An assessment of the doctrine of 'due process'

Law in-depth
An assessment of the doctrine of 'due process'

M. Jashim Ali Chowdhury

Published in the Daily Star, Law and Our Rights, June 16, 2007

URL: http://thedailystar.net/law/2007/06/03/depth.htm

Article 31 of our Constitution envisages reasonable and non- arbitrary laws and procedure. It has two components:
1. Inalienable right to be treated in accordance with law.2. No action detrimental to the life, liberty, body, reputation or property of any person.
Much of the significance of Article 31 lies in that it envisages the famous doctrine of Due Process which is said to be a concept having its birth in America.
The Fifth Amendment to the U.S. Constitution states that no person shall be deprived of life, liberty, or property, without due process of law. The Fourteenth Amendment further illuminates the concept by saying: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
The central aim of due process doctrine is to assure fair procedure when the government imposes a burden on an individual. The doctrine seeks to prevent arbitrary government, avoid mistaken deprivations, allow persons to know about and respond to charges against them, and promote a sense of the legitimacy of official behaviour. The doctrine is understood in two senses: Procedural due process and Substantive due process.
Procedural due process is the idea that government must follow fair and generally accepted legal procedures in its actions against individuals.
Substantive due process refers to a requirement that laws and regulations be related to a legitimate government interest (e.g., crime prevention) and not contain provisions that result in the unfair or arbitrary treatment of an individual. There are some behaviours of individuals that, according to the court, are generally beyond the reach of government power, such as the free exercise of religion or participation in private organisations working on public problems and issues. The government may not regulate these actions, not even by the use of the fairest legal procedures, because to do so would violate the most fundamental rights of individuals in a constitutional government. If government officials want to regulate these kinds of usually protected actions, they must demonstrate that they cannot achieve a legitimate public purpose by any other means.

Evolution of substantive due process

The modern notion of substantive due process emerged in decisions of the U.S. Supreme Court during the late nineteenth century. In the 1897 case of Allgeyer v. Louisiana, 165 U.S. 578, 17 S. Ct. 427, 41 L. Ed. 832, the Supreme Court for the first time used the substantive due process framework to strike down a state statute. The Allgeyer case concerned a Louisiana law that made it illegal to enter into certain contracts with insurance firms in other states. The Court found that the law unfairly abridged a right to enter into lawful contracts guaranteed by the Due Process Clause of the Fourteenth Amendment.
For about forty years next continued what may be called freedom-of-contract version of substantive due process. This freedom meant that individuals had the right to purchase or sell labour or products without unreasonable interference by the government.
In one famous case from this era, Lochner v. New York, 198 U.S. 45, 25 S. Ct. 539, 49 L.Ed. 937 (1905), the court struck down a New York law (N.Y. Laws 1897, chap. 415, art. 8, § 110) prohibiting employers from allowing workers in bakeries to be on the job more than ten hours a day and sixty hours a week. The court found that the law was not a valid exercise of the state's police power. The court argued that it could find no connection between the number of hours worked and the quality of the baked goods, thus the law was arbitrary.
During the 1930s, the court used the doctrine of substantive due process to strike down federal legislation as well, particularly legislation associated with President Franklin D. Roosevelt's New Deal. After a 1937 court-packing scheme in which Roosevelt attempted to overcome court opposition to his programs by appointing additional justices, the court changed its position on substantive due process and began to uphold New Deal legislation. This time a majority on the court, including Chief Justice Charles E. Hughes and Justice Benjamin N. Cardozo, abandoned the freedom-of-contract version of substantive due process.
Even before the court abandoned the freedom of contract approach to substantive due process, it began to explore using the Due Process Clause of the Fourteenth Amendment to reevaluate state laws and actions affecting civil freedoms protected by the Bill of Rights. Since the 1833 case of Barron ex rel. Tiernan v. Mayor of Baltimore, 32 U.S. (7 Pet.) 243, 8 L. Ed. 672, the Supreme Court had interpreted the Bill of Rights as applying only to the federal government.
Beginning in the 1920s, however, the court began to apply the Bill of Rights to the states through the incorporation of those rights into the Due Process Clause of the Fourteenth Amendment.
By the 1960s, the court had extended its interpretation of substantive due process to include rights and freedoms that are not specifically mentioned in the constitution but that, according to the court, extend or derive from existing rights. It found that the due process clause of the Fourteenth Amendment is not limited to those guarantees spelled out in the Bill of Rights, but instead contains protection against practices and policies that may fall short of fundamental fairness without violating a specific provision.
Sometimes a statute may be so vague that it violates due process. If a statute lacks the required definiteness or specificity, the U. S. Supreme Court will hold the statute "void for vagueness." In Giaccio v. Pensylvania it was held that a law fails to meet the requirement of doctrine of Due Process Clause if it is so vague and standardless that it leaves the public uncertain as to the conduct it prohibits or leaves the judge or juror free to decide, without any legally fixed standards, what is prohibited and what is not in each particular case.
In Roe v. Wade 410 U.S. 113 No. 70-18 a pregnant single woman (Roe) brought a class action challenging the constitutionality of the Texas criminal abortion laws, which proscribe procuring or attempting an abortion except on medical advice for the purpose of saving the mother's life. A licenced physician (Hallford), who had two state abortion prosecutions pending against him, was permitted to intervene. A childless married couple (the Does), the wife not being pregnant, separately attacked the laws, basing alleged injury on the future possibilities of contraceptive failure, pregnancy, unpreparedness for parenthood, and impairment of the wife's health.
The court held that the right asserted by Jane Roe is embraced within the personal liberty protected by the Due Process Clause of the Fourteenth Amendment. It is evident that the Texas abortion statute infringes that right directly.
In Moore v. East Cleveland 431US 494 a zoning ordinance limited residence in a dwelling unit to the nuclear family within the meaning of the ordinance and Mrs. Moore was convicted for the offence of violating the ordinance. The ordinance was held to be violative of the due process guarantee as the court found the law to be an unreasonably intrusive Regulation of the Family.

Criticisms of substantive due process

The court's use of the incorporation doctrine and substantive due process has been controversial. Critics charge that substantive due process is a distortion of the original meaning of due process, which involved only adherence to formal and fair procedures by government officials in actions against individuals.
Further, critics say that substantive due process has been used by judges to interfere in matters that should be left to resolution by majority vote in Congress or state legislatures. Originalists call substantive due process a "judicial usurpation".
Many non-originalists, like Justice Byron White, have also been critical of substantive due process. As propounded in his dissents in Moore v. East Cleveland and Roe v. Wade, as well as his majority opinion in Bowers v. Hardwick, White argued that the doctrine of substantive due process gives the judiciary too much power over the governance of the nation and takes away such power from the elected branches of government.
Finally, critics claim that substantive due process and the incorporation doctrine have been used by the U.S. Supreme Court to wrongly suppress the authority and power of state governments.
However, virtually no one challenges the general value of due process of law as a guarantee of procedural consistency and fairness. In Shaughnessy v. United States (1953), Justice Robert Jackson stressed that controversy about substantive due process does not change the most fundamental and general agreement about procedural fairness, which “is what it [due process] most uncompromisingly requires.”
Conclusion

By now the Due Process has been one of the finest features of almost all the leading democracies of the world. Interestingly Article 31 of our Constitution 'is wider in its scope and operation than the due process clause of the American jurisdiction inasmuch as it covers the entire range of human activities and is attracted when a person is adversely affected by a state action irrespective of the question whether it affects his body, person, reputation or property. American due process clause is attracted only when detrimental action relates to life liberty and security of person.'
The writer is a Lecturer at the Department of Law and Justice, Metropolitan University, Sylhet.

Reform agenda should focus on 'separation of power' too

Law Vision
Reform agenda should focus on 'separation of power' too

M. Jashim Ali Chowdhury

Published in the Daily Star, Law and Our Rights, July 28, 2007

URL: http://thedailystar.net/law/2007/07/04/vision.htm
The doctrine of separation of power has found its expression throughout the whole scheme of the Constitution of Bangladesh of course with its inherent lacuna and defects.Executive power of the Republic lies with the Executive under the Prime Minister and his\her Cabinet. The executive power is exercised by or on the authority of the Prime Minister [Article 55(2)]. Legislative power is vested in the Parliament [Article 65(1)] Though there is no express vesting of legislative power in the Judiciary, the Appellate Division held in Mujibur Rahman v. Bangladesh 44 DLR (AD) 111 that it so lies.
Apart from this general formulation there are certain instances in which one particular organ of the State exercises power vested in another.
Executive can legislate in certain cases e.g., Article 62(2) empowers the President to provide for regulating the raising and maintaining of the defence services of Bangladesh and of their reserves; the grant of commissions therein; the appointment of Chief of Staff of the defence services, and their salaries and allowances as are not already subject to existing law and until Parliament by law provides for them.
Article 93(1) empowers the President to promulgate Ordinance if he is satisfied that circumstances exist which render immediate action necessary and Parliament stands dissolved or is not in session. Ordinance so made shall, as from its promulgation have the like force of law as an Act of Parliament:
Article 115 authorizes the President to appoint persons in the judicial service or as magistrates exercising judicial functions in accordance with rules made by him in that behalf.
Article 133 says that it shall be competent for the President to make rules regulating the appointment and the conditions of service person in the Service of the Republic and until provision in that behalf is made by or under any law, and rules so made shall have effect subject to the provisions of any such law.
Judiciary also has got some delegated authority in legislation. Subject to any law made by Parliament and with the approval of the President, the Supreme Court may make rules for regulating the practice and procedure of each division of the Supreme Court and of any court subordinate to it. [Article 107(1)]
In this respect it is important to note that though the judiciary has got the role of interpreting laws and thereby creating new norms of jurisprudence, it cannot necessarily legislate nor can it give direction to the Parliament to enact laws. Article 112 requires all authorities executive and judicial (not legislature) to act in aid of the Supreme Court.
Parliament has a sort of judicial power to the extent that it may expel any MP or order a nonmember to leave the precincts of Parliament who obstructs the functioning of the Parliament. [Rule 15, 16 and 313 of the Rules of Procedure of Parliament]. In such matter the jurisdiction of the Court is ousted by Art 78(2).
Checks and balances as enshrined in the Constitution

