Reminiscence of a lost battle: Arguing for the revival of second schedule

Law alter views

Reminiscence of a lost battle: Arguing for the revival of second schedule

M. Jashim Ali Chowdhury

Published in the Daily Star, November 6, 2010. 
https://web.archive.org/web/20121024220523/http://www.thedailystar.net/law/2010/11/01/index.htm

The original Constitution of 1972 with so many of its illuminating features is not excessively hailed as a document of hope. So many of its features had cures to so many of the hazards created by its post-martial-law version. Take for example the issue of a significant presence of Bangabhaban in national life. The majestic fashion in which the high stature and weight of a 'titular' Presidency was upheld in the original constitution, if kept alive could have served its institutionalisation immeasurably. In recent years, unfortunately the President, 'a symbol of national unity', is not less partisan then the Cabinet itself! But what did the original constitution contemplate?

Electing the President
The framers of the Constitution 'had the foresight to apprehend that this country might not always be served by wise, conscientious and true patriotic persons' (The Appellate Division in 5th Amendment Judgment, p 58). Perhaps as a pre-caution on their part, they prescribed a commendable method of electing the President. It was taken care of that no MP, while voting to elect the President, act as a mere party puppet supporting the party nomination. Article 48(1) of the original Constitution prescribed the procedure which was exhaustively elaborated in the Second Schedule. The Second Schedule introduced a Secret Ballot system of voting. No ballot or its counter foil could bear any mark or sign giving any clue regarding the identity of a particular MP voting. Even there was a provision in Paragraph (12a) of the Second Schedule for cancelling a ballot if there was any sign of identification of the voter. The MPs were to act as liberated agents voting for any candidate they like.

For obvious necessity of the new system, the Second Schedule was omitted by the 4th Amendment. Till then it was not revived, not even by the 12th Amendment reviving the Parliamentary Democracy. Rather the 12th Amendment caused the Article 48(1) provide: 'There shall be a President of Bangladesh who shall be elected by members of Parliament in accordance with law.' Instead of 2nd Schedule, now Parliament is to enact law regulating the Presidential election. Accordingly the President Election Act, 1991 was passed in the Parliament. The President Election Rules 1991 were made by the Election Commission in pursuance of the Act.

Section 10(3) of the 1991 Act provides that Election Commission should prepare ballot paper of the required number and each ballot paper should have two parts. In the counterfoil in each ballot paper the name of the elector (i.e, the MP voting for a candidate) should be written. An MP is required to sign his name both in the outer foil and counter foil making his choice vulnerable to exposure. Section 11 provides that the Chief Election Commissioner, as the Returning Officer, shall count the votes openly.

Why open ballot?
The ulterior motive behind the introduction of Open Ballot system was exposed when the BNP government nominated for the Presidency Mr. Md. Abdur Rahman Biswas, controversial for his Anti-Liberation War role during 1971. The ruling party ignored the repeated call from the main opposition Awami League (AL) to nominate a candidate acceptable to all. AL, though was sure of the defeat of its candidate, nominated Justice Badrul Haider Chowdhury, an ex Chief Justice of Bangladesh. In the meantime criticism and conscientious objection against the BNP nomination was raised across the country. Situation was such that even some pro-liberation war MPs of the ruling BNP were considering to vote against Mr. Abdur Rahman Biswas. On October 8, 1991 the election was held and the ruling party candidate escaped an almost defeat. Out of 330 votes, Mr. Biswas secured 172 (least votes needed were 166) and Justice BH Chowdhury got 92 votes. A total of 66 MPs refrained from voting.

Abdus Samad Azad v. Bangladesh: The forgotten battle
As a last resort after the election, six MPs of AL namely, Abdus Samad Azad, Suranjit Sen Gupta, Tofael Ahmed, Matia Chowdhury, Rahmat Ali, Md Nasim and Prof. Abdul Hafiz challenged the President's Election Act 1991. Br Moudud Ahmed, then a Jatya Party MP, also challenged the Act and the Rules [44 DLR 354]. As the writ petitions involved similar questions of laws, they were considered together before the Bench of F.H.M Habibur Rahman and Abdul Hasib JJ. While the Senior Judge of the Division Bench M Habibur Rahman J rejected the writs summarily, Abdul Hasib JJ issued a Rule Nishi (And later on, Justice Hasib was not confirmed as a permanent Judge of the High Court Division!). Ultimately the issue was thrown to the Single Bench of Anwarul Hoque Chowdhury J.

The Petitioners' Claim - The intention of the petitioners was not the revival of Second Schedule through judicial order. In fact the Court lacked such power. They were simply trying to argue that any law in this regard must provide a procedure more or less similar to the omitted Second Schedule. Even in the absence of Second Schedule, the over all scheme and spirit of the Constitution warranted a 'Secret Ballot' voting in Presidential Election. Barrister Amirul Islam appearing on behalf of the petitioners attacked the 'Open Ballot' from three sides:

First, Open Ballot system was repugnant to Article 39 of the Constitution guaranteeing unconditional and unrestricted freedom of thought and conscience. Since the 1991 Act put a bar on the independent and conscientious decision making by the MPs voting for the Presidential Candidates, now their fundamental right to choose the President freely was put at a stake.

Second, considering the Preamble and Articles 7 and 11 as a whole, the 1991 Act stroke at the 'Basic Structure' of the Constitution by converting the concept of 'Presidential Election' into a mere 'Selection' (Para 6).

Third, by the 1991 Act, the vice of Article 70 would be unnecessarily extended to the Presidential Election. MPs voting in Open Ballot would run the risk of losing his seat, had he voted against the candidate nominated by his party. The philosophy behind the inclusion of Article 70 was to prevent malicious defection and unnecessary defeat of the Cabinet in the floor. Therefore its effect should be limited only to the essential legislative affairs. The intention of the framers of the Constitution not to allow Article 70 operate in Presidential Election was evident in the Second Schedule (Para 26).

The Attorney General's defence - The then Attorney General Barrister Aminul Huq was very much literal and subjective in his arguments:

First, to the Attorney General, the right to vote was not a fundamental right. Being a creation of statute it could be regulated or even taken away by another statute. To him, choosing the method of voting was a matter of political convenience and necessity of particular occasion and no one could claim a fundamental right to vote in a particular method.

Secondly, voting by Open Ballot was not totally unknown to the Constitution, specially when election of the Leaders of the House and Opposition, Speaker, Deputy Speaker etc were held through Open Ballot (Para 7). Here the Attorney General cautiously evaded a vital difference between these offices and the Presidency. That the level of 'neutrality' expected from the President was much higher than the expectation from these offices was totally bypassed.

Thirdly, regarding the operation of Article 70, the Attorney General straightly argued that political parties should get priority in all public affairs. MPs were bound by the party mandate and directions. People elected them on the basis of party and so they had a right to know for whom their representatives were voting!

The Court's response - The Court upheld the arguments of the Attorney General in its totality (Para 18, 20 and 22):

First, it offered a new dimension to the concept of 'Freedom of Thought and Conscience.' The gist of the concept may be summed up as follows: Unrestricted freedom of thought and conscience relates to the 'Private Liberty' of citizens. Private Liberty is an opportunity to express freedom of choice in those areas of rights where the result of its effort mainly affects that individual and none else. An MP while voting in Presidential election doesn't exercise Private Liberty rather he performs a public duty. In exercising public duty no unrestricted thought and conscience is available (Para 25).

Secondly, the Court was sharp in rejecting the basic structure approach. Neither the right to vote nor the right to secret vote were fundamental rights or policy to be treated as a salient feature of the Constitution to attract the doctrine of Basic Structure (Para 20).

Thirdly, interestingly, while emphasizing the necessity of following the party line the Court seemed to be 'more executive minded than the executive' - to quote Lord Atkin from Liversidge v. Anderson 142 A.C. 206. The inherent restrictiveness in Article 70's applicability was not taken care of. Rather it was interpreted to be a super encompassing one: “There is a self imposed restriction in Constitution itself which speaks of the role of a political party and its manner of influence upon a member of a political party, voted to Parliament under its ticket. An MP is thus not a free agent to act while voting in Parliament” (Para 20).

Putting arguments into action
Apparently this last effort of prominent AL legislators was lost to some technical, non-liberal and bookish stances taken by the State and the Apex Court. But what about the political commitment showed by AL thereby? Does it still remember the legal battle it fought for the dignity of Presidency? At least Sri Suranjit Sen Gupta and Mr. Tofael Ahmed should not forget. History has put on them the burden to put their arguments into reality. Therefore, we want complete revival of the 2nd Schedule.

