdquo 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

109

Conclusion

In conclusion it can be reminded that 3rd

paragraph of the preamble of our constitution

provides that

lsquoFurther 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 citizensrsquo

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

110

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 p1 see also Mahmudul Islam-

Constitutional law of Bangladesh second edition

p1

2 httpenwikipediaorgwikiConstitution

111

3 httplegal-

dictionarythefreedictionarycomconstitution

4 httpwwwthefreedictionarycomframework

5 httpwwwmacmillandictionarycomdictionarybri

tishframework

6 httpwwwegyankoshacinbitstream

7 httpwwwbanglapediaorghttpdocsHTE_0079HTM

8 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

9 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

10 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

11 httpwwwbpscgovbd2011

12 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

13 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

14 httpwwwrhdgovbdRulesAndRegulationsView_Ov

erviewaspRef=A

112

15 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

16 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

17 wwwforbescomprofilejulian-assange

18 httpwwwti-bangladeshorgresearchES_PSCpdf

19 httpwwwnapsipagorgPDFABDUL_WAHHABpdf see

also Khan Akbar Ali and Kazi Rakibuddin Ahmad

March 2008 ldquoQuota System for Civil Service

Recruitment in Bangladesh An Exploratory

Analysisrdquo 2008 available at http

wwwbpscgovbddocuments news25906 newsdoc

20 Mahmudul Islam- Constitutional law of Bangladesh

second edition p171 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 p171 see also Indra Sawhney v

India AIR 1993 SC 477

113

22 httpwwwmopagovbdindexphpoption=com_conte

ntamptask=viewampid=377ampItemid=419

23 httpwwwvsrhhrCustomPagesStaticHRVFilesL

egislation__Civil-Servants-Actpdf

24 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

25 httptraininganddevelopmentnaukrihubcomtrain

inghtml

26 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

27 httpsiteresourcesworldbankorgPUBLICSECTORAN

DGOVERNANCEResourcesAccountabilityGovernancepd

f

28 httpwwwjscbdorgbdb_functionphp

29 httpwwwigsbracuacbdUserFilesFilearchive

_fileJudiciary_Policy_Notepdf

30 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

114

31 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

32 httpwwwoecdorgdataoecd625735521740pdf

Page 94: The constitutional framework of public administration in bangladesh

94

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 Divisionrdquo 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

95

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 34 is

applicable with equitable equality

45 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

96

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 skills30

Recommendation

The quality of training provided by JATI should

be improved A training need- assessment of the

subordinate court judges could be undertaken

97

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

98

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

subordinatecourts31

99

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

51 Ethical education

100

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 publics trust

and confidence in government by demonstrating

the highest standards of professional

competence efficiency and effectiveness

101

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

102

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

103

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

104

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 assets32 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

52 Use of technology

105

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 peoplersquos 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 lsquoThe Law of

Civil Procedurersquo first edition 2006 volume 1

page iii that

106

ldquoFor 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 lawyerrdquo However

the corruption of the court staff and the

offices of the civil servants can be controlled

easily by using technology ie 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

107

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

108

53 Check and balance

The theory of separation of powers was given by

the Charles-Louis de Secondat baron de La Bregravede

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 lsquothe spirit of

lawsrsquo that

lsquoI have not drawn my principles from my

prejudices but from the nature of thingsrdquo 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

109

Conclusion

In conclusion it can be reminded that 3rd

paragraph of the preamble of our constitution

provides that

lsquoFurther 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 citizensrsquo

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

110

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 p1 see also Mahmudul Islam-

Constitutional law of Bangladesh second edition

p1

2 httpenwikipediaorgwikiConstitution

111

3 httplegal-

dictionarythefreedictionarycomconstitution

4 httpwwwthefreedictionarycomframework

5 httpwwwmacmillandictionarycomdictionarybri

tishframework

6 httpwwwegyankoshacinbitstream

7 httpwwwbanglapediaorghttpdocsHTE_0079HTM

8 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

9 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

10 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

11 httpwwwbpscgovbd2011

12 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

13 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

14 httpwwwrhdgovbdRulesAndRegulationsView_Ov

erviewaspRef=A

112

15 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

16 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

17 wwwforbescomprofilejulian-assange

18 httpwwwti-bangladeshorgresearchES_PSCpdf

19 httpwwwnapsipagorgPDFABDUL_WAHHABpdf see

also Khan Akbar Ali and Kazi Rakibuddin Ahmad

March 2008 ldquoQuota System for Civil Service

Recruitment in Bangladesh An Exploratory

Analysisrdquo 2008 available at http

wwwbpscgovbddocuments news25906 newsdoc

20 Mahmudul Islam- Constitutional law of Bangladesh

second edition p171 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 p171 see also Indra Sawhney v

India AIR 1993 SC 477

113

22 httpwwwmopagovbdindexphpoption=com_conte

ntamptask=viewampid=377ampItemid=419

23 httpwwwvsrhhrCustomPagesStaticHRVFilesL

egislation__Civil-Servants-Actpdf

24 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

25 httptraininganddevelopmentnaukrihubcomtrain

inghtml

26 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

27 httpsiteresourcesworldbankorgPUBLICSECTORAN

DGOVERNANCEResourcesAccountabilityGovernancepd

f

28 httpwwwjscbdorgbdb_functionphp

29 httpwwwigsbracuacbdUserFilesFilearchive

_fileJudiciary_Policy_Notepdf

30 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

114

31 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

32 httpwwwoecdorgdataoecd625735521740pdf

Page 95: The constitutional framework of public administration in bangladesh

95

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 34 is

applicable with equitable equality

45 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

96

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 skills30

Recommendation

The quality of training provided by JATI should

be improved A training need- assessment of the

subordinate court judges could be undertaken

97

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

98

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

subordinatecourts31

99

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

51 Ethical education

100

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 publics trust

and confidence in government by demonstrating

the highest standards of professional

competence efficiency and effectiveness

101

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

102

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

103

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

104

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 assets32 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

52 Use of technology

105

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 peoplersquos 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 lsquoThe Law of

Civil Procedurersquo first edition 2006 volume 1

page iii that

106

ldquoFor 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 lawyerrdquo However

the corruption of the court staff and the

offices of the civil servants can be controlled

easily by using technology ie 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

107

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

108

53 Check and balance

The theory of separation of powers was given by

the Charles-Louis de Secondat baron de La Bregravede

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 lsquothe spirit of

lawsrsquo that

lsquoI have not drawn my principles from my

prejudices but from the nature of thingsrdquo 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

109

Conclusion

In conclusion it can be reminded that 3rd

paragraph of the preamble of our constitution

provides that

lsquoFurther 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 citizensrsquo

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

110

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 p1 see also Mahmudul Islam-

