Judicial Review of "Internal Parliamentary Proceedings": The Dialogic and Non-dialogic Approaches

M Jashim Ali Chowdhury

Published in: 

Comparative Constitutional Law and Administrative Law Journal, Vol. 6, No. 1 (2021) pp 28-57 

Full Text available at:

https://www.researchgate.net/publication/355651941_Judicial_Review_of_Internal_Parliamentary_Proceedings_The_Dialogic_and_Non-dialogic_Approaches_-_Comparative_Constitutional_Law_and_Administrative_Law_Journal_Vol_6_No_1_2021_pp_28-57?_sg=9DsZLieFQQE1L7HJKmcRfkvoP54cnwxNAYqDeoIe9AnJ1URLimGXHCAqGZ81m9cjrM0x7IrKyqRhPAtwUmNzgIZvC9vXyL3RJ3iLx251.4-k7sJiXFcJDWJRKfBfxAyfZWRUGwpR37mYaiipsMrPrFU4Qcj4Pd6I0wJFjPcOkpcHa9kktRgBVb6Cm9H_bfQ

Abstract:

This article compares the internal proceedings jurisprudence of the highest courts of the United Kingdom (UK), India, and Bangladesh. Though the Supreme Courts of Bangladesh and India have shown general deference to the debates in parliament, they have shown willingness to lift the veil of those “internal proceedings” that might have constitutional questions involved. It appears that the UK, India, and Bangladesh’s respective models of judicial review and parliament-judiciary relationship influence their internal proceedings jurisprudence. While the Indian and Bangladeshi Supreme Courts’ understandings of the internal proceedings doctrine are conditioned by their self-aggrandised posture of guardianship over the Constitution, the British judiciary’s approach is largely dialogic and conciliatory. Indian and Bangladeshi Supreme Courts’ adversarial approach frequently places them in direct confrontation with the legislative and political branches. While the Indian Supreme Court does not shy away from such confrontation, Bangladesh Supreme Court usually tries to avoid it and, in the process, ends up taking fluctuating and self-contradictory positions in different cases. The author argues that the UK’s dialogic model of judicial review provides for a rather congenial basis for principled judicial consideration of the internal proceedings doctrine.

Questioning the ‘Westminster’ Attribute of Bangladesh Jatya Sangsad

 

Nirmal Kumar Saha*

M.Jashim Ali Chowdhury**

 

 

The Journal of Law, Islamic University, Kushtia, Bangladesh 

Vol 10 (Special) No 2, Volume Year: 2014-2015 (published in 2021) pp 209-231

For a full-text request please click: 

https://www.researchgate.net/publication/354366242_Questioning_The_'Westminster'_attribute_of_Bangladesh_Parliament_Jatya_Sangsad_-_Journal_of_Law_Islamic_University_Kushtia_Bangladesh_Vol_10_Spl_No_2_2014-2015_pp_209-231?_sg=uhktf6-wYPc4Ro3kuMvO6m_oNa4Z3Ha68rs7dFGxXMq9oRXafAbMmtQK67bs2HrywEVPLEiOQc_TkjWmmyVBBagYNRmFPYN1Q4QYdcJq.EcaC3iKiSdLY_e1urCawhXN9-XuoymxrEVpyq-qriSLdNMQtDzxypsROGZVWw1k80YBx_RmoU1pDMZg9WNuqsg

Abstract

The Westminster Parliamentary System is both a tradition and a concept. As a tradition, it represents a loose family of political jurisdictions inheriting their shared institutions and characteristics from the British Parliament based in the Palace of Westminster. As a concept, it is a majoritarian democracy where the majority party harness all the powers and controls over legislation, governance and policymaking. Minority, on the other hand, is assigned with the rule of institutional opposition and opinion building against the ruling party programs, policies and laws.  At independence, Bangladesh chose to carry the British legacy of the Westminster parliamentary system. Whether the system as outlined in the 1972 constitution was purely Westminsterial is not abundantly clear. The executive branch led by the Prime Minister and Cabinet is drawn from the majority party in Parliament and remains answerable to the Parliament. Like the Crown, the President symbolises the ceremonial head of the state. However, the judiciary had an American tune – a separate branch with a constitutionally secured tenure for the judges and a power of judicial review. This study seeks to see how this ‘half-hearted’ blend of separation of power and dynastic party system in an avowedly Westminster system undermined the legislative branch of state by substantially affecting the ‘horizontal accountability of democratic intuitions and ‘vertical accountability of the rulers to the ruled. Assessing the Bangladesh parliament’s mandate and performance as a law-making, accountability and accountable body, the paper explains how it fails the core majoritarian values expected of a typical Westminster parliament. As an incremental response to the deeply rooted institutional and cultural problems surrounding the legislative branch of the Republic, some strategic reforms are needed.

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*Associate Professor, Department of Law, University of Chittagong, Email: nirmalksaha@yahoo.com

**PhD Candidate, King’s College London, Email: m.chowdhury@kcl.ac.uk

Through the Westminster Lens: A Critical Reflection on the Legislative Procedure of Bangladesh

Nirmal Kumar Saha

M Jashim Ali Chowdhury

Published in: Rajshahi University Law Review Vol. XI, Dec. 2020; pp 69-88

Full Text available at: https://www.researchgate.net/publication/355196746_Through_the_Westminster_Lens_A_Critical_Reflection_on_the_Legislative_Procedure_of_Bangladesh_Rajshahi_University_Law_Review_Vol_XI_Dec_2020_pp_69-88 

Abstract

Parliamentary offices, rules and procedures in Bangladesh are broadly designed in Westminsterial norms and processes. With full recognition of the government’s right to govern and legislate, a Westminster styled parliament exists more as an institution of restraint than as one of obstruction. Parliamentary consideration of and deliberation on legislative proposals are meant to legitimize rather than prevent. Of course, the parliamentary opposition and government backbenchers must be given a right of reasonable debate and critique before they are asked to legitimize. The UK House of Commons has adopted several pro-opposition procedural devices to maximize the restraint aspect of lawmaking. The central argument of this paper is that missing those pro-opposition and backbench devices, the legislative procedure of Bangladesh constitutes a mere legitimation tool for the executive branch.