Star Law Analysis
Constitutional mandate for special legislation
Md Mahboob Murshed
The Constitution of the People's Republic of Bangladesh (the Constitution) is a well-drafted one in comparison to many other constitutions of the developed countries. The framers of the Constitution purposefully incorporated some express provisions for specific legislation in different parts of it. In maximum cases the object of these special legislations is to ensure transparency, accountability, justice and independence of the institutions concerned. Now-a-days we often come across debate or controversy about the appointments in some constitutional posts, like Election Commissioner, Judges of the Supreme Court etc. The on going movement to reconstitute the Election Commission and remove some Election Commissioners is an example of such debate or controversy. In the limited sphere of this article some of the most necessary constitutional provisions for special legislation would be discussed and purpose, object and the impact of such legislations would be considered.
Important provisions: Some express provisions for special legislation as provided in the Constitution are as follows:
Parliament may by law prescribe the procedure to be followed by an Advisory Board to enquire about the justification of a preventive detention [Art 33 (6)];
Parliament may by law empower any court other than the High Court Division to exercise all or any of the powers mentioned in article 102 of the Constitution, popularly known as the writ jurisdiction [Art. 44 (2)];
The President shall by rules specify the manner in which orders and other instruments made in his name shall be attested or authenticated [Art. 55 (5)];
The President shall make rules for the allocation and transaction of the business of the Government [Art. 55(6)];
Parliament shall prescribe by Act amongst other the functions relating to administration and the work of public officers, the maintenance of public order and the preparation and implementation of plans relating to public services and economic development of the local government bodies [Art. 59 (2)];
Parliament shall by law confer powers referred to in the article 59 on the local government bodies including power to impose taxes for local purposes, to prepare their budgets and to maintain funds [Art. 60];
Parliament shall by law provide for regulating recruitment, etc., of defence services;
Parliament may, by law, regulate the recruitment and conditions of persons appointed to the secretariat of Parliament [Art. 79 (2)];
Other qualifications of a person may be prescribed by law for appointment as a Judge of the Supreme Court apart from the qualifications mentioned in article 95(2)(a) & (b) [Art. 95 (2) (c)];
Appointments of persons to offices in the judicial service or as magistrates exercising judicial functions shall be made by the president in accordance with rules made by him in that behalf [Art. 115};
The appointment of the Chief Election Commissioner and other Election Commissioners shall subject to the provisions of any law made in that behalf, be made by the President [Art. 118 (1)];
Subject to the provisions of any law made by Parliament, the conditions of service of Election Commissioners shall be such as the President may, by order, determine [Art. 118 (5)]; and
Subject to the provisions of this Constitution Parliament may by law regulate the appointment and conditions of service of persons in the service of the Republic [Art. 133].
Law for Advisory Board: The Constitution expressly provides discretion on Parliament to enact law to prescribe the procedure to be followed by an Advisory Board in an inquiry about the justification of a preventive detention. According to Art.33 (4) the Advisory Board is to be constituted by three persons, of whom two shall be persons who are either Judges of the Supreme Court or have been qualified to be appointed as Judges of the Supreme Court and the other shall be a person who is a senior officer of the Republic. The main task of the Board is to enquire and report about the justification of the detention of a person exceeding six months. So the inquiry of the Board would be more transparent, accountable and justified if there is enacted procedure to be followed by the Board in conducting such an inquiry.
Law to confer writ jurisdiction on other court: Art 44(2) of the Constitution expressly provides discretionary power to Parliament to enact law conferring any or all powers under Art 102 of the Constitution on any court other than the High Court Division without prejudice to the power of the High Court Division. Presently the High Court Division is overburdened with writ petitions when on an average ten thousand writ petitions are being filed in the High Court Division every year since 2002. Therefore, the cases are being piled up in the Supreme Court and the scope of enforcement of the fundamental rights of citizens/people is substantially hampered. If senior District Judges posted in the Divisional headquarters have been provided with the writ jurisdiction then the people would be able to exercise their fundamental rights conveniently and the backlog of the cases in the Supreme Court would be substantially reduced. By exercising this constitutional mandate Parliament can ensure smooth and effective enforcement of the fundamental rights enshrined in the Constitution.