Constitutional law of Bangladesh second edition

p1

2 httpenwikipediaorgwikiConstitution

111

3 httplegal-

dictionarythefreedictionarycomconstitution

4 httpwwwthefreedictionarycomframework

5 httpwwwmacmillandictionarycomdictionarybri

tishframework

6 httpwwwegyankoshacinbitstream

7 httpwwwbanglapediaorghttpdocsHTE_0079HTM

8 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

9 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

10 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

11 httpwwwbpscgovbd2011

12 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

13 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

14 httpwwwrhdgovbdRulesAndRegulationsView_Ov

erviewaspRef=A

112

15 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

16 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

17 wwwforbescomprofilejulian-assange

18 httpwwwti-bangladeshorgresearchES_PSCpdf

19 httpwwwnapsipagorgPDFABDUL_WAHHABpdf see

also Khan Akbar Ali and Kazi Rakibuddin Ahmad

March 2008 ldquoQuota System for Civil Service

Recruitment in Bangladesh An Exploratory

Analysisrdquo 2008 available at http

wwwbpscgovbddocuments news25906 newsdoc

20 Mahmudul Islam- Constitutional law of Bangladesh

second edition p171 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 p171 see also Indra Sawhney v

India AIR 1993 SC 477

113

22 httpwwwmopagovbdindexphpoption=com_conte

ntamptask=viewampid=377ampItemid=419

23 httpwwwvsrhhrCustomPagesStaticHRVFilesL

egislation__Civil-Servants-Actpdf

24 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

25 httptraininganddevelopmentnaukrihubcomtrain

inghtml

26 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

27 httpsiteresourcesworldbankorgPUBLICSECTORAN

DGOVERNANCEResourcesAccountabilityGovernancepd

f

28 httpwwwjscbdorgbdb_functionphp

29 httpwwwigsbracuacbdUserFilesFilearchive

_fileJudiciary_Policy_Notepdf

30 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

114

31 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

32 httpwwwoecdorgdataoecd625735521740pdf

Page 96: The constitutional framework of public administration in bangladesh

96

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 skills30

Recommendation

The quality of training provided by JATI should

be improved A training need- assessment of the

subordinate court judges could be undertaken

97

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

98

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

subordinatecourts31

99

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

51 Ethical education

100

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 publics trust

and confidence in government by demonstrating

the highest standards of professional

competence efficiency and effectiveness

101

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

102

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

103

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

104

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 assets32 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

52 Use of technology

105

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 peoplersquos 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 lsquoThe Law of

Civil Procedurersquo first edition 2006 volume 1

page iii that

106

ldquoFor 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 lawyerrdquo However

the corruption of the court staff and the

offices of the civil servants can be controlled

easily by using technology ie 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

107

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

108

53 Check and balance

The theory of separation of powers was given by

the Charles-Louis de Secondat baron de La Bregravede

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 lsquothe spirit of

lawsrsquo that

lsquoI have not drawn my principles from my

prejudices but from the nature of thingsrdquo 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

109

Conclusion

In conclusion it can be reminded that 3rd

paragraph of the preamble of our constitution

provides that

lsquoFurther 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 citizensrsquo

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

110

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 p1 see also Mahmudul Islam-

Constitutional law of Bangladesh second edition

p1

2 httpenwikipediaorgwikiConstitution

111

3 httplegal-

dictionarythefreedictionarycomconstitution

4 httpwwwthefreedictionarycomframework

5 httpwwwmacmillandictionarycomdictionarybri

tishframework

6 httpwwwegyankoshacinbitstream

7 httpwwwbanglapediaorghttpdocsHTE_0079HTM

8 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

9 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

10 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

11 httpwwwbpscgovbd2011

12 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

13 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

14 httpwwwrhdgovbdRulesAndRegulationsView_Ov

erviewaspRef=A

112

15 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

16 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

17 wwwforbescomprofilejulian-assange

18 httpwwwti-bangladeshorgresearchES_PSCpdf

19 httpwwwnapsipagorgPDFABDUL_WAHHABpdf see

also Khan Akbar Ali and Kazi Rakibuddin Ahmad

March 2008 ldquoQuota System for Civil Service

Recruitment in Bangladesh An Exploratory

Analysisrdquo 2008 available at http

wwwbpscgovbddocuments news25906 newsdoc

20 Mahmudul Islam- Constitutional law of Bangladesh

second edition p171 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 p171 see also Indra Sawhney v

India AIR 1993 SC 477

113

22 httpwwwmopagovbdindexphpoption=com_conte

ntamptask=viewampid=377ampItemid=419

23 httpwwwvsrhhrCustomPagesStaticHRVFilesL

egislation__Civil-Servants-Actpdf

24 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

25 httptraininganddevelopmentnaukrihubcomtrain

inghtml

26 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

27 httpsiteresourcesworldbankorgPUBLICSECTORAN

DGOVERNANCEResourcesAccountabilityGovernancepd

f

28 httpwwwjscbdorgbdb_functionphp

29 httpwwwigsbracuacbdUserFilesFilearchive

_fileJudiciary_Policy_Notepdf

30 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

114

31 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

32 httpwwwoecdorgdataoecd625735521740pdf

Page 97: The constitutional framework of public administration in bangladesh

97

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

98

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

subordinatecourts31

99

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

51 Ethical education

100

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 publics trust

and confidence in government by demonstrating

the highest standards of professional

competence efficiency and effectiveness

101

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

102

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

103

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

104

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 assets32 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

52 Use of technology

105

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 peoplersquos 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 lsquoThe Law of

Civil Procedurersquo first edition 2006 volume 1

page iii that

106

ldquoFor 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 lawyerrdquo However

the corruption of the court staff and the

offices of the civil servants can be controlled

easily by using technology ie 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

107

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

108

53 Check and balance

The theory of separation of powers was given by

the Charles-Louis de Secondat baron de La Bregravede

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 lsquothe spirit of

lawsrsquo that

lsquoI have not drawn my principles from my

prejudices but from the nature of thingsrdquo 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

109

Conclusion

In conclusion it can be reminded that 3rd

paragraph of the preamble of our constitution

provides that

lsquoFurther 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 citizensrsquo

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

110

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 p1 see also Mahmudul Islam-

Constitutional law of Bangladesh second edition

p1

2 httpenwikipediaorgwikiConstitution

111

3 httplegal-

dictionarythefreedictionarycomconstitution

4 httpwwwthefreedictionarycomframework

5 httpwwwmacmillandictionarycomdictionarybri

tishframework

6 httpwwwegyankoshacinbitstream

7 httpwwwbanglapediaorghttpdocsHTE_0079HTM

8 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

9 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

10 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

11 httpwwwbpscgovbd2011

12 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

13 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

14 httpwwwrhdgovbdRulesAndRegulationsView_Ov

erviewaspRef=A

112

15 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

16 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

17 wwwforbescomprofilejulian-assange

18 httpwwwti-bangladeshorgresearchES_PSCpdf

19 httpwwwnapsipagorgPDFABDUL_WAHHABpdf see

also Khan Akbar Ali and Kazi Rakibuddin Ahmad

March 2008 ldquoQuota System for Civil Service

Recruitment in Bangladesh An Exploratory

Analysisrdquo 2008 available at http

wwwbpscgovbddocuments news25906 newsdoc

20 Mahmudul Islam- Constitutional law of Bangladesh

second edition p171 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 p171 see also Indra Sawhney v

