A History of the Constitution of Bangladesh: The Founding, Development, and Way Ahead [1 ed.] 9781032233291, 9781032233307, 9781003276814

Table of contents :
Cover
Half Title
Series
Title
Copyright
Dedication
Contents
List of contributors
List of figures
Preface
Acknowledgements
1 The fifty years of Bangladesh’s constitutional journey: reflections and hopes
Part I The founding of the Constitution, competing legal norms, and identity building
Part I The founding of the Constitution, competing legal norms, and identity building
2 The emergence of Bangladesh’s legal system: revolutionary legality and a new rule of recognition
Part I The founding of the Constitution, competing legal norms, and identity building
3 The Constitution of Bangladesh and international law
Part I The founding of the Constitution, competing legal norms, and identity building
4 Secularism and Islam as the state religion: conflict or coexistence?
Part II Constitutionalism, rule of law, and judicial review
Part II Constitutionalism, rule of law, and judicial review
5 Rule of law within the constitutional scheme: a judicial perspective
Part II Constitutionalism, rule of law, and judicial review
6 Judicial policy-making by the Supreme Court of Bangladesh
Part II Constitutionalism, rule of law, and judicial review
7 Judicial review and the separation of powers: is one contingent upon the other?
Part III Political parties, executive authority, and parliament under the constitutional scheme
Part III Political parties, executive authority, and parliament under the constitutional scheme
8 Constituting limits and accountability of the executive power in Bangladesh
Part III Political parties, executive authority, and parliament under the constitutional scheme
9 Parliament of Bangladesh: constitutional position and contributions
Part III Political parties, executive authority, and parliament under the constitutional scheme
10 Political parties in the process of constitution-making and amending: from multi-party to one-party dominant politics?
Part IV Social justice, inclusion, and the protection of rights
Part IV Social justice, inclusion, and the protection of rights
11 Constitutional protection of economic and social human rights: intention of the constitution-makers and judicial interpretations
Part IV Social justice, inclusion, and the protection of rights
12 Locating women within ‘we, the people’ in the Constitution of Bangladesh
Part IV Social justice, inclusion, and the protection of rights
13 Justice as fairness and the Constitution of Bangladesh
Part IV Social justice, inclusion, and the protection of rights
14 Constitutionalism interrupted or constitutionalism absent?: the divergence of Constitution and politics in Bangladesh
Index

Citation preview

A History of the Constitution of Bangladesh

Marking the 50th anniversary of Bangladesh’s Constitution, this book gauges its development from 1972 to 2022, focusing on its foundational goals, performances, and current challenges. The collection, presenting diverse but issue-specific chapters, shows how the people, political parties and leaders, and constitutional and legal institutions interact with each other in advancing, breaking, and remaking their Constitution. It examines the local context, parliamentary history, and interpretive tools adopted by the Supreme Court in understanding the Constitution as well as the future prospect of constitutional politics and practices. The work brings together legal professionals and constitutional law scholars to encapsulate the panorama of the country’s constitutional evolution. The authors look back to the history of constitution-making, to reflect critically on the present in light of the founding goals, spirits, and aspirations and with a view to ofering a forwardlooking and resilient vision of constitutionalism in Bangladesh. The book will be of interest to researchers, academics, and policy-makers working in the areas of comparative constitutional law and politics and South Asian Studies. Ridwanul Hoque is Senior Legal Ofcer at Charles Darwin University, Australia. Rokeya Chowdhury is an independent law and society researcher and is currently working with a Montreal-based law firm as its Senior Corporate Mobility Advisor.

Comparative Constitutional Change Series editors: Xenophon Contiades Professor of Public Law, Panteion University, Athens, Greece and Managing Director, Centre for European Constitutional Law, Athens, Greece.

Thomas Fleiner Emeritus Professor of Law at the University of Fribourg, Switzerland.

Alkmene Fotiadou Research Associate at the Centre for European Constitutional Law, Athens, Greece.

Richard Albert The William Stamps Farish Professor in Law and Professor of Government at the University of Texas at Austin, USA.

Comparative Constitutional Change has developed into a distinct field of constitutional law. It encompasses the study of constitutions through the way they change and covers a wide scope of topics and methodologies. Books in this series include work on developments in the functions of the constitution, the organization of powers and the protection of rights, as well as research that focuses on formal amendment rules and the relation between constituent and constituted power. The series includes comparative approaches along with books that focus on single jurisdictions, and brings together research monographs and edited collections which allow the expression of diferent schools of thought. While the focus is primarily on law, where relevant the series may also include political science, historical, philosophical and empirical approaches that explore constitutional change. Also in the series Accommodating Diversity in Multilevel Constitutional Orders Legal Mechanisms of Divergence and Convergence Maja Sahadzic, Marjan Kos, Jan Kukavica, Julian Scholtes and Jakob Gasperin Wischhof Constitutional Law and Politics of Secession Edited by Antoni Abat i Ninet A History of the Constitution of Bangladesh The Founding, Development, and Way Ahead Edited by Ridwanul Hoque and Rokeya Chowdhury For more information about this series, please visit: www.routledge.com/Comparative-ConstitutionalChange/book-series/COMPCONST

A History of the Constitution of Bangladesh The Founding, Development, and Way Ahead

Edited by Ridwanul Hoque and Rokeya Chowdhury

First published 2024 by Routledge 4 Park Square, Milton Park, Abingdon, Oxon OX14 4RN and by Routledge 605 Third Avenue, New York, NY 10158 Routledge is an imprint of the Taylor & Francis Group, an informa business © 2024 selection and editorial matter, Ridwanul Hoque and Rokeya Chowdhury; individual chapters, the contributors The right of Ridwanul Hoque and Rokeya Chowdhury to be identified as the authors of the editorial material, and of the authors for their individual chapters, has been asserted in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988. All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Trademark notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library ISBN: 978-1-032-23329-1 (hbk) ISBN: 978-1-032-23330-7 (pbk) ISBN: 978-1-003-27681-4 (ebk) DOI: 10.4324/9781003276814 Typeset in Galliard by Apex CoVantage, LLC

All martyrs of the 1971 Bangladesh Liberation War and members of the Constituent Assembly of Bangladesh

Contents

List of contributors List of figures Preface Acknowledgements 1 The fifty years of Bangladesh’s constitutional journey: reflections and hopes

x xiii xiv xv

1

RIDWANUL HOQUE AND ROKEYA CHOWDHURY

PART I

The founding of the Constitution, competing legal norms, and identity building

27

2 The emergence of Bangladesh’s legal system: revolutionary legality and a new rule of recognition

29

NAFIZ AHMED

3 The Constitution of Bangladesh and international law

44

KAWSER AHMED

4 Secularism and Islam as the state religion: conflict or coexistence?

58

MUHAMMAD REZAUR RAHMAN

PART II

Constitutionalism, rule of law, and judicial review 5 Rule of law within the constitutional scheme: a judicial perspective SYED REFAAT AHMED

75

77

viii

Contents

6 Judicial policy-making by the Supreme Court of Bangladesh

100

MD ABDUL HALIM

7 Judicial review and the separation of powers: is one contingent upon the other?

112

CHOWDHURY ISHRAK AHMED SIDDIKY

PART III

Political parties, executive authority, and parliament under the constitutional scheme 8 Constituting limits and accountability of the executive power in Bangladesh

127

129

MD LOKMAN HUSSAIN

9 Parliament of Bangladesh: constitutional position and contributions

145

M JASHIM ALI CHOWDHURY

10 Political parties in the process of constitution-making and amending: from multi-party to one-party dominant politics?

161

NIZAM AHMED

PART IV

Social justice, inclusion, and the protection of rights

179

11 Constitutional protection of economic and social human rights: intention of the constitution-makers and judicial interpretations

181

MUHAMMAD EKRAMUL HAQUE

12 Locating women within ‘we, the people’ in the Constitution of Bangladesh

193

PSYMHE WADUD

13 Justice as fairness and the Constitution of Bangladesh TASHMIA SABERA AND NAVEED MUSTAHID RAHMAN

209

Contents 14 Constitutionalism interrupted or constitutionalism absent?: the divergence of Constitution and politics in Bangladesh

ix

224

ALI RIAZ

Index

241

Contributors

Kawser Ahmed is an advocate practising in the Supreme Court of Bangladesh. His practice area includes constitutional remedies, dispute settlement, international law, and human rights. His research interest includes constitutional law, international law and organisations, international dispute settlement, and human rights. He has recently published an edited volume. Nafiz Ahmed is a lecturer in law at North South University, Dhaka, Bangladesh. He previously worked as a lawyer with a Dhaka-based law firm, Sattar & Co. His research interest lies in public law theory and jurisprudence. He has published research papers on public law compensation and the basic structure doctrine. Nizam Ahmed is a former professor of public administration at the University of Chittagong, Bangladesh. A noted scholar of parliamentary studies in South Asia, Prof Ahmed has a keen interest in constitutional law and politics. He has published extensively on local government, party politics, non-party caretaker government, and parliamentary behaviour. Syed Refaat Ahmed is a long-serving judge of the Supreme Court of Bangladesh. Since his elevation to the bench in April 2003, Justice Ahmed has adjudged an extensive range of cases, of which the more significant judgments are in the fields of constitutional law, the death penalty, criminal appeals, admiralty, arbitration, and company, labour/employment, trademark, customs, and taxation laws. Justice Ahmed has a number of previous publications. M Jashim Ali Chowdhury is a lecturer in law at the University of Hull, United Kingdom. He is the author of a widely read constitutional law textbook. He has published extensively on Bangladesh’s constitutional issues with reputed national and international publishers. Rokeya Chowdhury is an independent law and society researcher and is currently working with a Montreal-based law firm as its Senior Corporate Mobility Advisor. While adopting an interdisciplinary approach to legal studies, her niche area of research is constitutional law, including freedom of expression, the doctrine of basic structure, and discrimination and the law.

Contributors

xi

Md Abdul Halim is a lawyer, practising in the Supreme Court of Bangladesh. He has written over sixty law books including in the field of Bangladeshi constitutional law. A leading public law practitioner, he has a special reputation for public interest litigations for the protection of the rights of children and other vulnerable groups. Muhammad Ekramul Haque is a professor of comparative constitutional law at the Department of Law, University of Dhaka, Bangladesh. He has published extensively on constitutional law, human rights, and Muslim family law issues in leading law journals and authored and edited books in these fields. Md Lokman Hussain is an assistant professor at the Department of Law and Human Rights at the University of Asia Pacific, Dhaka, Bangladesh. His research interest is in the field of constitutional and political theories, criminal justice, and environmental governance. His recent work includes a chapter in Bangladesh and International Law (Routledge, 2021). Ridwanul Hoque was a professor of law at the University of Dhaka, Bangladesh until 2022. He is currently in the role of Senior Legal Ofcer at Charles Darwin University, Australia. A noted scholar of Bangladeshi constitutional law, Prof Hoque has held visiting research and/or teaching positions at Edinburgh University, Cornell Law School, Melbourne Law School, La Trobe University, Charles Darwin University, and National Law University, Delhi, India. Muhammad Rezaur Rahman teaches law at the University of Asia Pacific, Dhaka, Bangladesh. He is an afliate researcher at the Centre for the Study of Ethnicity and Citizenship, the University of Bristol, United Kingdom. He has a research interest in South Asian secularism and law and religion. Naveed Mustahid Rahman is currently a G. Ellsworth Huggins Graduate Fellow at the University of Missouri-Columbia. He previously taught law at Bangabandhu Sheikh Mujibur Rahman Science and Technology University, Bangladesh. He has an MA in political science from Central European University, Austria, and an LLM in international and comparative law from the University of Dhaka, Bangladesh. Ali Riaz is Distinguished Professor of Political Science at Illinois State University, USA, a non-resident senior fellow of the Atlantic Council, and the president of the American Institute of Bangladesh Studies. His research interests include democratisation, violent extremism, religion and politics, and South Asian politics. His recent publications include an edited volume Religion and Politics in South Asia (Routledge, 2021). Tashmia Sabera is an assistant professor in law at Bangladesh University of Professionals (BUP). She is currently pursuing an MA in Philosophy at the University of Missouri—St. Louis. She led a research project on distributive justice and development with funding from the Centre for Higher Studies

xii

Contributors and Research (CHSR) at BUP, Dhaka, Bangladesh. She contributed a chapter in Bangladesh and International Law (Routledge, 2021).