Parliament can cause the fall of Government as the Prime Minister and his Cabinet is collectively liable to the Parliament and the Prime Minister holds the office during the pleasure of parliament [Article 55(3) and Article 55(2)]. Parliament can also impeach or remove the President on ground of gross misconduct, physical or mental incapacity. Parliamentary Standing Committee can review the enforcement of laws by ministers and investigate or inquire into the activities of the administration of the ministries.
Again when there is a constitutional deviation and constitutional arrangements have been interfered with or altered by the Parliament by enacting laws or by the executive by issuing orders, it is within the jurisdiction of the judiciary to bring back the Parliament and Executive in tract. Even then the Court can declare such legislative measures to be ultra vires, but cannot give a direction to repeal or modify it. [Secretary of Ministry of Finance v. Masder Hossain, 2000 BLD ( AD) 104; Kudrat-e-Elahi v. Bangladesh 44 DLR (AD) 319, Mofizur Rahman v. Bangladesh 34 DLR (AD) 321]
President appoints the Chief Justice and Other Judges of the Supreme Court.[Article 95(1)]. President may appoint a Chief Justice on temporary basis if circumstance so require [Article 97]. Article 98 has empowered the President to appoint additional Judges for a number of reasons. President is also empowered to remove a judge of the Supreme Court upon recommendation of the Supreme Judicial Council [Article 96(6)].

The harsh reality

However, reality tells an altogether different story from what has been told above. Cabinet comprising the most powerful members of the political party enjoys majority in the parliament. 'This collection of big shots again is led by an almost invincible Prime Minister.' Members of the ruling party is nothing but helpless against such a panel of big bosses.
'Article 70, which had only seven lines in the original constitution, is now almost a full page.' The gist of the Article 70 is that an MP going against the decision of his political leadership runs the risk of losing his seat in Parliament. As a result, legislature and executive get virtually converged in one hand. Gone with this are the provisions of Articles 52(1), 53(1), 55(3) and 57(2). 'This executive dominance over parliament and other organs of the government has taken the shape of 'elective dictatorship' in Bangladesh where the winner in election takes it all and parliament acts merely as the rubber stamps of the executive.'(Constitution, Constitutional law and Politics: Bangladesh PerspectiveA Comparative Study of Problems of Constitutionalism in Bangladesh, Md. Abdul Halim at p.179)
A minister, though now may not be the chairman of parliamentary standing committee but may be a member of the committeeis still an undemocratic provision. Again there is no provision in Bangladesh allowing taking evidence in public by committees. Surprisingly the ghost of Article 70 haunts the MPs even when they sit in Standing Committee which has been demonstrated in the role of the former Prime Minister Begum Khaleda Zia when she asked the chairman of parliamentary standing committee inquiring into the allegation of CNG scandal against her communication minister not to embarrass her government.
The President while appointing Judges of the Supreme Court is bound by the advice of the Prime Minister except in case of Chief Justice [Article 48(3)]. The provision of consulting the Chief Justice is gone with the Fourth Amendment and is yet to be revived. In fact President is bound even in appointing Chief Justice because of the proviso added to Article 48(3).
'The practice of appointment of Additional Judges in the Supreme Court for such a short duration appears to be peculiar in our part of the world.' It has adverse effect on the reasoned and impartial decision making by those judges. It proves to be a political weapon in the hands of the Prime Minister to tame an adverse Supreme Court.

Concluding remarks

So it has been made apparent that in Bangladesh we have got a mere paper separation. It has been rightly said that 'What the constitution has done can very well be described as assignment of powers of the Republic to the three organs of the Government and it provides for separation of power in the sense that no one organ can transgress the limit set by the Constitution. Or encroach upon the powers assigned to the other organs.' (Constitutional law of Bangladesh, Mahmudul Islam at p. 65).
The ongoing reform talk must have given attention also to the structural and institutional reforms in the fabric of state mechanism. Any party or alliance that come to the power next must make a concrete manifesto in this regard. It has to clarify how it would deal with the flaws in the Constitution itself in this regard.

The writer is a Lecturer at the Department of Law and Justice, Metropolitan University, Sylhet.

In search of a President with power

Law analysis
In search of a President with power

M. Jashim Ali Chowdhury

Published in the Daily Star, Law and Our Rights, August 11, 2007

URL: http://thedailystar.net/law/2007/08/02/analysis.htm

President is the constitutional head of the People's Republic of Bangladesh. The President takes precedence over all other persons and exercises the powers and performs the duties conferred on him by the Constitution and by any other law. [Article 48(2)] Furthermore, all executive actions of the government are expressed to be taken in the name of the President. [Article 55(4)]
Though theoretically he is above all, but in reality he is a titular head performing ceremonial functions only, and the real executive power of the state is exercised by the cabinet under the leadership of the prime minister. Except for appointing the Prime Minister pursuant to clause (3) of article 56 and the Chief Justice pursuant to clause (1) of article 95, the President always act in accordance with the advice of the Prime Minister. [Art.48 (3)]

Powers and functions

President's power and functions stem from two sources, i.e., the Constitution and any other law. The generally exercised power of the President can be divided into the following:
Executive power:

The President is the head of the state and all executive actions of the government are expressed to be taken in the name of the President. The President, by rules, specifies the manner in which orders and other instruments made in his name be attested or authenticated. [Article 55(5)] And the validity or any order of instrument so attested or authenticated shall not be questioned in any court on the ground that it was not duly made or executed.
The President makes rules for the allocation and transaction of business of the government [Art. 55(6)]. The President appoints a member of the Jatiya Sangsad as Prime Minister who appears to him to command the support of the majority of the members of the Sangsad [Article 56(2)]. His discretion comes into play when no political party has a clear majority in parliament. He is then to be satisfied as to which combination of the parties can form a government. Besides the Prime Minister, the President appoints other ministers, state ministers and deputy ministers.
In accordance with the advice of the Prime Minister, the President also appoints the attorney general of Bangladesh [Art. 64(1)], the chief justice, judges of the Supreme Court [Art. 95(1)], the Chief Election Commissioner and other Election Commissioners [Art. 118(1)], the Comptroller and Auditor General [Article 127(1)], and the chairman and other members of the Bangladesh Public Service Commission [Article 138(1)].
The supreme command of the defence services of Bangladesh is vested in the President and the exercise thereof is regulated by law and such law shall, during the period of care- taker government is administered by the President [Article 61]. Article 133 says that it shall be competent for the President to make rules regulating the appointment and the conditions of service personnel in the service of the Republic and until provision in that behalf is made by or under any law, and rules so made shall have effect subject to the provisions of any such law.
President may regulate the raising and maintaining of the defence services of Bangladesh and of their reserves, the grant of commissions therein, the appointment of Chief of Staff of the defence services, and their salaries and allowances; and the discipline and other matters relating to those services and reserves until these are provided for by the Parliament [Article 62(2)].
Judicial power: the judicial power of the President originates from article 49 of the Constitution. It says that the President shall have power to grant pardons, reprieves and respites and to remit, suspend or commute any sentence passed by any court, tribunal or other authority.
Legislative power:

In accordance with the written advice of the Prime Minister, the President summons, prorogues and dissolves Jatiya Sangsad [Article 72(1)]. The President has right to address the Sangsad and may send message thereto [Article 73(1)]. The President is required to give assent to every bill passed by the Sangsad to make it a law [Article 80(2)]. When Sangsad stands dissolved or is not in session the President may make law by promulgating ordinances and such ordinances have the same force and validity as an Act of Sangsad [Article 93].
Financial power:

No money bill or any bill that involves expenditure from public money can be placed before the Sangsad except on the recommendation of the President [Article 82]. No demand for a grant can be made except on the recommendation of the President [Article 89(3)]. The President has the power to authorise expenditure from the consolidated fund as supplementary or excess grants. If the Sangsad in any financial year fails to make any grant the President, upon the advice of the Prime Minister, would have power to draw from the consolidated fund, the necessary funds for a period not exceeding 60 days, stipulated in the annual financial statement for that year. [Article 92(3)(b)]
Miscellaneous powers:

The president has to perform some other functions like administration of oaths. The oath of the Chief Justice, the Prime Minister, other ministers, and state ministers, deputy ministers, Speaker and deputy speaker are to be administered by the President under the Third Schedule of the Constitution [Article 148]. Likewise, as the head of the state, the President sends and receives ambassadors and other diplomatic representatives.
All contracts and deeds made in exercise of the executive authority of the Republic are expressed to be made by the President and executed on behalf of the President and these are submitted to the President who causes them to be laid before Sangsad. [Article 145A] The remuneration, privileges and other terms and conditions of service of a person holding or acting in any office to which this article applies are determined by or under act of parliament, but until they are so determined they may be determined by order made by the President [Article 147(1) (b)].
Is the President always subordinate to PM's will?