India AIR 1993 SC 477

113

22 httpwwwmopagovbdindexphpoption=com_conte

ntamptask=viewampid=377ampItemid=419

23 httpwwwvsrhhrCustomPagesStaticHRVFilesL

egislation__Civil-Servants-Actpdf

24 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

25 httptraininganddevelopmentnaukrihubcomtrain

inghtml

26 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

27 httpsiteresourcesworldbankorgPUBLICSECTORAN

DGOVERNANCEResourcesAccountabilityGovernancepd

f

28 httpwwwjscbdorgbdb_functionphp

29 httpwwwigsbracuacbdUserFilesFilearchive

_fileJudiciary_Policy_Notepdf

30 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

114

31 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

32 httpwwwoecdorgdataoecd625735521740pdf

Page 98: The constitutional framework of public administration in bangladesh

98

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

subordinatecourts31

99

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

51 Ethical education

100

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 publics trust

and confidence in government by demonstrating

the highest standards of professional

competence efficiency and effectiveness

101

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

102

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

103

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

104

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 assets32 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

52 Use of technology

105

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 peoplersquos 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 lsquoThe Law of

Civil Procedurersquo first edition 2006 volume 1

page iii that

106

ldquoFor 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 lawyerrdquo However

the corruption of the court staff and the

offices of the civil servants can be controlled

easily by using technology ie 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

107

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

108

53 Check and balance

The theory of separation of powers was given by

the Charles-Louis de Secondat baron de La Bregravede

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 lsquothe spirit of

lawsrsquo that

lsquoI have not drawn my principles from my

prejudices but from the nature of thingsrdquo 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

109

Conclusion

In conclusion it can be reminded that 3rd

paragraph of the preamble of our constitution

provides that

lsquoFurther 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 citizensrsquo

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

110

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 p1 see also Mahmudul Islam-

Constitutional law of Bangladesh second edition

p1

2 httpenwikipediaorgwikiConstitution

111

3 httplegal-

dictionarythefreedictionarycomconstitution

4 httpwwwthefreedictionarycomframework

5 httpwwwmacmillandictionarycomdictionarybri

tishframework

6 httpwwwegyankoshacinbitstream

7 httpwwwbanglapediaorghttpdocsHTE_0079HTM

8 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

9 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

10 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

11 httpwwwbpscgovbd2011

12 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

13 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

14 httpwwwrhdgovbdRulesAndRegulationsView_Ov

erviewaspRef=A

112

15 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

16 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

17 wwwforbescomprofilejulian-assange

18 httpwwwti-bangladeshorgresearchES_PSCpdf

19 httpwwwnapsipagorgPDFABDUL_WAHHABpdf see

also Khan Akbar Ali and Kazi Rakibuddin Ahmad

March 2008 ldquoQuota System for Civil Service

Recruitment in Bangladesh An Exploratory

Analysisrdquo 2008 available at http

wwwbpscgovbddocuments news25906 newsdoc

20 Mahmudul Islam- Constitutional law of Bangladesh

second edition p171 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 p171 see also Indra Sawhney v

India AIR 1993 SC 477

113

22 httpwwwmopagovbdindexphpoption=com_conte

ntamptask=viewampid=377ampItemid=419

23 httpwwwvsrhhrCustomPagesStaticHRVFilesL

egislation__Civil-Servants-Actpdf

24 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

25 httptraininganddevelopmentnaukrihubcomtrain

inghtml

26 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

27 httpsiteresourcesworldbankorgPUBLICSECTORAN

DGOVERNANCEResourcesAccountabilityGovernancepd

f

28 httpwwwjscbdorgbdb_functionphp

29 httpwwwigsbracuacbdUserFilesFilearchive

_fileJudiciary_Policy_Notepdf

30 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

114

31 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

32 httpwwwoecdorgdataoecd625735521740pdf

Page 99: The constitutional framework of public administration in bangladesh

99

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

51 Ethical education

100

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 publics trust

and confidence in government by demonstrating

the highest standards of professional

competence efficiency and effectiveness

101

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

102

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

103

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

104

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 assets32 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

52 Use of technology

105

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 peoplersquos 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 lsquoThe Law of

Civil Procedurersquo first edition 2006 volume 1

page iii that

106

ldquoFor 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 lawyerrdquo However

the corruption of the court staff and the

offices of the civil servants can be controlled

easily by using technology ie 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

107

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

108

53 Check and balance

The theory of separation of powers was given by

the Charles-Louis de Secondat baron de La Bregravede

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 lsquothe spirit of

lawsrsquo that

lsquoI have not drawn my principles from my

prejudices but from the nature of thingsrdquo 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

109

Conclusion

In conclusion it can be reminded that 3rd

paragraph of the preamble of our constitution

provides that

lsquoFurther 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 citizensrsquo

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

110

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 p1 see also Mahmudul Islam-

Constitutional law of Bangladesh second edition

p1

2 httpenwikipediaorgwikiConstitution

111

3 httplegal-

dictionarythefreedictionarycomconstitution

4 httpwwwthefreedictionarycomframework

5 httpwwwmacmillandictionarycomdictionarybri

tishframework

6 httpwwwegyankoshacinbitstream

7 httpwwwbanglapediaorghttpdocsHTE_0079HTM

8 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

9 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

10 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

11 httpwwwbpscgovbd2011

12 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

13 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

14 httpwwwrhdgovbdRulesAndRegulationsView_Ov

erviewaspRef=A

112

15 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

16 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

17 wwwforbescomprofilejulian-assange

18 httpwwwti-bangladeshorgresearchES_PSCpdf

19 httpwwwnapsipagorgPDFABDUL_WAHHABpdf see

also Khan Akbar Ali and Kazi Rakibuddin Ahmad

March 2008 ldquoQuota System for Civil Service

Recruitment in Bangladesh An Exploratory

Analysisrdquo 2008 available at http

wwwbpscgovbddocuments news25906 newsdoc

20 Mahmudul Islam- Constitutional law of Bangladesh

second edition p171 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 p171 see also Indra Sawhney v