President's obligation to frame rules: The Constitution makes it imperative on the President to frame rules specifying the manner in which orders and other instruments made in his name shall be attested or authenticated. Though literally it is the obligation of the president under Art 55(5) of the Constitution to frame such rules but practically, in pursuit of Art 48(3) of the Constitution, the President must act in accordance with the advice of the Prime Minister in this regard. So far no rules have been framed under Art 55(5) of the Constitution, which creates a serious problem to ensure transparency and accountability in the business of the Republic where frequently orders and instruments have been attested or authenticated to be made in the name of the President. Instead of making detailed rules in this regard the government incorporated Rule 5 in the Rules of Business, 1996. This rule enumerated the persons who can authenticate, by signature, all orders and other instruments made and executed in the name of the President. Therefore, it is desirable that the government take initiative to frame such rules to ensure accountability and transparency in the business of the Republic.
The present Rules of Business have been made in 1996. In framing these Rules of Business which include the Allocation of Business among the different Ministries and Divisions the public representatives got very little opportunity to play any vital role. Basically bureaucrats did everything and placed it before the Cabinet meeting. The Ministers had little time to go through the detailed provisions of the Rules of Business. They just put their seal of validity on these rules and the President virtually had nothing to do with these Rules but to put his rubber stamp. There should be a provision in the Constitution that all rules, regulations framed by the Executive should be placed before the Parliament to be scrutinised by the respective parliamentary standing committee. In this way people's participation and transparency could be ensured in making subordinate legislation including such constitutional instrument like the Rules of Business.
Parliament's obligation to enact law for local government bodies: It is the constitutionally mandatory responsibility of Parliament according to Art 59 to enact laws governing the functions of the local government bodies, which may include- (a) administration and the work of public officers; (b) the maintenance of public order; (c) the preparation and implementation of plans relating to public services and economic development.
In the case of Kudrat-E-Elahi Panir and others vs. Bangladesh, 44 DLR (AD) 319, Mustafa Kamal, J holds "It is to be remembered however that local government is a part of the constitutional system and therefore Chapter III of Par IV of the Constitution containing Articles 59 and 60 cannot ever be kept as a dead letter."
Constitutionally a district means an administrative unit. According to the provision of Art. 59 (1) the local government in a district must be entrusted to bodies composed of persons elected in accordance with law. Accordingly, Parliament enacted the District Council Act, 2000 (Zilaparasid Ain, 2000) giving a very limited administrative authority. In enacting the law Parliament even did not comply with the mandates of Articles 59 and 60 of the constitution. Moreover government has been empowered to dismiss the elected District Council under the circumstances mentioned in the Act. Such provision is also opposed to Articles 9 and 11 of the constitution where promotion of local government institutions and participation by the people through their elected representatives in administration at all levels have been declared as the fundamental principles of state policy. Parliament has also given in the hand of executive a weapon by incorporating a provision that the act shall come into force from the date as to be declared by the government in the official gazette. Now it is 2006 but the government did not get an opportunity to declare the date of enforcement of the Act by a gazette notification. This is how the bureaucrats frustrate any effort to strengthen the democratic institutions like separation of judiciary in Bangladesh. Therefore parliament performed its constitutional obligation in a haphazard way which could be amounted as failure of parliament to carry out its constitutional obligation.
Qualifications of the Judges of the Supreme Court: The broad outline of the qualifications of persons to be appointed as Judge of the Supreme Court has been mentioned in Art. 95(2) sub clause (a) and (b). The constitution has also given a scope to formulate detailed qualifications of persons to be appointed as Judges of the Supreme Court by prescribing law. Parliament itself may prescribe the detailed qualifications by enacting laws or even the president may promulgate an ordinance in this regard while the parliament is not in session or stands dissolved. By prescribing such law, provisions can be made to constitute a high powered committee headed by the Chief Justice of Bangladesh and four other senior most judges of the Appellate Division of the Supreme Court to nominate the persons as Judges of both the Divisions of the Supreme Court. Apart from the constitutional qualifications other detailed qualifications of the persons to be appointed as judges in the Supreme Court can be stated in such law. The provision also should be made that the executive must appoint Judges of the Supreme Court from the nominated persons by the high-powered committee headed by the Chief Justice. Enactment or promulgation of such law might play a vital role in dissolving the controversy prevailing now in appointing judges in the superior judiciary. The non-party caretaker government though not empowered to take any policy decision except in the case of necessity to perform its functions, but if for the greater interest of the nation it takes a move to promulgate necessary ordinance in this regard, that wont be treated as violation of the constitution in any way.