Chowdhury Ishrak Ahmed Siddiky is a practising lawyer at the Supreme Court of Bangladesh and an adjunct associate professor at the University of Asia Pacific, Dhaka, Bangladesh. He has published extensively on energy security, cross-border pipelines, international law, and comparative constitutional law. He edited The Rule of Law in Developing Countries: The Case of Bangladesh (Routledge, 2018) and is also the author of The Geo-Politics of Energy in South Asia: The Case of Bangladesh (Routledge, 2021). Psymhe Wadud is a lecturer in law at the University of Dhaka, Bangladesh. She earlier worked with Bangladesh University of Professionals and the Bangladesh Institute of Law and International Afairs (BILIA). She also worked closely with the United Nations Ofce on Drugs and Crime (UNODC) to support the criminal justice systems in South Asia in integrating gender perspectives into measures against terrorism and violent extremism. Her research interests focus primarily on constitutional law, international human rights law, criminal law, and gender justice.

Figures

14.1 14.2

Voice and Accountability Score of Bangladesh, 1996–2020 Rule of Law Scores of Bangladesh, 1996–2020

231 238

Preface

This edited volume is a celebratory project commemorating the 50th year of the Constitution of Bangladesh in 2022. This book has brought together both early-career and established scholars, as well as legal professionals to look back to the history of constitution-making in Bangladesh, to critically reflect on the present of the country in light of the founding goals, spirits, and aspirations and ofer a forward-looking and resilient vision of constitutionalism in Bangladesh. Due to the efects of the COVID-19 pandemic and the ensuing difculty with which some of our contributors were faced, this volume could not touch upon some significant and evolving issues, such as the right to liberty and free speech, the identity of indigenous peoples, rights of sexual minorities, rights of diferently abled citizens, and environmental rights, to name a few. Nevertheless, we hope that this volume will add to the learning and practice of constitutional law in Bangladesh and act as a source of reference for future research in some of these pertinent areas.

Acknowledgements

The editors are thankful to all the contributors to this volume for their hard work and dedication in bringing this project to fruition. We would like to extend our special thanks to the Hon. Justice Syed Refaat Ahmed, Prof Ali Riaz, and Prof Nizam Ahmed for finding time from their busy schedule. We are deeply indebted to Dr Jashim Ali Chowdhury (Hull University), Prof Mohammad Mahbubur Rahman (University of Dhaka), Prof Jaclyn Neo (National University of Singapore), Dr Moiz Tundawala (Jindal Global Law School, India), Prof Werner Menski (SOAS, London), Dr Md Saiful Karim (Queensland University of Technology, Australia), Dr Sharmin Tania and Dr Mostafa Haider (Curtin Law School, Australia), and Prof Matthew Kramer (Cambridge University) for extending their help to the editors in reviewing the contributions, and Raihan Rahman Rafid and Naveed Rahman for their support with editing. This volume could not have been completed without the constant support and guidance of the editorial team at Routledge, Alison Kirk and Anna Gallagher. Ridwanul Hoque Rokeya Chowdhury

1

The fifty years of Bangladesh’s constitutional journey Reflections and hopes Ridwanul Hoque and Rokeya Chowdhury

Introduction Bangladesh emerged as an independent nation-state1 on 26 March 1971 when it unilaterally declared its independence,2 dismembering from what was ‘undivided’ Pakistan at the time. Pakistan imposed an unjust, treacherous war on Bangladesh, then East Pakistan, in the dead of the night of 25 March 1971 to resist Bangladesh’s independence. The nine-month-long war of independence, which saw one of the worst genocides in history,3 was won on 16 December 1971. From early 1972, the process of constitution-making was set forth based on the Proclamation of Independence promulgated by the Constituent Assembly of Bangladesh on 10 April 1971. The Proclamation acted as the first constitution of the country. The Constitution of the People’s Republic of Bangladesh (hereafter ‘the Constitution’) was adopted on 4 November 1972 by the Constituent Assembly. The Constitution entered into force on 16 December 1972. Any constitution holds the nation’s past, aspires to live the present, and promises to build a thriving future.4 A constitution is better described as a nation’s autobiography,

1 On Bangladesh’s emergence, see, among others, Subrata R Chowdhury, The Genesis of Bangladesh (Asia Publishing House 1972); R Sisson and LE Rose, War and Secession: Pakistan, India, and the Creation of Bangladesh (University of California Press 1990); Srinath Raghavan, 1971: A Global History of the Creation of Bangladesh (Harvard University Press 2013); Craig Baxter, Bangladesh: A New Nation in an Old Setting (Westview Press 1984); AMA Muhith, Bangladesh: Emergence of a Nation (University Press Limited 1992); Anisuzzaman, Creativity, Reality and Identity (International Centre for Bengal Studies 1993). See also David Ludden, ‘The Politics of Independence in Bangladesh’ (27 August–2 September 2011) 46(35) Economic & Poll. Weekly 79, 81–85. 2 See the Proclamation of Independence of 10 April 1971, issued by the Constituent Assembly, with efect from 26 March 1971. 3 On the 1971 genocide, see generally Gary J Bass, The Blood Telegram: Nixon, Kissinger, and a Forgotten Genocide (Knopf Doubleday Publishing Group 2013) and Archer K Blood, The Cruel Birth of Bangladesh: The Memoirs of an American Diplomat (University Press Limited 2002). 4 See Ridwanul Hoque, ‘Constitutional Identity in Bangladesh: Complexity and Contestations’ in Ran Hirschl and Yaniv Roznai (eds), Deciphering the Genome of Constitutionalism: Essays on Constitutional Identity in Honor of Gary Jacobsohn (Cambridge University Press 2023). DOI: 10.4324/9781003276814-1

2

Ridwanul Hoque and Rokeya Chowdhury

it exists ‘in [the] hearts’ of the people before it exists on paper.5 The constitution grows and develops along with the nation, although it may contain, or possibly never abandon, certain fundamental traits. The Constitution has so far received seventeen Amendments, the first one being in 1973 and the latest in 2019. Of the seventeen Amendments, six (5th to 10th Amendments) were enacted by pliable parliaments ingeniously constituted by successive military or military-backed autocratic regimes (1975–1990). Aims and contribution of the book

This edited volume is a modest venture of presenting the contemporary history of the Constitution by reflecting on its past, in terms of both notable achievements and failures, and attempting to chart its future paths. Consisting of fine contributions from both early-career and established scholars, this book has been a celebratory project, aiming to honour the Constitution’s 50th year in 2022. It analyses the Constitution’s past, evaluates its development or regression since 1972, and visualises the future constitutional trajectory. The central theme of the book, thus, is to gauge the development of the Constitution through a historical lens, focusing on its foundational goals, performances, and challenges. Given the political instability and governance crises in most countries in the global south, fifty years of a constitution is a milestone indeed. We believe it is also a significant time to evaluate and appraise the resilience of the Constitution and constitutional practices. The paucity of international publications on Bangladesh-focused constitutional and legal research is a hurdle that scholars aiming to work in the area often face. With this book, we aim to contribute significantly to the global conversation, especially from the comparative constitutional law and history perspectives. We collectively also seek to forge a meaningful dialogue among legal professionals and academic scholars in constitutional law both in Bangladesh and beyond, which will help encapsulate the whole panorama of the constitutional evolution of Bangladesh. In sum, the book looks back to the history of constitution-making in Bangladesh, to critically reflect on our present in view of the founding goals, spirits, and aspirations, with an ultimate view to ofering a forward-looking and resilient vision of constitutionalism in Bangladesh. The book’s vision, to put in a slogan, can be drawn as Look Back, Evaluate the Present, and Forge the Way Forward! With these aims in mind, the editors asked the contributors to analyse their respective subject matter in the light of Bangladesh’s constitutional founding principles and the framers’ vision, evaluate the performance of the nation’s basic document in their concerned subject,

5 Albie Sachs, as quoted in Kamal Hossain, ‘Our Constitution and the Goals of Independence’, The Daily Star (Dhaka, 18 December 2018) .

The fifty years of Bangladesh’s constitutional journey 3 and then to envisage the future development in that subject. Through this book, there has been significant cross-learning between early-career and established scholars and practitioners. Making of the Constitution War of independence

During the British Raj, the territory that forms today’s Bangladesh was within the province of Bengal.6 Upon the partition of British India in August 1947 into two countries, India and Pakistan, that territory was reorganised as East Bengal, which joined Pakistan with ‘legitimate expectation for its autonomy and self-determination as a province’.7 From 14 August 1947 to 25 March 1971, Bangladesh remained a part of Pakistan, first as East Bengal and then as East Pakistan. Beginning from the start of its formative years, Pakistan fell into a deep abyss of constitutional crises, and the process of framing a democratic constitution was prolonged until 23 March 1956.8 Moreover, the West Pakistani leaders adopted the policy of discrimination against the eastern wing in every aspect of state governance, which was but a colonial legacy.9 In this background, East Bengal/Pakistan raised the demand for its provincial autonomy during the period and process of constitution-making. The period from 1947 to 1971 captures the whole span of Bangladesh’s struggle for liberation. Three major movements formed the bedrock of what culminated in Bangladesh’s independence and a new constitutional order. These were: (i) the language movement of 1948–1952; (ii) the 1954 provincial elections based on the 21-point-programme; and (iii) the mass upsurge in 1965–1969.10 Briefly, these years were replete with movements for Bangladesh’s autonomy or the right to self-determination based on a democratic constitutional order.

6 Bengal was one of the eleven provinces. See s 46(1) of the Government of India Act 1935. 7 Ridwanul Hoque, ‘The Founding and Making of Bangladesh’s Constitution’ in Kevin YL Tan and Ridwanul Hoque (eds), Constitutional Foundings in South Asia (Hart Publishing 2021) 91. 8 The crises had indeed lingered at least until the dismemberment of Bangladesh in 1971. Writing as early as 1972 on Bangladesh’s independence, Chowdhury saw constitutional crises in Pakistan in four phases: erosion of parliamentary democracy (1947–1954), advent of military oligarchy (1954–1958), political experiments of a military dictator (1958–1969), and the strategy of deception (1969–1971). See Chowdhury, (n 1) 22–75. Since 1947, Pakistan has experienced four extra-constitutional military regimes, eleven constitutional arrangements, and three formal Constitutions of 1956, 1962, and 1973. On crises of Pakistani constitutionalism from the perspective of their impact on Bangladesh, see GW Choudhury, Constitutional Development in Pakistan (Longman 1969). 9 On this see Ayesha Jalal, Democracy and Authoritarianism in South Asia: A Comparative and Historical Perspective (Cambridge University Press 1995), chapter 1 (‘The colonial legacy in India and Pakistan’). 10 See for details Hoque (n 7) 95–100.