India AIR 1993 SC 477

113

22 httpwwwmopagovbdindexphpoption=com_conte

ntamptask=viewampid=377ampItemid=419

23 httpwwwvsrhhrCustomPagesStaticHRVFilesL

egislation__Civil-Servants-Actpdf

24 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

25 httptraininganddevelopmentnaukrihubcomtrain

inghtml

26 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

27 httpsiteresourcesworldbankorgPUBLICSECTORAN

DGOVERNANCEResourcesAccountabilityGovernancepd

f

28 httpwwwjscbdorgbdb_functionphp

29 httpwwwigsbracuacbdUserFilesFilearchive

_fileJudiciary_Policy_Notepdf

30 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

114

31 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

32 httpwwwoecdorgdataoecd625735521740pdf

Page 100: The constitutional framework of public administration in bangladesh

100

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 publics trust

and confidence in government by demonstrating

the highest standards of professional

competence efficiency and effectiveness

101

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

102

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

103

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

104

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 assets32 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

52 Use of technology

105

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 peoplersquos 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 lsquoThe Law of

Civil Procedurersquo first edition 2006 volume 1

page iii that

106

ldquoFor 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 lawyerrdquo However

the corruption of the court staff and the

offices of the civil servants can be controlled

easily by using technology ie 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

107

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

108

53 Check and balance

The theory of separation of powers was given by

the Charles-Louis de Secondat baron de La Bregravede

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 lsquothe spirit of

lawsrsquo that

lsquoI have not drawn my principles from my

prejudices but from the nature of thingsrdquo 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

109

Conclusion

In conclusion it can be reminded that 3rd

paragraph of the preamble of our constitution

provides that

lsquoFurther 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 citizensrsquo

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

110

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 p1 see also Mahmudul Islam-

Constitutional law of Bangladesh second edition

p1

2 httpenwikipediaorgwikiConstitution

111

3 httplegal-

dictionarythefreedictionarycomconstitution

4 httpwwwthefreedictionarycomframework

5 httpwwwmacmillandictionarycomdictionarybri

tishframework

6 httpwwwegyankoshacinbitstream

7 httpwwwbanglapediaorghttpdocsHTE_0079HTM

8 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

9 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

10 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

11 httpwwwbpscgovbd2011

12 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

13 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

14 httpwwwrhdgovbdRulesAndRegulationsView_Ov

erviewaspRef=A

112

15 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

16 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

17 wwwforbescomprofilejulian-assange

18 httpwwwti-bangladeshorgresearchES_PSCpdf

19 httpwwwnapsipagorgPDFABDUL_WAHHABpdf see

also Khan Akbar Ali and Kazi Rakibuddin Ahmad

March 2008 ldquoQuota System for Civil Service

Recruitment in Bangladesh An Exploratory

Analysisrdquo 2008 available at http

wwwbpscgovbddocuments news25906 newsdoc

20 Mahmudul Islam- Constitutional law of Bangladesh

second edition p171 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 p171 see also Indra Sawhney v

India AIR 1993 SC 477

113

22 httpwwwmopagovbdindexphpoption=com_conte

ntamptask=viewampid=377ampItemid=419

23 httpwwwvsrhhrCustomPagesStaticHRVFilesL

egislation__Civil-Servants-Actpdf

24 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

25 httptraininganddevelopmentnaukrihubcomtrain

inghtml

26 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

27 httpsiteresourcesworldbankorgPUBLICSECTORAN

DGOVERNANCEResourcesAccountabilityGovernancepd

f

28 httpwwwjscbdorgbdb_functionphp

29 httpwwwigsbracuacbdUserFilesFilearchive

_fileJudiciary_Policy_Notepdf

30 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

114

31 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

32 httpwwwoecdorgdataoecd625735521740pdf

Page 101: The constitutional framework of public administration in bangladesh

101

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

102

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

103

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

104

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 assets32 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

52 Use of technology

105

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 peoplersquos 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 lsquoThe Law of

Civil Procedurersquo first edition 2006 volume 1

page iii that

106

ldquoFor 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 lawyerrdquo However

the corruption of the court staff and the

offices of the civil servants can be controlled

easily by using technology ie 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

107

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

108

53 Check and balance

The theory of separation of powers was given by

the Charles-Louis de Secondat baron de La Bregravede

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 lsquothe spirit of

lawsrsquo that

lsquoI have not drawn my principles from my

prejudices but from the nature of thingsrdquo 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

109

Conclusion

In conclusion it can be reminded that 3rd

paragraph of the preamble of our constitution

provides that

lsquoFurther 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 citizensrsquo

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

110

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 p1 see also Mahmudul Islam-

Constitutional law of Bangladesh second edition

p1

2 httpenwikipediaorgwikiConstitution

111

3 httplegal-

dictionarythefreedictionarycomconstitution

4 httpwwwthefreedictionarycomframework

5 httpwwwmacmillandictionarycomdictionarybri

tishframework

6 httpwwwegyankoshacinbitstream

7 httpwwwbanglapediaorghttpdocsHTE_0079HTM

8 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

9 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

10 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

11 httpwwwbpscgovbd2011

12 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

13 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

14 httpwwwrhdgovbdRulesAndRegulationsView_Ov

erviewaspRef=A

112

15 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

16 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

17 wwwforbescomprofilejulian-assange

18 httpwwwti-bangladeshorgresearchES_PSCpdf

19 httpwwwnapsipagorgPDFABDUL_WAHHABpdf see

also Khan Akbar Ali and Kazi Rakibuddin Ahmad

March 2008 ldquoQuota System for Civil Service

Recruitment in Bangladesh An Exploratory

Analysisrdquo 2008 available at http

wwwbpscgovbddocuments news25906 newsdoc

20 Mahmudul Islam- Constitutional law of Bangladesh

second edition p171 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 p171 see also Indra Sawhney v

India AIR 1993 SC 477

113

22 httpwwwmopagovbdindexphpoption=com_conte

ntamptask=viewampid=377ampItemid=419

23 httpwwwvsrhhrCustomPagesStaticHRVFilesL

egislation__Civil-Servants-Actpdf

24 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

25 httptraininganddevelopmentnaukrihubcomtrain

inghtml

26 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

27 httpsiteresourcesworldbankorgPUBLICSECTORAN

DGOVERNANCEResourcesAccountabilityGovernancepd

f

28 httpwwwjscbdorgbdb_functionphp

29 httpwwwigsbracuacbdUserFilesFilearchive

_fileJudiciary_Policy_Notepdf

30 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

114

31 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

32 httpwwwoecdorgdataoecd625735521740pdf

Page 102: The constitutional framework of public administration in bangladesh

102

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

103

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

104

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 assets32 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

52 Use of technology

105

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 peoplersquos 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 lsquoThe Law of

Civil Procedurersquo first edition 2006 volume 1

page iii that

106

ldquoFor 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 lawyerrdquo However

the corruption of the court staff and the

offices of the civil servants can be controlled

easily by using technology ie 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

107

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

108

53 Check and balance

The theory of separation of powers was given by

the Charles-Louis de Secondat baron de La Bregravede

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 lsquothe spirit of

lawsrsquo that

lsquoI have not drawn my principles from my

prejudices but from the nature of thingsrdquo 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

