Executive
Law Making in the U.S. Bangladesh
Graduate Lawyers At Tulane Law Review, Vol 1 No 1 (May 2015) pp 33-42
Executive Law
Making in the U.S. and Bangladesh: A Study into the Institutional Restraints
M. Jashim Ali
Chowdhury*
1. Introduction
In the United States, the president’s
ability to formulate and shape policies through executive order is primarily
attributed to a congressional delegation of authority to him. This may be by
way of a law expressly or impliedly authorizing him to issue any order or
regulation for the implementation of its contents or purposes. Sometimes, on
matters of serious implications such as national security and foreign policies,
presidents are seen taking unilateral moves to issue executive orders without
prior statutory sanction of Congress. Challenged in the court, administrations
usually justify such unilateral moves on the basis of president’s plenary
executive power, his duty of faithful execution of laws, responsibility as
commander-in-chief and exclusive responsibility for the conduct of diplomatic
and foreign affairs.
Whatever the
source, the executive orders have profoundly influenced the institutionalization
of American democracy. Those received significant attention from both Congress
and the Supreme Court. Apart from congressional hearings and studies seeking to
limit the presidential law-making authority, the Supreme Court also continues
to play a double check since 1804.[1] The
court has accepted in principle that executive orders based on legitimate constitutional
or statutory grounds rank equal to law.[2] Yet
the Court has shown a consistent interest in making sure that constitutional
aspiration for limited government has been respected by those orders.
In contrast, the
ordinance-making power of the President of Bangladesh is an express
constitutional grant.[3]
The President, acting in advice of the prime minister, promulgates an ordinance
at a time when parliament is not in session. The Parliament however is given a
direct say over the presidential law-making. Every ordinance must be laid
before Parliament immediately after it comes into session. An ordinance not
endorsed, and transformed into an Act, by parliament within thirty days of its
coming into session must die its legal death.[4] Also
there are some substantive and procedural restrictions on ordinance power
imposed by the constitutionally or judicially.
Unlike the
United States Supreme Court, the Supreme Court of Bangladesh has a textually granted
power of judicial review.[5] Though
there are occasional hesitations attributable to periodic resurgence of
authoritative presidency, the Supreme Court has shown a general eagerness to
look into the presidential ‘satisfaction’ on necessity of an ordinance. Given
the opportunity, the court made extensive probes into the contents of ordinances
to see whether they fit in the ‘letter and spirit’ of the Constitution.[6]
While the
seemingly well articulated mechanism of Bangladesh may generate complacency,
experience shows that the U.S. system of interactive institutionalism has
worked far better than the constitutional textualism of Bangladesh. Against
this backdrop, this paper endeavors to analyze and cross match the institutional
environment within which the practice of executive law making operates in two
jurisdictions. Part II of the paper gives a general introduction to the systems
of presidential legislation in the U.S. and Bangladesh. Part III discusses the
institutional arrangements of restraints in both the jurisdictions. Part IV
attempts to analyze the interpretative techniques employed by the two supreme courts
sitting over the judgment of an executive law. The paper ends with a functional
argument of constitutionalism that a constitution that reads better may yield
less than a constitution that works perfect.
2. The Systems of Presidential
Legislation
2.1. Executive Orders of the U.S.
President
The U.S. President’s ability to
formulate and shape policies through Executive Orders is not an express
constitutional mandate. A by-product of the rise of administrative state in the
U.S., this power originated from congressional delegations of authority.
Congress expressly or impliedly authorized the presidents to issue orders or
regulations for the implementation of its statutes’ contents or purposes.
Therefore, the initial understanding of executive orders comprised “all directives
of the president which were directed to, and govern actions of, government
officials and agencies.”[7] Initially
not expected to lay a direct impact on private citizens, the presidential
orders have gradually blurred the line of impact. Apart from organizing and
running their respective administrations, the U.S. presidents sought to deal
complicated issues like individual property,[8]
labor rights,[9] official secrets,[10]
and intelligence surveillance[11]
through executive orders. During the formative periods of the republic, major
breakthroughs like establishment of the executive office of the president,[12]
integration of armed forces[13]
and introduction of affirmative action policies[14]
were accomplished through executive orders.