The writer is Lecturer, Department of Law, University of Chittagong.

Biding goodbye to the ghost of 'delinquency'

Law opinion

Biding goodbye to the ghost of 'delinquency'

M. Jashim Ali Chowdhury

Published in The Daily Star, Law and Our Rights, August 7, 2010
Follow the Link: http://www.thedailystar.net/law/2010/08/01/index.htm

It is yet to be seen whether the Court has 'put our records correct' forever or not' - such was the conclusion of my write up in the Law and Our Rights on February 14, 2009. Then I was reviewing the historic judgment of the High Court Division in the celebrated 5th Amendment Case. With a heart full of content, today I see the august citadel of justice not only put the record correct but also decides to bade the ghost of Dosso [State v. Dosso 11 DLR (SC) 1] a good bye from our jurisprudence forever. I'm speaking of the recent 184 page judgment of the Appellate Division in 5th Amendment Case.
It is a mere piece of land and the building standing on it - The Moon Cinema Hall - that has shaken the earth to dislodge the basement of 'palace clique, deception and disappointment' 'the long shadows of the Marshals.' Starting the voyage with the Writ Petition No 67 of 1976, the ship sees the shore in Civil Petition for Leave to Appeal Nos. 1044 & 1045 of 2009. It is not only a piece of land that is restored, rather it is a nation's 'dignity, honour and glory achieved through great sacrifice' that is reestablished (p 181).
Not unexpectedly the Appellate Division has accepted almost all of the points advanced by the High Court Division with a little modification in the condonation part. By unequivocally rejecting 'any ground, principle, doctrine or theory whatsoever' justifying the Military Rule (p 181), the Court marked a 'total disapproval of Martial Law and suspension of the Constitution or any part thereof in any form' (p 184). The inevitable consequence of the verdict is that the Preamble and relevant provisions of the Constitution in respect of secularism, nationalism and socialism, as existed on August 15, 1975, will revive (p 125). However, two of the exceptions that Appellate Division made to the High Court Division verdict deserve special attention
Bangalee Nationalism revisited
In respect of nationalism, the Court is inclined to condone the substituted provision of Article 6. The consideration on which the Court does so is, in the words of the Court, 'if in place of “Bangladeshi” the word 'Bangalee' is substituted, then all passports, identity cards, nationality certificates issued by the Government and other prescribed authorities, certificates issued by educational institutions, visa forms and other related documents of the government will have to be changed, reprinted or reissued. Moreover the Bangladeshi nationals who will return to Bangladesh as well as those traveling abroad will also face serious complications with the immigration authorities abroad. Apart from the above and other hackles and harassments, this change of the nationality would also cost millions from the public exchequer. So for wider public interest the substituted Article 6 is to be retained.' (p 125)
Such an economic outlook, it is humbly submitted, may serve in lightening the weight of a serious constitutional issue like nationalism. Perhaps condonation of the change in Article 6 might have been based on some thing else. In my constitutional law lectures I respond to my students' query from a different perspective. To me, nationhood is something different from citizenship. A nationality grows out of common descent, common heredity and common environment. To be a nation a people need, apart from geographic unity, a community of language, religion, interest and political aspiration. Our nationhood arises out of the racial origin we belong to. We are the Bangalees having root in our ethnic homogeneity irrespective of our religious diversity. On the other hand, in terms of citizenship - a mere political status - we unfortunately had to bear so many identities. Before 1947 we were the British Indians, thereafter the Pakistanis and now the Bangladeshis. Our political status changed over times. But ethically, linguistically and culturally we remain today what we were thousands years ago Bangalees.
Undoubtedly it was the spirit of Bangalee nationalism, our proud sense of being Bangalees and the Pakistani junta's prejudice towards the 'Bangalee Babus' that spearheaded the historic struggle for national liberation in 1971. Bulgakpur (land of rebels) to Bangladesh it was the Bangalee nationalism that lit the light all through the way. To dispel the conspiracy to delete the word Bengal forever from the map of East Pakistan, East Pakistan became 'Bangladesh' on December 5, 1969. 'Except the Bay of Bengal there is no sign of the term 'Bengal' anywhere', Bangabandhu regretted that day. Even in August 25, 1955, in spite of severe opposition from Muslim League and Islamic political parties in the Constituent Assembly, Bangabandhu opposed renaming East Bengal as East Pakistan, 'Sir, you will see that they want to place the words 'East Pakistan' instead of 'East Bengal'. We have demanded so many times that you should make it Bengal (Pakistan). The word 'Bengal' has a history, has a tradition of its own' (Dr. M A Salam v. Bangladesh 18 BLT (Spl) (2010) 1, Para 15). Hence, the original Article 9 read with the original Preamble truly justified Bangalee Nationalism as a corner stone of the nation state Bangladesh.
Even then specification of nationalism in the sense of citizenship might have been avoided in 1972. Article 6 may accommodate the Bangladeshi Citizenship without any substantial damage to the Bangalee Nationalism in Article 9. However, it must also be recorded that the dictator substituting Bangladeshi for Bangalee in Article 6 was not so pious as to correct a mere clerical mistake. Rather it was a part of the conscious plot to dislodge the Bangalee nationalism, a structural pillar of the liberation struggle, from the Constitution. Article 9 was substituted with a non significant provision to 'encourage' local government institutions. Robbing Peter to pay Paul!
Hence, while reviving the original Article 9 and leaving Article 6 as it is, the Honorable Court, it is submitted, might have put its reasoning a bit differently.
The Supreme Judicial Council retained
Apart from Article 6, the Appellate Division decided to condone the introduction of Supreme Judicial Council in Article 96. Earlier a Judge of the Supreme Court of Bangladesh may be removed from the office by the President on the ground of “misbehavior or incapacity” by a two-thirds majority in the Parliament. Under the amended procedure a Judge of the Supreme Court of Bangladesh may be removed by the Supreme Judicial Council. The Court found this substituted provision to be 'more transparent' than that of the earlier one and 'safeguarding independence of judiciary' (p 177). It is respectfully submitted that this observation of the Honorable Court may miss the core issue of separation and balance of power. Article 92A empowering the President to dissolve a 'derailed' Parliament was an import from Pakistan. With a rubber stamp parliament in hand, the 'President' needed complete control over the judiciary as well. Hence the concept of Supreme Judicial Council was also copied from Pakistan and pasted in Article 96. Side by side, the provision for consultation with the Chief Justice in appointing the Supreme Court Judges was consciously not revived. Now appointment and removal of Judges both remain in the hands of the executive. Parliament remains to be a mere deliberative forum for 'ratifying, confirming and validating' all the illegalities committed by the illegal President.
It is submitted that removal of judges by the Parliament with a two-thirds majority goes more with the doctrines of separation of power and checks and balances. It must not be forgotten that the Parliament requires a two-thirds majority to amend the constitution itself. With a requirement of two-thirds majority for their removal, Judges of the Supreme Court are more valued than they are under the present scheme of Article 96. Moreover, a parliamentary proceeding is at any rate more transparent than an executive one and the independence of judiciary is not less safeguarded under this scheme. It is my humble wish that the apex Court may not have condoned the changes in Article 96.
In lieu of conclusion
Now-a-days in Bangladesh, a history is in the making. With the Martial Law declared unconstitutional, illegal, mischievous and not founded on any known source of law, the whole nation goes out of a state of siege. No more 'We, the people of Bangladesh,' wish to be taken hostage (p 151). We want to 'see that the Constitution is upheld, it is not kept in suspension, abrogated, it is not subverted, it is not mutilated, and to say the least it is not held in abeyance and it is not amended by any authority not competent to do so' (p 182). 'Let us bid farewell to all kinds of extra constitutional adventure for ever,' the Court invites. Yet the question remains, 'Is the Court the only light at the end of the tunnel?' May the courts change the course of the history? True it remains, as it was, a military coup does not depend on the court's justification or judgment. Rather it conversely controls the courts and judges. Therefore ultimately it is the politics pure and welfare politics that can determine the course of the history. The Court has discharged its historic burden 'so that the history never repeats' (p 155). Are the politicians ready to discharge theirs?

.

The writer is Assistant Professor, Department of Law, Northern University Bangladesh (NUB), Dhaka.