Though Article 55(2) expressly vests all executive power on the PM, it cannot be said that the framers of the Constitution did not intend to give any further discretion. [Constitutional Law of Bangladesh, Mahmudul Islam] Besides the President is oath bound under Article 148. He is oath bound to protect, preserve and safeguard the Constitution which implies some discretionary power on the President [Shamser Shing v. Punjab, AIR 1974 SC 2192]. An important area of discretionary power resides in Article 57(2). If the Prime Minister ceases to retain the support of a majority of the members of Parliament and advises the President to dissolve the Parliament, he may dissolve the Parliament accordingly if he is satisfied that no other Member of Parliament commands the support of the majority of the members of Parliament.
He will not be bound to act on the advice of the PM if it is ex facie unconstitutional. Thus where a PM has lost support of the majority of Parliament members and thus refuses to advice the President to summon Parliament even after 60 days of its prorogation the President may require the PM to submit a written advice in this regard. If the PM denies doing so, he may summon Parliament even without the advice of the PM.
Proviso added to article 48(3) says that the question whether any, and if so what, advice has been tendered by the Prime Minister to the President shall not be enquired into in any court. Because of this provision there can be no remedy in court if a President chooses to act without or against the advice of the PM. Even prima facie unconstitutional advice of PM is also not covered within judicial scrutiny. However if the government produces the advice showing the advice tendered, it may come under judicial scrutiny. [India v. Jyoti Prokash, AIR 1971 SC 1093]
The President is entitled to be informed by the PM or Ministers of domestic affairs and foreign relationship [Article 48(5)]. He may request the Prime Minister to submit any proposal for consideration in the Cabinet. On paper this may not appear to be a power at all. But having regard to the stature of the post this may have a great influence on the over all state mechanism especially in the context of turmoil between the opposing and rival political parties as we face here in Bangladesh.
Strengthening the role of President

There is wide and deep-rooted belief in the mass people that the prestigious institution of Presidency should not enjoy a mere subsistence. The powers and functions of the President should be increased and the secretariat of the President should be strengthened. Many suggestions and recommendations are already made in this regard. Shujan, a civil society initiative [http://www.shujan.org/] came with some proposals which include the following:* The President should be elected by an extended electoral college which may comprise the members of the Parliament and all elected members of the local elective bodies (like Municipal corporations, Pourashava, Zilla Parishad, Upazila Parishad, Union Parishad) and for that purpose Art 48 (1) may be revised as: 'There shall be a President of Bangladesh who shall be elected by the Members of the Parliament and by the elected Members of the local elective bodies (like Municipal Corporations, Pourashavas, Zilla Parishad, Upazila Parishad, Union Parishad) in accordance with Article 59 of the Constitution.'This proposal seems to stabilise the local government by making its existence as a precondition to the Presidential election. It is unconceivable that there shall not be a President of Bangladesh. Now the non-existence of local government also becomes unconceivable. It will also give the institution a non-partisan fibre.
* President's obligation to abide by the PM's advice may be reduced by amending Art 48 (3) as the following. 'In the exercise of all his functions, save only that of appointing the Prime Minister pursuant to clause 3 of article 56, the Chief Justice pursuant to clause 1 of article 95, and Chairmen and Members of all constitutional bodies (the Election Commission, Anti-Corruption Commission, Public Service Commission, and Comptroller and Auditor General).'
This will ensure neutrality and status of the constitutional posts and these strong democratic institutions are sure to consolidate the democracy.
* The President may be a solution to the politicisation of universities. He should be assigned a guardian's role in this regard. A new sub article as 48(4) should be added:
'The President as Chancellor of the Universities shall meet the Vice-Chancellors every month and advise them on academic and administrative matters. The University Grants Commission shall serve as the President's secretariat for this purpose.'
Some other proposals in this regard are * There should be an additional requirement of securing at least 50 per cent vote of the members of the opposition in the Presidential poll.
* The requirement of not belonging to any political party or its affiliate association should be introduced for a presidential candidate.
This may seem unreasonable to some as it will disqualify a member of parliament to be a President. Some may argue that already there is a provision in the Constitution requiring the newly elected President to discontinue all his party allegiance by resigning from parliament membership [Article 50(4)]. But it is undeniable that there is difference between pre-requirement and post-requirement of neutrality. Physical allegiance may be abandoned theoretically but it is almost impossible to abandon psychological allegiance which has been badly demonstrated by our contemporary experience.
The writer is a Lecturer at the Department of Law and Justice in Metropolitan University.

Overhauling the parliament: Framing of issues

Parliament scan
Overhauling the parliament: Framing of issues

M. Jashim Ali Chowdhury

Published in the Daily Star, Law and Our Rights, February 23, 2008
URL:http://thedailystar.net/law/2008/02/04/index.htm
In Bangladesh our orientation with parliament is much more longer than many other developing countries. Article 65(1) of the Constitution provides for 'a Parliament for Bangladesh (to be known as the House of the Nation) in which …… shall be vested the legislative powers of the Republic.' But the first two decades (1971-90) of Bangladesh politics are marked by a plethora of successful and abortive military coups, intermittent movements for the restoration of a democratic system, rigged elections, ineffective Parliament and the omnipotence of Chief Executives (Muhammad A. Hakim, Parliamentary Politics in Bangladesh in 1990s: Consensus and Conflict in 'Thirty Years of Bangladesh Politics,' p.103). Most of the times instead of becoming a sovereign parliament it remained a 'lame and tame parliament.'
Today even after seventeen years of the revival of parliamentary democracy, Parliament faces a huge credibility crisis. Confrontational politics and a “winner takes all” attitude have led to a situation that “boycott” of successive sessions and absenteeism have put a big question mark over its capability to remain the supreme watchdog of public interest. Consequently there is a hue and cry to recharge the parliamentary vigour to bolster democratisation.
This article is an attempt to accumulate the issues in this regard. Suggestions made by constitutional experts, civil society initiative 'Shujan' and columnists along with some of my own find place here.
Election of Collaborators to the parliament:

Article 66(2e) of the 1972 Constitution debarred from election any person convicted of any offence under the Bangladesh Collaborators (special tribunals) Order of 1972. President Ziaur Rahman dropped this provision. Today's reality demands the revival of the dropped Article 66(2e).
Women's reserved seats:

Presently, there are 300 directly elected MPs and indirectly elect 45 women members. These 45 reserved seats are allotted to parties in proportion to their representation in the Parliament. It is for this method of election that these 45 women members are being used as a ready tool or a vote bank at the hand of the majority rather than the true representation (Abdul Halim, 'Constitution, Constitutional Law and Politics: Bangladesh Perspective', p. 304). Rather the whole country should be divided in 100 zones and the electors should directly elect women members.
Summoning a dissolved parliament:

Article 72(4) empowers the President to recall a dissolved Parliament if a state of war ensues before the next general election.
A very interesting result will arise if this article is applied. Then there will be a Parliament, a President and a caretaker government responsible to the President (Article 58B(2)). So the watchdog role of Parliament over the Executive during this crucial period will be missing. So article 58B(2) should be amended in the following way
'Provided that when the President summons the Parliament as per Article 72(4), the Caretaker Government shall be collectively responsible to the Parliament.'
Representation of ethnic groups: Provisions should be made to reserve some seats in Parliament for tribal people, who are ethnically, religiously and culturally different from the rest for the population. Such a step will be an affectionate reply to the just grievances of our ethnic groups.
Floor crossing:

The painful necessity to prevent political instability made the way of Article 70 to the Constitution. This article is criticised to be violative of the freedom of expression and opinion ensured by Article 39(2)(a) of the Constitution.
In fact strong party discipline should suffice in controlling MPs. Absence of the restriction on voting against the party in the Constitution makes the leaders feel the pulse of their backbenchers. This unique opportunity has been waived through article 70. So article 70 should be made applicable only when an MP is required to vote on a motion of no confidence or when a member is required to prove that he/she commands the support of the majority of MPs.
Functions of the MPs:

In no case managing the affairs of administration and development works in his constituency is the concern of a Parliamentarian. The unfortunate result of ignoring this truth is the scene of angry mob chasing an MP in demand of electricity. Thus article 65(1) should be amended in following terms:
'Further provided that a Member of Parliament shall not involve himself in local development projects, local educational institutions or in any office of profit of the Republic. Nor shall he/she be engaged directly or indirectly in business relations with the government.'
Unauthorized absence from parliament:

Article 67(1)(b) of the Constitution provides for loss of mandate on ground of absence from Parliament without the leave of Parliament for ninety consecutive sitting days. This provision being unable to cheek the continuous boycott, the word 'ninety' should be replaced by 'forty five'. The Constitution should also stipulate that a Member of Parliament shall attend 60 percent sittings of each session or shall lose his seat.
No remuneration for absentees:

In the recent past the opposition parties showed an unethical consensus in boycotting the parliament and receiving parliamentary remunerations simultaneously. To prevent this a new proviso may be added to Article 68 of the Constitution:
'Provided that a Member of the Parliament absenting himself from the sitting of the Parliament session shall not be entitled to any remuneration or allowances for the period of such absenting.'
Speaker and Deputy Speakers: Instead of one Deputy Speaker, two Deputy Speakers, one of whom shall be from the opposition party, should be elected.
The Speaker and Deputy Speakers shall resign from their respective political party and shall not take part in any party activities during the tenure of the Parliament.
Money bill:

Article 81(3) of the Constitution provides that certification of a bill by the Speaker as Money Bill shall be conclusive for all purposes and shall not be questioned in any court.
This provision restricts the already restricted say of the President on legislative procedure. Moreover it is vulnerable to potential abuse by a partisan Speaker as is shown in the case of the Public Safety Act, 2000.
As a check the House may be given voting right in this matter. A two third majority requirement for the confirmation of the Speaker's certification would make the treasury bench hear the voice of the opposition.
Private bill:

Encouraging private legislative initiatives will make the MPs more attentive to their lawmaking role. In the United Kingdom House of Commons, twenty backbench MPs are selected by ballot to introduce a bill in each session. These bills are given priority for debate and have the best chance of success. Selection of such a panel of MPs in our Parliament may be considered.
Order on account:

The President may make an order on account authorising withdrawal of money from the consolidated fund for a period not exceeding 60 days if Parliament denies to vote on account (Article 92(3)).
This should be scraped as it can be abused to save a Prime Minister who has lost support and to facilitate horse trading to regroup to the detriment of the democracy (Mahmudul Islam, 'Constitutional Law of Bangladesh', p.387).
Formation of parliamentary committees:

The 1972 Constitution in Article 76(1) provided that the Committees be formed by the Parliament “at its first meeting in each session” This provision was later omitted under the Fourth Amendment of 1975 resulting in unprecedented delay in the formation of standing committees.
There should be provision for the formation of all Committees in the first session or at least within three months thereof.
Committee chairmanship:

Though now a Minister cannot be the Chairman of Standing Committee, he/she is still an ex officio member of the Standing Committee (Rule 247). This is inconsistent with Rule 188 (2). A Minister should not take part in committee deliberation unless invited by the Committee and hence should not be granted ex officio membership.
The chairpersonship of not less than 50 percent of all Committees including the Public Accounts Committee and those of key ministries should rest with the opposition bench.
Powers of parliamentary committees

The Committees can only advise the ministries and review their activities but cannot enforce their decisions on the ministries.
The Standing Committee relating to a ministry cannot investigate a complaint from any person or interest group regarding a public functionary or a ministry without reference from the Parliament. (Rule 246 of the Rules of Procedure and Article 76(2)(c) of the Constitution)
Provision should be made that within three months of placing a report to the floor the concerned Minister has to give the explanations of the procedural steps taken by his/her Ministry on the basis of the report. Disregard of committee direction should be dealt with strictly.
Rule 246 should be amended empowering the Standing Committees to entertain individual complaints against the ministry and to call upon organised groups likely to be affected by a proposed legislation.
If the Standing Committee makes a special reference signed by the Chairperson to the Speaker to bring it into the notice of the House, presentation of the reference within one month before the House should be made compulsory.
Practice of secrecy

Rules 199 and 201 of the Rules of Procedure make all persons other than members of the Committee and officers of the Parliament Secretariat withdraw whenever the Committee is deliberating. Moreover rule 203 allows the Government to decline to produce a document by any committee on the ground of safety and interest of the State.
It is recommended that participation of MPs not member of a particular committee, media access and publication of the deliberations be allowed. Repealing the rule 203, provision for secret meeting to deal with sensitive documents may be made. Special treatment of sensitive issues may be justifiable but nothing should be withheld from the parliamentary oversight.
Laying international treaties before parliament

Article 145A provides for presentation of all international treaties before the Parliament. What ails article 145A is the ambiguity as to the role of the parliament. It seems that Parliament cannot do more than discussing. Such an exclusive denial of parliamentary control over international affairs is not tenable on any ground whatsoever. By amending this article, parliament must be given power to ratify or reject international treaty.
Second chamber:

There is a profound belief that the scope of legislative responsibility is more unified with the presence of a second chamber.
As Bangladesh is a unitary state, the proposed second chamber should act only as a revising body. Composed of the technocrats from various professional groups, it is likely to provide adequate safeguard against the tyrannical use of power by the party or parties commanding a majority in the lower house. (The Role of Second Chamber in Democracy, A K M Abedur Rahaman, The Daily Star, May 25, 2006)
Some other recommendations:

1. Rule 248 of Rules of Procedure empowers the Speaker to direct the Secretary to call a meeting of a standing committee that fails to meet once a month. This should be given effect.
2. Any type of obstruction in Committee affairs should be considered a 'gross misconduct' and there should be provision for a motion of censure against the Prime Minister or Minister or MP so accused to be initiated upon the recommendation of the Committee and to be passed by a simple majority in the House and article 70 should be excluded in case of voting on this issue.
3. The President appoints the Chief Justice and other Judges of the Supreme Court. Article 95(1) of the Constitution should be amended granting Parliament the right to review or reject these appointments.
The evidence shows that the presence of a powerful legislature is an unmixed blessing for democratisation. Weakness on the part of the legislature undermines “horizontal accountability” -- the controls that state agencies are supposed to exercise over other state agencies. It also checks the growth of “vertical accountability” by weakening the ability of the people to control their representatives. (Stronger Legislature, Stronger Democracies, M. Steven Fish, Journal of Democracy, Volume 17, Number 1, January 2006). The suggestions discussed above may go a long way towards true democratisation of the country by ensuring both horizontal and vertical accountability.
The writer is a Lecturer at the Department of Law and Justice, Metropolitan University, Sylhet.

Supreme Judicial Commission needs readjustment

Law opinion

Supreme Judicial Commission needs readjustment

M. Jashim Ali Chowdhury

Published in the Daily Star, Law and Our Rights, May 10, 2008

URL: http://www.thedailystar.net/law/2008/05/02/opinion.htm

The concept of a Judicial Commission for appointing Judges to the Higher Judiciary is not a new one. The Beijing Statement of Principles on the independence of judiciary in the LAWASIA Region [Beijing Statement] 1995 in its Art. 15 states that: 'In some societies, the appointment of judges, by, with the consent of or after consultation with, a Judicial Service Commission has been seen as a means of ensuring that those chosen as judges are appropriate for the purpose' (Sarkar Ali Akkas, Independence and Accountability of Judiciary: A Critical Review, p. 127). In Bangladesh the demand for an independent Commission to supervise the appointment of Supreme Court judges was even more acute. The vehement politicisation of the appointment process over the past years has seriously undermined the image and efficacy of the Supreme Court. Against this backdrop, the President promulgated 'The Supreme Judicial Commission Ordinance' on March 13, 2008 and it was published in Official Gazette on March 16, 2008.

Salient features of the Commission

Composition of the Supreme Judicial Commission: The Commission is a nine- member body consisting of the Chief Justice (The Chair), two senior most Judges of the Appellate Division, two Members of Parliament, one from treasury bench and another from the opposition bench, the Law, Justice and Parliamentary Affaires Minister, the Attorney General, the President of the Supreme Court Bar Association and the Secretary of the Law Ministry (Member Secretary) (s. 3(2)).
Commission Secretariat: Secretariat of the Ministry of Law, Justice and Parliamentary Affaires shall work as the Secretariat of the Commission (s. 3(4)).
Meeting of the Commission: Commission must meet once every six months (s. 4(5)). The Chief Justice is bound to call a meeting if requested by the President and the 'appropriate authority' (s. 4(6)) which is a Ministry, Department or Division assigned in this regard under the Rules of Business, 1996 (s. 2 (b))
Voting: The Commission shall try to take decision by consensus and if not possible, it shall decide by the majority of the members present (s. 4(7)).
Proposal for Appointment: Law, Justice ad Parliamentary Affaires Ministry shall propose minimum three and maximum five names per vacancy for consideration (s. 6(1)) whereas the Commission shall propose two names per vacancy for appointment (s. 6(2)). Names in addition to those proposed by the Ministry may be requested or considered by the Commission (s. 6(3)).
Commission's Recommendation: The President shall 'usually' appoint judges as per the recommendation of the Commission (s. 9(1)). The President may return any recommendation for reconsideration (s. 9(2)). In such case the Commission shall reconsider the recommendation. The amended recommendation or the original one, along with reasons explained, shall be sent back to the President (s. 9(3)). The recommendation of the Commission shall not be binding. The President may ignore the recommendation partially or wholly. If however he ignores the recommendation wholly, he shall assign reasons for that (s. 9(4)).
Submission of recommendation to the President: The Commission shall send its recommendation to the 'appropriate authority' (s. 7) which shall forward that to the President.
Loopholes of the Commission

The Supreme Judicial Commission Ordinance in its present form has grossly undermined the spirit behind the formation of the Commission itself. It has further extended the already extensive role of the executive in various ways. A commentator has termed this as 'Declaration of Independence by the Law Ministry' in the appointment process (Bicharpoti Nioge Ain Montronaloyer Shadinota Ghoshona, Mizanur Rahman Khan, Prothom Alo, March 24, 2008). The key issues are summed up as follows -
* The membership of the Law Minister and Law Secretary, Attorney General (who is usually appointed on political consideration), government party MP gives the ruling party a weighty voice in selection process (four out of nine votes). This is strengthened further by the proviso to s. 4(4) of the Ordinance which provides that the quorum of the Commission's meeting shall be five including the Chief Justice.
* In a meeting called by the Chief Justice upon the request of the 'appropriate authority' (the Chief Justice is bound to call the meeting in such case as per section 4(6)) the Chief Justice along with Law Minister, Law Secretary, ruling party MP and Attorney General may form the quorum and recommend the appointment of an executive sponsored candidate only by the vote of the Law Minister, Law Secretary, Attorney General and ruling party MP since the Commission shall decide by majority vote if the Chief Justice raises a note of dissent (MR Khan, Prothom Alo March 24, 2008).
* The membership of Law Secretary itself is seriously objectionable. In no case the qualification and background of a civil servant admit of his sitting over the judgment of the worth of a Supreme Court judge. Such membership is also an unprecedented one (MR Khan, Prothom Alo March 24, 2008).
* Again the membership of Law Minister, Attorney General, Law Secretary and MPs in the Commission offends the doctrine of separation of powers (Bicharpoti Nioger Udbot Oddadesh (Peculiar Ordinance for appointing Justices), Shahdin Malik, Prothom Alo, March 26, 2008).
* Allowing the Law Ministry to nominate three to five names per vacancy for appointment to the Appellate Division (s. 6(1) and (2)) has put the seniority rule at stake.
* The Law Ministry is given the power to propose the names under s.6 of the Ordinance. Though the Commission may request addition of more names or may consider other names, this scope is practically limited due to executive dominance in the Commission. Now the governing party can have the panel of preferable candidates settled well before the Commission.
* The primacy of the opinion of the Judiciary in selection process remains unrecognized as before. The President may ignore the recommendation of the Commission wholly. Though he is required to put in writing the reasons behind his so doing, there is no express provision for publication of the reasons. So the reasoning may be withheld from public on the excuse of the security of the State or public policy (MR Khan, Prothom Alo, March24, 2008). But the primacy of the Judiciary's opinion in the appointment process is a cornerstone of judicial independence. The Indian Supreme Court in Gupta v. President of India (1982) AIR (SC) 149 and Advocates- on-Record Association v. Union of India (1994) AIR (SC) 268 interpreted the 'consultation' referred to article 124(2) of the Indian Constitution as 'concurrence' (Appointment of Judges in the Supreme Court: Needs a fresh approach, Barrister Moyeen Firozee, 60 DLR (2008), February Issue, Journal p. 10). The Pakistani Supreme Court has done the same in Al-Jehad Trust v Federation of Pakistan, 1997 PLD SC 84 (Judicial Independence: Overview and Country-Level Summaries, Asian Development Bank, October 2003). Article 174 (4) (a), (b), (c) of the Constitution of South Africa also runs in the same line.
Recommendations