Moreover,
presidents moved unilaterally in areas like national security and foreign
affairs. Such moves, when challenged in the court, were often justified on the
basis of the president’s plenary executive power,[15]
his duty of faithful execution of laws,[16]
responsibility as commander-in-chief[17] and
‘exclusive responsibility’ in diplomacy and foreign affairs.[18] Presidents
also took the opportunity of 'congressional inertia, indifference, or
acquiescence’[19] in otherwise non
exclusive areas of state affairs. Not stopping there, modern day presidents seek
to influence, guide and even dictate the legislative priority of a hostile
Congress, a phenomenon beyond the imagination of founding generations. Frequent
issuance of executive orders during war or war related emergencies is now supplemented
by presidential pre-emption of a legislative field and invitation to Congress
to act in his line. The latest move of President Barrack Obama on immigration
reform marks the height of this reverse constitutional engineering.
In a system like
the U.S., circumscribed by separation of powers and checks and balances, this
type of practice would inevitably draw serious attention from both Congress and
the Supreme Court. As is shown later in this paper, it actually and seriously
did.
2.2. Ordinances of the President
of Bangladesh
Unlike the U.S., ordinance-making power
of the President of Bangladesh is a constitutionally settled authority. Article 93 of the Constitution of Bangladesh
empowers the President to legislate by promulgating Ordinance. The
facial justification offered for this is responding to the urgency of
situations requiring immediate actions when Parliament may not be in session
and be unable to act promptly. The constitutional limits on the Ordinance power
are both procedural and substantive.
Procedurally, the
President may promulgate an Ordinance at any time when Parliament stands
dissolved or is not in session, if he is satisfied that circumstances exist
which render immediate action necessary. Any Ordinance so made has the same
force of law as an Act of Parliament has.[20]
Since the president remains bound by the advice of the prime minister, any
satisfaction regarding the necessity of an Ordinance is in fact that of the
prime minister. Following its promulgation, every ordinance has to be laid
before Parliament at its immediate following meeting. Government lays the
Ordinance as a Bill before the House. If passed it becomes an Act. If not acted
upon, it dies its natural death after thirty days of its being laid in the
table. It may die even earlier if it is disapproved earlier.[21]
On the level of
substance, constitution has put several conditions on the scope of ordinances. As
per Article 93(1), an ordinance cannot violate the constitutional supremacy
clause[22]
and enact a law which could not be lawfully enacted by Parliament.[23]
Constitution cannot be amended by ordinance.[24]
Operation of an earlier ordinance cannot be continued by another ordinance.[25] Apart
from these, judicial precedents have added some other limitations to the list. An
ordinance may not violate a constitutional convention,[26]
impose tax burden[27]
and alter or amend an Act of Parliament.[28]
The apparently
detailed and well structured scheme of ordinance power, however, would not
deliver as expected. Rather than being used as a tool of emergency, it unfortunately
has been used as ready-before-hand tool to snatch away the legislative power
from the legislature itself. During the late 70s and 80s, the legislatures acted
as mere rubber stamps whose main job was to legalize rather than legislate. As
the table below shows, the military and civilian governments invariably used
the ordinance power that undermined the institutional role of parliament:
|
Parliament/Governments
|
Act of
Parliament*
|
Presidential
Orders/
Ordinances
|
|
Revolutionary
Government (1971-72)
|
00
|
202
|
|
1st
Parliament (1973-75)
|
64
|
90
|
|
Three
Military Rulers (1975-79)
|
00
|
259
|
|
2nd
Parliament (1979-81)
|
65
|
295
|
|
4th
Military Ruler (1982-86)
|
00
|
307
|
|
3rd
Parliament (1986-88)
|
25
|
323
|
|
4th
Parliament (1988-90)
|
53
|
92
|
|
5th
Parliament (1991-96)
|
104
|
121
|
|
7th
Parliament (1996-00)
|
170
|
21
|
|
8th
Parliament (2001-06)
|
184
|
6
|
|
Military
Backed Government (2006-08)
|
00
|
117
|
|
9th
Parliament (2009-13)
|
249
|
23
|
|
Source:
Bangladesh Parliament; http://www.parliament.gov.bd/index.php/en
*Acts
of the Parliament are shown as the actual legislative exercise of the legislature.
The Acts which were in fact approving presidential ordinances are counted as
orders/ordinances.
|
||
3. The Scope and Problems of Institutional
Restraint
3.1. Separation of Power in the
U.S.
The US system of separation of powers
makes it obvious for the president pursuing his policy to go along with two other
branches of the government. The presidents are most likely to prefer a clear
congressional mandate in pursuit of his goals. Presence of an unfriendly
Congress, however, sometimes results in ‘unilateral presidency’[29]
inviting the president to issue executive orders on his own volition. This
again is the choice of a ‘strategic president’[30]
who wants to see the laws confirm his policies and, at the same time, must
ensure that the Congress is not going to override it by a subsequent
legislation. He must ensure that he is also in a position to override a
possible congressional move through his veto and the Congress in its turn is
unable or unlikely to override the veto. This of course, does not mean that
presidents do not issue executive orders for strategic reasons even when the
Congress is generally receptive to their administrations.