4

Ridwanul Hoque and Rokeya Chowdhury

When the 1956 Constitution of Pakistan denied East Pakistan the full provincial autonomy that it wanted, the province’s struggle for self-rule continued. On 8 October 1958, the army chief, General Ayub Khan, took over the state power and imposed ‘martial law’, abrogated the 1956 Constitution, and banned all political parties. In 1962, he imposed a new constitution of his own,11 which East Bengal/Pakistan rejected. Sheikh Mujibur Rahman (not yet Bangabandhu), the leader of the Awami League (AL), initiated protests and agitation against unconstitutional moves. When the military ruler withdrew restrictions on political parties in 1966, Mujib launched the famous six-point movement for East Pakistan’s full autonomy and a federal democratic constitution for Pakistan.12 Point 1 of the 1966 six-point-programme demanded that ‘the Constitution should provide for a Federation of Pakistan in its true sense based on . . . the parliamentary form of government with supremacy of a Legislature directly elected on the basis of universal adult franchise’ (emphasis added). Not surprisingly, the Pakistani government viewed the six-point programme as a demand for the separation of East Pakistan and threatened stern actions ‘with the language of weapons’13 against any attempt for dismemberment. The Awami League began constitutional mobilisation in support of the six-point demand. Mujib, along with fifty-four other people, was implicated in the infamous Agartala Conspiracy Case (1968)14 for conspiring with foreign enemies (India) for breaking down Pakistan. The commencement of the trial of the case added fuel to the fire of the ongoing mass movement (1966–1969) for East Pakistan’s regional autonomy and the end of autocracy. The case was withdrawn, and Mujib, now Bangabandhu, was released on 22 February 1969.15 Released from jail, Bangabandhu rose to the stature of a national figure and the leader of the Bangladesh independence movement that was soon to begin. He continued to demand ‘full autonomy for the Eastern Wing and representation in the central legislature on the basis of population’,16 and, when negotiations with the central government failed, submitted a proposal of amendments to Pakistan’s 1962 Constitution.17

11 On internally imposed constitutions, see Yaniv Roznai, ‘Internally Imposed Constitutions’ in Richard Albert, Xenophon Contiades, and Alkmene Fotiadou (eds), The Law and Legitimacy of Imposed Constitutions (Routledge 2019) 58. 12 See M Rashiduzzaman, ‘The Awami League in the Political Development of Pakistan’ (1970) 10(7) Asian Survey 574, 583. 13 S Bhuiyan, P Sands, and NJ Schrijver, ‘An Interview with Kamal Hossain’ in International Law and Developing Countries (University Press Limited 2014) 17. 14 State vs Sheikh Mujibur Rahman and Others. See Shahida Begum, ‘Agartala Conspiracy Case’ accessed 12 September 2022. 15 The title of ‘Bangabandhu’, which translates to ‘Friend of Bengal’, was given to him by the students in a public reception in Dhaka on 23 February 1969 after his release from the prison. 16 Rashiduzzaman (n 12) 585. 17 The amendment proposals were drafted by Kamal Hossain, who would later become the chairperson of the Constitution Drafting Committee. Another influential person for those

The fifty years of Bangladesh’s constitutional journey 5 The mass movement (1966–1969) for autonomy led to the fall of President Ayub Khan, who handed over power to General Yahya Khan, another military dictator, on 25 March 1969. General Yahya Khan imposed martial law the same day he assumed power but announced that he would transfer power to elected representatives and promised to hold general elections on 5 October 1970. Also promised was a new constitution for Pakistan after the formation of a National Assembly. The president promulgated the Legal Framework Order (LFO) on 30 March 1970, providing for the rules of elections and the composition of the National Assembly of Pakistan, allocating 169 seats for East Pakistan.18 The AL began a massive preparation based on its six-point-programme for the second-ever direct general elections in Pakistan since 1947.19 The general election was held in December 1970, and the AL won 167 seats out of 313 seats in the National Assembly. Elections were also held for the Provincial Assembly of East Pakistan, in which the AL won 288 seats out of 310 seats. Having won a majority of seats in the national parliament, the AL was to form the government of Pakistan. However, instead of transferring power to the elected representatives of the winning party, President Yahya Khan followed his strategy of deception, by postponing the inaugural session of the National Assembly time and again. When he postponed on 1 March 1971 the scheduled 3 March session, Bangabandhu called for a ‘non-cooperation movement’ from 3–6 March to press the demand for the transfer of power to the Bangladesh leaders. The Assembly meeting was then rescheduled to 25 March 1971, but Bangabandhu in his historic ‘7th March Speech’ announced that the transfer of power to the elected representatives would have to come first. His concluding part of the ‘7th March Speech’ had an implicit declaration of Bangladesh’s independence when he sternly announced: The struggle this time is a struggle for emancipation. The struggle this time is a struggle for independence.20 Eventually, the Pakistani army commenced an all-out crackdown on the night of 25 March 1971. Bangabandhu was arrested later that night, but he managed to transmit the Declaration of Independence in the early hours of 26 March 1971. Then followed the bloody and most brutal war of Bangladesh’s independence that ended on 16 December 1971 when the Pakistani forces surrendered at Dhaka.

draft constitutional proposals was Rehman Sobhan. See Muchkund Dubey, ‘Memoirs of Three Eminent South Asians: Central Contributions’ (2018) 74(2) India Quarterly 234, 236. 18 Of these 169 seats, 162 were direct seats and 7 were reserved seats for women. See the Legal Framework Order 1970, schedule 1. 19 First general elections were held in 1962 under the military ruler Ayub Khan. 20 See the 6th Schedule of the Constitution, inserted in 2015 by the 15th Amendment.

6

Ridwanul Hoque and Rokeya Chowdhury

Constituent Assembly and the drafting of the Constitution

All elected representatives who won seats in the 1970 elections of the Provincial and National Assemblies of Pakistan formed themselves into the Constituent Assembly of Bangladesh and promulgated the Proclamation of Independence on 10 April 1971 (efective 26 March 1971). The preamble of the Proclamation of Independence (the Proclamation) stated as follows: We the elected representatives of the people of Bangladesh, as honour-bound by the mandate given to us by the people of Bangladesh whose will is supreme[,] duly constituted ourselves into a Constituent Assembly, and having held mutual consultations, and in order to ensure for the people of Bangladesh equality, human dignity and social justice, declare and constitute Bangladesh to be sovereign Peoples’ Republic. (emphasis added)21 Thus, the Proclamation constituted the new State of Bangladesh, formed a Constituent Assembly, embraced the concept of popular sovereignty, and laid down the founding values of equality, human dignity and social justice. It also legalised Bangladesh’s unilateral declaration of independence that was first made by Bangabandhu on 26 March 1971. The Proclamation was, in efect, Bangladesh’s first and interim constitution,22 making provisional arrangements for a ‘provisional government’ (the government-in-exile) that was formed at the same time on 10 April 1971.23 The Proclamation adopted a presidential form of government and declared Bangabandhu (then in the Pakistani prison) as president of Bangladesh. It authorised the president to ‘exercise all the Executive and Legislative powers of the Republic’ until ‘a Constitution [was] framed’, appoint a prime minister and other ministers, summon and adjourn the Constituent Assembly, and ‘do all other things that may be necessary to give to the people of Bangladesh an orderly and just Government’ (emphasis added).24 The next constituent instrument was the Provisional Constitution of Bangladesh Order 1972 (PCO), promulgated under the Proclamation on 11 January 1972 by Bangabandhu in his capacity as president immediately after his return on 10 January from captivity in Pakistan.25 The PCO transformed the

21 For the Proclamation of Independence, see the 7th Schedule of the Constitution. 22 Emraan Azad, ‘The Proclamation of Independence: The First Constitution of Bangladesh’, The Daily Star (Dhaka, 10 April 2018) at p. 12. See also M Ekramul Haque, ‘Formation of the Constitution and the Legal System in Bangladesh: From 1971 to 1972: A Critical Legal Analysis’ (2016) 27(1) Dhaka Univ Law J 41. 23 The Proclamation, however, was made public on 17 April 1971 when the government took its oath thereunder. 24 The Proclamation of Independence (n 21). 25 Having been a constituent instrument, the PCO could perhaps more legitimately be enacted by the Constituent Assembly rather than by the president in his ordinary law-making power.

The fifty years of Bangladesh’s constitutional journey 7 nature of government into a parliamentary form and made provisions on the judicial power of the state, which was left unaddressed by the Proclamation.26 The PCO used for the first time the constitutional name of the country as ‘the People’s Republic of Bangladesh’. The ‘Constituent Assembly of Bangladesh’27 (CAB) was called into a twoday first session on 10 April 1972. It was a 403-member Assembly with eligible members that were available at the time.28 On its first day, the CAB elected its speaker and deputy speaker and adopted the Rules of Procedure. On the second day, it formed a 34-member Constitution Drafting Committee (CDC), with Dr Kamal Hossain, then law minister, as chairman.29 The CDC finalised the draft and approved the Draft Constitution Bill on 11 October 1972 for laying before the Assembly. The Constitution Bill along with the report of the CDC was introduced in the CAB on 12 October 1972 in its second session that ended on 4 November 1972.30 After extensive deliberations31 and debates (mostly on socialism, secularism, and the unenforceability of social rights), the Constitution Bill was passed by the CAB on 4 November 1972. The Constitution came into efect on 16 December 1972.32 Bangladesh’s constitutional journey Bangladesh’s past constitutional history during the Pakistan era (1947–1971) was a history of social injustice and the absence of constitutional rule. The birth of Bangladesh in 1971, therefore, arguably conveys its people’s deep commitment to constitutionalism and democracy. Ironically, however, except for brief interludes of constitutional governments, Bangladesh for much of its

26 By default, the then Dacca High Court continued as the country’s Supreme Court from 26 March 1971. 27 This ofcial title of the Assembly was adopted by the Bangladesh Constituent Assembly Order 1972 (BCAO) (P.O. No. 22 of 1972, 23 March 1972), art. 2(a). 28 See further AF Huq, ‘Constitution-Making in Bangladesh’ (1973) 46(1) Pacific Afairs 59, 60. Earlier, article 4 of the PCO 1972 defined the Constituent Assembly as being composed of the elected representatives unless ‘disqualified by or under any law’. The BCAO 1972 (n 27) provided for the structure, powers, and functions of the CAB. See also the Bangladesh Constituent Assembly Members (Cessation of Membership) Order 1972 (P.O. No. 23 of 1972, 23 March 1972) that provided for the cessation of membership upon a member’s resignation from, or expulsion by, his political party. 29 There was no ‘opposition party’ in the Assembly, but one opposition member, Mr Suranjit Sengupta, who was opted as a member of the CDC. Ms Begum Razia Bano, who was elected from the women’s seats to the National Assembly was the only female member on the committee. The only indigenous community member of the Assembly, Mr Larma, was not co-opted in the drafting committee. 30 See Report of the Constitution Drafting Committee, Bangladesh Gazette, Extraordinary, Thursday, 12 October 1972, Dhaka, at 2615 f. 31 The dates are as follows: 12–14, 19–21, 23–27, and 30–31 October and 1–4 November. 32 Upon commencement of the Constitution, the Constituent Assembly went into automatic dissolution. See the 4th Schedule of the Constitution, paragraph 1.

