Our ‘Problematic’ Law Making Process 

M Jashim Ali Chwodhury 

PhD Researcher (Parliament Studies), King’s College London 

Published in the Daily Star, Law and Our Rights, May 28, 2019

Link: https://www.thedailystar.net/law-our-rights/news/our-problematic-law-making-process-1750039

Legislative process in our parliament is claimed to be an upshot of the Westminster parliament. Like the Westminster, government businesses are prioritized over private member initiatives for law making. However, unlike the Westminster, opposition and backbencher voices in Bangladesh are effectively muted to advantage of the government’s right to have its laws passed. Whereas the mother of parliaments itself has evolved extensively in favour of the members’ right to reasonable debate, ours is trailing miles behind both institutionally and procedurally. A comprehensive reading into the Rules of Procedure (RoP) of our parliament seems to suggest that MPs’ right to reasonable debate in the floor, committee and elsewhere is given a mere cosmetic gloss by severely restricting the scope of opposition to government bills and resolutions. 

Unlike the British government, we don’t see any comprehensive legislative agenda from the government. Driven by a tendency of ad hoc-ism, most of the government’s legislative proposals reach the parliament as fait accompli which it simply approves. Scope of drafting exercise by individual members is very slim. The weekly private member business days are used up in MPs talking local problems and success stories of the government than critiquing or legislating. Though we don’t have significant opposition in parliament now, oppositions in the fifth, seventh and eight parliaments used most of the private member days in propagating the politically contentious issues rather than attempting to legislate and question

 the government’s policy preferences. Given the attitude, our history of private member legislation is demonstrably poor. Apart from the 13 Friday schedule for private member business, the House of Commons allows additional 20 days for opposition businesses and 35 more for backbencher debates. We have none of those but mass absenteeism from parliamentary duties. 

Unlike the “Usual Channel” procedure of the House of Commons, there is no intra or extra parliamentary consultation with the Opposition on how to time table different stages of a bill’s consideration in the floor or committee. “Usual Channel” is a desk consultation between ruling party Chief Whip’s private secretary and opposition party whips on timetabling the debate on a Bill. Compared to that, the all-party Business Advisory Committee (Rules 219-220 of RoP) of ours is subject to the hegemony of the Leader of the House. The Speaker has little to offer to the opposition and backbench expectations in scheduling a Bill’s parliamentary journey. 

Once in the floor, a government bill usually goes to the committees. While members are expected to contribute substantially in the committee stage and the subsequent floor debate, we rather see routine abdication of meaningful debate there. The infamous article 70 hunts the backbenchers in the floor. The passivity in the committee stage, however, is attributable to our deep-rooted culture of clientelist politics. Ruling party backbenchers are more likely to be proactive if they hold chairmanship or influence in the committee. That again won’t necessarily amend a governmental bill unless the committee is exceptionally lucky to be appreciated by the cabinet top notch. Amendments, if there be any, usually concern petty issues like date, punctuation and grammatical errors. 

Opposition members on the other hand are handicapped in the floor and committee alike. As mentioned earlier, they don’t have any UK styled “Usual Channel” to negotiate a legislative timetable. Nor do they have any protection against government invoked immediate Closure. Had those been permitted by the RoP, devices like guillotine motion (not immediate rather a time bound closure) or programming motion (fixing a strict time-limit for each stage of law making) could have offered some leverage for the opposition. Like the Speaker of the House of Commons, the Speaker of Bangladesh is vested with considerable power in allowing and ordering amendment proposals. Unfortunately, the demonstrable partisanship of successive Speakers contributed only in generalized suppression of opposition amendments. 

Unless the committees take a genuine cross-party or non-party approach to a bill, which is very rare in fact, the Opposition members’ scope to contribute in the committee stage also is limited to mere noting down of their dissent. Additionally, parliamentary committees’ power to take public evidence from representatives of special interest groups apart from the official oppositions is also rarely resorted to. 

Parliament’s power over the purse of state is affected by tools like Votes on Accounts and Votes of Credit. Votes of Accounts are the advanced grants made by the parliament pending the final approval of a budget. A Vote of Credit is a privilege to withdraw from the consolidated fund for as long as sixty days in case a parliament dares to reject the government’s budget (Article 92(3) of the Constitution). At the expiry of the sixty days, government may simply adjourn the session and continue to withdraw money by promulgating a presidential ordinance (Article 93(3)). For the same parliamentary mode described above, ordinances once placed in the floor would simply be approved. 

Travelling beyond the floor, the German Bundestag allows one-third of its members to challenge a highly controversial law before the constitutional court. We have judicial review and one instance of opposition MPs challenging a law (Abdus Samad Azad v. Bangladesh 44 DLR 354). Unfortunately, this trend was not given a serious consideration by the later day oppositions. Again, the Swiss parliament members may call for a post-legislative popular referendum against a law by gathering around 50000 signatures within 90 days of its passing. While the Bangladeshi RoP allows a motion to circulate a Bill to solicit public opinion during its legislative phase (Rules 78-80, 282), this is routinely voted down in the floor. 

Unlike the British House of Commons, we don’t have any post-legislative scrutiny of subordinate laws passed by the executive. That remains the sole privilege of the executive, i.e., the legislative drafting wing of the Ministry of Law. Despite all these, if we still find solace in calling ours a Westminster parliament, then yes – it is. But how could the doctrine of Westminster parliamentary system itself be blamed for the misery of ours?