Historically,
the Congress has shown a tendency to acquiesce or support executive orders.
President’s personal and political linkage with the Congress could also have
contributed to this. A glossy reading of the US Constitution will support the
impression that it anticipates a visible and persistent alliance between the
President and Congress. This may partially be due to inherent institutional and
procedural constraints of the Congress as well. As the statistics show,
Congress questioned only 36 of around 1,000 executive orders between the years
of 1973 and 1997. Only two of these resulted in overriding the orders.[31]
The President’s
alliance with the Supreme Court, on the other hand, is much more ‘informal and
limited’.[32] The Court has shown its general
preparedness to give way to the will of the President and Congress in statutory
cases. Unless felt seriously convicted on principle, the Court has tended to
stay out of the President's way and approve the executive orders "of
at-best-dubious constitutional authority… [or] issued without specific
statutory authority."[33]
On clear constitutional grounds, however, the courts held the ground tight.[34]
The result is that during the years of 1789 and 1956, the state and federal courts
turned down only 16 executive orders.[35]
Presumably it is
the President’s unique position of power and persuasion within the U.S. system
of separation of power and checks and balances that puts him in a clear
advantage over the other two branches of government. Instances of congressional
backing to President Roosevelt’s move for ‘court packing’[36]
and President Nixon’s active role play in congressional move to override the Oregon
v. Mitchell[37] through
constitutional amendment sufficiently show that president is constitutionally
fortuitous to choose and pick between the institutional alliances that may best
serve his goal.
3.2. The Fusion of Power in Bangladesh
The doctrine of separation of
power has is confirmed by the scheme of the Constitution of Bangladesh, with
its inherent lacuna and defects though. Executive power of the Republic lies
with the Executive under the prime minister and his cabinet.[38]
Legislative power is vested in the Parliament.[39]
Though there is no express vesting of judicial power in the judiciary, the
Supreme Court has held that it so lies.[40]
The system of
check and balance on the other hand is seriously defective. Parliament may
cause the fall of government as the prime minister and his cabinet is
collectively responsible to it. Prime Minister holds office during the pleasure
of parliament.[41]
President appoints the Judges of the Supreme Court in consultation with the
prime minister.[42]
President removes a judge upon recommendation of a supreme judicial council
comprising three senior most judges of the Supreme Court. When an allegation of
moral turpitude or violation of constitution is brought against a judge, president
convenes the council after consulting the prime minister. The say of parliament
is totally missing in both the appointment and removal process.[43] Judiciary,
in its turn, exercises the power of judicial review of laws and executive
actions.[44] It,
however, cannot give a direction to repeal or modify a law.[45]
Under the
present set up and its attendant realities, the doctrine of check and balance appears
a mere eye wash. It rather ensures the ‘dominance’ of the executive over the legislature
and the judiciary. Two fundamental issues contributing to this are the presence
of the so called Articles 48(3) and 70 in the constitution. Article 48(3) holds the president
virtually caught in the prime minister’s net.[46]
Prime minister’s advice being immune from judicial scrutiny,[47] executive
enjoys the last and final say in every affairs of the republic, be it the
dissolution of parliament or the appointment and removal of the Supreme Court
judges. [48] The
gist of Article 70 is that a MP going against the decision of his political
leadership runs the risk of losing his seat in Parliament. The Cabinet
comprising the most powerful members of the ruling majority is led by an “invincible
Prime Minister”.[49]
As a result, the
legislature and executive get virtually converged in one hand. This makes
Bangladesh’s separation of power a mere “assignment of powers”.[50]
Given the situation, it is obvious that the parliament and judiciary in
Bangladesh would employ a significantly less rigorous scale of scrutiny to the
exercise of presidential law making power.
4. The Judicial Role Play
4.1. Judicial Review of Executive
Orders in the U.S.
Justice Jackson’s structural analysis of presidential law making power in Youngstown[51]
stands the most convincing outline of judicial review in the U.S. Jackson
articulated three possible scenario an executive order may present. First, the
President may act pursuant to an express or implied authorization of Congress.
Secondly, he may act in absence of either a congressional grant or prohibition.
