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.