Pre-emptive(!) hartal: Ill-legal if not illegal

Star Judgment Review

Pre-emptive(!) hartal: Ill-legal if not illegal

M. Jashim Ali Chowdhury

Published in the Daily Star, Law and Our Rights, May 29, 2010, Click to visit: http://www.thedailystar.net/law/2010/05/05/judgement.htm 

AS a student of constitutional law, I feel stunned to see the fashionable way in which the main opposition party in the Parliament has called for a hartal almost one and a half months before its observance. Perhaps this pre-emptive hartal (analogous to George Bush's pre-emptive self defence) might have been called with an illegitimate expectation that in the meantime some 'issues' may arise to justify it! However, this does not make me stunned, as I'm a bit familiar with the volatile power politics in my motherland. It is the fashionable way of calling hartal that makes me uneasy. At the end of write up I shall make it clear. For now I shall try to show the ill-legality of hartal as a political weapon with reference to a decision of the Supreme Court.

Abdul Mannan Bhuyian v. State 60 DLR (AD) 49
The background of this appeal may be summed up as follows:
A Division Bench of the High Court Division issued a suo moto rule in 1999 asking the Secretary Generals of AL and BNP and the Government of Bangladesh to show cause as to why the pro-hartal and anti-hartal activities being cognizable offence should not be stopped. Barrister Md Shawkat Ali Khan and Barrister Md. Jamiruddin Sircar were requested to brief the Court as amicus curie. The Secretary General of BNP appearing before the Court submitted that hartal was a historically recognized democratic right of the people to express their disapproval of governmental activities (Para 6). The High Court Division made its role absolute by declaring violence and coercion for or against hartal a criminal offence. Interestingly, nowhere in the judgment, calling for a hartal was declared unconstitutional. The stare decisis of the judgment was that all activities in favor or against the hartal were cognizable criminal offence and accordingly the law enforcement agencies and courts are bound to take legal action against those who would force anybody in favor or against hartal (Para 7-8).
The verdict was appealed against and the Appellate Division (AD) found that the HCD Bench disposing the suo moto rule was lacking in jurisdiction. As per Section 561A of the Code of Criminal Procedure, to take suo moto cognizance of a matter, the concerned HCD Bench must have a related issue pending before it. Since there was no such related issue pending before the concerned Bench, the AD found the Court lacking in jurisdiction (Para 19). Though it might have stopped at this stage, the Appellate Division continued into the merit of the HCD judgment in consideration of the constitutional implications and importance of the issue before hand.
The Appellate Division confirmed an earlier decision of the HCD in Khandker Mudarresh Elahi v. Government of Bangladesh 54 DLR 47. Hartal or strike per se enforced through persuasion unaccompanied by threat, intimidation, force or violence is a democratically recognized right of the citizens guaranteed under the Constitution (Para 34). In fact the AD was willing not to explore in the way of defining a new offence which is the job of the legislature. Separation of power demands some self restraint on the part of the judiciary. Since the provisions are already there in criminal laws for legal action against any person for any law and order infringement, there was no need to declare such infringements criminal offences (Para 43). Again, lest this should be taken as a green signal for calling hartal, the Appellate Division endeavored further to held that: “We have no hesitation in holding that enforcing hartal by force leading to violence, death and damage to the life and property of the citizens is not only illegal but also liable to be detested and punished as per law of the land in existence. These are already cognizable offences under the Penal Code and other penal laws of the land” (Para 34).
So it is accepted that the calling hartal is not illegal per se. But given the painful observation of the highest Court it definitely becomes ill-legal.

Hartal by public acclamation?
Before calling the hartal, the opposition leadership is reported to ask the public at large what type of program they wanted and the gathering overwhelmingly demanded calling of hartal. And so there was no alternative to 'respect' the will of the 'people'. To understand this way of calling hartal to its fullest extent let us go back to 1958. After the proclamation of Martial Law, President Iskander Mirza and Chief Martial Law Administrator Ayub Khan were in search of a way to adopt a new constitution for Pakistan. Mohammed Asgar Khan, once the Chief of the Air Force of Pakistan, is making a reminiscence of those initial Martial Law days (Quoted in A.K.M Shamsul Huda, The Constitution of Bangladesh, Volume 1, p. 102):
“The following day or the day after, I attended a meeting presided over by Iskandar Mirza, at which Ayub Khan, the Chief Justice of Pakistan and the newly appointed members of Ayub Khan's Cabinet were present. In this meeting, the Chief Justice of Pakistan Mohammed Munir was asked by Ayub Khan as to how he should go about getting a new constitution approved by the people. Justice Munir's reply was both original and astonishing. He said that this was a simple matter. In olden times in the Greek City States, he said, constitutions were approved by public acclaim and this could be done in Pakistan as well. Ayub Khan asked as to what was meant by 'Public Acclaim.' Justice Munir replied that a draft of the Constitution that has been published a few days earlier was to be followed by Ayub Khan addressing public meeting at Paltan Maidan in Dhaka, Moochigate in Lahore, Nistar Park in Karachi, Chowk Yadgar in Peshwar at which he was to hold up the draft constitution and seek public approval. The answer, the Chief Justice said, would definitely be in the affirmative and then there would be a constitution approved by Public Acclaim. Every one present in the meeting burst into laughing. Perhaps Ayub Khan laughed the loudest.”
Now, what should we do? Burst into laugh or tears?

The writer is Assistant Professor, Department of Law, Northern University Bangladesh (NUB), Dhaka.

'Ministers' beyond the Cabinet: Accountability concerns

Law vision

'Ministers' beyond the Cabinet: Accountability concerns

M. Jashim Ali Chowdhury

Published in the Daily Star, Law and Our Rights, May 1, 2010. See online: http://www.thedailystar.net/law/2010/05/01/vision.htm

APPOINTMENT of Advisers to the Prime Minister with the rank and profile of Ministers may sharply be questioned on constitutional, legal and moral grounds. There is no provision of the Constitution, Act or Ordinance authorizing this. Nor does the Rules of Business give any positive impression. Implanted by the supra-constitutional rulers, this unwelcome extra-constitutional convention is slowly implanting itself in our polity.

During the 1980s, HM Ershad used to appoint some Ministers called in common parlance as Ministers in charge of Districts. Like all other usurpers, his purpose was to pour benefits upon the yes-men to keep the power base intact. Another reason was to preserve central command over the decentralized local government which again was established to cloth his otherwise dictatorial regime with a semblance of democracy.

In an utter betrayal to the spirit of 1990 Mass Upsurge for democratic governance, the 4-Party Alliance rejuvenated the concept in 2001. Even an Elephant size Cabinet of around 75 Ministers was considered insufficient. The Prime Minister needed 'advice' from many other heavyweight 'Advisers'. The status, privileges and facilities available to a Minister became available for them as well. What else could be a classic example of plundering public purse to reward the party hordes? Unfortunately the legacy of 4-Party Alliance Government didn't go with it. The nightmare is not over and the 'Ministers' beyond the Cabinet still rein us!

PM's Adviser or Minister in Charge of a District whoever he is, the reality is that he is in a position where even the President is not. He has a right to rule without a corresponding liability to account for. In order to delineate the accountability issues involved, the present write-up points out the principles laid down by the High Court Division verdict in Anwar Hossain Monju v. Bangladesh [16 BLT (HCD) 86] mentioning the page numbers in brackets.

The Minister in charge of a district challenged
In this writ petition, Mr Anwar Hossain Monju, an Opposition MP from Pirojpur in the 8th Parliament challenged the government notification appointing 62 Ministers in charge of 62 districts all over the country. The concern of Mr. Monju was that his role as an MP in the development of his locality would be illegally interrupted by these 'Ministers'. Dr. Kamal Hossain and Advocate Mahmudul Islam appeared before the Court as Amicus Curie.

The plain argument of the petitioner as well as the amicus curie was that neither any provision nor the over all scheme of the Constitution approve such 'Ministers'. Rather as a side effect, the democratic governance of the local government units suffers a set back. The Additional Attorney General appearing on behalf of the government discharged his burden by simply referring the 'precedent' of 1980s (p 89).

The Court in its epoch making judgment filled up the omissions of the arguments of the parties. Though the Court allowed the petition on points like national jurisdiction of a Minister (contrary to the local jurisdiction of a District Minister) and functional independence of local government units, Honourable Justice ABM Khairul Haque able-handedly established the notion of responsible governance as a cornerstone of democratic governance.