Thirdly, he may act contrary to the expressed or implied will of
Congress. In this first case, executive and legislative powers of the Republic being
merged, the presidential authority will be “at its maximum”. Court will support
the president by “the strongest of presumptions and the widest of interpretative
latitude.” The second scenario constitutes “a zone of twilight” where the allocation
of presidential and congressional power remains uncertain. President could
overcome the doubt by showing that his predecessors have historically acted in
such cases and the Congress usually acquiesced. The third scenario is the greyest
where the presidential authority stands “at its lowest ebb.” Here, the
president would have to prove that the area concerned is exclusively within his
domain and the Congress had nothing to do there. Such an argument running
against the “very equilibrium of constitutional system”[52]
would invite the most rigorous possible scrutiny.
A Power ‘at its Maximum’ and the
theory of Intelligible Delegation
AFL-CIO is good example of the first
scenario. Labor unions challenged the legality of President Carter’s Executive
Order No. 12092. The Order sought to prescribe some general standards to
measure noninflationary wage and price behavior of private firms. The Federal
contractors were required to comply with the guidelines with the stake of
debarment from federal contracts. These regulations interfered with an ongoing
collective bargaining between the United Rubber Workers and several rubber
companies. After reaching an agreement on wage issue, the stake holders saw
that President Carter’s Order was threatening the company with contract
debarment for exceeding the federal guideline. The companies started sliding
away from the agreement and a strike began against one of them. The AFL-CIO then
challenged the Carter Order claiming that the system of mandatory wage and
price controls was in violation of the Council on Wage and Price Stability Act
1974.
Despite an
apparently contradictory language in the Price Stability Act, the majority in
the Court of Appeals for the District of Columbia held that another Act namely,
the Federal Property and Administrative Services Act of 1949
(Procurement Act),
authorized the President to issue the Order. The Congress, by using broad terms
such as "'economy" and "efficiency" in the Procurement Act,
has shown an implied intention to grant the President a broad rule-making
power.[53]
Power being implied within the law, the question was whether there was tight
fit between the ends and means chosen by the President. The majority was
convinced that a "sufficiently close nexus" existed between the
purpose of ‘economy and efficiency’ and the wage and price guidelines set in
the Order.[54]
The dissenting
Judge MacKinnon applied a rather narrow construction test to the statute and found
the nexus missing.[55]
His reasoning articulated a doctrine of “intelligible delegation” which would
require the Congress set adequate standards and guidance for the President
seeking to exercise the power.[56] As
per the doctrine, any delegation without adequate standards and guidance will
be an “unconstitutional delegation” of legislative authority. The
‘Intelligible Delegation’ doctrine is based on the premise that a delegate may
not abdicate his authority in the pretext of sub delegation. A
congressional delegation of legislative authority in favor of the President
must therefore be coupled with prescribed limits, standards and principles
which combined would constitute an ‘intelligible delegation’.[57] Later
on Chief Justice Taft, also a former President of the U.S., confirmed the
formulation in Hampton.[58]
In judging whether
the congressional delegation is an intelligible one and whether the President
acted within the delegated authority, the courts adopt the strictest test of
interpretation.[59] The court will ensure
that the president acts in situations and conditions contemplated by Congress.
Initial presumption lies with as to the factual nexus lies in president’s favor
of course.
President’s
unilateral move to issue executive order without express authorization or
prohibition received the first judicial attention in Re Neagle 135 US 1 (1890). It was a case involving the appointment, by executive order, of an
armed bodyguard for the security of Stephen J Field, a Circuit Justice of the
Ninth Circuit. He was threatened earlier by one David S. Terry, himself a
retired Supreme Court Judge from California. Considering Terry’s declared
intention to harm Judge Field, President Benjamin Harrison appointed a federal
Marshall named David Neagle as Fields bodyguard by an executive order.
The Order
being challenged on a subsequent incident, the Supreme Court resorted to the president’s
power of ‘faithful execution of laws’ mentioned in Article II Section 3 of the
Constitution. Based on this, the court adopted a ‘general grant’ theory of
executive power that would allow the President doing things not expressly
authorized by the Constitution or a congressional legislation, if those are
felt necessary to enforce the laws of United States. [60]
Later
precedents however did not rely much on the ‘general grant’ theory. In absence
of clear authorization, the court rather looked for some form of congressional
ratification of an order, either express or by acquiescence. Some however argue
that acquiescence should not be readily taken as implied ratification. Since
Congress may have multiple reasons for not acting, a better approach would
require some positive endorsement.[61]
The power ‘at its
lowest ebb’
President’s unilateral move in violation of express
statutory limits would invite the severest test of scrutiny. In Youngstown,
the presidential order to seize a private property in that case had no clear
statutory authorization. Rather three other statutory policies inconsistent
with this order expressly foreclosed any seizure of private property by
executive order. Therefore the only way left for the president was to show that
his action was within his exclusive domain and beyond the reach of Congress.[62] In
his claim of exclusivity, President may rely on the executive power clause,[63]
commander-in-chief clause,[64]
faithful execution clause,[65]
foreign affairs powers,[66]
war powers[67] and the
so called inherent power of presidency. The Youngstown court however
offered a limited reading of all these and struck down the presidential order
seizing private industry.
