A probe into the Parliament's power of expulsion

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A probe into the Parliament's power of expulsion

M. Jashim Ali Chowdhury

Published in the Daily Star, Law and Our Rights, August 1, 2009

EXPULSION of a Member of Parliament is not just the expulsion of an individual. It means the expulsion of his constituency from the legislature. And if a constituency is denied representation, it strikes at the very foundation of democracy. The concerns against the former Speaker of Bangladesh Parliament have crooked this apparently simple math into a knotty one.

Scheme of the constitution
Article 66(2) of the constitution relates to the 'disqualifications' and 'vacation' of seat of a MP. A person shall be disqualified for being chosen as, and for being, a member of Parliament if he is - of unsound mind, an undischarged insolvent, convicted for a criminal offence involving moral turpitude or sentenced to imprisonment for not less than two years etc. A casual reading of Article 66(2) favours the impression that the first say in the vacation proceeding resides with the Court. If the Court declares someone undischarged insolvent or of unsound mind or convicts him for offence involving moral turpitude etc the Court shall inform the Speaker about the decision (Rule 172, 173 of the Rules of Procedure). The Speaker in his turn shall inform the House of it (Rule 176). If any dispute is raised in the floor, the matter goes to the Election Commission whose decision is final (Article 66(4)). If no dispute is raised in the floor the Speaker declares his seat vacated as per Article 67(1)(d). The Speaker cannot proceed to declare his seat vacated on the basis of newspaper report unless and until the order of the Court is communicated to him through official channel (Hussein Mohd Ershad v. Abdul Muktadir Chowdhury 53 DLR 569, at p. 574).

Under Rule 15 of the Rules of Procedure the Speaker may order immediate 'withdrawal' of a Member from the House for grossly disorderly conduct. Under Rule 16 of the Rules of Procedure the Speaker may name a member who disregards the authority of the Chair or abuses the rules of the House by persistently and willfully obstructing the business thereof. If a member is so named and a motion is made in the floor, the Speaker shall forthwith put the question that the member be 'suspended' from the service of the House for a period not exceeding the remainder of the session. So clearly there is no provision for 'expulsion' either in the constitution or in the Rules of Procedure.

Hence some forcefully argue that the constitution makers had consciously used 'Disqualification' and omitted 'Expulsion'. These provisions are 'full and complete' as to disqualification of membership and vacation of seats covering the field in its entirety. No power of expulsion de hors the above provisions exists or is available to any court or authority including Parliament. As such 'by no stretch of imagination' expulsion can be considered as an incidental matter of disqualification (Justice R V Raveendran of the Indian Supreme Court in Raja Ram Pal v. Speaker, Lok Shaba [2007] RD-SC 24). The concerns with the former Speaker, they suggest, be referred to the Court (criminal proceeding involving police or ACC) first. Let us wait for the Court's perusal (The Daily Star, July 14, 2009).

No doubt the argument hold substance. But the concern is with the uncertain future of the case due to the length and technicalities of the Court process. However that may halt the matter for an unreasonable time. This reality coupled with the exigency of restoring faith of the people in the high institution of Speaker calls for some sort of constitutional engineering to lift the Parliament's power of expulsion for the greater cause of democratic values.

Parliamentary privileges, contempt and expulsion
Parliamentary privilege may be the focal point of the intended engineering. Parliamentary privileges are provided in Article 78 with scope for further privileges determined by an Act of Parliament, which has so far not been enacted. There is no provision regarding the abuse or breach of privilege, contempt of parliament and punishment thereof. But privileges become futile unless Parliament is conceded the power to take action against the abuse or breach of privileges and contempt of Parliament. So the question is not of 'existence' but of 'extent' of the power (Mahmudul Islam, Constitutional Law of Bangladesh, p. 424).

Did the former Speaker unacceptably abuse the privileges attached to his High Office? Did he commit contempt of parliament, first by the alleged abuse of privileges and second by not responding to the call of the parliamentary probe body appointed in this regard? The all-party parliamentary probe body's report has answered all these questions in the positive. Now the question is whether the 'extent' of power to punish contempt includes 'expulsion' or not.

Learning from precedent: UK, India and USA
First of all, we should be clear that the UK parliamentary practice shall come to a little aid for us in this regard. UK parliament is a sovereign body having power to regulate its own constitution and to refuse to accept an elected representative in the House. This is not the case with us.

Unlike Bangladesh, privileges of the Indian parliament and its members [Article 105(3) and 194(3) of the Indian Constitution], until so defined (and it is not defined yet), are those enjoyed by the House of Commons at the commencement of the constitution. But in Special Reference No (1) of 1964, the Indian Supreme Court observed that the legislature in India unlike the House of Commons is not supreme and does not enjoy the power to regulate its own constitution. Like Bangladesh there is otherwise no mention of the power of expulsion in the Indian Constitution. Laws relating to disqualification and vacation of seats have been laid down in Articles 101 to 104 of the Indian Constitution (corresponding to 66 and 67 of Bangladesh Constitution).