8

Ridwanul Hoque and Rokeya Chowdhury

history has experienced authoritarian rule.33 Throughout the past years, governmental unaccountability and impunity have often prevailed over the norms and ethos of constitutionalism. Bangladesh’s constitutional history can be seen through the lens of five periodic phases: the first spans between 1972–1973 (constitutional politics building); the second between 1973–1975 (democratic decline to constitutional dismemberment); the third runs from 1975–1990 (extraconstitutional and autocratic regime); the fourth from 1991–2013 (democratic restoration and unstable constitutionalism, with the exception of military-backed 2007–2008 caretaker regime); and the fifth from 2014–present day (extreme democratic decline and constitutional autocracy). At its founding moment, Bangladesh adopted a four-pronged constitutional identity, based on the principles of (Bangali) nationalism, secularism, democracy, and socialism. However, the hegemonic Bengali national identity was flawed and exclusionary.34 During the time of constitution-making, the demand for a plurinational identity was suppressed by refusing to constitutionally recognise indigenous peoples.35 The four national or constitutional identity principles have since remained contested.36 Bangladesh began with a parliamentary form of democracy, first through the PCO of 1972 and then through the Constitution. The first parliamentary government under the Constitution was formed after the first general elections in March 1973. Ironically, the parliamentary democracy drastically backpaddled the following year when an emergency was imposed37 and faced a tragic demise in January 1975 when an authoritarian, one-party government was established through the controversial 4th Amendment.38 Probably the landslide victory of the AL in the first general elections was one of the reasons for the party’s journey to a one-party dictatorship.39 The 4th Amendment marked a constitutional dismemberment, by destroying many of the founding values of the nation including, most notably, its democratic identity. The Amendment turned

33 Ridwanul Hoque, ‘Constitutionalism and the Judiciary in Bangladesh’ in Sunil Khilnani, Vikram Raghavan, and Arun K Thiruvengadam (eds), Comparative Constitutionalism in South Asia (Oxford University Press 2012) 303. 34 See Hoque, ‘Constitutional Identity in Bangladesh’ (n 4). 35 See Ridwanul Hoque, ‘Inclusive Constitutionalism and the Indigenous People of the Chittagong Hill Tracts in Bangladesh’ in (2016) Indian Yearbook of Comparative Law (Oxford University Press 2017) 217. 36 See Hoque, ‘Constitutional Identity in Bangladesh’ (n 4). 37 Earlier in 1973, the Constitution (Second Amendment) Act 1973 inserted article 141A to provide a provision on the state of emergency. The 2nd Amendment also amended article 33 to allow the preventive detention of citizens on state security grounds. 38 The Constitution (Fourth Amendment) Act 1975 (25 January 1975). See further JSA Choudhury, Bangladesh: Failure of a Parliamentary Government 1973–1975 (Jamshed Foundation 2005). 39 See T Maniruzzaman, ‘Bangladesh: The Unfinished Revolution?’ (1975) 34(4) J of Asian Studies 891.

The fifty years of Bangladesh’s constitutional journey 9 the judiciary into a subservient body – judges being removable by the wish of the president – and suspended many civil and political rights. A nation based on multi-party democracy metamorphosed into a one-party constitutional dictatorship overnight.40 The constitutional U-turn in 1975 was arguably the beginning, to borrow from Ghai, of ‘paternalism’ and the ‘absence of constitutionalism’ in the governance of the Bangladeshi state.41 Following that fall, it was not too long before the military intervened. The founding leader of the nation, Bangabandhu Sheikh Mujibur Rahman, was brutally assassinated along with all family members but two daughters on 15 August 1975. The country was put under ‘martial law’ on 19 August 1975 and the Constitution was suspended. The next sixteen years (1975–90) would be a history of extra-constitutional military governments or military-backed civil authoritarian governments. During this period, two military rulers led the two martial law periods, General Ziaur Rahman and General Hossain M. Ershad. The two generals established two political parties, the Bangladesh Nationalist Party (BNP) and the Jatiya Party (JP), respectively. In the late 1980s, there was a wave of popular mobilisations for the restoration of democracy and constitutional politics. The second military ruler since independence, General Ershad resigned as the president on 6 December 1990. Based on an all-party consensus, Ershad appointed Chief Justice Shahabuddin Ahmed as vice-president. Vice President Justice Ahmed took the ofce of president after Ershad resigned. Justice Ahmed was the sitting chief justice of the country who agreed to lead the neutral election-time government (December 1990 to March 1991) on the condition that he would be allowed to return to the judiciary after the elections.42 In February 1991, general elections were held under the caretaker government of Shahabuddin Ahmed, and the country reembraced democracy. The BNP won the elections and formed the government, while the AL became the opposition party. The democratic transition inspired hope that democracy would be consolidated, but that hope soon appeared to be hollow. At the end of the term of the 1991 BNP government, a major political crisis concerning the mode of the next general elections was looming. The opposition AL demanded that the Constitution be amended to adopt the system of a neutral, non-party caretaker government (NPCTG) to ensure free and fair elections

40 See Dilara Choudhury, Constitutional Development in Bangladesh: Stresses and Strains (University Press Limited 1995). 41 Yash Ghai, ‘The Theory of the State in the Third World and the Problematics of Constitutionalism’ in D Greenberg et al. (eds), Constitutionalism and Democracy: Transitions in the Contemporary World (Oxford University Press 1993) 186, 187. 42 See Ridwanul Hoque, Judicial Activism in Bangladesh: A Golden Mean Approach (Cambridge Scholars Publishing 2011) 95–96. See further Ali Riaz, Bangladesh: A Political History Since Independence (IB Tauris 2016); and Taj Hashmi, Fifty Years of Bangladesh, 1971–2021: Crises of Culture, Development, Governance, and Identity (Palgrave Macmillan 2022).

10

Ridwanul Hoque and Rokeya Chowdhury

for the transfer of power.43 The ruling party BNP refuted the demand and proceeded to hold elections under the incumbent government. The AL boycotted the elections held in February 1996. The one-party parliament, thus constituted, passed the 13th Amendment to constitutionalise the NPCTG system and went into dissolution.44 While the NPCTG was the result of a strong constitutional mobilisation by the AL and its allies and the constitutional design innovation resolved the months-long crisis, the parties did not have a chance to deliberate on the details of the design. The principal function of the NPCTG was to ensure ‘fair and free’ national elections.45 The NPCTG was to be in power only for ninety days from the dissolution of one parliament to the formation of the next parliament. The general elections of the 7th parliament were held in June 1996 under the auspices of the newly installed NPCTG, in which the AL won. Elections are due every five years. The next general elections for the 8th parliament under the NPCTG administration were held in 2001, in which the BNP won. A couple of years before the scheduled 2006 elections, the ruling party BNP adulterated the NPCTG system by increasing the retiring age of Supreme Court justices to sixty-seven,46 with the ulterior motive of having the then chief justice (Justice KM Hasan) to lead the NPCTG after his retirement. According to the nowrepealed article 58C of the Constitution, the most recently retired chief justice was to be the first choice as head of the NPCTG. The opposition AL announced that it would not participate in the elections under Justice KM Hasan’s leadership.47 In October 2006, the ruling and the opposition parties failed to reach an agreement on the formation of the soon-to-be incumbent caretaker government. The then president (who was a nominee of the BNP) took the ofce of chief advisor and formed a caretaker government. The AL repudiated the NPCTG established and commenced violent protests and demonstrations.48 As a result, another irreconcilable political crisis emerged. At this juncture, the military ingeniously intervened by forcing the president to resign as the chief advisor and form a new caretaker

43 M Rashiduzzaman, ‘Political Unrest and Democracy in Bangladesh’ (1997) 37(3) Asian Survey 254. 44 The Constitution (Thirteenth Amendment) Act 1996. 45 See, for details, SZ Khan, The Politics and Law of Democratic Transition: Caretaker Government in Bangladesh (Routledge 2017); N Ahmed, Non-Party Caretaker Government in Bangladesh: Experience and Prospect (University Press Limited 2004); and H Zafarullah and MY Akhter, ‘Non-Political Caretaker Administrations and Democratic Elections in Bangladesh: An Assessment’ (2000) 35(3) Govt and Opposition 345. 46 Via the Constitution (Fourteenth Amendment) Act 2004. 47 Justice Hasan was reportedly an ofce-bearer with the BNP before his elevation to the High Court Division as a judge. Also, he was the brother-in-law of one of the alleged killers of Bangabandhu. 48 Ridwanul Hoque, ‘The Judicialization of Politics in Bangladesh: Legitimacy, and Consequences’ in Mark Tushnet and Madhav Khosla (eds), Unstable Constitutionalism: Law and Politics in South Asia (Cambridge University Press 2015) 261.

The fifty years of Bangladesh’s constitutional journey

11

government with advisors recommended by them. The president was also compelled to declare a state of emergency in January 2007. The elections that were due in December 2006 were postponed. The 2007 NPCTG remained in power for two years instead of their constitutional term of three months. This was an extra-constitutional but probably the only desired solution in the context of the intractable constitutional deadlock that crippled the nation. The next general elections were held in December 2008 under the military-backed NPCTG, in which the AL won.49 The NPCTG system, thus, revealed some generic defects. The AL did not announce its position regarding the NPCTG in its 2008 election manifesto. Nor did the 2009 AL government publicly show any apathy against the system. It, however, probably had the plan to abolish the NPCTG. In May 2010, by a 4:3 ‘short order’, the Supreme Court’s Appellate Division in Abdul Mannan Khan v Bangladesh50 declared the 13th Amendment of the Constitution unconstitutional but controversially held that the next two general elections could be held under the NPCTG system.51 The AL government took advantage of the short order in the 13th Amendment Case and rushed towards abolishing the NPCTG system via the 15th Amendment of 2011. This Amendment triggered another constitutional crisis. Now the opposition BNP and its allies declared that they would not participate in the ensuing general elections unless the NPCTG system was reintroduced. The ruling party continued to assert that every election would be held under the incumbent government, as in other ‘developed’ democracies. The next general elections for the 10th parliament, held in January 2014, were virtually one-party elections. The main opposition BNP and its allies boycotted the elections. Unsurprisingly, the ruling party had won it all, while 153 out of 300 general parliamentary seats were elected unopposed. Thus, there was no opposition in the 10th parliament formed after the 2014 elections.52 The next general elections, held on 30 December 2018, were contested by major political parties, but the fairness and democratic credibility of the elections remain widely questioned. The ruling AL and its ally JP had won 293 out of 300 seats. The major opposition BNP, which had won competitive elections twice before (in 1991 and 2001), and its ally secured only seven seats.53 There are reports that the 11th parliamentary elections were anything but free, fair,

49 See Hoque, ibid. 50 (2012) 64 DLR (AD) 1. 51 See further Chapters 6 and 10 in this volume. Abdul Mannan Khan was an appeal from a 2004 decision by the HCD in M Saleem Ullah v Bangladesh (2005) 57 DLR (HCD) 171, which endorsed the NPCTG as constitutional. 52 See Hoque, ‘Judicialization of Politics’ (n 48). 53 See Hoque, ‘The Founding and Making of Bangladesh’s Constitution’ (n 7).

12

Ridwanul Hoque and Rokeya Chowdhury

and competitive.54 Like the 10th parliament, the current 11th parliament does not have any opposition party in any real sense of the term. These recent developments portray a strong sign of Bangladesh’s entry into a hybrid regime of electoral autocracy. Constitutional achievements and innovations Democracy and caretaker government system

One notable achievement of the Constitution is its commitment to representative democracy, although whether democracy has been consolidated or not is a diferent question. Following the country’s re-embracement of democracy in 1991, the competing political parties agreed to restore the parliamentary form of democracy through the 12th Amendment to the Constitution.55 This was a transition from the presidentialism of the 1975–1990 era to parliamentarianism. In furtherance of democracy and with a view to ensuring free and fair elections as the means of transfer of power from one government to another, the nation adopted the NPCTG system as a constitutional design innovation to check incumbency advantage.56 If history is any record, the successive incumbent governments have always manipulated constitutional tools and administrative means to influence and corrupt the electoral system in Bangladesh. Given the confrontational politics in Bangladesh, political scientists and constitutionalists have argued that free, fair, and competitive elections are almost impossible under any incumbent government. The most credible general elections in Bangladesh were those held in 1991, 1996, 2001, and 2008. All these elections were held under the special caretaker government of 1991 or the NPCTG established by the 13th Amendment. The role and significance of a constitutional system of the NPCTG during elections can be best measured by reference to the consequences of the abolition of the system in 2011. Its abolition has ushered in an electoral system enslaved by the incumbent government, and the country has entered the age of electoral autocracy. Beyond achievements coming through constitutional politics, there have been two landmark constitutional achievements, spearheaded by the judiciary: the concept of public interest litigation (PIL) and the idea of ‘unconstitutional

54 See, among others, Sumit Ganguly, ‘The World Should Be Watching Bangladesh’s Election Debacle’, Foreign Policy (7 January 2019) . 55 See further Ahmed, Chapter 10 in this volume. See also MA Hakim, The Changing Forms of Government in Bangladesh: The Transition to Parliamentary System in 1991, in Perspective (Bangladesh Institute of Parliamentary Studies 2000). 56 On incumbency advantage, see Adam Abede, ‘Taming the Incumbency Advantage: Innovative Constitutional Designs from the “South”’ International IDEA Discussion Paper 2/2021 (International Institute for Democracy and Electoral Assistance 2021).