While commenting on the executive power clause, Justice
Jackson rejected the general grant theory of Re Neagle. Pointing to the specific
articulations of some powers after a general grant of executive power, Justice
Jackson held, “I cannot accept the view that this clause is a grant in bulk of
all conceivable executive power but regard it as an allocation to the
presidential office of the generic powers thereafter stated.” He was
unconvinced with the Commander-in-Chief clause too, “[T]he
Constitution did not contemplate that the title Commander-in-Chief of the Army and Navy will constitute him also
Commander-in-Chief of the country, its industries and its inhabitants.”[68] Jackson
also refused to read the faithful execution clause free of the Fifth Amendment due
process which restricts interference with private property.[69]
On a combined reading of war and foreign affairs
powers, Jackson emphasized on the concurrent authority of Congress in declaring
war and held, “[N]o doctrine that the Court could promulgate would seem to me
more sinister and alarming than that a President whose conduct of foreign
affairs is so largely uncontrolled, and often even is unknown, can vastly
enlarge his mastery over the internal affairs of the country by his own
commitment of the Nation’s armed forces to some foreign venture.[70] The
nebulous argument of inherent power is based on customs and administrative
practices. The plea, as Jackson puts it, is for the proposition that “necessity
knows no law.”[71]
4.2. Judicial Review of Ordinances in Bangladesh
The Supreme
Court of Bangladesh stands in a marked distinction with the U.S. Supreme Court.
It has historically held a deferential view towards the authority and
satisfaction of the President. Governor General, the predecessor of presidency,
in post-colonial Pakistan was seen as the residuum of the British Crown. Interestingly,
while the British Crown itself yielded its authority to the Cabinet, early
republic of Pakistan was obsessed with the excellence of Her Majesty’s reign.
Rise of military dictatorships in the later days of Pakistan only strengthened
the belief system. Ceding from Pakistan, Bangladesh chose a parliamentary
system. The legacy of Pakistani presidentialism and rise of interventionist
military, however, had a profound impact on the psyche of the legislature and
judiciary. Legislative and judicial timidity of the presidentialist era (1970s
and 80s) unfortunately continued during the democratic era of 1990s and onwards.
The resultant position is that the Court starts with a reluctance to go deep
into the bona fide of a presidential satisfaction.
The interpretative approach of the Supreme Court
of Bangladesh follows two major tracks. A presidential satisfaction may be
either subjective or objective. If the satisfaction qualifies as a subjective
one, the resultant Ordinance would not be questionable before the court of law.
An objective satisfaction requirement would invite the court to go beyond the
professed necessity of an ordinance. While the authoritarian martial law rulers
reaped the fruit of subjectivity, the democratically elected presidents have
been asked to be objective. Shahriar Rashid Khan v. Bangladesh represents a glaring example.
The High Court Division[72]
of the Supreme Court in Shahriar Rashid ventured to question the satisfaction of a president as the president.
Yet it was not ready to question the satisfaction of a president acting as the
“martial law administrator”.[73]
The Appellate Division confirmed the position by holding, “The Ordinance was made by him wearing a
different cap, that of the President under the Constitution. So there was no
extra magic in the Ordinance.”[74]
Subjective Satisfaction doctrine
The doctrine of subjective satisfaction rests on an authoritative
assertion of presidency. Relying on the president’s position of guardianship of
the republic and role of chief executive and chief legislator, it seeks to
immunize the presidential mind from judicial scrutiny. Based on this, the Supreme
Court in Kudrat-E-Elahi Panir v.