To ensure substantial independence and to increase the efficiency of the Commission, the Ordinance should be amended to the following effect
* The membership of the Commission should be limited only to the Chief Justice and his two or three senior most colleagues in the Appellate Division keeping the concept of separation of powers in mind. Obviously, it is important to have some laymen participation in the selection process. Sometimes they play the role of the child in the story of the emperor's new cloth, who cries out, 'But he's got nothing on' (The South African Judicial Service Commission, Carmel Rickard, online: http://www.law.cam.ac.uk/docs/view.php?doc=879). According to the Ordinance, the Commission can invite any person in the meeting of the Commission if it feels necessary (s. 5(8)). The participation of Law Minister, MPs and Senior Advocates in the Commission should be seen from this perspective.
* Office of the Registrar of the Supreme Court should work as the Secretariat of the Commission.
* Instead of having names proposed by the Law Ministry, the Registrar of the Supreme Court pursuant to a formal order of the Chief Justice will make a request to the Commission indicating the number of positions vacant.
* An advertisement should be made inviting application from candidates meeting the requirements of Article 95(2)(c) of the Constitution.
* Written nominations together with written letters of consent to nomination by the candidates as well as candidates' CVs and completed questionnaires or application forms should be sent to the Registrar of the Supreme Court who shall circulate them to members of the Commission.
* A sub-committee may be appointed by the Chair of the Commission to sift through the applications and draw up a shortlist. Only once the Commission has approved the shortlist, the names of those to be interviewed may be published.
* Though the Commission can interview a candidate (s. 5(7)), there is no requirement for a full quorum for that purpose. Interview of short listed candidates should be conducted by the full Commission.
* Intermediary of the 'appropriate authority' in submitting Commission's recommendation to the President should be done away with. Rather the Commission shall submit its recommendation directly to the office of the President.
* Section 9(2) should be amended to provide that the President must advise the Commission, with reasons if any, of the nominees who are unacceptable and any appointment which remains to be made. Section 9(4) should be amended to the effect that the President must make the appointments as per the Commission's recommendation submitted under section 9(3).
* Keeping in mind that starting from 1976, different governments violated seniority more than ten times, there should be a provision that in case of appointment to the Appellate Division, the seniority should be the prime consideration unless there are persuasive reasons for not doing so. This is reasonable in the sense that a High Court Division judge, who has gone through the selection process twice earlier during his appointment as Additional Judge, and during his confirmation, should not be bypassed or denied appointment to the Appellate Division except in the rare case of incapacity or inefficiency.
Concluding remarks

The Caretaker Government is supposed to place diverse issues of reform on the table of upcoming dialogue with the political parties. Presumably ratification of the Ordinances promulgated by it would be a major demand on behalf of the government. Remembering their allergy towards an independent judiciary, the political parties should have no objection, I think, in ratifying such an executive friendly Ordinance for judicial appointment. The Supreme Judicial Commission Ordinance needs immediate amendment.
The writer is lecturer of Law and Justice Department, Metropolitan University, Sylhet.

Emergency, Bail and the Apex Court: Some Issues

Court Corridor
Emergency, Bail and the Apex Court: Some Issues

M. Jashim Ali Chowdhury*

Published in the Daily Star, Law and Our Rights, November 29, 2008

URL: http://www.thedailystar.net/law/2008/11/05/index.htm

Alexandar Hamilton - one of the founding fathers of USA - termed the Judiciary as the ‘least dangerous’ organ of the State with its mere ‘judgment arm’ while the Executive has got ‘the sword’ and the Legislature ‘the purse’. The Hamiltonian era of 18th and 19th century of executive omnipotence is over. So also is the 20th century of parliamentary hegemony over the executive. Now we live in the 21st century – the century of judicial verdicts controlling both the parliament and executive. Judicial freedom, activism and stature are something with which no negotiation is desired nor allowed.

Emergency is a tool in the hands of the executive to tackle the events threatening the very existence of the State to save it from being swept away. Tackling emergency allows the executive to sidestep some of the fundamental rights of the citizens and sharpens its already sharp ‘sword’. As for the judiciary, it is the time to test its viability as the true guarantor of people’s right. During the normal times, everything is generally routine and rational but it is the time of crisis which puts a nation and its people on test (ABM in Khairul Hoque J in The Fifth Amendment Case, 14 BLT (Spl), p. 91). Emergency crystallizes the reach of the ‘judgment arm’.

Again, the Supreme Court’s power to release an accused on bail in fit cases stems from Articles 102(2)(b)(i) (Writ of Habeas corpus) and 104 (Power to do complete justice) of the Constitution. Since the Constitutional right to liberty is subject of more than one fundamental rights - rights from some of which no derogation is allowed even during the gravest emergency - guaranteed by the Constitution, it puts a heavy onus upon the authority taking away the said liberty to justify such action strictly according to the law and the Constitution (D.C. Bhattacharya J in Auruna Sen v. Bangladesh, 27 DLR 122). The High Court Division has got the power even to proceed suo moto under s. 491 of the CrPC to release an accused on bail. Though the section 491 power may be curtailed by legislation, it is not the case with article 102(2)(b)(i). Being a Constitutional enforcement it cannot be taken away or curtailed by ordinary legislation (West Pakistan v. Shorish Kashmiri, 21 DLR (SC) 1) or even by amending the Constitution (Anwar Hussain v. Bangladesh 1989 BLD (Spl) 1). A Proclamation of Emergency may hit only Article 102(1). Force of Article 102(2) would remain intact always.

The Wrangle Starts
On the night of March 20 2007, the Caretaker Government promulgated an amendment to the Emergency Power Ordinance 2007. In the bail-related section, the amended Ordinance said, "Regardless of whatever is stated in sections 497 and 498 of the Criminal Procedure Code or any other law, an accused under the Emergency Power Rules (EPR) will not be released on bail during the inquiry, investigation and trial of the case against the person." Rules were amended to strip an accused of the right to file bail petition during investigation or trial of a case. Moreover, they cannot seek redress from ‘any higher courts against any order given by any court or tribunal before or during the trial--until the delivery of the final verdict’. The gazette notification of the amendment was issued with retrospective effect from 13 February 2007.

The High Court Division stands upright
The High Court Division Bench of Justice Nozrul Islam Chowdhury and Justice Zubayer Rahman Chowdhury took over the issue on March 29, 2007 when Maijuddin, an oil trader from Khulna, filed a petition seeking bail in a case filed under the Emergency Powers Rules involving supply of adulterated oil. ‘The High Court Division has the jurisdiction to hear bail petitions even in cases filed under the Emergency Powers Rules’ it resolved the debate on April 22, 2007 after hearing the counsels for the state and the petitioner, and six amicus curiae. The amicus curiae opined that, as the highest court of the country, it is the duty of the Supreme Court to protect the constitution and the fundamental rights of the citizens. Whereas the Parliament does not have the power to deprive the Supreme Court of the right of review, no scope of President’s having the power arises. As the government preferred an appeal, the Appellate Division on May 24, 2007 stayed the verdict.

After the April 22, 2007 verdict, the High Court Division on August 19, 2007 granted anticipatory bail to the detained former Law Minister Moudud Ahmed in a case filed under the emergency rules on charge of bringing and selling foreign liquor by evading taxes. It also granted bail to Sabera Aman in a case lodged under the Emergency Powers Rules. On September 20 2007, the Appellate Division allowed the government’s appeal and stayed the bails till the disposal of the appeals.

The High Court Division Bench of Justice M Mozammel Hossain and Justice Syed AB Mahmudul Huq, in two verdicts delivered on December 13, 2007, granted bail to Sigma Huda and Mir Helaluddin, jailed in separate corruption cases under the emergency rules. Ascertaining its power to hear bail petitions of convicts under the emergency rules, the High Court Division held that no rule made by the government could take away the High Court’s inherent power to hear bail petitions. The Anti-Corruption Commission and the government filed appealed the Appellate Division on December 18, 2007. After hearing the Appeal the Appellate Division struck down the High Court Division verdict on March 6, 2008.

The Appellate Division Surprise
The tension reached in its zenith on 23 April 2008 when the seven-member full court of the Appellate Division headed by then Chief Justice M Ruhul Amin passed an order allowing a government appeal against the HCD verdict. The six other judges endorsing the government appeal were M Fazlul Karim, MM Ruhul Amin, M Tafazzal Islam, M Joynul Abedin, M Hassan Ameen and MA Matin. "The appeal is allowed," the CJ pronounced the four-word judgment, which shut the doors on many VIPs in politics, business and bureaucracy caught under the emergency rules and seeking bail. The four-word judgment in short meant that no Court in Bangladesh, including the Supreme Court, could entertain or adjudicate on any matters relating to the EPR.