109

Conclusion

In conclusion it can be reminded that 3rd

paragraph of the preamble of our constitution

provides that

lsquoFurther 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 citizensrsquo

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

110

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 p1 see also Mahmudul Islam-

Constitutional law of Bangladesh second edition

p1

2 httpenwikipediaorgwikiConstitution

111

3 httplegal-

dictionarythefreedictionarycomconstitution

4 httpwwwthefreedictionarycomframework

5 httpwwwmacmillandictionarycomdictionarybri

tishframework

6 httpwwwegyankoshacinbitstream

7 httpwwwbanglapediaorghttpdocsHTE_0079HTM

8 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

9 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

10 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

11 httpwwwbpscgovbd2011

12 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

13 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

14 httpwwwrhdgovbdRulesAndRegulationsView_Ov

erviewaspRef=A

112

15 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

16 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

17 wwwforbescomprofilejulian-assange

18 httpwwwti-bangladeshorgresearchES_PSCpdf

19 httpwwwnapsipagorgPDFABDUL_WAHHABpdf see

also Khan Akbar Ali and Kazi Rakibuddin Ahmad

March 2008 ldquoQuota System for Civil Service

Recruitment in Bangladesh An Exploratory

Analysisrdquo 2008 available at http

wwwbpscgovbddocuments news25906 newsdoc

20 Mahmudul Islam- Constitutional law of Bangladesh

second edition p171 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 p171 see also Indra Sawhney v

India AIR 1993 SC 477

113

22 httpwwwmopagovbdindexphpoption=com_conte

ntamptask=viewampid=377ampItemid=419

23 httpwwwvsrhhrCustomPagesStaticHRVFilesL

egislation__Civil-Servants-Actpdf

24 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

25 httptraininganddevelopmentnaukrihubcomtrain

inghtml

26 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

27 httpsiteresourcesworldbankorgPUBLICSECTORAN

DGOVERNANCEResourcesAccountabilityGovernancepd

f

28 httpwwwjscbdorgbdb_functionphp

29 httpwwwigsbracuacbdUserFilesFilearchive

_fileJudiciary_Policy_Notepdf

30 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

114

31 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

32 httpwwwoecdorgdataoecd625735521740pdf

Page 103: The constitutional framework of public administration in bangladesh

103

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

104

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 assets32 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

52 Use of technology

105

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 peoplersquos 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 lsquoThe Law of

Civil Procedurersquo first edition 2006 volume 1

page iii that

106

ldquoFor 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 lawyerrdquo However

the corruption of the court staff and the

offices of the civil servants can be controlled

easily by using technology ie 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

107

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

108

53 Check and balance

The theory of separation of powers was given by

the Charles-Louis de Secondat baron de La Bregravede

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 lsquothe spirit of

lawsrsquo that

lsquoI have not drawn my principles from my

prejudices but from the nature of thingsrdquo 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

109

Conclusion

In conclusion it can be reminded that 3rd

paragraph of the preamble of our constitution

provides that

lsquoFurther 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 citizensrsquo

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

110

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 p1 see also Mahmudul Islam-

Constitutional law of Bangladesh second edition

p1

2 httpenwikipediaorgwikiConstitution

111

3 httplegal-

dictionarythefreedictionarycomconstitution

4 httpwwwthefreedictionarycomframework

5 httpwwwmacmillandictionarycomdictionarybri

tishframework

6 httpwwwegyankoshacinbitstream

7 httpwwwbanglapediaorghttpdocsHTE_0079HTM

8 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

9 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

10 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

11 httpwwwbpscgovbd2011

12 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

13 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

14 httpwwwrhdgovbdRulesAndRegulationsView_Ov

erviewaspRef=A

112

15 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

16 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

17 wwwforbescomprofilejulian-assange

18 httpwwwti-bangladeshorgresearchES_PSCpdf

19 httpwwwnapsipagorgPDFABDUL_WAHHABpdf see

also Khan Akbar Ali and Kazi Rakibuddin Ahmad

March 2008 ldquoQuota System for Civil Service

Recruitment in Bangladesh An Exploratory

Analysisrdquo 2008 available at http

wwwbpscgovbddocuments news25906 newsdoc

20 Mahmudul Islam- Constitutional law of Bangladesh

second edition p171 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 p171 see also Indra Sawhney v

India AIR 1993 SC 477

113

22 httpwwwmopagovbdindexphpoption=com_conte

ntamptask=viewampid=377ampItemid=419

23 httpwwwvsrhhrCustomPagesStaticHRVFilesL

egislation__Civil-Servants-Actpdf

24 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

25 httptraininganddevelopmentnaukrihubcomtrain

inghtml

26 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

27 httpsiteresourcesworldbankorgPUBLICSECTORAN

DGOVERNANCEResourcesAccountabilityGovernancepd

f

28 httpwwwjscbdorgbdb_functionphp

29 httpwwwigsbracuacbdUserFilesFilearchive

_fileJudiciary_Policy_Notepdf

30 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

114

31 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

32 httpwwwoecdorgdataoecd625735521740pdf

Page 104: The constitutional framework of public administration in bangladesh

104

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 assets32 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

52 Use of technology

105

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 peoplersquos 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 lsquoThe Law of

Civil Procedurersquo first edition 2006 volume 1

page iii that

106

ldquoFor 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 lawyerrdquo However

the corruption of the court staff and the

offices of the civil servants can be controlled

easily by using technology ie 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

107

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

108

53 Check and balance

The theory of separation of powers was given by

the Charles-Louis de Secondat baron de La Bregravede

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 lsquothe spirit of

lawsrsquo that

lsquoI have not drawn my principles from my

prejudices but from the nature of thingsrdquo 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

109

Conclusion

In conclusion it can be reminded that 3rd

paragraph of the preamble of our constitution

provides that

lsquoFurther 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 citizensrsquo

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

110

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 p1 see also Mahmudul Islam-

Constitutional law of Bangladesh second edition

p1

2 httpenwikipediaorgwikiConstitution

111

3 httplegal-

dictionarythefreedictionarycomconstitution

4 httpwwwthefreedictionarycomframework

5 httpwwwmacmillandictionarycomdictionarybri

tishframework

6 httpwwwegyankoshacinbitstream

7 httpwwwbanglapediaorghttpdocsHTE_0079HTM

8 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

9 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

10 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

11 httpwwwbpscgovbd2011

12 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

13 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

14 httpwwwrhdgovbdRulesAndRegulationsView_Ov

erviewaspRef=A

112

15 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

16 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

17 wwwforbescomprofilejulian-assange

18 httpwwwti-bangladeshorgresearchES_PSCpdf

19 httpwwwnapsipagorgPDFABDUL_WAHHABpdf see

also Khan Akbar Ali and Kazi Rakibuddin Ahmad

March 2008 ldquoQuota System for Civil Service

Recruitment in Bangladesh An Exploratory

Analysisrdquo 2008 available at http

wwwbpscgovbddocuments news25906 newsdoc

20 Mahmudul Islam- Constitutional law of Bangladesh

second edition p171 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 p171 see also Indra Sawhney v