The fifty years of Bangladesh’s constitutional journey

13

constitutional amendment’ (UCA), which is better known as the basic structure doctrine (BSD). These two developments, however, have their downsides. Being the product of judicial decisions, they are quite susceptible to misuse both by the judiciary and the political branches.57 This book does not cover these oft-analysed concepts in individual chapters, but they have been points of reference in several chapters. Public Interest Litigation (PIL)58

The concept of PIL was first adopted by the Appellate Division of the Supreme Court (SCAD) in Dr Mohiuddin Farooque v Bangladesh,59 in which case an environmental organisation, BELA, was granted standing to challenge a flood action project (FAP 21) of the government. Article 102(1) of the Constitution provides that the High Court Division (HCD) of the Supreme Court can issue orders and writs in a judicial review petition made by ‘any person aggrieved’. When BELA challenged FAP 21 on constitutional grounds, the HCD rejected the petition because the petitioner was not a ‘person aggrieved’. On appeal, the SCAD held that any person genuinely espousing the interest of the public can bring a judicial review action. The court reasoned that interpreting the scope of the phrase ‘any person aggrieved’ otherwise would be against the intention of the framers or the purposes of the Constitution including social justice and the rule of law. Following the hard-earned entrenchment of public interest litigation into the country’s legal system in 1996,60 PIL has been increasingly used arguably as a tool of constitutionalism. The PIL has delivered normative social impacts, in addition to holding itself out as a mechanism for executive accountability. It also has transformed the authority of the Supreme Court as the guardian of the Constitution. Initially, PIL’s focus was on collective rights and environmental justice. PIL has, subsequently, extended its folder to cover a wide array of issues such as child health, protection of the homeless (slum-dwellers),61 preservation of public parks or rivers, access to emergency medical support, and public health

57 See, e.g., Manoj Mate, ‘Two Paths to Judicial Power: The Basic Structure Doctrine and Public Interest Litigation in Comparative Perspective’ (2010) 12 San Diego Int’l LJ 175. 58 On PIL generally, see N Ahmed, Public Interest Litigation in Bangladesh: Constitutional Issues and Remedies (Bangladesh Legal Aid and Services Trust 1999); R Hoque, ‘Taking Justice Seriously: Judicial Public Interest and Constitutional Activism in Bangladesh’ (2006) 15(4) Contemporary South Asia 399. 59 (1997) 17 BLD (AD) 1. 60 Unlike in India, the PIL movement in Bangladesh had not been steered by the judges. Rather, the activist lawyers needed to work hard to make the judiciary break away from the colonial jurisprudential inhibitions. 61 On this, now see SMA Naznin, Forced Slum Evictions in Bangladesh: The Role of Structural Injunction as an Appropriate Judicial Remedy (Unpublished PhD Thesis, Macquarie University 2019).

14

Ridwanul Hoque and Rokeya Chowdhury

and hygiene. Yet, these areas fall under the rubric of ‘social justice’, or the common causes of the public in the sense of a social right.62 Environmental justice seems to have drawn the Court’s most intensive attention in PIL challenges. In a long series of cases, the Court has proactively indulged in exercises directed towards the protection of the environment, mostly by issuing innovative remedies such as by requiring the concerned government agency to make rolling reports of progress or by binding the government with specific positive obligations or by framing ‘obligatory’ guidelines. For example, a court action resulted in a string of government actions improving the conditions of four exceedingly polluted rivers surrounding Dhaka,63 with the court more recently recognising the legal personhood of rivers.64 Beginning from the early to mid-2000s, PIL cases of a mixed genre, combining civic/political rights claims and constitutional principles, began to be litigated. The Court acted in PIL cases, for example, to protect judicial independence, promote electoral political culture, ensure the participation of the people in democracy, stop police brutalities, and combat sexual harassment at workplaces and educational institutions. It also acted proactively to check corruption by state agencies. In a high-profile PIL, for example, the Court invalidated the governmental permission granted to a foreign private company to construct a container terminal at the Chittagong Port on the ground of non-transparency in public decision-making.65 In other notable actions, the Court invalidated a local government law for breaching the principle of representative governance, directed the government to establish special courts in the Chittagong Hill Tracts region for the protection of women and children,66 and struck down a provision of the mandatory death penalty for a specific form of aggravated murder.67 Judicial activism in such cases is seemingly motivated by the court’s sense of duty to uphold constitutional supremacy. There have been concerns that PIL has been abused by non-genuine public interest litigants for personal or political gains. There is a long list of instances where PILs were filed for purely political reasons or to litigate a political issue

62 In its formative years, PIL focused on the goal of social justice via the means of enforcing statutory obligations of the government or constitutional rights of citizens such as the right to life. See, for example, Rabia Bhuiyan, MP v Secretary, Ministry of LGRD (2007) 59 DLR (AD) 176 (establishing the right to safe drinking water). 63 Human Rights and Peace for Bangladesh v Bangladesh, WP No. 3503 of 2009, High Court Division, judgment 25 June 2009 (directing the authorities to declare those rivers as ecologically critical areas and to form a river conservation commission). 64 Nishat Jute Mills Limited v Human Rights and Peace for Bangladesh, CPLA 3039 of 2019, Appellate Division, judgment 17 February 2020. 65 Engineer Mahmud-ul Islam v Bangladesh (2003) 23 BLD (HCD) 80. 66 See BLAST v Secretary, Ministry of Law, Justice and Parliamentary Afairs (2009) 61 DLR (HCD) 109. 67 See BLAST v Bangladesh (2015) 1 SCOB (AD) 1 (endorsing BLAST v Bangladesh (2010) 30 BLD (HCD) 194).

The fifty years of Bangladesh’s constitutional journey

15

in the garb of a legal matter. A case filed by a politician in ‘the public interest’, for example, ended up in the de-registration of the Jamaat-e-Islami Bangladesh party.68 The Court dismissed many abusive PILs, while in other cases it was inclined to intervene in or meddle with politics. In the 13th Amendment Case, for example, the SCAD struck down the NPCTG system as illegal and undemocratic, a decision which instead of solving the problem turned out to be a problem itself. Also, the Court in PIL cases has been increasingly undertaking law-making or policy-making exercises. In BNWLA v Bangladesh (2009),69 for example, the Court issued detailed guidelines ‘in the nature of law’ in the context of absence of laws efectively to prevent and punish sexual harassment of women. While the intervention for the protection of women from sexual harassment is plausible, it was not quite right for the Court to engage in such a direct legislative exercise.70 This has been a major shift in the Court’s jurisprudence in the post-emergency (2007–2008) period marked by a judicial attempt to regain public confidence and rebuild its image. With the decline in democratic practices, there has been a noticeable decline in legal and judicial activism via PIL. However, an important development in this field deserves cautious acclamation, which is the Court’s recent willingness to award compensation under its judicial review power.71 Under article 102(1) of the Constitution, the HCD in a judicial review can grant any appropriate remedy to enforce constitutional rights. Compensation for the violation of fundamental rights by state agencies was first awarded by the HCD in Bilkis Akhter Hossain v Bangladesh (1997).72 The Bilkis Akhter reasoning was later afrmed by the SCAD, which, however, overruled the compensation decision.73 The SCAD held that compensation under article 102 could be awarded in case of any ‘gross’ violation of constitutional rights only. Despite this decision, however, the HCD on several occasions entertained

68 See Maulana Syed Rezaul Haque Chadpuri v Bangladesh Jamaat-e-Islami (2014) 66 DLR (HCD) 14. 69 (2009) BLD (HCD) 415. 70 The style and language of the guidelines were somewhat identical to statutory instruments. On this tendency of judicial overreach, see MR Islam, ‘Dissecting Quasi-Legislative Judicial Directives of the Supreme Court of Bangladesh’ in Po Jen Yap (ed), Constitutional Remedies in Asia (Routledge 2019) 138; ‘Judges as Legislators: Benevolent Exercise of Powers by the Higher Judiciary in Bangladesh with Not So Benevolent Consequences’ (2016) 16(2) Oxford U Commonwealth LJ 219. 71 See, for details, Ridwanul Hoque, ‘Public Law Compensation in Bangladesh: Looking Within and Beyond’ (2010) 1(2) J of L and Development 1; and Taqbir Huda, ‘Fundamental Rights in Search of Constitutional Remedies: The Emergence of Public Law Compensation in Bangladesh’ (2021) 21(2) Australian J of Asian L 27. 72 (1997) 17 BLD (HCD) 395. In a 2003 PIL decision in BLAST v Bangladesh (2003) 55 DLR (HCD) 363, the Court for the first time recognised its authority to award public law compensation for violation of human rights but did not grant compensation. 73 Bangladesh v Nurul Amin (2015) 67 DLR (AD) 352.

16

Ridwanul Hoque and Rokeya Chowdhury

ordinary tort claims in the guise of PIL, awarding compensation in what are civil wrongs and not cases of gross violation of fundamental rights.74 In the 2015 case of CCB Foundation v Bangladesh,75 for example, the HCD awarded monetary compensation of BDT 2 million in favour of the family of a 4-year-old boy who met a tragic death in December 2014 in Dhaka when he fell into an abandoned deep tube–well shaft belonging to a government department.76 In this and other cases, the Court did not explain how a gross violation of human rights occurred due to negligence or inefciency of government agencies. Notwithstanding jurisprudential shortcomings, therefore, the judicial practice of enacting compensatory justice in PILs has the potential of holding the administration to account for their constitutional or public law breaches. The Basic Structure Doctrine (BSD)

The BSD or the concept of UCA is based on the proposition that any parliament’s power to amend the constitution is subject to limits in the constitution. The limits can be expressly prescribed in the text (which is the case in Bangladesh since 2011)77 or implicitly built into the constitution. In the latter case, it is the judiciary that undertakes the task of discovering the implicit limits and determining the constitutionality of any given amendment. The Indian Supreme Court authoritatively adopted the BSD in Kesavananda Bharati v State of Kerala (1973),78 where it said that a constitutional amendment that breaches one or more basic structural features of the constitution is liable to be invalidated. The decision discarded the hitherto dilemma about the extent of implicit limits on parliament’s amendment power that was being tested in India since the mid-1960s. The Supreme Court of Bangladesh subscribed to the idea in its 1989 decision in Anwar Hossain Chowdhury v Bangladesh (hereinafter ‘the 8th Amendment Case’).79 In the 8th Amendment Case, the SCAD had struck down part of the 8th Amendment80 that difused the HCD into several regional permanent