Seek Justice to Allah
Thereafter on May 26, 2008 while rejecting a bail petition filed by the Jamaat-e-Islami Secretary General, Ali Ahsan Mujahid in the Barapukuria coal mine graft case, the High Court Division Bench of Justice Nozrul Islam Chowdhury and Justice Ataur Rahman Khan advised Mujahid’s counsel to seek justice to the almighty Allah saying that the hands of the judges were tied. ‘We cannot go by the oath we took under the constitution,’ Nozrul Islam also said.
The Supreme Court Bar Association at a general meeting on May 11 2008 decided to file petition with the Appellate Division seeking review of its 23 April verdict.
The Asian Human Rights Commission in its statement of April 24, 2008 (http://www.ahrchk.net/statements/mainfile.php/2008statements/1485/) criticized the Appellate Division Judgment as contrary to all the principles and norms relating to the powers of the highest court in any country. The AHRC called upon the United Nations High Commissioner for Human Rights and all UN agencies, and human rights agencies globally to take up this matter as an issue of priority relating to the defense of human rights in Bangladesh.

The Full text showers some rain
The full text judgment of the Appellate Division published on May 29, 2008 provided some rain over the cloud in the suspicious minds. The Judgment in its seven point observations held that the HCD may consider bail petitions in cases filed under the EPR on three grounds - in case of short sentence not exceeding three years when appeal could not be disposed of within 90 working days for no fault of the appellant, in the case of serious illness that may threat the convict’s life according to a certificate given by a duly formed medical board and if the case is filed with mala fide intentions, on suspicion, or in a corum non judice. Inspite of some ‘self contradictions’ within it, this was much more edible to the legal arena than the initial four-word order.

The floodgate opened
Dear reader, the ending of the story may make you happy to see that the judicial activism has not been abdicated and judicial zeal has been guarded after all. But we are not watching a movie. In the world of reality where none lives happily ever after, we cannot claim the exception.
We see some Benches of the High Court Division in the habit of indiscriminate granting of anticipatory bail in large number of cases and thereby causing substantial damage to the cause of justice (Justice Kazi Ebadul Hoque, Image and Reputation of the Supreme Court, DLR Journal p.1 -4, 57 DLR (2005) at p. 3). Often the ‘judgment arm’ of the Apex Court is, in the words of the Appellate Division, exposed to the opprobrium of purveyor of ‘palmtree justice’ (Naziruddin v. Hameeda Banu, 45 DLR (AD) 38, 44).
This time discretion gave way to political favoritism and arbitrariness. Power without wisdom brings chaos. So we got Orders in 298 cases within 315 minutes (Prothom Alo, Nov 9, 2008). The Medical Boards began issuing certificates (Prothom Alo, Nov 10, 2008). The corrupt tycoons and leaders started securing bail en masse, soon to be followed by the top terrors. ‘Reform’ and ‘Corruption free society’? ‘Gone with the Wind’.
* Lecturer, Department of Law, University of Information Technology and Sciences (UITS), Chittagong

5th Amendment: A critical analysis

Law judgement review
5th Amendment: A critical analysis

M. Jashim Ali Chowdhury

Published in the Daily Star, Law and Our Rights, February 14, 2009

URL: http://www.thedailystar.net/law/2009/02/02/index.htm

Constitution has a body as well as a psyche. Physically it is the accumulation of fundamental rules but psychologically it is the harbor of aspirations core to the nationhood. This is a sacred charter requiring sacred allegiance and defence to the last breath. Unfortunately ours was invaded and tormented erratically for selfish ends 'both during the time when it was functioning and during the time when it was not allowed to function' (Rahman MH, Our experience with Constitutionalism, BJL 2:2, 1998, p 118). Like others, our judiciary also remained cold to those hot political issues, of course until recently a Division Bench of the High Court Division thought it 'best for the country that we put our records correct, once and for all'. This was in the Bangladesh Italian Marble Works Ltd v. Government of Bangladesh and Others 2006 (Spl) BLT (HCD) 1, the famous Moon Cinema case. Mentioning the page numbers in brackets the present write-up tries to dig out the key principles laid down by the Court in that 242-page judgment.
The moon cinema controversyAfter 1971, the Holding No 11 and 12, Waisghat was declared to be abandoned property. Though the Holding No 12 was released later, Holding No 11 housing the Moon Cinema House was not released. The petitioner challenged the order declaring the said property as abandoned. The High Court Division in Writ Petition No 67 of 1976 directed the respondents to hand over the possession in favor of the petitioners. In due course the Ministry of Industries deleted the 11, Waisghat from the list of abandoned property and released that in favour of the petitioner with a direction to the Freedom Fighters' Welfare Association to handover the possession. But the Association filed the petition for Special Leave to Appeal No 291 of 1977 which was dismissed on 20.1.1978. Even then the Association declined to release the property on a new excuse. It was the Martial Law Regulation VII of 1977. Section 6(1) of the MLR VII declared that if any property was taken over as an abandoned property, any judgment of any court in that regard would stand annulled and be of no effect notwithstanding any defect in such taking over. That MLR VII of 1977 was given constitutional protection through the Fifth Amendment.
Since in the face of MLR VII even the orders of the High Court Division could not be executed to the prejudice of the petitioners, they filed three writ petitions in 1994, 1997 and 2000 consecutively. The first two were summarily dismissed for not challenging the Fifth Amendment itself and the last one was dismissed for default. So the petitioner filed the present one and challenged the vires of the Fifth Amendment.
The Fifth Amendment: a historical accountOn the dark night of August 15, 1975 Bangabandhu was brutally killed along with almost all of his family members, perhaps with democracy also. On August 20, Khandker Mushtaq Ahmed declared Martial Law with effect from August 15 and thereby, in the words of the Court 'committed the offence of sedition against the Republic of Bangladesh' (p 75). During the turmoiling 1st week of November, Mushtaq nominated Justice Sayem as the President. Ziaur Rahman came to the scene as the Deputy Martial Law Administrator on November 7, 1975. On November 29, 1976 Justice Sayem was to declare Zia as the Chief Martial Law Administrator to sustain himself as a figure head President (Ahmed Moudud, Democracy and Challenge of Development: A study of Politics and Military Interventions in Bangladesh, p 51). Zia took oath as President on April 20, 1977 due to the 'deteriorating health' condition of Sayem. While even 'a Chairman of a Union Council had to be elected and couldn't be nominated, nomination could be made to the highest office of the Republic' (p 93). Zia arranged a referendum 'unknown to the constitution or any other law of the land' (p 86) to obtain 'confidence' of the people. He hammered a 99 percent of the total vote cast. The Presidential Poll was scheduled in June 1978 and Zia put his candidature. That time he got 76.73 percent to become a 'democratic' President. After forming BNP in August 1978, he arranged the Parliamentary Election on February 18, 1979. BNP got 207 parliamentary seats and 41 percent of the total vote cast. The newly formed rubber stamp parliament was called in session on April 5 1979. In the very first session it passed the Fifth Amendment Act which ratified and confirmed all the Proclamations, Martial Law Regulations and Orders made during the period from August 15, 1975 to April 9, 1979 and judged them to be validly made.But history had its own judgment to be rendered in due course.
The truth finds its way through the historic judgment of the High Court Division in the present case. The Judiciary, the third umpire lights the red holding:
'Taking over of power by Khandaker Mushtaq Ahmed, nomination of Justice Sayem as President, appointment of Ziaur Rahman as Deputy Chief Martial Law Administrator, handing over of the office of Chief Martial Law Administrator to Ziaur Rahman, nomination of Ziaur Rahman as the President and Referendum Order of 1977 - were all without lawful authority and in an unlawful manner' (p 240-241).
'The Constitution (Fifth Amendment) Act, 1979 (Act I of 1979) is illegal and void ab initio' (p 242).
Should the Court venture into political questions?

While judicial review of parliamentary legislation is marked as a precursor of constitutional supremacy, judicial review of the constitutional amendments is seen with both 'reverence and suspicion' (Kamal Mustafa J, Bangladesh Constitution: Trends and Issues, p 139). Some argue that constitutional amendment involves a Political Question to be better resolved within political discourse than in the court arena (Omar Imtiaz and Hossain Zakir, Coup d' etat, constitution and legal continuity, the Daily Star, Law and Our Rights, September 17 and 24, 2005). Judicial adventure into this field might perturb some fait accompli settled by the political and historical discourse and create confusion rather than clarification.
But the High Court Division in this instance considered itself a social, if not political institution and so couldn't keep its eyes shut to the legal needs of the society (p 164). The Judges felt themselves bound to declare what had to be declared, in vindication of their oath taken in accordance with the constitution, otherwise they themselves, they noted, 'would be violating the Constitution and the oath taken to protect the Constitution and thereby betraying the Nation' (p 239). In response to the political warmth of the issue the Court seems not to care who is pleased and who is hurt by its decision. It is better to hurt 'a few than the country' (p 204) to distinguish between right and wrong.
On 'Efficacy' and 'Necessity'

Kelsen's theory of Successful Revolution and its efficacy has long been a fascinating issue in Martial Law talk. Faced with intermittent coups d'etat, the courts used his theory of revolutionary legality, in pure or modified forms, as a rule of decision to validate the rule of guns while Kelsen himself emphasized that it is a theory of effectiveness, not a rule of decision to adjudicate validity (Tayab Mahmud, Jurisprudence of Successful Treason: Coup d'etat and Common Law, 27 Cornell Int'l L. J. 50 1994, p.136). The Court, in this instance, simply holds that Kelsen's theory can only be used to explain the past incidents. Any judge in deciding a case may call upon many a legal theory in establishing his own point of view but should not regard it as precedent (p 174).
As to the doctrine of necessity, the Court asserts, “The Constitution is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men at all times, and under all circumstances” (p 68). Emergency must be faced through constitutional method not by extra constitutional interventions (p 56) and so, turmoil or crisis in the country is no excuse for any violation of the Constitution (p 242).
On 'Acquiescence'

The plea that passing of a long time since its adoption without being challenged immunizes the Fifth Amendment from constitutional challenge was sharply rejected by the Court. 'No one acquires a vested or protected right in violation of the Constitution by long use even when that span of time covers our entire national existence and indeed predates it' (p 162).
Is there any 'Martial Law Jurisprudence'?

