The Parliament of Bangladesh: A Critique
M Jashim Ali Chowdhury
Assistant
Professor of Law, University of Chittagong
PhD Candidate,
King’s College London
Published in: SCLS Law Review, Vol 2. Issue 2, pp 13-20
1.
Introduction
The
‘majoritarian’ system of Westminster parliamentary
government is based on unwritten conventions and written
institutional and procedural rules. The Head of State (the Crown) is placed above politics and
administration and attributed a symbolic role of statesmanship. The
Legislature, Executive and Judiciary are formally placed under the authority of
the Head of the State. Apart from this formal tie with the Head of the State,
the organs possess significant ‘inward and outward organisational aspects’
that connect those with the people.
Inwardly, the Head of the
Government and the Cabinet is drawn from the legislature. Legislative process
in the floor and parliamentary committees, parliament’s power over the purse of
the state and the Cabinet’s individual and collective ministerial
responsibility to the parliament constitute the line of control and restrain
between the two organs. The basic
pillar of the relationship is simple – the government once losing the
confidence of parliament must fall. Officialization of the opposition is
another hallmark of the Westminster system. Opposition’s right to
participate in the legislative and oversight process and oppose the
governmental policies is strictly protected and guarded against suppression.
The Speaker, though elected in a party nomination, would represent and conduct
the parliament in a non-partisan way.
Outwardly, the
elected legislature has supremacy over other organs of the state including the
executive and judiciary. Parliamentary Sovereignty explained in its crude form
also means the legislature’s absolute control over its law-making authority,
freedom from its predecessor’s wishes, power to regulate its own procedure and
freedom from external constraints like judicial review of laws made by it, etc. The breadth and extent of Parliamentary Sovereignty
within the Westminster parliamentary system is however debatable. Factors like
emergence of political parties, interest groups, popular participation through
referendum and the media, etc have put substantial limits on the parliament’s
ways and means to exercise its sovereignty.
Particularly, the
Judiciary’s relation vis-à-vis the parliament has not be that of absolute
subordination and acquiescence as is popularly narrated. It has been argued
that judiciary has historically been engaged in a ‘collaborative enterprise’ with the parliament. Here the sovereignty of
parliament was limited by the common law principle of legality. Adoption of the
Human Rights Act (HRA) 1998 and the Constitutional Reform Act (CRA) 2005 in the
UK has redefined the judiciary’s relationship with the Westminster parliament
drastically. Under the HRA 1998, the court is now placed within the tripartite
process of human rights protection – the “executive-based rights review before legislation
is introduced, followed by legislative rights review, and then [the possibility
of] judicial review.” The CRA 2005 has institutionally separated the
judiciary from Lord Chancellor and the House of Lords and established an
American styled Supreme Court for the UK. It has been radically argued by some
that the doctrine of parliamentary sovereignty has thereby ‘effectively been
replaced by [that] of separation of powers.’ While such a radical claim would be contested, it may
safely be claimed that the Westminster parliamentary system marked by
parliamentary sovereignty and fusion of executive-legislative-judicial powers
is now going through a sort of ‘divided sovereignty’ akin to a formal
separation of powers. Understandably, the place and role of parliament in
the Westminster remains subject to continuous assessment and reassessment. The
call is no less acute in other jurisdictions modelled in a Westminster fashion.
2.
Parliament of Bangladesh as An
Accountability Institution
Typical of a
Westminster parliament, the Parliament of Bangladesh is dominated by the
executive branch i.e., the Cabinet. It
is called into session by the President
upon written advice of the Prime Minister.
President has the right to address the parliament at the first session
following a general election as well the first session of every year.
He may also to send messages or address parliament on any other occasion as
well.
Parliament must discuss the address and messages sent by the President.
By convention and constitutional provision, the address and messages of the
president are drafted by the government of the day. The Prime Minister and
other ministers also have a “right” to speak in and take part in the
parliamentary business. An unelected technocrat minister however is not
entitled to vote or take part in discussion not concerning his/her ministry.
Maximum one tenth of the ministers in the cabinet may be chosen by the Prime
Minister as technocrats.
In an ideal
Westminster setup, the legislative procedure and different devices therein
should constitute an important restraint on the government and its policies and
a huge stock of opportunities parliamentary opposition and government
backbenchers.
Apart from ensuring accountability of the
executive branch, parliament itself remains accountable to the people who sent the representatives there and
are in constant judgement of their representatives’ performances. Parliament as an institution of restraint
ensures governmental accountability through the following devices:
1)
Legislative and Financial Procedure
2)
Ministerial Responsibility and
Parliamentary Debate
3)
Committee System
4)
Party System
2.1. Legislative
and Financial Procedure
Like
the UK Parliament, legislative process in Bangladesh is shaped in two broader
aisles – an prioritized track for the governmental legislative proposals
(Government Bills) and a less prioritized one for the individual legislative
proposals initiated by individual members of parliament (Private Member Bills).