Yet parliamentary practice in India indicates that the legislature has exercised the power to expel its members time and again latest being the Raja Rampal Case where the Supreme Court held that every legislative body has power to regulate its proceedings and observance of discipline by its members. It is totally different and distinct from the power to provide the constitution or composition, which undoubtedly is not possessed by Indian Parliament. In exercise of that power, it can suspend a member as well as expel him, if the circumstances warrant or call for such action. It has nothing to do with disqualification and/or vacation of seat.

The US Congress has got a constitutionally granted power of expulsion for 'disorderly behavior' (Article I section 5 of the US Constitution) which has been held to cover contemptuous conduct which directly obstructs the legislative process of the Congress (Mahmudul Islam, p. 425). But the Constitution is silent about the behavior, which does not directly obstruct the legislative process of the Congress - corruption, say for example.

The US Supreme Court records the dictum that the expulsion power 'extends to all cases where the offence is such as in the judgment of the Senate is inconsistent with the trust and duty of a member'. In Powell v. McCormack 395 US 486 (1969), the allegation against the applicant was that he deceived the House Authorities in connection with travel expenses and made certain illegal payments to his wife. The Court observed, "unquestionably, Congress has an interest in preserving its institutional integrity, but in most cases that interest can be sufficiently safeguarded by the exercise of its power to punish its members for disorderly behavior and in extreme cases, to expel a member."

The US Court seems to accept that Congress has a right to 'preserve its institutional integrity' and expel a member for this purpose - a ground of expulsion not mentioned in the US Constitution. This instance can shed some lights to our perspective to untie the jot.

Conclusion
Let me conclude quoting Cooley: 'this power (expulsion) is sometimes conferred by the constitution, but it exists whether expressly conferred or not. It is a necessary and incidental power, to enable the house to perform its high functions. It is a power of protection. A member may be physically, mentally, or morally wholly unfit; he may be affected with a contagious disease, or insane, or noisy, violent and disorderly, or in the habit of using profane, obscene, and abusive language (Treatise on the Constitutional Limitations, 1972 Ed, p. 133).' Parliament may manifest this power checking any scope of vindication.

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

Combating sexual harassment: Court guidelines

Combating sexual harassment: Court guidelines

M. Jashim Ali Chowdhury

(Published in the Daily Star, Law and Our Rights, July 18, 2009
Url: http://www.thedailystar.net/law/2009/07/03/corridor.htm)


During August 2008, National Women Lawyers Association (BNWLA) brought a writ petition (W.P. No. 5916 of 2008), before the High Court Division arraigning as many as 19 respondents including the Government of Bangladesh for the vacuum of legislative and administrative setup to address sexual harassment of women and girl children. The petitioner sought judicial intervention to find out an effective and/or alternative mechanism to cater the crying need. Conceding the raison d'être for immediate intervention the Court on 7.8.2008 issued a Rule Nisi calling upon the respondents to show cause as to why they failed to adopt guidelines, or policy or enact proper legislation in this regard. On 18.8.2008, the Court passed an interim order requiring some immediate initiatives to be taken by the respondents to address sexual harassment of women including building up of awareness, consultation with women groups, various stakeholders and others. Seeing the jaded response of the respondents to this burning issue, the Court proceeded with a full pledged commitment.

The burning questions before the Court were:
1. Whether the formulation of anti-sexual harassment guideline is within the contemplation of the Constitution.
2. On face of the prayer for an alternative mechanism in absence of specific legislation whether the Court was competent to give directives in the form of guidelines.
3. Whether the provisions of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) to which Bangladesh is a signatory would come to any help to fill in the gaps.
4. What the protection regime to be suggested, if any, should contain.

Constitutional mandate for Anti-Harassment Guideline
The Constitution is affluent in provisions prohibiting sexual harassment. Article 19(1) (equality of opportunity to all citizens) and 10 (participation of women in all spheres of national life) become meaningless while the 'flagrant and pervasive vice' of sexual harassment continues unopposed.
Articles 26 (equality before the law and equal protection of law), 29 (equality of opportunity in employment irrespective of sex etc), 28(2) (women's equal rights with men in all spheres of the State and public life) and 31 (due process of law) 'are sufficient to embrace all the elements of gender equality including prevention of sexual harassment or abuse'. Article 28(4) envisages the need for special legislation and imposes a 'burden on the Government to enact law to protect the women at their work place' [Mahmudul Islam, the amicus curie in this case].
What the Government has done so far is the adoption of a National Women Development Policy in February, 2008 which is too poor to tame the leviathan. So the Court found every justification for judicial law making.