74 For a similar trend in other South Asian jurisdictions, see Rehan Abeyratne, ‘Ordinary Wrongs as Constitutional Rights: The Public Law Model of Torts in South Asia’ (2018) 54 Texas Int’l LJ 1. 75 (2017) 5 CLR (HCD) 278 (full judgment in October 2017). 76 See Ridwanul Hoque and Sharowat Shamin, ‘Bangladesh: The State of Liberal Democracy’, in Richard Albert (eds), (2017) Global Review of Constitutional Law (Boston College Clough Center For the Study of Constitutional Democracy 2018). 77 Now see article 7B (inserted via the 15th Amendment of 2011). On Bangladesh’s eternity clause (art. 7B) see Ridwanul Hoque, ‘Eternal Provisions in the Constitution of Bangladesh: A Constitution Once and for All?’ in R Albert and BE Oder (eds), An Unconstitutional Constitution?: Unamendability in Constitutional Democracies (Springer 2018). 78 AIR 1973 SC 1461 (a 7 to 6 decision). 79 (1989) BLD (Special) 1, Justice Afzal dissenting. 80 The other part made Islam the state religion. On the legality of the state religion part of the 8th Amendment, see Shah Alam, ‘The State-Religion Amendment to the Constitution of Bangladesh: A Critique’ (1991) 24(2) Verfassung und Recht in Übersee 209; Ridwanul

The fifty years of Bangladesh’s constitutional journey

17

branches.81 Its reasoning was that the 8th Amendment violated an important basic feature of the Constitution: the unitary character of the state. Later, in 2010 and 2011, the SCAD conclusively declared unconstitutional the 5th, the 7th, and the 13th Amendments. Further later, in 2017, it invalidated the 16th Amendment, which is currently on a review hearing.82 In regard to other constitutional amendments that confronted judicial scrutiny, the Court either endorsed their constitutionality83 or lent them some legitimacy but not necessarily without questioning their legality.84 While the BSD can be instrumental for constitutionalism and constitutional durability, it can also serve as a tool for the subversion of constitutionalism. Scholars are skeptical of the doctrine’s utility because of its ‘intrinsic’ uncertainty85 or the ability to amend the constitution via the judiciary.86 As seen in the constitutional amendment challenges, the BSD has been a vehicle for the politicisation of the judiciary. On the other hand, the Court has mostly used the doctrine for the judicialisation of pure and mega political issues. In the 13th Amendment Case, for example, the SCAD, by invalidating the Amendment, had done ‘the groundwork to enable the political branches to shun the NPCTG system arbitrarily’ via the 15th Amendment.87 The ruling

81

82 83

84

85 86 87

Hoque, ‘Constitutional Challenge to the State Religion Status of Islam in Bangladesh: Back to Square One?’ (27 May 2016) Int’l J. Const. L. Blog (the HCD refused to hear the challenge on the flimsy ground of the petitioner’s lack of standing). The literature on the Bangladeshi perspective includes the following: ME Haque, ‘The Concept of “Basic Structure”: A Constitutional Perspective from Bangladesh’ (2005) 16(2) Dhaka Univ Studies – Part F 123; MJU Talukder and MJA Chowdhury, ‘Determining the Province of Judicial Review: A Re-Evaluation of “Basic Structure” of the Constitution of Bangladesh’ (2008) 2(2) Metropolitan U Journal 161; S Khan, ‘Leviathan and the Supreme Court: An Essay on the “Basic Structure” Doctrine’ (2011) 2 Stamford J of L 89; R Chowdhury, ‘The Doctrine of Basic Structure in Bangladesh: From “Calf-path” to Matryoshka Dolls’ (2017) 14 Bangladesh J of L 43; R Hoque, ‘Implicit Unamendability in Asia: The Core of the Case for the Basic Structure Doctrine’ (2022) 4 Keele Law Rev 90; and K Ahmed, ‘Revisiting Judicial Review of Constitutional Amendments in Bangladesh: Article 7B, The Asaduzzaman Case, and the Fall of the Basic Structure Doctrine’ (2023) 56(2) Israel L Rev 1. See Bangladesh v Asaduzzaman Siddiqui (2017) CLR (AD) (Spl) 1, discussed further later. In some cases, the SCAD declined to invalidate amendments that increased the number of reserved women’s seats in parliament. See Fazle Rabbi v Election Commission (1992) 44 DLR (HCD) 14; Dr Ahmed Hossain v Bangladesh (1992) 44 DLR (AD) 109; and Farida Akhter v Bangladesh (2007) 15 BLT (AD) 206. In a 1981 curious decision, the HCD found the 2nd and 4th Amendments to be violative of ‘essential features of the Constitution’ but refused to invalidate them. See Hamidul Huq Chowdhury v Bangladesh (1981) 33 DLR (HCD) 381. On appeal, the SCAD eschewed the question altogether in Hamidul Huq Chowdhury v Bangladesh (1982) 34 DLR (AD) 190. Nafiz Ahmed, ‘The Intrinsically Uncertain Doctrine of Basic Structure’ (2022) 14(2) Washington Univ Jurisprudence Rev 309. Chowdhury, ‘The Doctrine of Basic Structure in Bangladesh’ (n 81). See also Khan, ‘Leviathan and the Supreme Court’ (n 81). Ridwanul Hoque, ‘The Politics of Unconstitutional Amendments in Bangladesh’ in Rehan Abeyratne and Ngoc Son Bui (eds), The Politics of Unconstitutional Amendments in Asia (Routledge 2022) 228.

18

Ridwanul Hoque and Rokeya Chowdhury

party abused the BSD to gain an incumbency advantage by abolishing the NPCTG system.88 There was arguably deeper politics in inducing the judiciary to rule against the NPCTG. The 13th Amendment decision was a sharply split decision of 4 to 3 judges, with the dissenting judges finding no unconstitutionality in the country-specific institution of ‘unelected’ NPCTG.89 The then chief justice allegedly expedited the hearing and delivered the verdict only eight days before his retirement on 18 May 2011.90 All the three judges who concurred with the chief justice eventually became Chief Justices of Bangladesh.91 By contrast, two of the three dissenting judges, despite each being the most senior judge at the time, were not appointed as chief justice.92 Judicial politics via the use of the BSD is glaringly visible in Bangladesh v Asaduzzaman Siddiqui (2017) (the 16th Amendment Case).93 In this PIL case, the SCAD unanimously declared unconstitutional the 16th Amendment that, in fact, restored an original provision of the Constitution (article 96(2)) providing for the removal of Supreme Court judges by parliament on the ground of proven misconduct. The Court treated the 16th Amendment like any other amendment but provided no or extremely weak reasoning on how the restored article 96(2), which existed in the founding Constitution, could be unconstitutional.94 This was a consequential decision. Because of a comment that the then chief justice made in his opinion, Justice Sinha was forced to leave the country and then resign when he was travelling overseas. Moreover, the government heavily relied on political considerations when appointing judges in the SCAD after the 16th Amendment decision. The principles of constitutional supremacy and popular sovereignty require the judges to apply the doctrine of UCA extremely cautiously and rarely, and only for the cause of preserving the constitutional identity. As recent cases

88 See further AA Khan, ‘The Politics of Constitutional Amendments in Bangladesh: The Case of the Non-Political Caretaker Government’ (2015) 9 Int’l Rev of L 1, 12. 89 As Justice M Imman Ali in dissent observed, ‘the Thirteenth Amendment was neither illegal nor ultra vires the Constitution and does not destroy any [of its] basic structures.’ See Abdul Mannan Khan (n 50) 472. 90 Hoque, ‘The Politics of Unconstitutional Amendments’ (n 87) 223. 91 They are Justices Md Mozammel Hossain, SK Sinha, and Syed Mahmud Hossain. 92 The dissenting judges superseded are Justice Wahhab Mia and Justice M Imman Ali. 93 (2017) CLR (AD) (Spl) 1, endorsing the HCD’s opinion in Asaduzzaman Siddiqui v Bangladesh (2016) Apex Law Reports (HCD) 161. See further R Hoque, ‘Can the Court Invalidate an Original Provision of the Constitution?’ (2016) 2(1) Univ of Asia Pacific J of L and Policy 13; MJA Chowdhury and NK Saha, ‘Advocate Asaduzzaman Siddiqui v. Bangladesh: Bangladesh’s Dilemma with Judges’ Impeachment’ (2017) 3(3) Comp Const & Admin L Quarterly 7. 94 For an analysis supportive of the SCAD’s decision, see Po Jen Yap and Rehan Abeyratne, ‘Judicial Self-Dealing and Unconstitutional Constitutional Amendments in South Asia’ (2021) 19(1) Int’l J of Con Law 127. For a diferent view see MA Sayeed and Lima Aktar, ‘“Constitutional Dismemberment” and the Problem of Pragmatism in Siddiqui: A Reply to Po Jen Yap and Rehan Abeyratne’ (2022) 20(2) Int’l J of Con Law 890.

The fifty years of Bangladesh’s constitutional journey

19

show, there is an increasing judicial tendency to misapply the BSD or the doctrine of UCA in Bangladesh. Constitutional failures and challenges The Constitution proclaims democracy as the mode of governance, emphatically declares the supremacy of the Constitution, mandates the holding of free and fair periodic elections, ensures the separation of powers and judicial review of laws and state actions, guarantees judicial independence, and enumerates civil rights. Despite these ideals of constitutionalism, however, the political and constitutional institutions in Bangladesh remain weak, which is evident, for example, in the existence of a poorly functioning parliament,95 dominated by an omnipotent, self-serving executive. As several chapters in this volume will underline, the instability in constitutional politics, democratic backsliding in recent times, the absence of judicial independence, and the lack of independent fourth-estate institutions such as a functioning election commission or a strong human rights commission, are some failures of the Bangladeshi constitutional order. While the adoption of PIL and the BSD has empowered the judiciary to assert its authority and agency, both the constitutional text and practice have failed to ensure a truly independent judiciary. There has been an increasing trend of politicisation of the judiciary. Despite the enabling constitutional clause, parliament has not yet enacted legislation determining the criteria for appointments to the Supreme Court. As a result, Supreme Court judges continue to be appointed on political considerations.96 Successive governments have indulged in various overt and ingenious means to manipulate the judiciary.97 In particular, the wide and non-transparent political discretion under article 95 of the Constitution in appointing judges to the Appellate Division and in appointing the chief justice has been the vehicle for the politicisation of the judiciary. As the previous narrative testifies, constitutionalism or democracy has never become stable. The biggest constitutional failure seems to be the absence of an institutionalised system of free and fair elections. The existence of an Election Commission as a constitutional body is far less than enough to ensure free and fair elections. The power and leverages at the hands of the ruling party to influence the commission as well as to seriously corrupt the electoral system are the factors behind the said constitutional failure. All general elections held under the incumbent government have been severely unfair, exclusionary, and

95 Nizam Ahmed, The Parliament of Bangladesh (Ashgate 2002). 96 On the appointment process in the Supreme Court, see generally Bangladesh v M Idrisur Rahman (1999) 19 BLD (AD) 203. 97 See Hoque, Judicial Activism in Bangladesh (n 42) 210.

20

Ridwanul Hoque and Rokeya Chowdhury

rigged.98 By contrast, general elections under caretaker governments (1991, 1996, 2001, 2008) were fairer. Logically, therefore, the unilateral abolition of the NPCTG system via the 15th Amendment in 2011 is a notable failure.99 Beyond the free, fair, and multi-party elections, the most important element of governance by consent has been largely absent from the political landscape. This can be exemplified by the tendency of the ruling parties with a convenient majority in parliament to amend the Constitution to serve their narrow and anti-democratic interests.100 The successive ruling parties used constitutional amendments to exclude the opposition, realise incumbency advantage, and deepen the political divide that already exists in the confrontational politics of the two major parties, the AL and the BNP.101 For example, the current ruling party (the AL) enacted the 15th Amendment in 2011 to abolish the system of NPCTG, which was brought to the Constitution in fulfillment of its own demand when the party was in opposition.102 Another example of the enormous power at the hands of a majority government to influence or corrupt elections is the provision of holding elections within the period of ninety days preceding the expiry of the term of parliament.103 This rule means that the members of parliament continue to remain the members during the time of general elections; because of this, they continue to enjoy undue privileges and powers over the other candidates. This provision is arguably an antithesis to the concept of a free and fair election. There is yet another example of abusive constitutionalism, which is the insertion in the Constitution of an eternity clause, article 7B, in 2011. Because of article 7B, a long line of provisions including, for example, all fundamental rights provisions (articles 26 to 47A) and any provisions relating to the ‘basic structures of the Constitution’ have been made unamendable. Such a broad eternity clause, which holds tight the hands of future generations as regards their power to amend the Constitution is arguably unconstitutional.

