DARUL IHSAN CASE AND LLB: Directives or Obiter Dicta?

The 13 writ petitions relating to the management of internal and external affairs of Darul Ihsan University (DIHU) which has led the High Court Division (HCD) of the Supreme Court to declare DIHU's academic activities as illegal; has in recent times been widely commented upon. The issues in the petitions mainly revolved around three key areas, namely: the dispute over the control of the Board of Trustees of DIHU between four contending factions, the appointment of the VC, and the operation of outer campuses of DIHU. The petitions depict a very sorry state of affairs in the management of DIHU. The issuance of memos and then sometimes the disowning of those memos by concerned officials of the Ministry of Education and their subsequent inaction compounded the problem. The HCD has very rightly noted that had the Ministry of Education and the University Grants Commission acted promptly, the issues could have been sorted out much earlier and that would have served everyone better. The HCD has very appositely determined that the disputed questions of ownership and control of the Darul Ihsan Trust and DIHU Trust are not amenable to its writ jurisdiction and rightly declined to adjudicate on them. In any case, they are beyond the scope of this brief write-up and this would only focus on the HCD's observations regarding the LLB (Honours) Programme administered by private universities.

The direct nexus between the directives regarding the LLB (Honours) programme run by private universities and the directives issued by the HCD is the Writ Petition no. 10398 of 2013. In this writ petition, some LLB (Honours) degree holders from DIHU sought the relief against the denial of the right to sit for the examination for enrolment as advocates conducted by Bangladesh Bar Council (BBC). At the outset, it would be submitted that the observations of the HCD in this regard have been misconceived by many. The HCD in the course of disposing of this writ petition has implied that many of its directions are in the nature of obiter dicta. This is clearly implied in the following words of the judgement:

"[W]hen this Court [HCD] sits in Constitutional jurisdiction and a Constitutional issue is brought to the notice of this Court in course of examining the other issues raised in a writ petition, it becomes this Court's bounded duty to make pertinent observations, albeit by way of obiter dicta, towards the Legislature in considering as to whether any law requires to be legislated for the interest of the nation and also guiding the executives to the right path." (At page104 of the unreported judgement)

This point would be a fortiori if we read the following observations of the HCD:

"It is expected that private universities with good reputation, both locally as well as internationally, such as North South University, Independent University, Brac [BRAC] University and a few more private universities, would be happy with the introduction of this system by the BBC. However, if appropriate suggestions are put forward by them, the same may be discussed in the forum of Legal Education Committee of the BBC." (At pages 99-100 of the unreported judgement)

Had the HCD envisaged all of its observations to be directions and not observations in the form of obiter dicta, then it is quite plausible to think that it would not have kept open the option for discussions. It is undisputed that judgements are to be obeyed, they are not left to be discussed with the parties on whom they are supposed to be binding.

The observations of the HCD regarding the LL.B. (Honours) Programme administered by private universities are quite lengthy and analysing them would take space far beyond that which is possible to take within the limits of this newspaper essay. Hence, we look at some of the observations regarding the admission process. It would be respectfully submitted that the direction that the admission process should be controlled by the BBC does not sit well with the academic freedom of universities. It would also be respectfully submitted that the admission process in comparable disciplines such as medical and dental professions is regulated by a central authority because they are examinations for entrance into colleges, not universities.

Again, most if not all private universities run their courses on a trimester system and hence, it is incomprehensible as to how an annual admission policy would be feasible. The envisaged control of the BBC over the admission process is clearly the outcome of a noble desire to uphold the integrity of admissions into and the award of LLB (Honours) degrees. However, there should be alternative ways to achieve these laudable objectives rather than impinging upon the institutional autonomy of universities. It may be pertinent to mention here that the Article 10(i) of the Bangladesh Legal Practitioners and Bar Council Order, 1972 vests in the BBC the functions to take measures to 'promote legal education and to lay down the standards to such education in consultation with the universities in Bangladesh imparting such education' (emphasis added). A plain reading of the aforementioned Article indicates that the Parliament has intended an indispensable consultative role of the Universities regarding any measure impinging on legal education and thus, the BBC has not been envisioned as the sole or ultimate regulator of legal education.

It would also be humbly submitted that by the declaration that 'a degree in law' would mean inter alia, an LLB (Honours) course run by any Bangladeshi public university or any private university with a 'clearance certificate' from the BBC, a pointed distinction has been drawn between public and private universities and the basis for that distinction has not been substantially corroborated except for the fact that many (though not all) private universities allegedly award below par LLB (Honours) degrees. It would be submitted that an even more fundamental issue worth pondering would probably be, whether these observations with far-reaching impacts are in the nature of obiter dicta or mandatory directions. And whether the issues discussed above should ultimately be regulated through the directions of the HCD or would they be better regulated through Parliamentary legislation. It is accepted wisdom for centuries that the latter is by its inherent nature the outcome of a much more deliberative and democratic process (at least theoretically) involving all the stakeholders.

The writer is an Associate Professor at School of Law, BRAC University.