Relying on earlier Supreme Court decisions, one of the pleaders appearing before the Court tried to establish a sort of 'Martial Law Jurisprudence rising from the wake of two Martial Law regimes' (p 15). The Court rejected the contention in unequivocal terms, “We are not aware of any such Martial Law Jurisprudence either under our Constitution or any other laws of the land” (p 228). There is no such law in Bangladesh as Martial Law, no such authority as Martial Law Authority (p 240) and hence no such jurisprudence as Martial Law Jurisprudence.
An ill-tailored amendment

While invalidating the Fifth Amendment Act the Court found six major technical flaws in it:
First, the authority of a Marital Law Administrator to amend the Constitution is absolutely intolerable. An amendment can be made by proper authority as enjoined in the Constitution but not by any other person or group of persons how high or powerful or mighty they may appear to be (p 44).
Secondly, the Amendment being completely alien to the spirit and structure of the Constitution is attacked by the phrase 'any other law inconsistent with this constitution shall be void to the extent of inconsistency' in Article 7 (p 54).
Thirdly, the provisions sought to be ratified, confirmed and validated by the Fifth Amendment were illegal. If the provisions sought to be validated were illegal then how could the instrument itself be legal (p 155)? The Fourth Schedule is not meant to be the dumping ground for all illegalities (p 156).
Fourthly, Article 142(1)(a)(i) of the Constitution provides that no Bill for any amendment shall be allowed to proceed unless the long title thereof expressly states that it will amend a provision of the Constitution. The Fifth Amendment did not contain such long title (p 195).
Fifthly, the term 'amendment' does not mean the abrogation or destruction or a change in the fundamental character of the Constitution (1989 BLD Spl 1). The words 'ratified, confirmed and declared to be validly made' appearing in the Fifth Amendment Act are anything but amendment (p 198).
Sixthly, the Amendment was for collateral purpose which constituted a fraud upon the Constitution (p 206).
Condonation

Taking care of the concern that a legal vacuum may ensue if all the things from August 15, 1975 to April 9, 1979 were declared void, the Court condoned some illegalities on the greater interest of the community provided that those acts could have been legally done at least by the proper authority (p 216). Condonations were made in respect of provisions which did not change the basic structures of the Constitution (p 227) and which deleted the various provisions of the Fourth Amendment but not in respect of omission of any provision enshrined in the original Constitution. Nor were condoned the amendments made in the Preamble, Articles 6, 8, 9, 10, 12, 25, 38 and 142. It means the revival of those provisions as they were in the original Constitution (p 238).
But condonation does not mean that for the sake of continuity, 'the Constitution has to be soiled with illegalities'. Rather, the perpetrators of such illegalities should be suitably punished and condemned so that in future no adventurist, no usurper, would have the audacity to defy the people their Constitution, their Government, established by them with their consent (p 216).
Conclusion

Symbolising an extra ordinary legal scholarship, the judgment has put a high water mark in our constitutional history. Wherever may our political convenience or inconvenience lie, we must bow a judiciary which holds, “The Martial Law Authorities in imposing Martial Law behaved like an alien force conquering Bangladesh all over again, thereby transforming themselves as usurpers, plain and simple (p 239).”
Recently the Appellate Division has postponed the hearing of the appeal against the High Court Division's judgment for four weeks. So it is yet to be seen whether the Court has 'put our records correct'- forever or not.

The writer is Lecturer, Department of Law, University of Information Technology and Sciences (UITS), Chittagong.

Serving the nation not the executive

Reviewing the views

Serving the nation not the executive

M. Jashim Ali Chowdhury

Published in the Daily Star, Law and Our Rights, May 30, 2009
Url: http://www.thedailystar.net/law/2009/05/04/views.htm

Independence of judiciary if not ensured is meaningless in all respects and from all perspectives. Appointment in the judiciary must not be executive overridden. Tenure, discipline and removal etc should be essentially internal for the judiciary. Most importantly, it must be secured that judgments are delivered without fear or favour. This is exactly what the framers of our constitution intended. They seemed vehemently opposing every probability of submissiveness on the part of the judiciary and tried to seal every leak in the constitution in this regard. Accordingly, articles 147(3) and 99 were included in the constitution disqualifying the Supreme Court judges from holding any office of profit in the Service of the Republic both during the continuance of their service and after the retirement or removal therefrom.
This two-tier prohibition was intended to immunise the judges from all sorts of favoritism and allurement for possible future appointments. Though the original article 99(1) put a total bar on judges' appointment to any post or office, it was re-tailored by a military ruler to lift the embargo partially by making a retired judge eligible for appointment to judicial or quasi judicial offices. Inclusion of 'quasi judicial' was disingenuous. In Anwar Hossain Chowdhury v. Bangladesh 1989 BLD (AD)(Spl) 1 Justice Shahabuddin Ahmed observed, “Under the colour of quasi judicial office judges may be appointed to executive office also” (para 365). The later events have proved this observation.

While disposing of the challenges in this regard on different occasions, the central question the Supreme Court faced was what should be the true meaning of 'office of profit in the service of the Republic'. The court's judgments varied over times. This endeavor aims at surfing through different standings of the Supreme Court over the past years to find out the genuine connotation of service of the Republic.
A bona fide mistake

The first glance over the concept was made in Abu Bakar Siddique v. Justice Shahabuddin Ahmed 17 BLD (1997) 31. Justice Shahabuddin Ahmed was nominated to the office of President in 1996. His nomination was challenged in the High Court Division by Advocate Abu Bakar Siddique. Mr. Asrarul Hussein appearing on behalf of the petitioner challenged the nomination on the ground that the office of President being an office of profit in the service of the Republic, Shahabuddin Ahmed was barred by article 99(1) from being elected to that post. Right from the President down to a peon of a government office, everybody is holding his post in the service of the Republic as all of them are getting remunerations from the exchequer of Bangladesh and -- rendering services to the Republic, Asrarul Hussein argues (para 25). All the civil servants gazetted, non-gazetted or constitutional post holders -- are discharging their duties towards the state and so all are to be treated as persons holding offices in the service of the Republic (para 26). Hence a judge of the Supreme Court is barred by article 99(1) from appointment to any civil or constitutional post.
Dr. Kamal Hossain, Barrister Rafiqul Huq and Barrister Mainul Hussein appeared before the Court as amicus curie. They along with the Attorney General, dwelt on the hypothesis that a person in the service of the Republic is necessarily governed by Part IX of the Constitution containing provisions regarding appointment, tenure etc (para 27). They summed up the technical differences between positions of the holders of constitutional posts and persons in the cadre services. Persons in the cadre services serve during pleasure of the President. They are entitled to seek relief in the administrative tribunal constituted under article 117 (para 51). They may not be removed or reduced in rank until given a reasonable opportunity of showing cause under article 135(2). They are regulated by the PSC and other government rules and regulations. All of these are definitely not intended for the holders of constitutional posts. In this sense, only government officers and employees hold office of profit in service of the Republic (para 60). So it is absurd to think that persons holding constitutional posts are holding office of profit in the service of the Republic (para 28). Accordingly a Judge of the Supreme Court may be appointed to any constitutional post after retirement.
The High Court Division was engulfed by arguments of the reputed experts and the enlightened arguments of Mr. Asrarul Hussein were silenced mistakenly. Shahabuddin Ahmed's neutrality and integrity was undoubtedly beyond question. The intention of the then ruling party also could not be termed as mala fide. But it produced a weak interpretation of the constitution and hence a bad precedent to be misused later. That day the Court forgot that article 99(1) prohibited all sorts of offices not to disadvantage a particular person but for the greatest interest of judicial independence. Now the Court warns us, “One encroachment leads to another. What has been done may be done again in a lesser crisis and less serious circumstances” [Advocate Ruhul Quddus v. Justice M A Aziz 60 DLR 2008 (HCD) 511, para 372].
A Judge on deputation

Justice Md Abdur Rouf, then a Judge of the High Court Division, was appointed as the Chief Election Commissioner of Bangladesh in December 1990. He was appointed a Judge of the Appellate Division in 1995. His new appointment was challenged in Shamsul Huq Chowdhury v. Justice Md Abdur Rouf 49 DLR (1997) 176 on the ground of being grossly violative of article 118(3). Under article 118(3)(a) of the Constitution, a person who has held office as Chief Election Commissioner shall not be eligible for appointment in the Service of the Republic.
In this case as well, the High Court Division held that holders of constitutional posts are not persons in the service of the Republic. Therefore holding the office of CEC by a Judge does not stand as a bar against his appointment as Judge of the Appellate Division.
Service of the republic redefined

Service of Republic came under consideration of the Appellate Division in Secretary, Ministry of Finance v. Masder Hossain 2001 BLD (AD) 126. This was the case for separation of judiciary. Naturally the respondents' main focus was on establishing the judicial service as a distinct one from other cadre services. Barrister Amirul Islam appearing on behalf of the respondents submits that judges are not in the service of the Republic as service in respect of Government means the executive or administrative functionary of the State. He, like the amicus curie in Shahabuddin Ahmed case underscored the theoretical distinction that judges hold office during the good behavior while persons in the service of the Republic hold office during pleasure of the President under article 134 i.e., part IX (para 28).
But Mahmudul Islam, the then Attorney General echoes the voice of Mr Asrarul Hussein in Shahabuddin Ahmed's case arguing that all officers whether judicial, civil or military are members in the service of the Republic in respect of the government. Here government includes three branches of the state parliament, executive and judiciary (para 10). Government may be sued in the name of Bangladesh (Article 146) and so government means the Republic (para 26).
The Appellate Division acknowledged that it was not right to claim judicial service not to be a service of the Republic (para 27). It is also not proper to say that existence of rules and regulations different from those in part IX to govern a particular service takes it out of the ambit of service of the Republic. Persons appointed to the Secretariat of the Parliament and the staff of the Supreme Court, although governed by separate terms and conditions of service, are in the service of the Republic (para 27). So the holders of constitutional posts are very well in the service of the Republic. This is a clear negation of the submissions of the amicus curie in Shahabuddin Ahmed case.
A charade on the constitution