98 A somewhat exceptional case was the first general election in 1973, although that election too had problems of fairness. The unfairness was limited because there was not any strong opposition party at the time and, hence, the incumbent government did not feel it necessary to corrupt the election. See Bernard Weinraub, Bangladesh Chief Winning by Big Edge, The New York Times (8 March 1973) . See further Hashmi (n 42) 138, noting that there were ‘massive irregularities’ in the 1973 elections. 99 That the 15th Amendment was exclusionary and sufered a problem of legitimacy is evident in the fact that the Bill passed the House amidst an opposition boycott by a 291–1 vote. 100 See further See Ridwanul Hoque, ‘Deconstructing Public Participation and Deliberation in Constitutional Amendment in Bangladesh’ (2021) 21 (2) Australian J of Asian L 7. 101 Hoque, The Politics of Unconstitutional Amendments (n 87). 102 Hoque, ibid. 103 The Constitution, article 123(3).

The fifty years of Bangladesh’s constitutional journey

21

Scope of the book: reflections and hopes Being a celebratory volume, it was particularly challenging for the editors to choose the chapters covering the whole breadth of Bangladesh’s constitutional development. Given that challenge, the book’s scope is innovative in that it does not include standalone chapters on oft-discussed areas such as judicial independence, constitutional basic structure doctrine, and public interest litigation. The volume contains fourteen chapters. Except Chapter 1 and Chapter 14, other chapters are divided into four parts. Part 1 has three chapters. Chapter 2 presents a jurisprudential analysis of the emergence of Bangladesh’s constitutional order and legal system. Here, Nafiz Ahmed analyses Bangladesh’s emergence through the 1971 revolution and the antecedent ‘extra-legal factors’, as an autochthonous constitutional system. Ahmed claims that the emergence of Bangladesh’s legal system can be understood better in light of HLA Hart’s theory of the rule of recognition – the emerged system being ‘the new rule of recognition’. Chapter 3, by Kawser Ahmed, focuses on the legal hierarchy in the national legal system, analysed from the point of view of domestic (Constitution, local laws, and customs) and international laws. Based on an examination of the Constituent Assembly debates, text of the Constitution, and judicial decisions, among others, Ahmed seeks to answer the question of the status of international law in the Bangladeshi legal system and concludes that the constitutional design leaves no doubt that, for implementation, international law is a separate system to the domestic law. In Chapter 4, Muhammad Rezaur Rahman profers a history of the foundational value of secularism. The chapter’s particular focus is on the coexistence of, or the conflict between, secularism and Islam. Secularism remained absent from the Constitution from 1975 to 2011, while Islam was introduced as the state religion in 1988. Since the 15th Amendment in 2011, both secularism and the state religion have been sitting together within the same democratic constitution. Rahman examines this ‘constitutional innovation’ from politicohistorical and theoretical perspectives and makes a call for a new discourse to address the unresolved issues of national identity, secularism, and the role of religions in Bangladeshi society. Part II of the book (Chapters 5 to 7) covers the judicial role in the constitutional dispensation, presenting such matters as the judicial contribution to the rule of law, judicial policy-making, and the role of judicial review in furthering constitutional goals including the separation of powers. Written by the Hon Justice Syed Refaat Ahmed, Chapter 5 is an autobiographical and, hence, unconventional chapter on the concept of rule of law in Bangladeshi constitutionalism. Justice Ahmed in his usual, critical style of scholarship presents the most insightful analyses of major rule-of-law notions such as judicial independence, equality, justice, and the principle of law. He believes that the constant renewal of constitutional content establishes the Constitution as a living and evolving social contract and that the judiciary can play a central role

22

Ridwanul Hoque and Rokeya Chowdhury

in such constitutional growth, to achieve the higher goal of rule of law. Justice Ahmed powerfully concludes that how best constitutional renewals and livingness are achieved ‘depends both on judicial perceptions of rule of law and the position of independence and autonomy of’ judicial actions. In Chapter 6, Md Abdul Halim analyses judicial policy-making in light of the separation of powers. For Halim, the indeterminacy of many provisions of the Constitution presents the judges with a duty to read specific meanings into them. This interpretive function entails judicial policy-making. He argues that policy-making by the Supreme Court has rarely been in line with the principles of constitutionalism. Chapter 7 by Chowdhury Ishrak Ahmed Siddiky is about judicial review, considered vis-à-vis the separation of powers. While Siddiky is generally appreciative of the Supreme Court’s authority via the judicial review power, he is critical of the Court’s role in times of emergencies, military dictatorships, or difcult or over-majoritarian political environments. Based on case laws, especially some constitutional amendment decisions, he thinks that the judiciary in some cases either breached the separation of powers or ‘consciously’ stayed above the fray even when the Constitution was desecrated. Part III sheds light on the authority of the Constitution, by examining the executive role and performance; the role and contribution of parliament, political parties and their constitutional contributions or failures; and the instrumentality of judicial review as a separation-of-powers tool. Chapter 8 by Md Lokman Hossain introduces this part by taking up the issue of constitutional limits and executive accountability. Since the formative years of the Constitution, executive accountability has been one of the most challenging goals to attain. Hossain forcefully argues that the Bangladeshi constitutional design does not reflect a meaningful separation or balance of powers. For him, the relationship between the executive and the legislature is not truly a Westminster form and ‘the founding dream of an independent judiciary remains less than realised’. He thinks that Bangladesh’s current position is not in the democratic terrain but rather is one of a hybrid political system. Hossain’s conclusion is that Bangladeshi constitutionalism has remained fraught with the post-colonial misconception that a strong executive is required in newly independent states such as Bangladesh. In Chapter 9, M Jashim Ali Chowdhury analyses the Bangladesh parliament’s constitutional positioning and contributions. For Chowdhury, Bangladesh’s original constitutional scheme of a Westminster parliamentary system was influenced by the post-colonial elitist political fascination for the British model as well as a desire of the founding fathers to avoid the evils of pre-1971 Pakistani authoritarian presidentialism. As this chapter poignantly reports, Bangladesh’s parliament has been through diferent cycles of constitutional changes from, among others, a democratic beginning to one-party presidentialism, to military dictatorships, and to the ongoing one-party monopoly. Chowdhury thinks that all these changes probably reveal the remarkable resilience of the parliamentary system, despite the deviant constitutional practices.

The fifty years of Bangladesh’s constitutional journey

23

He argues that the decline of principled liberal-conservative bipartisanship in the face of an overtly dominating and dynastic party system has rendered the constitutional design of the parliamentary system a ‘hollow device’ for accountability and constitutionalism in Bangladesh. Chapter 10 analyses the role of political parties under the Constitution with particular reference to the process of constitution-making and amending. This chapter by Nizam Ahmed is a unique chapter in that the constitutional role of political parties has probably not been a subject of constitutional scholarship and analysis before. Ahmed notes that political parties do play a more important role in making and amending the Constitution than is often appreciated. He hails the role of political parties in readopting the parliamentary form of government in 1991 and devising the system of non-party caretaker government (now defunct) in 1996 to ensure the succession of governments. Ahmed, however, forcefully argues that the decline in or the absence of a competitive party political system in recent times, with the emergence of a singledominant party, is ‘antithetical to democracy’. Part IV (Chapters 11 to 13) takes up certain special issues relating to rights such as social and economic rights and their enforceability, women’s constitutional position, and the ideal of social justice. Chapter 11 by Muhammad Ekramul Haque analyses the question of constitutional protection of economic and social human rights that are widely considered unjusticiable across the world. Here, Haque examines the intention of the framers of the Constitution and the relevant judicial interpretations, and concludes that the constitutionmakers never intended these rights to be unenforceable for an indefinite period. Rather, he argues, the framers were of the view that social and economic rights could be made enforceable in the future. He further argues that there are some apparatuses of constitutional protection for the social and economic human rights embedded in the Constitution as state policy principles. Chapter 12, by Psymhe Wadud, seeks to locate women within ‘we, the people’, a term with which the preamble of the Constitution opens. Wadud argues that despite the founding Constitution’s entrenchment of the principle of formal equality, a lack of gender sensitivity permeates the constitutional scheme. This is another unconventional chapter on women’s rights in that its analyses transcend the traditional discourse of discrimination against women. The chapter instead assesses the women’s status in the light of the constitutional promise for their equality in the public realm, based on a scrutiny of the constitution-making process and the relevant jurisprudence. The chapter further argues that the under-representation of women in the political realm violates the meta-constitutional norm of representative democracy. Chapter 13, jointly contributed by Tashmia Sabera and Naveed Mustahid Rahman, analyses social justice within the framework of ‘justice as fairness’. This chapter, thus, supplements Haque’s chapter on social and economic rights. Broadly, Chapter 13 examines the concept of socialism as one of the four founding principles of the Constitution. Sabera and Rahman analyse the constitutional provisions relating to the distribution of

24

Ridwanul Hoque and Rokeya Chowdhury

resources. They conclude that a more robust juridical reading of the social welfare system in Bangladesh is possible and desirable. For them, the relevant provisions centred around the principle of social justice can be used, especially by the Supreme Court, to enforce a much stronger distribution of resources. Ali Riaz’s Chapter 14 is the concluding chapter. Here, Riaz asks a fundamental question of constitutionalism. The question is whether constitutionalism in Bangladesh is interrupted or has been absent from the polity. Insightfully, Riaz underlines a divergence between the Constitution and politics, a trend that is discernible from the multiple phases of the nation’s constitutional journey since 1972. For him, despite the Constitution’s express commitment in this regard, popular sovereignty has been denied through various means and representation of people circumscribed via the manipulated electoral process on various occasions. He concludes that every system of government tried and practised in Bangladesh, including the prime ministerial system, has been used to create the opportunity for the emergence and practice of authoritarianism by way of abusing the Constitution. The results of the practice of abusive constitutionalism have been the absence of checks and balances on the executive, the creation of a pliant legislature and practice in politics, the absence of judicial independence, and the rule by law instead of the rule of law. Conclusions: what’s in the future’s vault? On a positive note, the history of Bangladesh’s Constitution presents a unique case of constitutional endurance or resistance. Despite many attacks on the Constitution, both by political and non-political forces, it has survived. Even the military juntas did not overthrow the nation’s charter; they simply postponed it during their regimes. This narrative of constitutional resistance, however, quite studiously suppresses the truth. The truth is that there were a couple of constitutional replacements or dismemberments in the sense that essential features of the Constitution – concerning its identity – were imputed.104 The first major constitutional dismemberment appeared in 1975 when the 4th Amendment switched from a multi-party democracy to a one-party state. The other major dismemberment was during the two martial law periods (broadly from 1975 to 1990) when the country was governed largely by the dictates of the military rulers and the martial law regulations were given a place over the Constitution. When the Constitution was called back to operation during the military regimes, it was a scenario of a constitution without constitutionalism. All these constitutional dismemberments left deleterious impacts on Bangladesh’s constitutionalism as we see it today.