India AIR 1993 SC 477

113

22 httpwwwmopagovbdindexphpoption=com_conte

ntamptask=viewampid=377ampItemid=419

23 httpwwwvsrhhrCustomPagesStaticHRVFilesL

egislation__Civil-Servants-Actpdf

24 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

25 httptraininganddevelopmentnaukrihubcomtrain

inghtml

26 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

27 httpsiteresourcesworldbankorgPUBLICSECTORAN

DGOVERNANCEResourcesAccountabilityGovernancepd

f

28 httpwwwjscbdorgbdb_functionphp

29 httpwwwigsbracuacbdUserFilesFilearchive

_fileJudiciary_Policy_Notepdf

30 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

114

31 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

32 httpwwwoecdorgdataoecd625735521740pdf

Page 105: The constitutional framework of public administration in bangladesh

105

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 peoplersquos 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 lsquoThe Law of

Civil Procedurersquo first edition 2006 volume 1

page iii that

106

ldquoFor 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 lawyerrdquo However

the corruption of the court staff and the

offices of the civil servants can be controlled

easily by using technology ie 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

107

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

108

53 Check and balance

The theory of separation of powers was given by

the Charles-Louis de Secondat baron de La Bregravede

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 lsquothe spirit of

lawsrsquo that

lsquoI have not drawn my principles from my

prejudices but from the nature of thingsrdquo 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

109

Conclusion

In conclusion it can be reminded that 3rd

paragraph of the preamble of our constitution

provides that

lsquoFurther 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 citizensrsquo

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

110

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 p1 see also Mahmudul Islam-

Constitutional law of Bangladesh second edition

p1

2 httpenwikipediaorgwikiConstitution

111

3 httplegal-

dictionarythefreedictionarycomconstitution

4 httpwwwthefreedictionarycomframework

5 httpwwwmacmillandictionarycomdictionarybri

tishframework

6 httpwwwegyankoshacinbitstream

7 httpwwwbanglapediaorghttpdocsHTE_0079HTM

8 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

9 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

10 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

11 httpwwwbpscgovbd2011

12 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

13 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

14 httpwwwrhdgovbdRulesAndRegulationsView_Ov

erviewaspRef=A

112

15 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

16 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

17 wwwforbescomprofilejulian-assange

18 httpwwwti-bangladeshorgresearchES_PSCpdf

19 httpwwwnapsipagorgPDFABDUL_WAHHABpdf see

also Khan Akbar Ali and Kazi Rakibuddin Ahmad

March 2008 ldquoQuota System for Civil Service

Recruitment in Bangladesh An Exploratory

Analysisrdquo 2008 available at http

wwwbpscgovbddocuments news25906 newsdoc

20 Mahmudul Islam- Constitutional law of Bangladesh

second edition p171 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 p171 see also Indra Sawhney v

India AIR 1993 SC 477

113

22 httpwwwmopagovbdindexphpoption=com_conte

ntamptask=viewampid=377ampItemid=419

23 httpwwwvsrhhrCustomPagesStaticHRVFilesL

egislation__Civil-Servants-Actpdf

24 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

25 httptraininganddevelopmentnaukrihubcomtrain

inghtml

26 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

27 httpsiteresourcesworldbankorgPUBLICSECTORAN

DGOVERNANCEResourcesAccountabilityGovernancepd

f

28 httpwwwjscbdorgbdb_functionphp

29 httpwwwigsbracuacbdUserFilesFilearchive

_fileJudiciary_Policy_Notepdf

30 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

114

31 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

32 httpwwwoecdorgdataoecd625735521740pdf

Page 106: The constitutional framework of public administration in bangladesh

106

ldquoFor 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 lawyerrdquo However

the corruption of the court staff and the

offices of the civil servants can be controlled

easily by using technology ie 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

107

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

108

53 Check and balance

The theory of separation of powers was given by

the Charles-Louis de Secondat baron de La Bregravede

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 lsquothe spirit of

lawsrsquo that

lsquoI have not drawn my principles from my

prejudices but from the nature of thingsrdquo 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

109

Conclusion

In conclusion it can be reminded that 3rd

paragraph of the preamble of our constitution

provides that

lsquoFurther 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 citizensrsquo

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

110

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 p1 see also Mahmudul Islam-

Constitutional law of Bangladesh second edition

p1

2 httpenwikipediaorgwikiConstitution

111

3 httplegal-

dictionarythefreedictionarycomconstitution

4 httpwwwthefreedictionarycomframework

5 httpwwwmacmillandictionarycomdictionarybri

tishframework

6 httpwwwegyankoshacinbitstream

7 httpwwwbanglapediaorghttpdocsHTE_0079HTM

8 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

9 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

10 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

11 httpwwwbpscgovbd2011

12 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

13 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

14 httpwwwrhdgovbdRulesAndRegulationsView_Ov

erviewaspRef=A

112

15 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

16 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

17 wwwforbescomprofilejulian-assange

18 httpwwwti-bangladeshorgresearchES_PSCpdf

19 httpwwwnapsipagorgPDFABDUL_WAHHABpdf see

also Khan Akbar Ali and Kazi Rakibuddin Ahmad

March 2008 ldquoQuota System for Civil Service

Recruitment in Bangladesh An Exploratory

Analysisrdquo 2008 available at http

wwwbpscgovbddocuments news25906 newsdoc

20 Mahmudul Islam- Constitutional law of Bangladesh

second edition p171 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 p171 see also Indra Sawhney v

India AIR 1993 SC 477

113

22 httpwwwmopagovbdindexphpoption=com_conte

ntamptask=viewampid=377ampItemid=419

23 httpwwwvsrhhrCustomPagesStaticHRVFilesL

egislation__Civil-Servants-Actpdf

24 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

25 httptraininganddevelopmentnaukrihubcomtrain

inghtml

26 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

27 httpsiteresourcesworldbankorgPUBLICSECTORAN

DGOVERNANCEResourcesAccountabilityGovernancepd

f

28 httpwwwjscbdorgbdb_functionphp

29 httpwwwigsbracuacbdUserFilesFilearchive

_fileJudiciary_Policy_Notepdf

30 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

114

31 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

32 httpwwwoecdorgdataoecd625735521740pdf

Page 107: The constitutional framework of public administration in bangladesh

107

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

108

53 Check and balance

The theory of separation of powers was given by

the Charles-Louis de Secondat baron de La Bregravede

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 lsquothe spirit of

lawsrsquo that

lsquoI have not drawn my principles from my

prejudices but from the nature of thingsrdquo 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