Financial proposals including the Budget (always a government bill) draws
special requirements and treatments in both the tracks.
Unlike
the UK, Bangladesh does not have any system
of Statement of Purpose or Explanatory Note or White Paper presenting the
governmental legislative proposal and the reasons behind. Like that of Her
Majesty the Queen, the annual speech of the President before the parliament
might include some hints over the legislative program of the government for the
year. That however is very scanty. Apart from boosting the government’s
political and administrative policies, presidential speech rarely contains a
comprehensive legislative proposal on behalf of the government of the day. Public
awareness and debate at the formulative stage of laws is therefore limited. Government usually initiates legislations
on an as-the-idea-comes-in basis. Of course, laws might be initiated as a
response to public demand or out of electoral manifestoes. In formulating its
legislative proposal, government utilizes the Legislative Drafting Wing at the
Ministry of Law, Justice and Parliamentary Affairs, Finance Ministry (if the
Bill involves expenditure from public fund) and the specific ministry to which
the proposed law is directly related. A draft Bill is presented before the
Cabinet and is placed in the table of the House once approved by the Cabinet.
Individual members, on the other hand, act on their own in drafting the law
s/he proposes. Different stages of
legislative process in the floor of the parliament and in the committees as
well, unfortunately pass through mere acquiescence and approval by the members.
Deliberation and scrutiny over the-law making process are too scanty and
effectively kept at bay.
2.2.
Ministerial Responsibility and Parliamentary Debate
Principle of
collective ministerial responsibility is reflected in article 55(3) and 57(2)
of the Constitution of Bangladesh. Prime Minister and Cabinet would fall if it
loses the confidence of the parliament.
Though the party discipline in Westminster system prevents fall of the Cabinet
as whole through a motion of no confidence, history of the UK is not scarce in
party backbenchers revolting and posing leadership challenge to the premier. In
comparison, the floor crossing bar and polarised party system of ours would
effectively preclude a leadership challenge from the backbench.
We don’t have any
express constitutional provision on individual ministerial responsibility
either. Nor do we have any Ministerial Code of Conduct in the way the UK and
other Westminster democracies have. Article 58(2) of the Constitution scantily
talks about individual ministerial responsibility of a Minister to the Prime
Minister. Parliament cannot enforce his resignation until and unless the Prime
Minister him/herself so wishes or it passes a motion of non-confidence which
shall mean the fall of the whole cabinet.
Parliamentary
involvement in the individual responsibility process is seriously weakened by
procedural technicalities as well. Ministerial accountability tools at the
disposal of parliament include parliamentary questions, scheduled and
unscheduled debate and motion of no confidence. Of all these, parliamentary
questions and call attention notices are more frequent. Unfortunately, the
lion’s share of questions asked by members omits accountability issue. MPs
frequently seek benefits for their constituency and remedial actions over
administrative complexities. Questions are followed by call attention notices
and adjournment motions. With the Speaker’s partisan tendencies, most of the
adjournment and call attention motion raised by the opposition members are most
likely not to be allowed.
Added to the
procedural weaknesses is the emergence of the so-called ministers beyond the
cabinet.
Known as Advisers to the Prime Minister, these ministers-in-fact do not sit in
parliament nor do they answer the parliamentary committees. While even the
technocrat ministers are offered seats in parliament and committees to ensure
their accountability, the advisers in Bangladesh may simply ignore the
parliament.
While the
Westminster parliament is concerned with its individual ministers’
responsibility, Bangladesh’s concerns appear more fundamental. Leadership challenge
or no confidence in the Cabinet kept at bay, the burning question here is
whether our parliament could enforce ministerial responsibility in its absolute
minimum at least. May the parliament ask and enforce the publication of whole
truth by the ministers in the floor? The answer is perhaps NO.
Parliamentary
committees in Bangladesh are formed under the Constitution and the Rules of
Procedure (RoP). Standing committees are constituted permanently for the whole
tenure of a parliament, while special and select committees are constituted on
temporary and ad hoc basis. Standing Committees on particular Ministries (SMCs)
are special type of committees that constitute a shadow government by
parliament. Number of SMCs to be established in each parliament is determined
by respective leadership.
Theoretically the
SMCs have been vastly powerful. Apart from the power to examine draft bills and
other legislative proposals - public or private - in relation to the ministry
concerned, committees also have the authority to review and recommend necessary
measure for due enforcement of laws passed by parliament. Committees have
plenary power of subpoena, investigation and inquiry into the activities or
administration of relevant ministry. They can enforce attendance of witnesses,
examination on oath, production of documents.