Democratic governance: a basic structure of the constitution
First of all the Court made it unequivocally clear that the framers of the Constitution devised a scheme of total democracy with no half way house between democracy and autocracy (p 115). This being so the representative character of the government and its accountability to the people are the inevitable features of the polity. If these are not present, the Republican character of the nation would be lost (p 119). Therefore what the government does will, overwhelmingly, have to be done in the light of day and answered for in the light of the day also (p 102).

Responsible governance: a basic structure of democracy
The theory of democratic governance leads us to the proposition that the association of the Ministers with the Parliament (and through it with the people) is the counterpart of their association with the Executive. What in all circumstances they must bear is the undivided responsibility of all for what is done. The undivided responsibility again is a hyphen which joins the legislative part of the State to the executive part (BK Mukherjee CJ in Rai Sahib Ram Jawaya v. State of Punjab AIR 1955 SC 549). It makes them realize that they are functioning under a close public scrutiny which will continuously test their efficiency and honesty (p 100). Parliamentary control over executive allows the standing committees of parliament to investigate or inquire into the activities or administration of any Ministry and require it to furnish relevant informations and to answer questions. Thus accountability to the House becomes accountability to the people, the ultimate masters (p 109).

A careful look on the overall scheme of the Constitution would confirm the idea expressed above. That the government should basically be run by the elected representatives of the people is evident in Article 55(3) which stipulates that the Prime Minister must be a Member of Parliament. The proviso added to Article 55(2) has expressly fixed the number of technocrat Minister in the Cabinet. It is not more than one-tenth of the Cabinet's size. The technocrat Ministers have their seat in Parliament so that they may answer to Parliament's query. Rule 247 of the Rules of Procedure has not granted the technocrat Ministers an ex-officio membership in the Standing Committee concerning their ministry, while the others are given. They may remain present in the deliberations of the Committee but cannot vote.

Again, the President cannot exercise the executive powers though all the executive actions are called to be taken in his name. In a representative government only the Ministers as the representative of the people can act and be responsible to the Parliament. Any unilateral action on the part of the President, who is not the representative of the people, is against the concept of representative government and as such against the democratic principle (p 110). Therefore, democracy's apathy towards non representative administrators is a patent one.

Doing indirectly what cannot be done directly
The dangers associated with the trend of appointing District Ministers or PM's Advisers are many:
First, these high powered 'Ministers' do not form the Cabinet but many of them are appointed to oversee the overall activities of particular Ministry. It is a Minister who is primarily responsible to the parliament for his Ministry. But it is an Adviser, the Prime Minister's personal agent, who unofficially dictates the terms. In this sense, he is more privileged than a technocrat Minister, who at least has to face the Parliament.

Second, the constitutionally fixed one-tenth quota of technocrat Ministers become a total failure. Now the Prime Minister can have even nine-tenth bureaucrat technocrats to over trump the elected politicians in the Cabinet. Flouting a constitutional provision through extra-constitutional engineering is a desecration of the Constitution itself. The history of England shows that the Cabinet as an institution emerged out of King Charles III's preference for consulting a small body of trusted councillors, instead of going through the tedious debate in the large Privy Council. This small group became known as Cabal or Cabinet Council. Till then the Cabinet essentially looks slim. But now a days, our leaders like the opposite bulky Cabinet plus a lot of 'Advisers'!

Third, it unnecessarily heightens the authority of the Prime Minister by seriously undermining the authority and control of the Ministers over their respective Ministry. The foundation stone of parliamentary democracy is that it makes the people free from the clutch of Presidents with towering personalities. Here the Prime Ministers with all their might bow down gracefully and submit to the will of the people. So far as the Prime Minister, the primus inter pares (first among the equals), governs his colleagues in the Cabinet, he governs them by influence only. Upon the whole, nowhere in this wide world does so great a substance cast so small a shadow; nowhere is there a man who has so much power, with so little to show for (William Ewart Gladstone quoted in p 96). Harold Wilson saw in the context of the United Kingdom, the role of the Prime Minister as 'if not that of a Managing Director, as that of an Executive Chairman.' Unfortunately in many a third world countries, the role of the Prime Minister is gradually becoming as that of a Managing Director of a private limited company, and that is even apparently without any accountability to any one (p 108). Appointment of the 'Ministers' beyond the Cabinet shall only expedite the rot in our country.

Concluding remarks
A Prime Minister with so many untouchable Advisers may dislodge the basic of the democratic basics. This unwelcome trend may cost a lot in future. The danger is more forceful in countries like ours where the leaders become synonymous with the office they hold, ensuring a hero worship where the democracy takes a back seat and the old feudalistic approach to their political lives takes precedence. Then the people shall helplessly watch that all their struggles go down the drain (p 108).

The writer is Senior Lecturer, Department of Law, Northern University Bangladesh (NUB), Dhaka.

Law vision

Of 'struggle' and 'war'

Mohammad Moin Uddin

Constitution' is defined by many thinkers in their own majestic ways. Out of those definitions, I am fond of referring to Aristotle, who defined it as“the way of life the state has chosen for itself”. How can state choose its way of life being an abstract entity and having no brain of its own to think with? Can it make an informed and decisive choice for itself? Actually, 'state' means, inter alia, its people and the choice is, in fact, done by the people.
The question is, when and how did the part of the globe now known as Bangladesh make its plan of life it is following now? Was it the case that people of Bangladesh suddenly started to think of a constitution after that black night of 25th March 1971 when West Pakistanis imposed a treacherous war upon the armless civilians of Bangladesh? No. It was not the case historically.
Think of history. It is of essence, particularly when history of a constitution is intertwined with the tragic birth of a historically oppressed nation. I said to my students that history of our constitution is, in fact, history of 'struggle' for a just constitution that our people were engaged in from 1947 to 1971. That it was the failure of or, rather appropriate to say, unwillingness of Pakistani rulers to frame a constitution guaranteeing the just and equitable rights of our people (of the then East Bengal, later on East Pakistan and now Bangladesh) that compelled them to engage in a 'historic struggle for national liberation'. Deliberate political, economic, and other infra-structural and attitudinal disparities maintained by West Pakistani rulers, and absence of constitutional safeguards at the hands of our people as against those odds, plus failure to win an equilibrium in different aspects of life through repeated constitutional attempts at different stages of development of the historic struggle led to the extreme stage of war. 'War' was an important part of that struggle, of course the most obvious part of it; but war alone cannot explain the raison d'être and basis of our constitution in modern times. It was not an isolated phenomenon; War of 1971 was an epilogue of a sad drama, the last link of a long-drawn chain of oppression. Nor was it the sole story behind our constitution; we have more glorious history of struggle, which, if focused in its true and the then prevailing unavoidable context, would justify both the war itself and the incumbent constitution.
Whereas we know that one of the purposes of the preamble of a constitution is to indicate the source of its validity, unfortunately preamble of our constitution failed to underscore the history of our struggle from 1947 to 1971 as the source of validity of our constitution. As a justification of framing our constitution, the first paragraph of the preamble traced the history as back as the proclamation of independence on 26th March, 1971 and then recorded the ensuing liberation war. My hypothesis is that it is not enough.
Some people would argue that in the original preamble, the struggle was focused by using the phrase “a historic struggle for national liberation”-- the same being later on replaced by the phrase “a historic war for national independence” by the Proclamations (Amendment) Order, 1977. But a careful reading of the original first paragraph would reveal that the use of the word 'struggle' was inappropriate, because what happened after proclamation of independence (having proclaimed our independence) was, though struggle in general, war in particular. So if grammatical construction of the original first paragraph is adopted, which records only that part of the struggle that occurred 'having proclaimed the independence', it makes sense that the change of 1977 was correct in so far as it termed that part of the struggle as 'war'. But if the spirit of using the word 'struggle' is taken into account, which seems to be deliberate, we would say that the framers of original constitution used a right word in a wrong place.
In my view, If the history of 'struggle' could be recorded in the first paragraph as an antecedent to, and the raison d'être for, the proclamation of independence, and then if the matter of war could be presented as the post hoc, it would more coherently serve the purpose of both the history and the law (Preamble).
This is what, I would say, framers of the Proclamation of Independence, 1971 could ably accomplish in drafting the preamble to the first ever constitution of Bangladesh. I mean, the proclamation graphically described the rationale of the birth of a new country and legitimacy of framing its constitution. Whereas preamble of the Proclamation traced the history back to the election of 1970 as an immediate justification, a well-thought-out constitution in the independent Bangladesh could record in its preamble the gist of what unease, inequality, disparity, injustices, oppression and so on we were put through, resulting in the later development of political crises further leading to an unequal war. That could be a true appraisal of the validity of its constitution to the scores of upcoming generation. This would also protect us from distortion of our true historyglorious, tortuous and pathetic past.
Bangladesh Constitution is the epitome of a constitution emerging from a true revolution. Its constitutional history is akin to that of the USA and the USSR. Preamble to such a constitution cannot but record the history of revolution in it. Whereas the true spirit of our preamble cannot be changed after the 8th Amendment Case, wording of the preamble can be changed in a way that would more appropriately present the true history and represent the true spirit. True spirit of our constitution is the spirit that ran through the minds and souls of our people from 1947 to 1971 in quest for a just constitution.