109

Conclusion

In conclusion it can be reminded that 3rd

paragraph of the preamble of our constitution

provides that

lsquoFurther 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 citizensrsquo

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

110

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 p1 see also Mahmudul Islam-

Constitutional law of Bangladesh second edition

p1

2 httpenwikipediaorgwikiConstitution

111

3 httplegal-

dictionarythefreedictionarycomconstitution

4 httpwwwthefreedictionarycomframework

5 httpwwwmacmillandictionarycomdictionarybri

tishframework

6 httpwwwegyankoshacinbitstream

7 httpwwwbanglapediaorghttpdocsHTE_0079HTM

8 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

9 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

10 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

11 httpwwwbpscgovbd2011

12 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

13 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

14 httpwwwrhdgovbdRulesAndRegulationsView_Ov

erviewaspRef=A

112

15 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

16 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

17 wwwforbescomprofilejulian-assange

18 httpwwwti-bangladeshorgresearchES_PSCpdf

19 httpwwwnapsipagorgPDFABDUL_WAHHABpdf see

also Khan Akbar Ali and Kazi Rakibuddin Ahmad

March 2008 ldquoQuota System for Civil Service

Recruitment in Bangladesh An Exploratory

Analysisrdquo 2008 available at http

wwwbpscgovbddocuments news25906 newsdoc

20 Mahmudul Islam- Constitutional law of Bangladesh

second edition p171 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 p171 see also Indra Sawhney v

India AIR 1993 SC 477

113

22 httpwwwmopagovbdindexphpoption=com_conte

ntamptask=viewampid=377ampItemid=419

23 httpwwwvsrhhrCustomPagesStaticHRVFilesL

egislation__Civil-Servants-Actpdf

24 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

25 httptraininganddevelopmentnaukrihubcomtrain

inghtml

26 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

27 httpsiteresourcesworldbankorgPUBLICSECTORAN

DGOVERNANCEResourcesAccountabilityGovernancepd

f

28 httpwwwjscbdorgbdb_functionphp

29 httpwwwigsbracuacbdUserFilesFilearchive

_fileJudiciary_Policy_Notepdf

30 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

114

31 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

32 httpwwwoecdorgdataoecd625735521740pdf

Page 108: The constitutional framework of public administration in bangladesh

108

53 Check and balance

The theory of separation of powers was given by

the Charles-Louis de Secondat baron de La Bregravede

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 lsquothe spirit of

lawsrsquo that

lsquoI have not drawn my principles from my

prejudices but from the nature of thingsrdquo 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

109

Conclusion

In conclusion it can be reminded that 3rd

paragraph of the preamble of our constitution

provides that

lsquoFurther 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 citizensrsquo

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

110

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 p1 see also Mahmudul Islam-

Constitutional law of Bangladesh second edition

p1

2 httpenwikipediaorgwikiConstitution

111

3 httplegal-

dictionarythefreedictionarycomconstitution

4 httpwwwthefreedictionarycomframework

5 httpwwwmacmillandictionarycomdictionarybri

tishframework

6 httpwwwegyankoshacinbitstream

7 httpwwwbanglapediaorghttpdocsHTE_0079HTM

8 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

9 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

10 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

11 httpwwwbpscgovbd2011

12 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

13 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

14 httpwwwrhdgovbdRulesAndRegulationsView_Ov

erviewaspRef=A

112

15 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

16 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

17 wwwforbescomprofilejulian-assange

18 httpwwwti-bangladeshorgresearchES_PSCpdf

19 httpwwwnapsipagorgPDFABDUL_WAHHABpdf see

also Khan Akbar Ali and Kazi Rakibuddin Ahmad

March 2008 ldquoQuota System for Civil Service

Recruitment in Bangladesh An Exploratory

Analysisrdquo 2008 available at http

wwwbpscgovbddocuments news25906 newsdoc

20 Mahmudul Islam- Constitutional law of Bangladesh

second edition p171 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 p171 see also Indra Sawhney v

India AIR 1993 SC 477

113

22 httpwwwmopagovbdindexphpoption=com_conte

ntamptask=viewampid=377ampItemid=419

23 httpwwwvsrhhrCustomPagesStaticHRVFilesL

egislation__Civil-Servants-Actpdf

24 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

25 httptraininganddevelopmentnaukrihubcomtrain

inghtml

26 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

27 httpsiteresourcesworldbankorgPUBLICSECTORAN

DGOVERNANCEResourcesAccountabilityGovernancepd

f

28 httpwwwjscbdorgbdb_functionphp

29 httpwwwigsbracuacbdUserFilesFilearchive

_fileJudiciary_Policy_Notepdf

30 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

114

31 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

32 httpwwwoecdorgdataoecd625735521740pdf

Page 109: The constitutional framework of public administration in bangladesh

109

Conclusion

In conclusion it can be reminded that 3rd

paragraph of the preamble of our constitution

provides that

lsquoFurther 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 citizensrsquo

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

110

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 p1 see also Mahmudul Islam-

Constitutional law of Bangladesh second edition

p1

2 httpenwikipediaorgwikiConstitution

111

3 httplegal-

dictionarythefreedictionarycomconstitution

4 httpwwwthefreedictionarycomframework

5 httpwwwmacmillandictionarycomdictionarybri

tishframework

6 httpwwwegyankoshacinbitstream

7 httpwwwbanglapediaorghttpdocsHTE_0079HTM

8 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

9 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

10 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

11 httpwwwbpscgovbd2011

12 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

13 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

14 httpwwwrhdgovbdRulesAndRegulationsView_Ov

erviewaspRef=A

112

15 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

16 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

17 wwwforbescomprofilejulian-assange

18 httpwwwti-bangladeshorgresearchES_PSCpdf

19 httpwwwnapsipagorgPDFABDUL_WAHHABpdf see

also Khan Akbar Ali and Kazi Rakibuddin Ahmad

March 2008 ldquoQuota System for Civil Service

Recruitment in Bangladesh An Exploratory

Analysisrdquo 2008 available at http

wwwbpscgovbddocuments news25906 newsdoc

20 Mahmudul Islam- Constitutional law of Bangladesh

second edition p171 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 p171 see also Indra Sawhney v

India AIR 1993 SC 477

113

22 httpwwwmopagovbdindexphpoption=com_conte

ntamptask=viewampid=377ampItemid=419

23 httpwwwvsrhhrCustomPagesStaticHRVFilesL

egislation__Civil-Servants-Actpdf

24 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

25 httptraininganddevelopmentnaukrihubcomtrain

inghtml

26 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

27 httpsiteresourcesworldbankorgPUBLICSECTORAN

DGOVERNANCEResourcesAccountabilityGovernancepd

f

28 httpwwwjscbdorgbdb_functionphp

29 httpwwwigsbracuacbdUserFilesFilearchive

_fileJudiciary_Policy_Notepdf

30 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

114

31 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

32 httpwwwoecdorgdataoecd625735521740pdf

Page 110: The constitutional framework of public administration in bangladesh

110

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 p1 see also Mahmudul Islam-

