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