Bangladesh refused to look into an
allegation of mala fide and colorable exercise of
power. Justice Mustafa Kamal equated the president’s ordinance power with the
parliament’s legislative power and stood in favor of “presuming” a bona fide
on the president’s part. Since the court presumes institutional bona fide in legislative business on the
part of the legislature, so should be the case with presidential ordinances. For
Mustafa Kamal, the motives that may impel an ordinance would be “really
irrelevant.”[75] The
sole question to be asked is whether the President has necessary authority to
issue the ordinance in question. Once the authority is there, the question of mala
fide or colorability “does not arise at all.”[76]
There is an argument
that the Supreme Court in Kudrat E Elahi misplaced the Ordinance making
power in constitutional parlance. Ordinance making power’s equation with
legislative power was wrong. In Ordinances, it is not the satisfaction of
Parliament as an institution that plays the role. Rather it is the personal
satisfaction of a president acting on advice of the prime minister that
matters. On this analogy, ordinance making power should be placed within ring
of executive power and hence, as per the tenet of Administrative Law, the
question of mala fide should be
probed into.[77]
Objective
Satisfaction doctrine
Objective
satisfaction doctrine stems from the structural and principled reading of the
constitution which is undeniably an instrument of limited government. It would
require a legitimate and reasonable purpose behind an ordinance and a tight fit
between the ends professed and means chosen. The post 1990 court has
increasingly relied on this doctrine. Most important precedent of this era is Bangladesh Italian
Marble Works Ltd v. Government of Bangladesh and Others, popularly known as the Moon Cinema case.[78]
Justice A.B.M Khairul Haque was straight forward in striking down the Shahriar
Rashid and all the rules, orders and ordinances issued by the military
dictators of late 1970s and 80s. The military rulers being unlawful usurpers
they had no authority whatsoever to promulgate any of those.[79]
Even if their presidencies were considered lawful, their satisfaction could not
be more sacrosanct than the constitution itself. As Haque puts it, “[T]he
Constitution is a law for rulers and people, equally in war and in peace, and
covers with the shield of its protection all classes of men at all times, and
under all circumstances”.[80]
Idrisur
Rahman v. Bangladesh dealt with an emergency time
ordinance of the President.[81] The
government tried to justify the ordinance by relying on the doctrine of political
question. Political question, however, attracted discomfort of the court on an
earlier occasion.[82] Outright rejecting
the argument this time, the Court held that if any ordinance is challenged with
an allegation that the circumstances specified in Article 93 of the constitution
did not exist at the time of promulgating the Ordinance, there could be no
reason for the Supreme Court to refuse to look into the case.[83] The
court must see that there exist circumstances that may require urgent action[84] and there was proportionality between the ordinance
and the professed necessity.[85]
Pirjada Syed Shariat Ullah v. Bangladesh decided within the same time
frame confirms that ordinance power is a
limited power pre-conditioned by seriousness of the situation.[86] Therefore,
the president must be “objectively satisfied” as to the special situation, necessity of immediate action, possible irreparable
injury arising out of inaction.[87]
5. Conclusion
While the recent history of the U.S. shows a rise in
executive legislation, Bangladesh experiences a sharp decline in ordinance
frequency. The trend however yields clearly opposite results for the two
systems. The structural pillars of the U.S. political system comprising a
sovereign Congress and an independent judiciary work as effective buffers and
neutralize the slightest threat of presidential dictatorship. The rise of
executive legislation there may attract criticism of “unilateral presidency”[88] but
no fear. On the other hand, the declining trend in Bangladesh serves to
camouflage the reality. Presidents are issuing less number of ordinances does
not necessarily mean that parliament is exercising legislative power more
frequently. The governments simply noted the criticism and taken the other way
of doing things. While the legislative practice of a British parliamentary
system allows a cabinet to get the parliament pass whatever laws it wants, the
use of presidential ordinances apparently makes no sense. Buttressed with a
seriously incapacitated legislature and a generally timid but occasionally bold
judiciary, Bangladesh’s fear of unlimited presidentialism may have gone but not
that of the prime minister’s dictatorship. Framers of the constitution of U.S.
constitution did not contemplate presidential law making and hence the
constitution is totally silent on this. Framers of the constitution of
Bangladesh contemplated the presidential law making and hence they provided
multiple restraints on the exercise of power. Evidently the first one works
better than the second in restraining possible executive omnipotence. Art of
constitution is after all in the system it devises not in the niceties of its
languages.
* The author
is pursuing an LL.M in International and Comparative Law at Tulane University
Law School (2014-15). He is an Assistant Professor in the Department of Law at
the University of Chittagong, Bangladesh. He may be reached at:
jashim.chy@gmail.com
[1] Little
v. Barreme, 2 Cranch 170
[2] Jenkins
v. Collard, 145 U.S. 557
[3] The
Constitution of the People’s Republic of Bangladesh, Article 93
[4] Id,
Article 93(2)
[5] Supra
Note 3, Article 102
[6] Kudrat-E-Elahi
Panir v. Bangladesh 44
DLR (AD) (1992) 319
[7] Joel L. Fleishman
and Arthur H. Aufsest, ‘Law and Orders: The Problem of Presidential
Legislation,’ Law and Contemporary Problems, Volume 40, No 3 (Summer,
1976) pp 1-40 at p 6
[8] Youngstown
Sheet & Tube Co v. Sawyer, 343 U.S. 579 (1952)
[9] AFL-CIO
v. Kahn 443 U.S. 915 (1979)
[10] New York
Times Co v. United States, 403 U.S. 713 (1971)
[11] United
States v. United States Dist. Court, 407 U.S. 297 (1972)
[12] President
Franklin D Roosevelt, Executive Order No 8248, September 8, 1939
[13] President Harry
S. Truman, Executive Order No 9981, July 26, 1948
[14] President John
F Kennedy, Executive Order No 10925, March 6, 1961 and President Lyndon B.