The writer is Assistant Professor, Department of Law, Premier University, Chittagong.

Of 'struggle' and 'war': A humble dissent

Reviewing the views

Of 'struggle' and 'war': A humble dissent

M. Jashim Ali Chowdhury

Published in the Law and Our Rights, The Daily Star, March 27, 2010
Online: http://www.thedailystar.net/law/2010/03/04/views.htm

Mohammad Moin Uddin, an Assistant Professor of Law from Premier University Chittagong has come out with something new in our Preamble talk. The gist of his write-up in the last issue of Law and Our Rights, as it appeared to me, is that the substitution of 'war' in place of 'struggle' in the Preamble was right as per the 'grammatical construction' of the relevant phrase. To the author it was the correction of the mistake of 'inappropriate' use of a 'right word in a wrong place'. Bless my soul!

While impliedly supporting the anti-liberation aggression on the constitutional philosophy, he even mildly rebuked the framers of the 'well-thought-out constitution' for their poor drafting skill. The 'hypothesis' of Mr. Moin is that by using 'having proclaimed our Independence on the 26th day of March, 1971' before 'through a historic struggle for national liberation' the framers of constitution delimited the boundary of our liberation history within 9 months of 1971. This being so 'it makes sense that the change of 1977 was correct' because 'what happened after the proclamation of independence was though struggle in general, war in particular.' I'm simply thundered by such a silly outlook towards such a glorious revolution.

Is it only a 24 years' history?
To the author, 'The true spirit of our constitution is the spirit that ran through the minds and souls of our people from 1947 to 1971 in quest for a just constitution.' This, to me, is a poorly conceived idea ignoring the thousands years' search of the Banglaees for a nation state. It was the Baro Bhuiyans of Sonargaon who bought freedom from the Mughals for blood. It was the Bangalees who staged the first revolution against the British in 1760 soon after 1757 Plassey tragedy. Those under-armed but desperately courageous revolutions reached their culmination in 1971. Saying that the 1971 'war' was a result of mere political, economic and constitutional failure Pakistani rulers is a clear negation of the 'struggle' for Secularism, Socialism and Bangalee Nationalism which were not matters of some 24 years. The 1977 amendment for which the author stands did exactly this thing. It, while accepting a 'war' with Pakistani forces, completely changed those guiding principles of the 'struggle' into communalism and so called Bangladeshi nationalism, a complete reversal of the truth.

Did the framers 'inappropriately' use 'struggle'?
If the English text of the Preamble is considered, the 'grammatical construction' proposed by the writer holds no ground at all. In the English version the clause is 'having proclaimed our Independence on the 26th day of March, 1971 and through a historic struggle for national liberation.' Here the presence of 'and' between the proclamation of independence and struggle for national liberation makes it clear that these two parts are separated by the disjunctive conjunction. These being separate, the first part must not affect or qualify the second one. Formal declaration of independence has been mentioned first to refer the 'immediate' justification while the prolonged 'historic struggle for national liberation' has been mentioned as the guiding philosophy behind the whole process.

The Bangla text of the Preamble, however, may provide some literal and prima facie foothold to the author's view. Here the conjunction 'and' is totally missing. So it may readily be claimed that by using 'historic struggle for national liberation' just after 'having proclaimed our independence', the framers of the constitution intended to refer 9 months of 1971. The point becomes stronger on the ground that in case of conflict between Bangla and English text the former shall prevail. Yet I request the writer to wait a bit more.

Intention is not to be deduced readily from a 'grammatical construction'. Doing so will be to forget that 'it is a constitution we are expounding'. 'Interpretation of constitutional principles is a matter of reasoned application of rational precepts to conditions of time and place', to borrow words from Dean Roscoe Pound. Constitution is to be interpreted on the basis of its overall spirit and scheme without caging the interpretation within the confines of the written words taken in isolation (Mahudul Islam, Constitutional Law of Bangladesh, p 29-30). Now leaving aside the English text, even the Bangla text of the Preamble looked upon as a whole will negate the writer's view.

If taken grammatically, the first paragraph of the Preamble would mean that we established the Independent Sovereign People's Republic of Bangladesh by proclaiming our independence and then by waging a nine-month 'war' for national liberation. But would it not strike at the very root of the Proclamation of Independence? Constitutionally speaking, for the establishment of the Independent Sovereign People's Republic of Bangladesh we did not wait for the 'war' to be concluded on December 16, 1971. It was established on the 26 March 1971 immediately upon the declaration of independence which was confirmed retrospectively on April 17, 1971 through a formal proclamation of independence. So it becomes logical that 'historic struggle for national liberation' was used in the first paragraph not merely to refer 9 months' physical war rather to denote the politico- philosophic foundation which supplied validity to the proclamation of independence itself.

Again, to arrive at his 'hypothesis' the writer totally overlooked the second paragraph of the Preamble in the original constitution. Here the framers mentioned the principles of socialism, secularism and nationalism which 'inspired our heroic people to dedicate themselves to…. the struggle for national liberation'. And here you shall not see the qualifying clause 'having proclaimed our independence'. Hence this 'struggle for national liberation' can never be construed to refer only 9 months of 1971. So should we say that the Preamble speaks of two different struggles (one limited and another wider) for national liberation? Only a shallow 'grammatical construction' can afford this.

The 1971 episode of the history: 'War' or 'Struggle'?
Even if for the sake of argument we accept that the struggle mentioned in the first paragraph of the Preamble is a limited one, it does not warrant terming the use of 'struggle' 'inappropriate'. Nor it is correct to claim that the 1971 episode of history 'though struggle in general, was war in particular'. Rather the opposite is pertinent. Though prima facie a war, it was a 'struggle' in reality. The 1971 was not a mere armed rebellion against any ruler. It was not a fight fought between two rival armies. It was a mass upsurge for the fulfillment of a thousands years' cherished dream a free homeland for Bangalees. It was not a 'war' for mere independence. It was a 'struggle' for a total emancipation of the people (liberation) from oppression. That is why the undisputed leader of 75 million people declares, “This time the 'struggle' is for liberation, this time the 'struggle' is for freedom.” That is why we adorn and distribute the credit of 1971 among each and every individual - who fought the 'war' in the field, who starved to feed the freedom fighters with the sole piece of bread available at home, who fled the neighborhood in fear of persecution, who sang in the refugee camps or in the streets of New York, who lobbied in the international plane or even who prayed to the Almighty for the freedom.

Here the writer completely ignored the terms 'liberation' and 'independence'. A struggle for 'liberation' has been changed into a war for 'independence'. What does 'independence' mean? It is the sovereignty meaning freedom from external interference. Liberation is not a mere freedom from foreign dominance; it means freedom from exploitation, poverty and hunger. So doesn't it explain that the term 'struggle' was appropriately used to give a wider dimension to the 1971 efforts for national 'liberation' while 'war' for national 'independence' was used to restrict it from every possible dimensions? Then why does the author consider 'war' to be a right term and hence support such a warrior's approach to 1971? On which side his allegiance lies?

Is the source of validity missing?
The writer professed a sort of arbitration as well. If that is to be complied with, we shall consume the 'war' in its present place and relocate the 'struggle' from its 'wrong place' to a right one by recording it in the first paragraph as 'an antecedent to and raison detre for, having proclaimed our independence'. It shall contain twenty four years' 'struggle' to indicate the source of validity of the constitution which the framers of the constitution 'failed to underscore'. Is Montesquieu looking at the foggy England from his sunny vineyard in Paris? As shown above the 'historic struggle for national liberation' mentioned in the original constitution covered the history of thousands years not of mere twenty four Pakistani years alone. Of course, the historic 'war for national independence' as it stands now unforgivably omits it. And if any one is to blame for this, it is the person causing the pro-Pakistani amendment, not the framers of the constitution.

