M Jashim Ali Chowdhury
Published in the Daily Star, p 12 (Law and Our Rights), Dhaka, Bangladesh 05 November, 2019
Rohingya refugees are hitting Bangladesh hard. International support for a strong measure against the recalcitrant Myanmar seems a far cry. While we have tried almost every possible leeway within traditional executive driven diplomacy, this paper argues that the parliament’s potential in the ongoing crisis is being unwisely subdued. A very old-fashioned perception of parliament-foreign affairs interplay unfortunately accounts for this.
Regarding control over foreign affairs, legislatures are generally categorized into two classes. The U.S. Congress styled legislatures work within separation of powers and checks and balances. They usually hold greater control over foreign affairs, international treaty making and conduct of war and international hostilities. On the other hand, the U.K. styled Westminster parliaments carry a general sense of deference to the executive in relation to foreign policy, international treaty making and conduct of security policies, war and hostilities.
Even though the U.S. Congress enjoys a constitutional power sharing in declaration of war and ratification of international treaties, the president’s primacy over the foreign affairs and diplomacy is delicate, plenary and exclusive (United States v. Curtiss-Wright Export Corp 299 U.S. 304 (1936)). Hence, Congress’s powers are exercised in a way that leaves the modes and modalities of foreign affairs to the best judgment of the president. Congressional committees on foreign affairs, however, continue to play a very significant role in investigating, studying, deliberating, questioning and informing any policy or issue of foreign relations. The ‘policy making’ Congress of the U.S. however stands in clear contrast with the ‘policy influencing’ parliament at Westminster (Philip Norton, Parliaments: A framework for analysis in West European Politics, 13:3 (1990), pp 1-9). Some therefore argue that the U.S. Congress cannot be a benchmark for evaluating the foreign affairs powers of Westminster parliaments across the British Commonwealth (Hartwig Hummel and Stefan Marschall, How to Measure Parliamentary War Power, Paks Working Paper 3, 2007, p 10-11).
The UK styled Westminster parliaments rest on an assumption legislature should leave the executive prerogative of conducting foreign affairs unscathed. Yet, the Westminster parliaments’ input in formal declaration of war and hostilities and ratification and incorporation of international treaties is regular. The U.K. parliament’s rigorous entanglement with the Brexit process is marking an advanced level of policy influence in foreign affairs. When the U.K. Supreme Court mandated the parliamentary involvement in the EU withdrawal process in 2017 (R (Gina Miller) v. Brexit Secretary), it was little predicted that parliament would go as far as blocking the Brexit itself for more than three years (Piet Eeckhout, ‘The Emperor has no clothes: Brexit and the UK Constitution’ in Benjamin Martill, Uta Staiger (eds), Brexit and Beyond: Rethinking the Futures of Europe (2018) pp 169-172). Parliament’s consecutive refusal to endorse Theresa May’s negotiated deal and Boris Johson’s No-deal has been justified on its institutional claim to scrutinize the executive (R (Cherry-Miller) v Prime Minister 2019). An unintended by-product of the parliament driven Brexit process might therefore be the evolution of parliament-foreign affairs interplay beyond the current understanding of ours. In the meantime, parliamentary committees across the Commonwealth are showcasing significant policy influence through debates, special studies, inquires, reports and supply of “expert knowledge’ to the Parliament (Bruce Thorardson, "Foreign Policy and the Committee System," in JP Gabboury (ed) The Canadian House of Commons Observed University of Ottawa Press 1979).
Compared to these, the parliament of Bangladesh stands totally silenced in the area of foreign affairs, without any understandable sense of rationality of course. Parliament has a formal power to declare war under article 63 of the constitution. Though we have no occasion of war so far, arguments for prior-parliamentary approval for armed forces deployment in the UN Peacekeeping Operations was unhelpfully suppressed in M Saleem Ullah v. Bangladesh (47 DLR (1995) 218; analysed in Abdullah Al Faruque and Hafizur Rahman Karzon, Status of International Law under the Constitution of Bangladesh, Bangladesh Journal of Law, 3:1 (1997) p 32-34). Again, parliament’s authority in cases of internal insurgency or belligerency is limited to the approval of the government’s pre-declared state of emergency under article 141A. Parliament’s power over international treaties is also vague and nobody knows for what purpose a treaty would be tabled in parliament under article 145A of the constitution. Even this toothless provision is historically honored in breach.
Successive governments have shown a very unacceptable tendency of totally ignoring parliament in the realm of foreign affairs. Rohingya crisis is not an exception. Parliament has not tried the tool of secret sitting so far (Rule 181 of the Rules of Procedure). The bilateral repatriation agreement with Myanmar government was not placed for parliamentary deliberation. Had it been done, much of the concerns of our policy think tanks and international agencies about the viability of such a bilateral approach to the problem could be aired early and government would have been benefitted from the collective wisdom of parliament and its democratic deliberation. Parliament driven studies, inquires, public hearings, inter-parliamentary gatherings and information sharing with the legislative leaders of influential super powers and regional stakeholders would have meaningfully supplemented and benefitted the civil servant driven diplomacy we have attempted so far.
In Kazi Mukhlesur Rahman v. Bangladesh (26 DLR (1974) 44), a boundary delimitation treaty was tested against the constitutional requirement of power sharing with parliament. Keeping the budgetary and military implications of the Rohingya crisis, such a burden sharing appears quite in line with the spirit of Kazi Mukhlesur Rahman. Parliament would have to allocate budgets for the Rohingya refugees, respond to possible internal or regional economic or security emergencies or even endorse a war or international hostility. Parliamentary involvement in the Rohingya policy formulation process therefore is not a matter of executive courtesy. It is rather a matter of special urgency where the bureaucrat driven diplomacy is apparently failing in every aspect. Unfortunately, our government is eyeing to win a very tough international match by leaving the nation’s most effective playmaker in the reserved bench.
The Author is a Doctoral Candidate (Parliament Studies), King’s College London.
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