Though the
parliamentary committee system in Bangladesh has been consolidated to some
extent since the 7th parliament, it grew asymmetrically vis-à-vis the executive and bureaucratic
branch. Speaking in its broader terms, weaknesses of our committee system are
threefold – structural, political and behavioural.
Committees have
been structurally weakened by factors like ministers’ presence in the committee
as ex officio members, nominal
logistic support for the committees, negative attitude of the bureaucracy and
government’s tendency to effectively by-pass the committee stage in legislative
process. On a political level, party influence over committee agenda and hard
lined party stances of the members on key issues hampers autonomous functioning
of the committees. On a behavioural analysis, political clog over psychic
independence of party members and inexperience of the members contributed
substantially towards below-the-bench performance of the committees. Most
importantly, until recently there was an apparent lack of political will in
changing the status quo and allowing
the committee system to stand on its foot. Three particular developments in the
current parliament however give us some hope.
First, prior to
the seventh parliament (1996), parliamentary committees took years to be
constituted in the first place. Seventh parliament amended the RoP to make sure
that committees are constituted within the first session of each parliament.
The current 11th parliament has created a record of fastest possible
formation of all the standing committees only within the first 10 sittings of
its very first session.
Second, a revision
of RoP in June 1997 also made sure that ministers do not chair the
parliamentary committee on his/her ministry. This was an extremely welcome
development in terms of effectiveness of the committee system. Ministers now
remain in the committee concerned as ex
officio members. It has been argued that even this presence of a minister
is bound to have an impact on the way the SCMs set their agenda, deliberate and
decide. Ministers being the influential front bench leaders of the ruling
party, chairmen of the SCMs were unlikely to be too assertive to embarrass the
minister present. Therefore, it has long been argued that ministers go to
committee only when they are called therein. Seen in that light, the newly
constituted committees in the eleventh parliament (2019) constitute a milestone
development no doubt. This time, almost all of the former ministers who are the
front bench leaders of the ruling party and obviously more influential than the
ministers concerned are allocated chair in various committees. The committees
would definitely be benefitted by their expertise over the ministry as well as
from the political superiority of the Chair over the minister. It has yet
another crucial thing to offer and that is big. It would be a very wise
practice to be followed by later parliaments and thereby establish a
parliamentary convention of assigning senior leaders with expertise to the
committee chairs. Such a convention if so established would go miles in
institutionalizing our parliamentary committee system.
Third, membership
and chair in the committees are usually distributed among parliamentary parties
in proportion to their representation in the floor. Until recently, the ruling
parties exclusively claimed chairmanship of the different committees. The Ninth
Parliament (2009) allocated some committee chairmanship to the opposition
party. Though there were repeated calls for appointing the Chair of Public
Accounts, Public Undertaking and Estimate Committee from the opposition
parties, it has not been paid heed to until the current parliament (2019). A
lawmaker from the main opposition Jatiya Party, Mr Rustam Ali Farazi is made
Chair of the Public Accounts Committee (PAC), for the first time in the
country's history.
With these three
structural developments in the committee system, fundamental challenge for the
current system would be in opening up more towards the citizens’ access to
committee proceedings. Transparent and open-door committees are more likely to
overcome the two other political and behavioral constraints clogging the
system. The process will no doubt be slow yet these three developments provide
the scope we were looking for so long.
2.4.
Party System
Marred by
successive military interventions into politics, development of bipartisan
parliamentary democracy has been severely affected in Bangladesh. Though the
government and opposition benches has been exchanged between the two major
political parties several times since 1990, bipartisanship suffered severely
due to the personal animosity between the major political leaders and their
parties. Opposition
parties in general preferred outright opposition over strategic and principled
opposition.
Boycott of parliamentary sessions,
en masse resignation in demand of passage of a law and even boycott of
parliamentary elections frequently feature the government-opposition
relationship in Bangladesh.
Governments also have shown maximum intolerance to opposition views and demands
through parliamentary process.
Parliamentary channel of opposition being disfavored, street agitation and
politics of violence took the stage.
State of
intra-party democracy and individual members’ decisional autonomy is also
greatly compromised due to the floor crossing bar in the constitution.
Backbench vigilance in the parliament is also compromised for the same reason.
3.
Parliament of Bangladesh as An
Accountable Institution
A Westminster
parliament remains vertically accountable to the constituent in two-dimensional
way. Members of parliament emphasise their constituency work side by side their
legislative work within the parliament. Citizens also get access to the
parliamentarians, parliamentary committees and process and supply important
input to the legislature’s work.
3.1.
MPs’ Constituency Roles
According to
article 59(1) of the constitution of Bangladesh, the local government bodies in
every administrative unit of the state are entrusted with local development
works. Parliament “shall, by law, confer powers on the local government bodies,
including power to impose taxes for local purposes, to prepare their budgets
and to maintain funds”.
Parliament is therefore constitutionally bound to allow the local government
bodies a full autonomy. However, in
reality, the MPs dominate the local government policy making and governance.