Issuing Guidelines: Activism or Adventurism?
Any petition asking for judicial Guidelines in the form of interim legislation apparently questions judicial self restraint which requires that while the Parliament legislates, the judge interprets as 'the courts are not to second-guess legislatures' [The Canadian Supreme Court in Vriend v. Alberta [1998] 1 SCR 493 para 136].
So the next issue the Court was to answer in this case was whether it was competent to issue guidelines that would fill in the gaps until the legislation is made. In light of the 'Objectives of the Judiciary' mentioned in the Beijing Statement of Principles (as amended at Manila, 28 August 1997), the Court asserts that it has every competency to give directives in the form of guidelines under article 111. Moreover improbability of issuing a mandamus to legislate leaves the Court with no alternative to issuing directives.
Where there are gaps to be filled, hardships and wrongs to be mitigated if not avoided, judicial self-restraint must not turn into judicial timidity. Obviously there is a time for caution and a time for valor and it is hard to guess when the clock strikes for valor and when for caution. But it is for sure that 'the question is not one of whether but of when' [Justice Albie Sachs quoted in Patrick Lenta, 'Judicial Restraint and Overreach', 20 SAJHR (2004) p. 555].

Should CEDAW come into play?
Apart from many other international instruments, Bangladesh is a party to the CEDAW which provides an impressive array of protections for women and requires the State Parties to take all appropriate measures to eliminate discrimination against women in the field of employment.
In this case, an assertion of the petitioner advocating direct application of CEDAW put the Court in search of a juristic foundation on which it can stand firmly to enforce CEDAW.
While civil law countries are inclined towards monism favoring direct application of international law in domestic arena, common law countries show strong allegiance to dualistic approach. Ours being a common law heritage, as Professor Shah Alam asserts, there is an 'entrenched and reigning belief' that as long as we belong to common law system, we must remain 'firmly loyal to its traditions' which dictates the judiciary 'to shy away from any serious consideration of international law in domestic courts' [Enforcement of International Human Rights Law by Domestic Courts, Dhaka, 2007, p 100].
But this being a glaring exception, the Court resorting to Hossein Mohd Ershad v. Bangladesh 21 BLD (AD) (2001) 69 and Apparel Export Promotion Council v. Chopra, AIR 1999 SC 625 held, 'The international conventions and norms are to be read into the fundamental rights in the absence of any domestic law occupying the field when there is no inconsistency between them.'
This standing of the Court can be further substantiated by a plain reading of Article 145A which provides a very thin scope for parliamentary scrutiny of 'treaties with foreign countries'. As it deals only with 'treaty with foreign countries' e.g., bilateral treaties and not multilateral ones with universal applications, the later will be directly applicable in the domestic legal system.

The Guidelines
Removing all reasonable shadow of doubt about the worth and competence of so doing, the Court proceeded into framing sexual harassment prevention directives in the form of Guideline. The Court followed Vishaka and Others v. State of Rajasthan, AIR 1997 SC 3011 verdict of the Indian Supreme Court in its letter and spirit. Salient features of the Guidelines are as follows:
The guidelines shall be applicable in all work places and educational institutions in both public and private sectors in Bangladesh [Clause 1].
The employers and other responsible persons in work places and the authorities of all educational institutions are required to maintain an effective mechanism to prevent or deter the commission of offences of sexual abuse and harassment [Clause 3]
Sexual Harassment is defined in a super-encompassing way to cover almost all comprehensible aspects of human conduct from unwelcome sexually determined behavior to taking still or video photographs for the purpose of blackmailing and character assassination [Clause 4].
Awareness and public opinion should be created by wide dissemination of legal information through orientation for students and counseling for concerned persons [Clause 5].
All concerned authorities shall take effective measures for prevention of sexual harassment including the creation of awareness and engendering confidence in women workers and students [Clause 6].
Appropriate disciplinary action must be initiated in a case falling within the definition of sexual harassment [Clause 7].
Appropriate mechanism must be evolved at the workplaces, and educational institutions for record and redress of the complaint made by the victim. Such complaint mechanism must ensure, among others, anonymity of the complainant (and of the accused until the allegation is proved), security of the complainant and easy complaint lodging method e.g., complaint via e-mail [Clause 8].
A Complaint Committee will be constituted in every work place and educational institution with a majority of female representation which shall submit annual reports to the Government on the compliance of the guidelines [Clause 9].
A detailed, speedy and user friendly procedure is prescribed for the Complaint Committee's investigation and decision making [Clause 10].
Punishments include temporary suspension of the accused person and in case of students, prevention from attending classes on the receipt of the recommendation of the Complaint Committee. Additionally the authority shall refer the matter to the appropriate Court or tribunal if the act complained of constitutes an offence under any penal law [Clause 11].

Conclusion
Justice Cardozo claims that the works of a judge are not perfunctionary and mechanical. The work of a justice is in one sense enduring and in another sense ephemeral. What is good in it endures. What is erroneous is pretty sure to perish. The good remains the foundation on which new structure will be built [The Nature of the Judicial Process, Yale University Press, 1921 p 178]. No doubt this judgment falls in the later category.

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