Justice M A Aziz was appointed as CEC while he was a Judge in the Appellate Division. He didn't even resign from his post. His appointment was challenged in Advocate Ruhul Quddus v. Justice M A Aziz 60 DLR 2008 (HCD) 511. The petitioner argued that since M A Aziz was holding an office of profit in the service of the Republic (Judge of the Supreme Court), he was barred from appointment to another office of profit (CEC) by the combined operation of articles 99(1) and 147(3). The defence argument sang the old song offices of a judge of the Supreme Court and Chief Election Commissioner being constitutional posts are not office of profit in the service of the Republic (para 226). Amicus curie appearing at the request of the court argued that 'service of the Republic' should be given a broader meaning and even the President is in the service of the Republic (para 60). If one receives salary from the exchequer, he serves the Republic (para 75).
The High Court Division relied on the intention of the framers of the constitution (para 193) and emphasized on the common sense approach. Any kind of jugglery of words will be fruitless if it does not make common sense (para 219) and common sense tells that the 'service of the Republic' mentioned in article 99 includes all post or office of the Republic (para 223). Republic means the State which is defined to include parliament, government, statutory public authorities (para 230) and the judiciary (para 239). The definition does not use the word 'in the Government' rather it uses 'in respect of government' (para 286). So it is service not only in government but also service, post or office in relation to the governance (para 256), the governance of the whole Republic (para 251).
So the conclusion becomes inescapable that as per article 99(1) judges of the Supreme Court are barred from assuming any post whatsoever after their retirement (para 277). Even the exception of judicial or quasi judicial offices in article 99(1) being offensive to the basic structure of independence of judiciary cannot sustain (para 321).
Concluding remarks

Judges are more often bribed by their ambition and loyalty than by money (MA Aziz Case, para 376). The slightest scope of inducement during their service in the court is bound to affect the performance of the judiciary. So better we revive the original article 99. The Judges of the Supreme Court must not take any appointment judicial, quasi judicial or non judicial made pursuant to the recommendation of the executive (MA Aziz Case, para 354). They being the servant of the Republic must serve the nation not the executive.

The writer is Senior Lecturer, Department of Law, Northern University Bangladesh..

Legal implications of whitening black money

Governance update
Legal implications of whitening black money

M. Jashim Ali Chowdhury

Published in the Daily Star, Law and Our Rights, July 4, 2009

Click http://www.thedailystar.net/law/2009/07/01/index.htm

THE honourable Finance Minister has come out with a sizzling proposal in his 2009-2010 budget speech and accordingly it has been passed. Keeping the dreary world economic recession in mind, he felt a strong necessity for entrenched financial investment and accordingly to encourage it offered a blank-cheque concession to the holders of black money (undisclosed money, to be gentle). As per the proposal, subject to the payment of 10% tax, investment in 46 productive and 14 physical infrastructure sectors shall be acclaimed without questioning the source of the capital under any law whatsoever. No time limit is mentioned in the Finance Bill in case of investment in buying residential flat or plot turning that facility into a never-ending one. Moreover to avail the chance, one need not invest in setting up a new industry. It is enough if he decides to repair, modernize and extend one of his earlier concerns. What a chance! Accepted the malady of economic downturn, this overdosed medicine confuses our legal minds more than it clarifies.
First, let's start with 'tax avoidance' and 'tax evasion'. We know that tax evasion is an offence while tax avoidance (a clever use of technicalities of law to lessen tax burden) is not. Now under the present proposal an honest but foolish taxpayer shall be punished with maximum 25% of income tax on his 'white money' while a clever and corrupt shall be rewarded by a lighter burden of 10% tax on his 'undisclosed' money. What happens if the foolish one becomes clever enough not to pay tax for the first two years and then show his white money as black in the third year? Does he avoid tax or evade it?
Secondly, Article 27 of the Constitution guarantees equality before law. Article 28 provides for positive discrimination which is sure to benefit the less favored group over the highly favored one and not vice versa (Dr. Sarkar Ali Akkas, 'Right to equality under the Constitution of Bangladesh', in Dr. Mizanur Rahman (ed), Human Rights and Corruption, 2007 at p 217). Discrimination with 'an evil eye and unequal hand' is never acceptable (Musaiam v. Venkatachalam, AIR 1956 SC 246). To generate extensive revenue income for a necessarily big budgetary allocation, imposition of wealth tax would be a just step. Suppressing the poor and rewarding the rich bleeds the spirit of our constitutional.
Thirdly, denying the poor their fundamental right to equal treatment is denying the basic structure of the Constitution. While the basic structure test is applied only against amendments of the Constitution and not in the testing of ordinary legislation, after the decision in Mardia Chemicals case in India it may be argued that the it may be used as an objective standard in ascertaining the arbitrariness or otherwise of legislation (Abhinav Chandrachud, 'How legitimate is non-arbitrariness? Constitutional invalidation in the light of Mardia Chemicals v. Union of India', Indian J. Const. L. pp179 -190 at p. 188)
Fourthly, corruption and discrimination survive on each other's willingness to accommodate, tolerate and provide encouragement. Corruption is anti-poor. Time is already ripe enough for a case to be made for the right to a corruption-free society as a fundamental human right (Dr. M Shah Alam, 'Broadening the Jurisprudential basis of Human rights to fight Corruption: Domestic and International Perspectives', in Human Rights and Corruption, at p. 7). As a fundamental right, the right to a corruption-free society cannot be discarded easily 'for the good of the greatest number, even for the greatest good of all' (Louis Henkin, The Age of Rights, 1990 quoted in C Rajkumar, 'Corruption and Human Rights-II', Frontline, Volume 19 - Issue 20, October 12-25, 2002, India's National Magazine from the publishers of The Hindu online. Corruption, if cannot be prevented must not be encouraged.
Fifthly, the Finance Minister's proposal shall revive the infamous section 19B of the Income Tax Ordinance, 1984 again. The Finance Act of 1999 added a new section 19B to the Ordinance providing that 'notwithstanding anything contained in this Ordinance or any other law for the time being in force, no question as to the source of any sum invested …shall be raised'. It was carried on by the subsequent government to be scraped by the last Caretaker Government. If no question is to be raised under any law whatsoever, then what are the utilities of other civil, criminal or anti corruption laws? Shall whitening black money silence the Police, RAB or Anti Corruption Commission? May a Finance Bill outcast all other laws en masse? (Anisul Huq, 'Khun Karun abong Chole Ashun (in Bangla) the Daily Prothom Alo, June 16, 2009)
Sixthly, of late there is a skin saving argument that only 'lawful but undisclosed income' shall be accepted under this scheme. But a plain reading of section 19B makes me wondering how to distinguish between 'lawful undisclosed income' and 'illegal income' especially when you don't ask anything about the source of the income? Then you only have to have 'faith' on the 'pious affidavit' of the holder of black money!
Seventhly, the corrupt tycoons who always wish the government to turn a blind eye to black money and permit by some means for its whitening shall sleep more sound than they slept earlier. Thus instead of taking steps to dismantle the black underground economy, the government is perhaps subconsciously becoming a party to looting of the State thereby allowing the national economy to be taken hostage by criminal predators (Mahmudur Rahman Chowdhury, 'Whitening the Black Money' in The Financial Express, March 25, 2009).
Eighth, even being bona fide concessions, historically this sort of legislations failed miserably in attaining their purposes. In 1786 Lord Cornwallis came to this region being faced with the challenge of curving out the rampant corruption of the Zaminders. And he promulgated the notorious Permanent Settlement Regulation, 1793 making the Zaminders the absolute owner of the land. The intention was that they will take steps to increase the cultivable land for the purpose of an agricultural revolution. But they became more corrupt in course of time, the legacy of which we still bear (S. M. Masum Billah, 'In quest of Democracy: Rule of Law, Anti Corruption Drive and Due Process of Law Interface', in Human Rights and Corruption, Dhaka 2007 at p 72). Set aside 1793, a similar package declared by the BNP-Jamat government in 2002 did not work. Black Money did not sweep away within three years. It is still here.
Last but not the least, though the prima facie presumption of law is that all statutes are enacted bona fide and the intention of Parliament in enacting the law is beyond question, the Court may not hesitate to 'step on the toes' of the legislature where a law is 'so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question could have arrived at it' (Wesson Murray, 'Grootboom And Beyond: Reassessing The Socioeconomic Jurisprudence of The South African Constitutional Court', in South African Journal of Human Rights, Vol 20, 2004 pp. 284-308 at p.289).
As an expert puts it, "The law-making power of parliament, however widely and passionately interpreted, must be understood and exercised within, not outside, the limits of the Constitution. Once this power is exercised beyond its constitutional authorization and limit, it suffers from a legitimacy crisis. Parliament cannot exercise its power in a manner that undermines the very basic structure of the Constitution. Should this trend persist, there appears to be no palatable alternative other than judicial review by the SC under Article 7" (Professor Rafiqul Islam, 'Cognizance power of executive magistrates: Some issues', Law and Our Rights, April 4, 2009).

M. Jashim Ali Chowdhury is Senior Lecturer, Department of Law, Northern University Bangladesh (NUB), Dhaka.