Relationship of the MPs with local government bodies in their constituencies
are that of conflict, collusion and subordination.
Involvement of the
MPs in the local government institution has been the root cause of over
politicization of local governance as well as mis-governance at central level.
It has affected the quality of law making as well. The Supreme Court of
Bangladesh caught the issue in two cases namely - Barrister Ziaur Rahman Khan v. Bangladesh 20 BLD (HCD) 120 and Anwar Hossain Monju v. Bangladesh 16 BLT
(HCD) 86.
Problem of
Barrister Ziaur Rahman and Anwar Hossain Monju is that the cases take a
completely opposite view to a common problem. While former accepts a sweeping
power of “supervision” in the MPs hand, the later denies it all together.
Therefore, someone would need to argue for a middle ground between the two and attempt
a principled analysis of the separation of power and check and balances between
legislative branch and executive branch on the one hand and the MPs
constituency role on the other hand.
3.2.
Citizen Access to Parliament
The Rules of
Procedure of Bangladesh Parliament provides too little opportunities for the
people to engage with parliament either through petitioning it, or through
supplying to the parliamentary oversight by public participation in committee
deliberation or inquiries. There is a scope of petitioning parliament on any
bill or matter of importance under consideration of the parliament.
A petition must be counter signed by a MP and that again must be scrutinized by
a Petition Committee (PC).
Petition Committee is usually headed by the Speaker and other senior members of
the treasury except the ministers and the opposition bench. Petition Committee
would circulate the petition and suggest remedial measure for consideration of
the House. Problem however is that public are rarely informed of the
opportunity and the device remains grossly underutilized. The Petition
Committee also have taken a lackluster approach the petitions referred to it.
Petitions submitted so far are mainly personal rather than on legislative or
policy issues. The Committee also rarely sits in meeting. Committee have
referred the petitions to the ministers concerned rather than to the House. The
rules of procedure also do not provide any follow up process or time limit for
responding or acting on the petitions submitted.
4.
Concluding Remarks
On a broader
scale, the way the Westminster Parliamentary System adopted in Bangladesh is
inherently problematic. Apart from Institutional and Structural weaknesses, the
parliament of Bangladesh is marred by its illiberal politics and party system.
Our Parliament therefore needs substantial institutional reform. Arguments for
reform being our prime focus, four important hypotheses must be kept in mind in
the journey.
Firstly, the
institutional stature of parliament in Bangladesh’s overall body politic is
minimal and it falls much shorter in terms of institutional maturity and
resilience expected of a Westminster style Parliament.
Secondly,
Bangladesh parliament is adversely affected by procedural loopholes and below
the bench performances of MPs participating in parliamentary debate and
committee works. Apart from procedural and structural flaws, presence of an
undemocratic and illiberal party system drains away much of its potential as an
accountability institution.
Thirdly, seen from
a public relations and citizens’ access perspective, Bangladesh parliament
could hardly be termed as an accountable institution.
Fourthly, reform
initiatives undertaken in the past were theoretically flawed and procedurally
misguided. Meaningful reform in future would require a sound doctrinal approach
suitable to a Westminster style parliament. In this regard, institutional
approach might prevail over the traditional evolutionary v. revolutionary
approach to parliamentary reform.
This short essay constitutes part of a
greater chapter in the author’s PhD thesis at King’s College London with an
intent to expand the ideas further and develop a full pledges journal article
based on this.
Arend
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Rules
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M Jashim Ali Chowdhury, What ails our
Parliament? Law and Justice, The Observer 06 April 2019.; Link: https://www.observerbd.com/details.php?id=191886&fbclid=IwAR0Bu-AOg6Q0yrfD5pXy2BZRNbqnpwkJIU7BNuH2q26omsXd0URphsCjYwM; See also - M Jashim Ali Chowdhury, Giving the
Parliament its due: A
Pluralist-Institutional View, The Daily Star Law and Our Rights (April
9, 2019). Url: https://www.thedailystar.net/law-our-rights/news/giving-the-parliament-its-due-1726915
M
Jashim Ali Chwodhury, Our Problematic law-making process 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
M Jashim Ali Chowdhury, A substantive
parliamentary public petition system: Advocating the introduction of e-Petition, The Daily
Observer, Law and Justice, May 18, 2019
Link: https://www.observerbd.com/details.php?id=198308
M Jashim Ali Chowdhury, Parliamentary
Reform: Making Sense
of Our Successes and Failures, The Daily Star, law and
Our Rights, April 30, 2019. https://www.thedailystar.net/law-our-rights/news/parliamentary-reform-making-sense-our-successes-and-failures-1736635?fbclid=IwAR20kEi0zR5XOgw9KSw-E_gcCCr9ZjaWyjJaVxwID8RTNV8H-DxGhT4LtXw