Consuming the 'war' for national independence and inserting one or two sentences before that to accommodate the 'struggle' for national liberation would be a stance of neutrality over which even a Chief Adviser to the Non Party Caretaker Government would think thrice. If any amendment is needed, that is the revival of the original constitution in toto nothing else.

The writer is Senior Lecturer, Department of Law, Northern University Bangladesh (NUB), Dhaka.

Negotiating Article 142(1A) for the 'Basic Structure'

Law vision

Negotiating Article 142(1A) for the 'Basic Structure'

M. Jashim Ali Chowdhury
Published in the The Star, Law and Our Rights, March 6, 2010 Issue. Available Online:
http://www.thedailystar.net/law/2010/03/01/index.htm

TO borrow words from Justice Mustafa Kamal, some provisions of the constitution are considered to be 'basic' while others may be termed as circumstantial. The constitutional lawyers and judges may discern some fundamental structural designs in a constitution as when an architect views a building. Call it basic structures or structural pillars or by whatever name they are there (Constitution: Trends and Issues, p 14). By now this fascinating doctrine of Basic Structure has become a vibrant tool of judicial activism to protect the constitutional edifice from ruination in hands of the invincible parliamentary super majority. The substance of the claim is that the structural pillars of the constitution cannot be dismantled by parliament in the name of amendment. It was planted strappingly in the judicial culture of Bangladesh by famous Anwar Hossain Chowdhury v. Bangladesh 1989 BLD (Spl) 1. A majority of 3:1 of the Appellate Division of the Supreme Court struck down the Constitution (8th) Amendment Act, 1988 establishing six permanent benches of the High Court Division outside Dhaka on the charge of destroying the unitary character of Republic, a basic structure of the Constitution as it was claimed.

Article 142(1A): The patent ills
Clause (1A) was inserted in Article 142 by the Second Proclamation (Fifteenth Amendment) Order, 1978 (Second Proclamation Order no IV of 1978). It provided that the renovated and express mandate of the people through Referendum shall be required along side the 2/3 majority in the House to amend some designated provisions of the Constitution. Looking at the list of provisions specially designated therein (Preamble, Articles 8, 48, 56, 58, 80 or 92A) it prima facie appears that General Zia couldn't have trust enough on the servile Parliament to be 'established' through the Second Parliamentary Election. To perpetuate the already settled omnipotent presidency along with the philosophical distortion in the Preamble, he needed something like clause (1A). Hence, Advocate Mahmudul Islam put a sharp question mark over the legality of this clause being an extra-constitutional insertion (Constitutional Law of Bangladesh, p 394). Then it was Honorable Justice ABM Khairul Huq who unveiled the secrets:

“Addition of clause (1A) was craftily made. In the one hand the President and the Chief Martial Law Administrator was not only merrily making all the amendments in the Constitution of the People's Republic of Bangladesh according to his own whims and caprices by his order…….... but at the same time, made provision in Article 142 itself in such a manner so that the amended provisions cannot be changed even by the two thirds majority members of the parliament short of a referendum. In short by executive order of one person, amendment of the Constitution can be made at any time and in any manner but even the two thirds majority of the representative of the people cannot further amend it. We are simply charmed by the sheer hierocracy of the whole process” (The 5th Amendment Case 14 BLT (Spl) p199).

Article 142(1A): The latent cure
In spite of the patent ills in Clause 1(A), looked upon from a different angle, it may reveal a latent cure. Just consider the 4th Amendment to the Constitution. Many of us, including me, firmly believe that it was a right but much belated step. Yet this 4th Amendment has blemished Bangabandhu's glorious patriotism and devotion towards the cause of his countrymen to a considerable extent, we may like it or not. It provided a ready tool in the hands of the anti-liberation force to propagate against the Patriot. It was a Parliament elected in a multi-party-democracy that attempted to introduce a one party system. Theoretically it is always a good question to ask. Had the people mandated the parliament to destroy the very system under which it took birth? In 1975 there was no parliamentary supremacy in Bangladesh. Given the situation it might have been the wisest on the part of Bangabandhu to seek a fresh mandate from the people on his new political standing before starting the second revolution. I'm sure the people of this country would never turn back on him.

Now come to Article 142(1A). By requiring Referendum in certain cases, didn't it subconsciously put a clog on a parliamentary super-majority acting in an unaccountable fashion? We should not forget that this is a country where the winners habitually tend to do everything they wish until they are de-elected in the next election!

Article 142(1A) healing the dilemmas of 'Basic Structure'
The Basic Structure carries with it some inborn fogginess and controversies. In Golak Nath v. State of Punjab AIR 1967 SC 1643 the Indian Supreme Court candidly conceived the idea that there is a distinction between plenary legislative power and constituent power of parliament. Parliament's plenary legislative power is subject to judicial review while the constituent power is not. Hence the Court may invalidate a law but not a constitutional amendment. This again has been sharply rejected in Kehsavananda Bharati v. State of Kerala (1973) in India and Anwar Hossain Chowdhury v. Bangladesh (1989) in Bangladesh. Now the Court, the guardian of the Constitution, is not ready to leave the constitutional edifice vulnerable at the hands of the Parliament.

But should it not mean that some principles would be so permanently fixed to allow the dead rule the world from the grave? Do the ideologies of one generation bind the later? Then where to accommodate the supremacy of the people? What to do in case the people overwhelmingly support an amendment violating the basic structure? So many people in Bangladesh still believe that decentralization of the Supreme Court in 1988 was a right step! Here the judiciary not only trumps over the 'general will of the people' expressed through an elected legislature, but also over the 'absolute will of the people' on a particular issue. Moreover the Judiciary gets a free hand in defining 'basic structure' making the concept a fluctuating one and hence bad. The Judiciary may come out with new 'basic structures' whenever convenient. It is indeed the case in India.

Article 142(1A) nicely answers those dilemmas. In one sense Article 142(1A) provides a sort of constitutional recognition to the judicial claim of 'basic structure'. By this the Constitution itself recognizes that there are something which are 'basic' (B.H Chowdhury J in Anwar Hossain Case, Para 256) and these need higher protection than the bulk so that Parliament may not manipulate them in its whim and caprices. In the other sense, it cures the iron fist immutability of 'basic structures' by saying that basic structures are particularly hard to be amended but not un-amendable. Now inter-generational adaptation is reconciled with the need for stability. Again, the basic structures are concretized by specification in the Constitution itself.

Article 142 (1A) be reconsidered not camouflaged
No doubt Article 142(1A) is an illegal inclusion in the Constitution by an illegal authority through an illegal exercise of power. After the Appellate Division ruling on the 5th Amendment case it is now almost at the vanishing point. The Government is bound to re-print the Constitution deleting this, if Appellate Division so directs. But whatever motive the then military 'President' had in his mind, the Clause as it stands now may serve a very useful purpose of safeguarding constitutional fabric from the fanaticism of a winner-takes-all politics. The government is planning to consult the Law Commission on 5th Amendment issue. The Commission may seriously consider recommending adapted re-insertion of the gist of Article 142(1A) de novo by the incumbent Parliament.

The writer is Senior Lecturer, Department of Law, Northern University Bangladesh (NUB), Dhaka.

The Code of Conduct Bill for MPs: Some reflections

Parliament scan

The Code of Conduct Bill for MPs: Some reflections

M. Jashim Ali Chowdhury*
Published in the Daily Star, Law and Our Rights, February 06, 2010

Available Online: http://thedailystar.net/law/2010/02/01/index.htm

THE Bangladeshi brand of parliamentary democracy is a species peculiar in itself. During the first two decades (1971-1991) of our history, parliament as an institution suffered a total inattention. In the next two decades (1991-2010) it has been able to draw some focus though not much for its role play. Absence, causal presence, irregular attendance and regular boycott have drastically reduced its capability. It has developed a credibility crisis as well. In an ingenious bid to make politics 'difficult for the politicians', peoples with questionable disposition found their place in politics and parliament en masse. And hence the allegations of misusing the duty free car import facility, telephone, medical, travel, dwelling and entertainment allowances do not surprise us any more. Recently added to these is the allegation of misappropriation of AC, refrigerator, furniture and even chal-dal-noon-tel from parliament cafeteria. Outside the parliament, patronizing the terrorists is a rule rather than an exception. Though there are some rules of conduct in the Rules of Procedure to make the Members behave within the House, absence of a full pledged Code of Conduct controlling both the indoor and outdoor activities has contributed to damage the collective image of the Parliament. Given the situation, the recently tabled Private Member Bill proposing a Code of Conduct for MPs shows us a stream in the desert.