A substantive parliamentary public petition system: Advocating the introduction of e-Petition

M Jashim Ali Chowdhury

PhD Researcher (Parliament Studies), King’s College London

Published in the Daily Observer, Law and Justice, May 18, 2019

Link: https://www.observerbd.com/details.php?id=198308 

Politics, political process and institutions are being increasingly alienated from the body politico – the people. People have trust, expectation and communication gap with their representative institutions and this is contributing to disengagement with and declining support for those institutions. Parliament is not an exception to the trend. Scope for citizens’ direct involvement in policy process, from proposal via deliberation to ratification has been suggested as an alternative. However, this type of direct democracy reforms – referendum say for example, may not be practicable in every day-to-day nitty gritty and complexities of modern-day governance. Instead, advocacy reforms like petitioning the parliament would influence the process rather than make the decisions outright.

Apart from addressing individual grievances in suitable cases, petition system constitutes an important tool of parliament’s vertical accountability to the electorate. A substantive public petition system has a ‘strong agenda-setting potential’ in political discourse. Like most of the parliaments in the world, Bangladesh Parliament also has a public petition system. Currently, a Petition Committee deals with public petitions on “any bill or matter of importance under its consideration or any other matter of public importance” (Rule 100, Rules of Procedure). A paper-based petition so submitted must be counter signed by a member of Parliament. The committee usually headed by the Speaker suggests remedial measure for consideration of the House.

Unfortunately, the system as established is not delivering the actual good it was intended to. MPs show little or no interest in the system. Public also are rarely aware of the opportunity and hence it is grossly underutilized. Petition Committee also has taken a lacklustre approach the matters referred to it. It rarely sits in meeting. Striking at the root of the concept, the committees traditionally referred petitions to the ministers concerned rather than to the House. There is no follow up process or time limit for responding to or acting on the petitions. Out of 248 petitions submitted to parliament between 1991 to July 2010, only 3 were accepted. All others were either rejected, withdrawn or lapsed (Nizam Ahmed, Parliament and Citizens in Asia: The Bangladesh Case, 2012). Also, the petitions submitted so far in Bangladesh primarily concerned personal issues rather than legislative policy and public concerns. Unlike the major parliamentary systems of the world, we don’t have any office of the Ombudsman in existence that could somehow recompense the fall backs of this age-old petition system. Given the context, introduction of an open access e-Petition system is likely to produce some tangible outcome.

E-Petition marks a move away from the traditional adversarial approach of the Westminster. As a reflection of progress in modern e-governance, e-petitions seek to bolster citizen interaction with parliament. e-Petitioning would also avoid the side-lining of people in policy discourse by the technocrats, pollsters and experts. e-Petition system has already been successfully implemented in the Scottish, Wales, German, Queensland, Tasmanian and British parliaments. The Scottish system however stands in marked contrast with others.

In 1998, operational rules of the new Scottish Parliament were shaped under the guiding principles of power sharing, accountability, access, participation and equal opportunities. No age limit is required for an individual filing an e-petition. Petitions may be submitted by any one, in any language and format. Only one signature is enough for an e-petition to be lodged with the parliament. Petitioners, however, cannot resubmit an e-petition on the same or “substantially similar” issue within a year after their petition was closed.

A nine-member committee of the Scottish Parliament deals with the petitions. A staff would assist the petitioners, give advice about the process and wording of the petition. The committee would first see whether parliament has power to deal with issues covering the petition. For instance, the Scottish Parliament has no power over foreign affairs which belongs to the UK House of Commons. The committee cannot rule out a petition on grounds that they find it not good or disagree with its contents. There is no uniform duration for an e-petition. While the petition committee is considering it, e-petition is kept open. Committee communicates with the petitioner during the process and updates on the progress. In suitable cases, committee invites the petitioners to provide evidence or argue on merits. Once a decision is reached, it stands closed and petitioner is notified of the reasons. From 1999 to 2011, a total of 385 e-petitions were filed with the Scottish Parliament. While 12.7% of the issues were implemented, 84.9% of the matters were reviewed by the government, outside organizations and entered the political discourse.

Under the UK system of e-petition, any citizen or resident may sing and lodge a petition. If a petition receives at 10,000 signatures, the government must respond to it. It will also be considered by the petitions committee for a debate in the floor of the house. After being launched in 2011, around 30 petitions were debated in Parliament over four years. In 2014 the Procedure Committee of the UK House of Commons proposed to establish the new Petitions Committee that considers petitions for debate in the House and scrutinises the government’s response.

While advocating the introduction of e-Petition, it must be noted that acceptance of outcome – positive or negative - of a petition, be it electronic or handwritten, would depend on the individuals’ assessment of how ‘fairly’ they were treated. Therefore, it is important that the petitioners are given a say in the consideration phase. It is also important that the government is required to respond to all petitions within a reasonable time. Interaction of the public with parliament (as in the case of Scotland) is no doubt important. But the system must also serve the reasonable expectation of petitioners to influence government policy. Not responding to petitions or addressing the matters raised within would undermine the very foundation of the system.

Also, in light of our inexperience with parliamentary interactions, lay petitions submitted must be given a touch of official feedback and support system. This would prevent rejections on mere formal and technical grounds. Again, there must be scope for public to sign an accepted and published petition and input into its contents through online discussion pane. Side by side, it must be ensured that access to internet has been recognised as part of peoples’ right to information. Without popularising the system, mere discussion among a few privileged internet users would not lead to the meaningful participation we are looking for.