Johnson, Executive Order 11246, September 24, 1965.
[15] Constitution of
the United States of America, Article II Clause 1
[17] Id. Article
II Clause 2
[19] Supra note 8,
637 (Justice Jackson)
[20] Supra note 3, Article
93(1)
[21] Id. Article
93(2)
[22] Id. Articles
7(1) and (2)
[23] The constitution
of Bangladesh restricts the legislative power of parliament areas like the
security of tenure and remunerations of judges of the Supreme Court (Article
147(3)) and holders of other constitutional posts including the Election
Commissioners (Article 118). Parliament has limited legislative authority over
the fundamental rights of the citizens in times of peace (Article 26(2)) and emergency
(Article 141B).
[24] Article 142 of
the constitution commits the authority of constitutional amendment to the
Parliament only.
[25] Supra note 3,
Article 93(1)(iii)
[26] Constitutional
conventions are the rule of political morality that have gained so strong a
foothold in the political system that derogation from any of those would
attract the strongest possible resentment of the populace and other actors.
[27] This is a rule synthesized
from Article 83 of the constitution of Bangladesh which unconditionally
prohibits taxation without parliamentary legislation.
[29] Fine , Jeffrey A. and Warber , Adam L.,
‘Circumventing Adversity: Executive Orders and Divided Government,’ Presidential
Studies Quarterly, Vol. 42, No. 2, (June 2012), pp 256-274 at p 258-59
[30] Deering,
Christopher J. and Maltzman, Forrest, ‘The Politics of Executive Orders:
Legislative Constraints on Presidential Power,’ Political Research Quarterly,
Vol. 52, No. 4, Sage, University of Utah, (Dec., 1999), pp. 767-783, at p
767-71; Stable URL: http://www.jstor.org/stable/449185. Accessed:
02/08/2014
[31] Krause, George
A. and Cohen, Jeffrey E., ‘Opportunity, Constraints, and the Development of
the Institutional Presidency: The Issuance of Executive Orders, 1939-96,’ The
Journal of Politics, Vol. 62, No. 1, Cambridge, (Feb., 2000), pp. 88-114 Stable
URL: http://www.jstor.org/stable/2647599 .Accessed: 02/08/2014 p 95
[32] Curry, Brett
W., Pacelle, Richard L. and Marshall, Bryan W, ‘An Informal and Limited
Alliance": The President and the Supreme Court’, Presidential Studies
Quarterly, Vol. 38, No. 2, The Center for the Study of the Presidency and
Congress, (June 2008), pp. 223-247; Stable URL: http://www.jstor.org/stable/41219670. Accessed:
02/08/2014
[33] Supra note 7,
Fleishman, Joel L., and Arthur H. Aufses., p 5
[34] Supra
note 32, p 229
[35] Kenneth R. Mayer,
‘Executive Orders and Presidential Power,’ The Journal of Politics, Vol.
61, No. 2 Cambridge, (May, 1999), pp. 445-466, Stable URL: http://www.jstor.org/stable/2647511; Accessed:
02/08/2014; p 448.
[36]
For a brief account of President Roosevelt’s Court Packing move see: H. L.,
‘President Roosevelt and the U.S. Supreme Court,’ Bulletin of International
News, Vol. 13, No. 17, The Royal Institute of International Affairs (Feb.
20, 1937), pp. 3-10; Stable URL: http://www.jstor.org/stable/25639626
[37]
400 U.S. 112 (1970)
[38] Supra
note 3, Article 55(2)
[39] Id. Article 65(2)
[40] Mujibur
Rahman v. Bangladesh 44 DLR (AD) (1992) 111, para 71
[41] Supra
note 3, Article 55(3) & 57(2)
[42] SN Goswami v. Govt of Bangladesh 55 DLR (HCD) (2002) 332, para 13 and 32; Though Article 95(1) of the
constitution requires consultation with the Chief Justice, it has been held not
overriding the general requirement of consultation with the Prime Minister.
While Article 48(3) makes prime minister’s advice compulsory, Chief Justice’s
advice has been considered as mere recommendatory.
