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Seeking of Nomination by ICTBD Prosecutors

Is there any bar at all?

Sifat Mahmud
THE seeking of nomination by four Prosecutors of the International Crimes Tribunal Bangladesh (ICTBD) from Awami League for the upcoming general election has raised questions from different corners as to the legality of their seeking nomination from the ruling party and their integrity. However, none of them got nomination. One expert opined that Awami League has rightly refused to give them nomination. This article will clarify whether there is any bar, be it legal or moral, in their seeking nomination from the ruling party.
At present, there are 22 ICTBD Prosecutors. The Chief Prosecutor and two other Prosecutors have been appointed in the status of Attorney General; twelve Prosecutors have been appointed in the status of Additional Attorney General; one prosecutor has been appointed in the status of Deputy Attorney General and six prosecutors have been appointed in the status of Assistant Attorney General. Their appointment and duties are regulated under Section 7 of the International Crimes (Tribunals) Act 1973 (ICTA 1973) and rules thereto on such terms and conditions as determined by the government. The role of the Prosecutors of ICTBD is similar to that of Attorney General, Additional Attorney General, Deputy Attorney General and Assistant Attorney General and their appointment is made on ad hoc basis and therefore, the Prosecutors of the ICTBD are not permanent incumbent of the government.
The Prosecutors of the ICTBD are intrinsically deemed to be law officers of the government. According to Section 2 of the Bangladesh Law Officers Order 1972 the term 'law officer' denotes the Attorney General, Additional Attorney General, Deputy Attorney General and Assistant Attorney General in the Supreme Court. However, in practice customarily and intrinsically the term 'law officer' has been extended to Public Prosecutors and Government Pleader and their assistants in the lower judiciary. In an authoritative law book named 'Ain Shobdokosh', the term 'law officers of the government' has been defined and, according to that, the Prosecutors of the ICTBD fall within the term. Being law officer the Prosecutors of the ICTBD do not hold any 'office of profit', nor be they regarded as government servants. As per Section 5 of the Bangladesh Law Officers Order 1972 (P.O. 6 of 1972) the office of a law officer is not an 'office of profit' nor is it a 'service of the Republic'. Section 5(2) the said Order provides as follows: "The Office of a Law Officer shall be deemed not to be an office of profit nor shall "service of Bangladesh" mean or include the office of a Law Officer".
No other Service Rules of the Republic is applicable for the Prosecutors of the ICTBD. For example, the Prosecutors of the ICTBD do not get any pay scale like government servants and they do not get any festival bonus and increment of salary. They get retainer for their service as determined by the government.
It is the duty of the Prosecutors to conduct the prosecution cases and as such, like defence lawyers, they are merely a party to the cases brought before the Tribunals. It is the duty of the Hon'ble Judges to try cases and deliver verdicts. (This was also reiterated by former Law Minister and at present Adviser to the Prime Minister Barrister Shafique Ahmed: The Daily Star, November 11 2013 and The Daily Prothom Alo, November 12, 2013). Hence, the presumption of impartiality is not applicable for the Prosecutors as they are a party to the cases only.
Since the office of the Prosecutor is neither an 'office of profit', nor can it be regarded as 'service of the Republic.' Article 66(2)(f) of the Constitution of Bangladesh ('the Constitution') and Section 12(1 )(f) of RPO 1972 are not applicable for the Prosecutors of the ICTBD. There is no legal or any other bar for a Prosecutor to seek nomination of any political party to participate in general election. There is also no bar for a Prosecutor if s/he gets nomination from any political party and participates in a general election provided that s/he resigns from his office before filing the nomination paper.
For example, Ms. Fazilatunnessa Bappy MP had been elected as Member of the Parliament (MP) to the reserved seat of Parliament in 2011 while she was serving as a Prosecutor in the ICTBD. When she got nomination she resigned from the office of the Prosecutor and thereafter took oath as MP on
December 13, 2011. No question of immorality or illegality was raised about her being elected as MP from Awami League while she was serving as a prosecutor of the ICTBD. Similarly, no question is raised when the Chief Law Officer of Anti-Corruption Commission (in the status of Attorney General) Advocate Anisul Hoque has got nomination from Awami League to contest in the upcoming general election from Brahmanbaria - 4 (Kosba)!
It must be mentioned here that like other law officers the Prosecutors of the ICTBD are not barred from participating in political activities and no question has been raised till today as to the legality of their participating in politics, nor has their integrity been questioned by anybody.
Despite no ambiguity and no legal bar to seek nomination from any political party, some quarters have intentionally instigated debate and raised eye-brows, just to confuse the general people of the country about their integrity. Such remark of those people is totally unjustifiable and cannot be considered as merely a fair criticism. It might be treated as simply ignorance of law, or it was quite intentional and with malafide and ulterior motive.