Constitutional law of Bangladesh second edition

p1

2 httpenwikipediaorgwikiConstitution

111

3 httplegal-

dictionarythefreedictionarycomconstitution

4 httpwwwthefreedictionarycomframework

5 httpwwwmacmillandictionarycomdictionarybri

tishframework

6 httpwwwegyankoshacinbitstream

7 httpwwwbanglapediaorghttpdocsHTE_0079HTM

8 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

9 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

10 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

11 httpwwwbpscgovbd2011

12 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

13 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

14 httpwwwrhdgovbdRulesAndRegulationsView_Ov

erviewaspRef=A

112

15 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

16 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

17 wwwforbescomprofilejulian-assange

18 httpwwwti-bangladeshorgresearchES_PSCpdf

19 httpwwwnapsipagorgPDFABDUL_WAHHABpdf see

also Khan Akbar Ali and Kazi Rakibuddin Ahmad

March 2008 ldquoQuota System for Civil Service

Recruitment in Bangladesh An Exploratory

Analysisrdquo 2008 available at http

wwwbpscgovbddocuments news25906 newsdoc

20 Mahmudul Islam- Constitutional law of Bangladesh

second edition p171 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 p171 see also Indra Sawhney v

India AIR 1993 SC 477

113

22 httpwwwmopagovbdindexphpoption=com_conte

ntamptask=viewampid=377ampItemid=419

23 httpwwwvsrhhrCustomPagesStaticHRVFilesL

egislation__Civil-Servants-Actpdf

24 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

25 httptraininganddevelopmentnaukrihubcomtrain

inghtml

26 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

27 httpsiteresourcesworldbankorgPUBLICSECTORAN

DGOVERNANCEResourcesAccountabilityGovernancepd

f

28 httpwwwjscbdorgbdb_functionphp

29 httpwwwigsbracuacbdUserFilesFilearchive

_fileJudiciary_Policy_Notepdf

30 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

114

31 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

32 httpwwwoecdorgdataoecd625735521740pdf

Page 111: The constitutional framework of public administration in bangladesh

111

3 httplegal-

dictionarythefreedictionarycomconstitution

4 httpwwwthefreedictionarycomframework

5 httpwwwmacmillandictionarycomdictionarybri

tishframework

6 httpwwwegyankoshacinbitstream

7 httpwwwbanglapediaorghttpdocsHTE_0079HTM

8 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

9 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

10 httpwwwmongabaycomreferencecountry_studies

bangladeshGOVERNMENThtml

11 httpwwwbpscgovbd2011

12 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

13 httpenwikipediaorgwikiBangladesh_Civil_Ser

vice

14 httpwwwrhdgovbdRulesAndRegulationsView_Ov

erviewaspRef=A

112

15 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

16 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

17 wwwforbescomprofilejulian-assange

18 httpwwwti-bangladeshorgresearchES_PSCpdf

19 httpwwwnapsipagorgPDFABDUL_WAHHABpdf see

also Khan Akbar Ali and Kazi Rakibuddin Ahmad

March 2008 ldquoQuota System for Civil Service

Recruitment in Bangladesh An Exploratory

Analysisrdquo 2008 available at http

wwwbpscgovbddocuments news25906 newsdoc

20 Mahmudul Islam- Constitutional law of Bangladesh

second edition p171 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 p171 see also Indra Sawhney v

India AIR 1993 SC 477

113

22 httpwwwmopagovbdindexphpoption=com_conte

ntamptask=viewampid=377ampItemid=419

23 httpwwwvsrhhrCustomPagesStaticHRVFilesL

egislation__Civil-Servants-Actpdf

24 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

25 httptraininganddevelopmentnaukrihubcomtrain

inghtml

26 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

27 httpsiteresourcesworldbankorgPUBLICSECTORAN

DGOVERNANCEResourcesAccountabilityGovernancepd

f

28 httpwwwjscbdorgbdb_functionphp

29 httpwwwigsbracuacbdUserFilesFilearchive

_fileJudiciary_Policy_Notepdf

30 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

114

31 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

32 httpwwwoecdorgdataoecd625735521740pdf

Page 112: The constitutional framework of public administration in bangladesh

112

15 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

16 httpwwwnapsipagorgPDFABDUL_WAHHABpdf

17 wwwforbescomprofilejulian-assange

18 httpwwwti-bangladeshorgresearchES_PSCpdf

19 httpwwwnapsipagorgPDFABDUL_WAHHABpdf see

also Khan Akbar Ali and Kazi Rakibuddin Ahmad

March 2008 ldquoQuota System for Civil Service

Recruitment in Bangladesh An Exploratory

Analysisrdquo 2008 available at http

wwwbpscgovbddocuments news25906 newsdoc

20 Mahmudul Islam- Constitutional law of Bangladesh

second edition p171 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 p171 see also Indra Sawhney v

India AIR 1993 SC 477

113

22 httpwwwmopagovbdindexphpoption=com_conte

ntamptask=viewampid=377ampItemid=419

23 httpwwwvsrhhrCustomPagesStaticHRVFilesL

egislation__Civil-Servants-Actpdf

24 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

25 httptraininganddevelopmentnaukrihubcomtrain

inghtml

26 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

27 httpsiteresourcesworldbankorgPUBLICSECTORAN

DGOVERNANCEResourcesAccountabilityGovernancepd

f

28 httpwwwjscbdorgbdb_functionphp

29 httpwwwigsbracuacbdUserFilesFilearchive

_fileJudiciary_Policy_Notepdf

30 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

114

31 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

32 httpwwwoecdorgdataoecd625735521740pdf

Page 113: The constitutional framework of public administration in bangladesh

113

22 httpwwwmopagovbdindexphpoption=com_conte

ntamptask=viewampid=377ampItemid=419

23 httpwwwvsrhhrCustomPagesStaticHRVFilesL

egislation__Civil-Servants-Actpdf

24 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

25 httptraininganddevelopmentnaukrihubcomtrain

inghtml

26 httpunpan1unorgintradocgroupspublicdocum

entsununpan023229pdf

27 httpsiteresourcesworldbankorgPUBLICSECTORAN

DGOVERNANCEResourcesAccountabilityGovernancepd

f

28 httpwwwjscbdorgbdb_functionphp

29 httpwwwigsbracuacbdUserFilesFilearchive

_fileJudiciary_Policy_Notepdf

30 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

114

31 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

32 httpwwwoecdorgdataoecd625735521740pdf

Page 114: The constitutional framework of public administration in bangladesh

114

31 httpwwwigsbracuacbdUserFilesFilearchive_

fileJudiciary_Policy_Notepdf

32 httpwwwoecdorgdataoecd625735521740pdf