President to make rules for judicial service and magistrates: Article 115 of the constitution imposed a mandatory obligation upon the President to appoint persons in the judicial service or as magistrates exercising judicial functions in accordance with rules made by him in that behalf. Long after the Appellate Division's judgment in civil appeal no. 79 of 1999 popularly known as Masdar Hossain appeal case the Rules regarding appointment of persons in the judicial service have been framed and notified in the Bangladesh Gazette on 12.6 2006 in the name of the President. However these rules are distorted and in framing the rules the appropriate authority did not follow the directives given by the Appellate Division in the Masder Hossain Appeal case. The magistrates exercising judicial functions are not included in these rules, which is a major deviation from the constitutional mandate and the directives of the Masder Hossain Appeal case. Since the directives of the Masder Hossain case are yet to be fully implemented and the judiciary is not yet separated from the executive organ, therefore, if the non-party caretaker Government takes initiative to fully implement the directives of the Masder Hossain Appeal Case and the constitutional mandate to separate judiciary from the executive organs by way of promulgating ordinance amending the Code of Criminal Procedure, 1898, such a move cannot be treated as a policy decision and in any way ultra vires to the constitution.
Provisions on Election Commission: The President is to appoint the Chief Election Commissioner (CEC) and other Election Commissioners (ECs) subject to the provision of any law made on that behalf according to Article 118 of the constitution.
Parliament can enact such law or the President can promulgate ordinance or make rules in this regard. Here the Constitution does not make any specific obligation on the President or on the Parliament to make law on the appointment of such Commissioners. But it is clear from the plain reading of the Article 118 that such appointment should be made subject to the provisions of any law in this regard. But unfortunately no such law has been enacted or promulgated yet by any government. In the parliamentary form of government for such non-compliance the party in power can be made liable. Therefore, all previous democratic governments can be made responsible for their reluctance to make necessary law in appointing the Chief Election Commissioner and other Election Commissioners. The Constitution does not provide any qualification for appointing the Commissioners. The political governments used such constitutional silence to realise their motive and in appointing such Commissioners in maximum cases they tried to protect partisan interest to the detriment of national interest. In order to bring an end to this the present caretaker government may promulgate an ordinance specifying detailed qualifications and the terms and conditions of the service of the CEC and other ECs.
Concluding remarks: It is high time for major political parties of Bangladesh to realise that the dignity, neutrality and transparency of the constitutional institutions must be upheld in order to protect democracy and rule of law in our country. It is a matter of extreme misfortune that after long 35 years of our independence we could not achieve separation of judiciary, strong local government bodies and Election Commission. Still it is a common belief that only good intention of our major political parties will suffice to realise the aforementioned goals. We hope that bureaucratic obstacles, if any, wont be able to suppress the people's will if the public representatives are dedicated enough to ensure the people's participation in all spheres of the government. The caretaker government of Justice Latifur Rahman took an initiative to separate judiciary from executive by implementing the 12-point directives of the Appellate Division given in the Masder Hossain Appeal Case. But due to political and bureaucratic interference it could not occur. We hope that the present caretaker government would succeed with such move. It is our expectation that either the present caretaker government or the next political government would take necessary steps to make laws regarding strengthening of local government bodies; appointment of right persons as judges of the Supreme Court and Election Commissioners; and constitute a judicial service which will include the magistrates exercising judicial functions in the light of the express constitutional provisions.
The author is asst. professor, department of law, Dhaka University.