A skim through the Code of Conduct Bill
The Bill is based on a fundamental assertion that great honor of representation burdens the MPs with the great obligation to keep-up to people's expectation. The statement of objects and reasons of the Bill underscores the truism that spirit of democracy should first be implanted in the MPs themselves, if they are to establish the democratic and constitutional rights of the people. And hence the Bill aims at enabling the MPs to keep strict to their duties by setting examples before the nation.

Ethical position of the MPs - Section 3 of the Bill enumerates the intrinsic qualities a Member of Parliament is required to possess. These include humanity, commitment towards the independence, sanctity and sovereignty of Bangladesh, profound belief in the equality of all irrespective of sex, religion, race, color etc, rational and constructive outlook, allegiance to the spirit of the liberation war, noninvolvement in any anti social activity and commitment towards the establishment of rule of law.

Duties of the MPs - Discharging parliamentary responsibilities as per the Rules of Procedure would be the core duty of the Members of Parliament. In doing so they shall play an active role in representing the people with commitment, in lawmaking and in ensuring the accountability of the executive (Section 4(1)(i)). They shall upheld the law in keeping with the trust the people deposited with them (Section 4(1)(ii)). They shall discharge their parliamentary and public duties without taking into account any material and financial gains (Section 4(1)(iv)).

Basic principles of conduct - The Bill lays down some behavioral norms which the Members of Parliament shall follow in discharging their duties. Section 4(2)(a)-(g) delineate the principles of selflessness, integrity, objectivity, accountability, openness, honesty and leadership. The Members shall declare personal interests and take steps to resolve any conflict of interest in a way that protects the public interest. There shall be openness regarding their decisions and actions. They must give reasons behind their decisions and may restrict information only when the wider public interest clearly demands. They shall take decisions solely in terms of the public interest and not to gain financial or other material benefits for themselves, their family or friends. They shall not place themselves under any financial or other obligation to outside individuals or organizations that might influence the performance of duties.

Additionally section 5(f),(g),(h) and (i) require them to refrain from recommending, influencing or changing the accepted rules of appointment in or promotion to or transfer from any public or private posts. They should also refrain from exerting personal or party influence in public procurement and approval or execution of public projects. Most importantly, as representative of the people they must refrain, in home or abroad, from doing all such things which may lower the image of Bangladesh as a sovereign country.

Section 6 embodies the 'No Paid Advocacy rule'. A Member of Parliament shall not make the public interest subordinate to any individual, coterie or party interest and must not vote on any bill or motion, or ask any question in the House or a committee, or promote any matter, in return for payment or any other material benefit.

Section 7 restricts the acceptance of gifts that may pose a conflict of interest or influence them in the exercise of their duties. They have to declare gifts exceeding 5000 taka to Ethics Committee to be formed under this Code and in 'appropriate cases', to submit the gifts or donations to the exchequer.

Section 8 provides that they shall utilize public properties and privileges as per law. Perhaps keeping in mind the In no circumstances the parliamentary privileges shall be used for income generating purposes.

Section 9 provides that subject to the Right to Information Act and any other law for the time being in force, Members must not knowingly and improperly use official information obtained in confidence in the course of their parliamentary duties, for the private benefit.

Section 10 requires the Members of Parliament to reflect democratic, progressive, tolerant, material and rational opinion in their speech and over all conduct.

In Section 11, the Members are prohibited to mislead the Parliament or the people consciously by their statement or speech. Even if one unwillingly makes any mistake, he/she 'must' correct the records on his/her own accord. Section 12 of the Bill reiterates what is said in Rule 270 of the Rules of procedure. A Member of Parliament is required to show respect, courtesy and civility towards other Members of Parliament.

Conflict of interest and financial statement - Section 5 of the proposed Bill reinforces the Rule 188(2) of the Rules of Procedures in a larger plane by requiring the Members to publish in the prescribed from their conflicting interests (Section 5(b)), wealth and income along with that of their family members before the first session of parliament ends to be updated on yearly basis. These statements shall be subject to the scrutiny of Ethics Committee which shall be empowered to publish any one if it thinks fit (Section 5(d)). They are also to arrange their private affairs so as to prevent real, potential or apparent conflicts of interests (Section 5(b)). To resolve the conflict of interests they may seek necessary guidance from the Ethics Committee (Section 5(c)).

Ethics committee - A Nine (9) Member Committee headed by the Speaker (Section 13(2)) with proportionate representation of the political parties shall be formed (Section 13(3)) to oversee the enforcement of the Code of Conduct. The Committee may inquire into the allegations brought by any individual (Section 13(5)). Any incident covered by the electronic and print media may suo moto be inquired into (Section 13(6)). A show-cause notice will be served on the accused MP and if his response is found satisfactory, the Committee may discard the issue. If the response doesn't satisfy the Committee, it shall refer the issue to the House with recommendations for punitive measures (Sections 13(7) and 14(2)).

Some gaps to be filled up
In spite of embodying so many progressive features, the Bill in its present form bears every risk of becoming a mere paper tiger unless some important issues are addressed sincerely and vigorously.

First, while framing a law regulating the conduct of MPs, we must not overlook the essential difference between a Code of Conduct and a Code of Ethics though they are often used interchangeably. This Bill also has mixed them up. A Code of Ethics identifies those ethical values within a particular culture, time and place that are regarded as the foundation of a profession or institution. Such a Code is usually aspirational rather than prescriptive. How to bring issues like fairness, accountability, faith in democracy, justness within the four walls of legal language to make them strictly enforceable? A Code of Conduct, on the other hand, is usually more focused on the core functions of the profession or organization, involving a sanction against violation. Bribery, corruption and conflict of interest etc can easily be subsumed under a law. So a Code of Conduct consisting of so many ethical principles, as it is the case with this Bill, would be a net with loopholes.

Secondly, even the core justiciable issues finding place in the Bill may be seen by the public only as window-dressing if the proposed Ethics Committee is not reconsidered. Similar Codes of Conduct failed to improved things in UK and US. The Ethics Committee consisting proportional representation of the political parties will surely take partisan stance by dividing along party lines.

Rather a parliamentary officer, like the Parliamentary Commissioner for Standards in UK or Jurisconsult in Canada, may be assigned with the administration of the Code, while the enforcement shall rest with the Ethics Committee. The Commissioner shall have the duty to receive and investigate complaints concerning the Code, from parliamentarians and members of the public. On the basis of the recommendation of the Commissioner, ultimate sanctioning power shall be exercised by the Ethics Committee. To prevent the Committee from vitiating the recommendation, it may be provided that the Committee would ratify a report or reject it only on procedural grounds or because salient evidence has not been properly considered. In effect, the Committee shall operate as an appellate forum, charged with ensuring that procedural guarantees and natural justice have been observed. To attract vigorous public attraction, the report of the Commissioner must be made public before it is deliberated in the Committee. Moreover, to attract concrete punitive consequences for the Member found guilty, a breach of the Code should constitute misconduct and a breach of the privileges of Parliament.

Thirdly, while the Code requires the declaration of interests, it is slippery on the issue of specifying the specific interests that are required to be declared and registered. A concrete list may be inserted in the Bill defining the financial and non-financial interests which are always relevant and therefore must be registered.

Fourthly, best of the options shall be to introduce the Bill the House afresh as a Government Bill to do justice to the long felt demand for a binding Code of Conduct.

Conclusion
There is no denying that simply adopting a Code of Conduct would not cause a sea change in the situation. Perhaps it would not mark any difference at all. While even the ballot box fails to prevent troublemakers entering the Parliament, what a mere Code can do? Yet isn't it significant that at least one of the Members of Parliament have realized the magnitude of the credibility crisis the Parliamentarians face today? For now let us congratulate the MP responsible for the Bill and demand the approval of the Bill with necessary adaptations in the House.

*The writer is Senior Lecturer, Department of Law, Northern University Bangladesh (NUB), Dhaka (The Author is grateful to the honorable MP Mr. Saber Hossain Chowdhury for making a copy of the Bill available).