[43] Supra note 3, Article 96(6)
[44] Supra
note 3, Article 102
[45] Secretary of Ministry of Finance v. Masder Hossain, 2000 BLD (AD) 104; Kudrat-e-
Elahi v. Bangladesh 44 DLR (AD) (1992)
319; Mofizur Rahman v. Bangladesh 34 DLR (AD) (1982) 321
[46] Supra
note 3, Article 48(3)
[47] Id. proviso to Article 48(3)
[48] The original power of removal was with the
Parliament. A Supreme Court judge could be impeached or removed by two-thirds
majority of the parliament. The present system of Supreme Judicial Council was introduced
through the Fifth Amendment of 1979. The Sixteenth Amendment of 2014, however,
has returned the power back to the parliament. The amendment has not been
officially notified and therefore remains inoperative.
[49] Shah Md. Mushfiqur Rahman, Separation of power: Revisiting the basics,
Law and Our Rights, The Daily Star, March 24, 2007
[50] Mahmudul
Islam, Constitutional Law of Bangladesh,
2nd Ed, Mullick Brothers, Dhaka, 2003, p 65
[51] Supra
note 8
[52] Id.
635-37
[53] Id.
789
[54] Id.
792
[55] Supra
note 9, at 811 (MacKinnon, J., dissenting)
[56] J. Frederick Clarke, AFL-CIO v. Kahn
Exaggerates Presidential Power under the Procurement Act, 68 Cal. L. Rev.
1044 -1079 (1980) at p 1079. Available at: http://scholarship.law.berkeley.edu/californialawreview/vol68/iss5/3;
Accessed on 08/05/2014
[57] Gewirtz, Paul., The Courts, Congress, And
Executive Policy-Making: Notes On Three Doctrines at 52 Available: http://Scholarship.Law.Duke.Edu/Cgi/Viewcontent.Cgi?Article=3486&Context=Lcp; Accessed on: March 27, 2015
[58] JW Hampton,
Jr., & Co. v. United States, 276 US 394 at 409
[59] Kaden, Alan Scott., Judicial Review of Executive
Action in Domestic Affairs, Columbia Law Review, Vol. 80, No. 7, Columbia
Law Review Association, Inc., (Nov., 1980), pp. 1535-1551 at p 1540; Stable
URL: http://www.jstor.org/stable/1122175.Accessed: 02/08/2014; 1545
[60]
Epstein Lee, Walker, Thomas G., Constitutional Law for a Changing America:
Institutional Powers and Constraints, 3rd Edition, Congressional
Quarterly Inc, Washington D.C. 1998, pp 651 at p 188
[61] Supra
note 59 at 1544
[62] Supra
note 8 at 640
[63] The
Constitution of the United States, Art. II §1 cl. 1 (The executive Power shall
be vested in a President of the United States of America)
[64] Id.
Art. II § 2 cl. 1 (The President shall be Commander in Chief of the Army
and Navy of the United States)
[65] Id.
Art. II § 3 (He shall take Care that the Laws be faithfully executed)
[66] Id.
(He shall receive Ambassadors and other public Ministers)
[67] Id.
Art. II § 2 cl. 1; Though Congress reserves the power of declaring war
(Art. I § 8 cl. 11), President solely has been charged with the conduct of war.
[68] Supra
note 8 at 644
[69] The
Fifth Amendment reads: “No person shall be … deprived of life, liberty, or
property, without due process of law.”
[70] Supra
note 8 at 641
[71] Id. at 876
[72]
The Supreme Court of Bangladesh is a two division Court – the High Court
Division and Appellate Division.
[73] 49 DLR
(1997) 133, para 63
[76] Id.
[77] Supra note 50 at 310-13
[78]
2006 (Spl) BLT (HCD) 1
[79] Id. at 240-242
[80] Id. at 68
[81] 60 DLR
(HCD) 714
[82] The Appellate Division has accepted the position in
Special Reference no 1 of 1995, 47 DLR (AD) 111: “There is no magic in the
phrase ‘political question’. While maintaining judicial restraint the Court is
the ultimate arbiter in deciding whether it is appropriate in a particular case
to take upon itself the task of undertaking a pronouncement on an issue which
may be dubbed as a political question.”
[83] Supra note
81 at para 131 (Justice Nazmun
Ara Sultana)
[84] Id. at para 101
[85] Id. at para 97 (Justice Abdur Rashid)
[86] Pirjada Syed Shariat Ullah v. Government of Bangladesh 61 DLR 647
[87] Id. at para 43 (Justice ABM
Khairul Haque)
[88] Supra
note 32
.jpg)
No comments:
Post a Comment