Internet access: A fundamental right?

Internet access: A fundamental right?

M. Jashim Ali Chowdhury*

Published in the Daily Star, Law and Our Rights, January 23, 2010. Available online:

 http://thedailystar.net/law/2010/01/04/vision.htm

Are peoples' fundamental human rights being violated when they don't have access to the internet? This question brings an important opportunity to think afresh on our traditional understanding of human rights. Internet access may be understood as a contemporary form of the right to self-expression. It may also be understood as part of basic access to public services in an increasingly digitized world. Add to it the increased quality of life that comes with the huge jump in access to cultural and logistic information. The Council of Europe is moving decisively towards the 'universal right to internet access.' Finland has become the first, and surely not the last, country to make access to internet a legal right. In Switzerland the law on Universal Service grants every Swiss the right to get a broadband connection of 0.6 Mbps and the provider has to fulfil this obligation even if you're in a hut somewhere in the Alps! Just couples of months ago, the Constitutional Council of France termed access to internet a human right.

The Council of Europe efforts

In Council of Europe the 'Telecoms Reform Package' was presented to the European Parliament in November 2007. The debates on the Telecoms Package led to an extremely strong recognition of the access to internet as a fundamental right. In the first reading of the Package during September 2008 a number of amendments (known as Amendment 138) were carried (573 votes for and 74 against). It upheld the user's rights by making a judicial authority, in preference of an adminsitrative authority, the highest instance deciding on sanctions against him. But as the French representatives demanded the withdrawal of Amendment 138, the renumbered Amendment 46 was propsoed on the basis of an offered compromise. In the second reading, on 5 May 2009, a clear majority (407 votes for and 57 against) adopted the Amendment 46 again making it illegal to disconnect the internet users on the ground of suspected copyright violations until they are proven guilty in court. It recognised, notably in accordance with Article 11 of the Charter of Fundamental Rights of the European Union on Freedom of Expression and Information, that internet access is part of fundamental rights such as the freedom of expression and access to information. The Telecoms Package is now waiting its third reading and pressure is mounting upon the European Parliament to guarantee a free, open and innovative Internet.

The French Constituional Conucil bolsters the move

On 13 May, 2009 the French National Assembly passed the Creation and Internet Law, also called the Three-Strikes Law, as a key plank to deal with illegal file-sharing over internet. Section 5 of the Statute introduced the HADOPI (High Authority for the Diffusion of works and the Protection of copyright on the Internet) within the framework of the Intellectual Property Code which would act as intermediary between rights holder organizations and ISPs (Internet Service Providers) and would pass on the allegations from the right holders with a request to the ISPs to warn or sanction their users. Section 10 empowers the HADOPI to order the taking of all measures necessary to prevent or put an end to such infringement of copyright or a related right. Section 11 inserts into the Intellectual Property Code provisions which define the duty to monitor access to the internet to determine the cases in which internet access has been used in a manner infringing copyright of another. Under the law, pirates would be given three emailed warnings (Three Strikes) before having their access to the net cancelled or suspended. Suspension may be for a period of two months to one year accompanied by the impossibility for the subscriber to enter into any other contract with any other operator for access to internet.

There had been considerable public debate about the status of the HADOPI - whether it was a court with a legal authority to sanction internet subscribers. It was alleged that the law created an internet Big Brother who would hit innocent people whose web connections were being used by others, such as children, employees or people illegally hooking into their wi-fi. In June 2009, a reference was made to the Conseil Constitutionel to review the law. The parties making the referral contended that by giving an administrative authority the power to impose penalties in the form of withholding access to the internet, Parliament infringed the fundamental right of freedom of expression and communication (Para 11 of the Council's Judgment, Available Online: www.conseil-constitutionnel.fr/conseil-constitutionnel/root/bank_mm/anglais/2009_580dc.pdf).

Referring to Article 11 of the Declaration of the Rights of Man and the Citizen of 1789 the Council opined that the free communication of ideas and opinions protected by the founding fathers of the French Republic continues to serve a purpose in today's Information Society. Given the generalized development of public online communication services and 'the importance of these for participation in democracy', the Council held that the right to free coomunication of ideas and opinions implies freedom to access internet (Para 12).

As to the question whether HADOPI was a court, the Council made it clear that it would be merely a public administrative authority and would not have the legal powers of a court. Considering the importance of 'the right of any person to exercise his right to express himself and communicate freely' the Council held that only a court had the authority to switch off a person's web connection and the Parliament was not at liberty to vest an administrative authority with such powers (Para 16). In the name of fighting the infringement of copyright grossly disproportionate restriction on the right of free communication and freedom to speak, write and publish may not be imposed (Para 15).

Finland makes a big push to the internet access 'right'

Finland is one of the most wired countries in the world. About 95 percent of the population has some sort of Internet acces. On October 14, 2009 the Finnish Ministry of Transport and Communications announced a Decree on the Minimum Rate of a Functional Internet Access as a Universal Service (732/2009). As per the law, the minimum rate of downstream traffic of a functional internet access is 1 Mbps (Section 1(1) of the Decree). However, the average minimum rate of 750 Kbps in a measuring period of 24 hours and 500 Kbps in any 4-hour measuring period shall do (Section 1(2)). Every Finn shall have this right guaranteed by 1 July 2010 (Section 2(2)). The legal implication of this 'legal right' is that specific operators are enforced to provide specific level of service for all consumers at a reasonable price. The move by Finland is aimed at bringing web access to rural areas, where geographic challenges have limited access until now. The 1 Mbps mandate, however, is simply an intermediary step, the country is aiming for speeds of 100 Mbps for all by 2015.

Right to internet access: Possible objections and a reply

Though the notion of internet as a basic right is gaining momentum, forcefully advocating it in an overhelmingly capitalist world still runs every risk of being termed 'asinine' and 'UN-believable'. The Scandinavian-style welfare decision of Finland sounds 'Obamish' to many. They doubt whether internet access is a 'right' or a 'nice-to-have'. Some fear more governmental intruision through such 'Robin Hood' socialism whereby the government steals from the rich (internet service providers) and gives to the poor (under-privileged users). Some other even recall Jefferson: 'A government big enough to give you anything you want is big enough to take everything you have.' However, if you look from a developing county's point of view it will not be too tough to locate the 'concern' of the cynics. A large number of 'e-citizens' arround the West have asked the question: Who is going to pay for the 'right to internet access'? A serious question indeed.

Well, there may be some interpretational side effects of the primary goal of universal right to internet access. Firstly, government guarantees that no one can deny you access to broadband service as long as you're willing to pay for it. Second, those who want broadband and can pay for it must do so while those who want it but demonstrates inability to pay will have it provided to them. This would be more akin to everyone having a right to defense counsel if charged with a crime. If you can afford it, you hire your own attorney. If you can't the government provides an attorney for you. And third, government provides the service to everyone and taxes the people through some means (direct tax, fees on services, etc).

I think no one shall dislike the first option. As to the second and third, it may be argued whether it makes sense for the government to subsidize access to broadband. So let us ask some questions and answer them ourselves. How much were and are spent on rural electrification to get power to the farmers so that we reach the targeted food production? A 'knowledge economy' requires Internet access in the same way the agricultural economy requires electricity. How much were and are spent in those government-funded fire services or police protection or public education and a hundreds other services that we enjoy? So why not a little bit in technology? Isn't it far cheaper for the government to provide basic broadband access to everyone than to provide printed versions of every form to all its citizens? Isn't it far better to spend on the universal access to internet than to spend in bailing out the purveyors of the capital market? The point to emphasize is offering information access to all citizens to bridge the gap between the have's and the have not's. Those who have it are at an advantage to those who do not. There are so many things you are excluded from without Internet access.

Conclusion

The Finnish government or the French Constituional Council is simply laying down examples that should be followed by every country that wants to participate in a 21st Century 'knowledge economy'. Yes someone has to pay and it will cost a lot of money but the benefits are huge. Adding the idea fundamental right to low-cost internet service is the only next logical step for modern, enlightened societies. While surfing through the net, I've noticed one Cory Doctorow predicting: 'In five years, a UN convention will enshrine network access as a human right. In ten years, we won't understand how anyone thought it wasn't a human right!'

*The writer is Senior Lecturer, Department of Law, Northern University Bangladesh (NUB), Dhaka.