104 On this idea, see Richard Albert, ‘Constitutional Amendment and Dismemberment’ (2018) 43(1) Yale J of Int’l L 1.

The fifty years of Bangladesh’s constitutional journey

25

As the chapters in this volume portray, in the past fifty years of the nation’s constitutional journey (1972–2022), both governance and politics have often veered away from the ideals of the Constitution. The concluding chapter by Ali Riaz has seen this divergence between the founding ideals and the current politics through a critical lens, arguing that constitutionalism has remained ever elusive in Bangladesh. Instead of a deliberative and parliamentary form of democracy, Bangladesh has recently graduated to a nominal or sham democracy. Defying the promise of its transition to democracy in 1991, Bangladesh began to embrace democratic decline soon after the reestablishment of parliamentary democracy via the 12th Amendment. All power began to be concentrated at the hands of the prime minister. This emergence of an overwhelming executive is analysed in several chapters in this book. Democratic backsliding in recent years has been so drastic that it is hard to see any traces of the democratic constitutional identity.105 Particularly, since after the general election of 2014, which was avoided by all major opposition parties, Bangladesh started transitioning to autocracy, and, in the aftermath of a massively rigged election in 2018, the country is a truly hybrid regime now.106 These developments have been analysed and highlighted in several chapters. The current regime (especially since 2013) is sufering from a serious problem of the absence of respect for human rights and dignity, which aspect is not covered in this volume though. The future of Bangladesh’s Constitution really depends on how it can lend its agency to mend confrontational politics by providing a guarantee of fair and free national elections. The current and longest-ever constitutional crisis is rooted in the ability of the ruling party to influence and corrupt the electoral system. The electoral system has been unrecognisably engineered in recent years to suit the desire of the ruling party. Apart from the challenge of holding competitive, free, and fair elections, there remains the continuing challenge of consolidating democracy and building democratic institutions in Bangladesh.

105 On democratic backsliding, see further Ali Riaz, ‘The Pathway of Democratic Backsliding in Bangladesh’ (2021) 28(1) Democratization 197. 106 See Ali Riaz, ‘Voting in a Hybrid Regime Explaining the 2018 Bangladeshi Election’ (2020) 12(2) Asian Politics & Policy 251; and A Riaz and S Parvez, ‘Anatomy of a Rigged Election in a Hybrid Regime: The Lessons from Bangladesh’ (2021) 28(4) Democratization 801.

Part I

The founding of the Constitution, competing legal norms, and identity building

2

The emergence of Bangladesh’s legal system Revolutionary legality and a new rule of recognition Nafiz Ahmed*

Introduction To provide an account of the emergence of the legal system of Bangladesh, we must take a philosophical approach and a historical approach. Other scholars have adequately given historical accounts of the emergence of Bangladesh from a legal perspective.1 This chapter does not spill more ink looking at the detailed history of the emergence of Bangladesh’s legal system (BLS). It is a philosophical investigation into the emergence of the BLS. It lays down a very brief narrative of the most significant events needed to provide a descriptively adequate explanation of how the legal system of Bangladesh came into existence. This chapter explains how the BLS gained its normative force. Anyone remotely familiar with Bangladesh knows about the glorious and bloodstained revolution that gave birth to it. Bangladesh created an autochthonous legal system through a nine-month-long war and years of political struggle predating the war. In Anwar Hossain Chowdhury v Bangladesh,2 the Appellate Division of the Supreme Court of Bangladesh (AD) rightly held as follows: Ours is an “autochthonous” constitution. “Autochthony” in its most common acceptance is the characteristic of a Constitution[,] which has been freed from any trace of subordination to and any link with the original authority of the Parliament of the foreign power that made it. The

* The author thanks Matthew Kramer for his detailed comments on an earlier draft of this chapter and Lars Vinx for his valuable advice. He is grateful to the editors for their kind invitation and comments. The author appreciates his friends Sajid Hossain for proofreading the chapter and Emraan Azad for recommending some essential readings. The author fondly remembers the conversations he had with his late father, Nasir Uddin Ahmed, about the formation of Bangladesh. 1 See Ridwanul Hoque, ‘The Founding and Making of Bangladesh’s Constitution’ in Kevin YL Tan and Ridwanul Hoque (eds), Constitutional Foundings in South Asia (Hart Publishing 2021) 91–119; Abul Fazl Huq, ‘Constitution-Making in Bangladesh’ (1973) 46(1) Pacific Afairs 59; Kamal Hossain, Bangladesh: Quest for Freedom and Justice (University Press Limited 2013); Muhammad Ekramul Haque, ‘Formation of the Constitution and the Legal System in Bangladesh From 1971 to 1972: A Critical Legal Analysis’ (2016) 27(1) Dhaka University Law Journal 41. 2 (1989) 41 DLR (AD) 165. DOI: 10.4324/9781003276814-3

30

Nafiz Ahmed aim is to give . . . a constitutional instrument the force of law through its own native authority. A factual autochthony is generally achieved after a revolution.3

A philosophical/theoretical account of how the Bangladeshi legal system came about must be able to explain its autochthonous character. Unlike some postcolonial states, the Constitution of Bangladesh did not gain its legitimacy from the Constitution of Pakistan or the Westminster Parliament. Instead, Bangladesh’s Constitution and legal system emerged through a revolution. A revolution occurs when a new system replaces the previous system.4 An account of revolutionary legality must answer how the existing legal system discontinues after a revolution and a new legal system emerges. As there are multiple conflicting theories of how a legal system emerges through a revolution, this chapter first finds out the best theory of revolutionary legality. After deciding which theory best explains revolutionary legality, this chapter examines the historical facts of the creation of Bangladesh in light of that theory. One possible way of explaining the emergence of the BLS may be through the Kelsenian model of the grundnorm. Courts have often cited Hans Kelsen’s theory to explain revolutionary legality.5 Harris wrote that Kelsen’s theory “licensed the judges in the revolution cases – or so they [Judges] held – to accept the legality of the successful revolutions occurring in their respective countries, without entering the political arena.”6 However, this chapter argues that Kelsen’s theory fails to describe how an autochthonous legal system comes about. Instead, the emergence of an autochthonous legal system can be best described through HLA Hart’s theory. This chapter argues that through the 1971 revolution, the rule of recognition of then East Pakistan was replaced by a new rule of recognition which gave birth to Bangladesh’s autochthonous legal system. Kelsen on revolutionary legality Grundnorm

Before discussing how Kelsen explained the concept of revolutionary legality and the emergence of a new legal system, it is useful to briefly introduce Kelsen’s Pure Theory of Law and his idea of grundnorm (basic norm). In his

3 ibid, para 55. 4 John Finnis, Philosophy of Law: Collected Essays, vol 4 (Oxford University Press 2011) 407. 5 See JW Harris, ‘Where and Why Does the Grundnorm Change?’ (1971) 29(1) Cambridge Law Journal 103; The State v Dosso (1958) 2 Pakistan S.C.R. 180; Bangladesh Italian Marble Works Ltd. v Bangladesh (2010) 62 DLR (HCD) 70. In Bangladesh Italian Marble, the Court remarked that the grundnorm theory can be used to explain revolutionary changes in a legal system but not as a precedent or justification for recognising a revolution [at para 580–84]. 6 Harris (n 5) 104.

The emergence of Bangladesh’s legal system

31

philosophical journey, Kelsen set out to explain the unity and normativity of legal systems and considered the existence of the grundnorm indispensable in explaining them.7 Kelsen’s theory has two axioms that he considered to be self-evident, not requiring any justifications.8 The first axiom is that “two laws, one of which directly or indirectly authorises the creation of the other, necessarily belong to the same legal system.”9 The second axiom is that all the laws are validated directly or indirectly by one law in a legal system.10 If the same supra-law authorises the creation of two laws, they belong to the same legal system. In other words, for two laws to exist in the same legal system, one must authorise the creation of the other, or both must be created under the same (superior) law. If two laws fail to meet the demands of the two axioms, according to Kelsen, they cannot belong to the same legal system. Through the two axioms, Kelsen tried to provide an authoritative criterion to determine whether a legal rule belongs to a certain legal system. Thus, according to Kelsen, a law is valid in a legal system only if it is created by a higher law. Kelsen realised that the second axiom of his theory is flawed as an empirical generalisation. This is because there are legal systems where the written constitution does not provide for the legal validation of customs. Nevertheless, in those systems, customs may act as a valid source of law. For those legal systems, the second axiom of Kelsen’s theory is untrue as the constitution and customs exist as parts of the same legal system even though the same law does not authorise their creation.11 To deal with this problem, Kelsen argued that in each legal system, a non-positive law exists that authorises the creation of fundamental constitutional laws.12 The existence of such a non-positive law does not depend on the law-making action of any organ of the state. Instead, to Kelsen, such a law is a logical necessity to make sense of the legal system. Kelsen called this law the grundnorm or the basic norm/law. To Kelsen, the grundnorm is a presupposition or hypothesis in juristic thinking and not a sociopolitical phenomenon.13 He argued that the grundnorm is something that is logically necessary to explain the unity of a legal system.14 The nature of the grundnorm often confuses those who fail to read Kelsen’s work through a philosopher’s eyes. A grundnorm cannot be read with the same specs used to read positive laws. The Appellate Division (AD), on multiple

7 Joseph Raz, ‘Kelsen’s Theory of the Basic Norm’ (1974) 19(1) American Journal of Jurisprudence 94, 94–95. 8 ibid 95. 9 ibid. 10 ibid. 11 For a detailed discussion, see Hans Kelsen, General Theory of Law and State (Harvard University Press 1945) 126. 12 Raz (n 7) 95. 13 Hans Kelsen, ‘On the Pure Theory of Law’ (1966) 1(1) Israel Law Review 1, 6; Harris (n 5) 106. 14 Harris (n 5) 117. Kelsen saw jurisprudence as a scientific study of the law.

32

Nafiz Ahmed

occasions, misread Kelsen’s theory. For instance, in Anwar Hossain Chowdhury, the majority court observed that “an amendment of the Constitution is not a grundnorm because it has to be according to the method provided in the Constitution.”15 Here, the Court defined the grundnorm as a positive law.16 The majority in Anwar Hossain Chowdhury considered the original Constitution to be the grundnorm. However, as already discussed, the Constitution itself and alone cannot be the grundnorm of Bangladesh because the grundnorm must authorise the creation of the Constitution. Theoretically, we cannot discount the possibility of the existence of a legal system where a constitution is the only grundnorm. There can, however, be a legal system that consists only of laws validated by the constitution and where no customary norms are recognised as valid law. There may also be a legal system where customary constitutional norms can be the grundnorm. In a complex modern legal system like Bangladesh, the grundnorm cannot solely be the provisions of the Constitution, because, as argued in this chapter, there would be a grundnorm that authorised the creation of Bangladesh and its Constitution following a revolution. To understand what the content of a grundnorm may look like, let us consider an example of the probable grundnorm in the United Kingdom. Harris argues that in the United Kingdom “there are at least two sets of norms” (grundnorm) that “authorise the creation of general norms.”17 One such norm is that “coercive acts ought to be applied in accordance with statutes” enacted by parliament, and the other norm is that “coercive acts ought to be applied in accordance with judge-made rules.”18 To illustrate the nature of “authorising constitutional norm” generally, he described the grundnorm in the UK as the norm that “coercive acts ought to be applied only under the conditions and in the ways customarily recognised as constitutional from time to time by the population at large.”19 To explain Kelsen’s view of a legal system with a written constitution, Harris wrote as follows: . . . the formula expressing grundnorm is stated thus: “Coercion of man against man ought to be exercised in the manner and under the conditions determined by the historically first constitution.” The grundnorm of any given national order must apparently be found, in terms of this formulation by substituting for the words “the historically first constitution” some words by which the written constitution now in force can be identified, such as “the constitution of the Fifth Republic” in the case of contemporary France. But that there is no shift in theory on this point

15 Anwar Hossain Chowdhury (n 2) para 218. The same argument was made by the AD in Bangladesh v Sontosh Kumar Shaha (2016) 13 ADC (AD) 853, para 68, where the Court cited the exact words of the Anwar Hossain Chowdhury judgment. 16 ibid. 17 Harris (n 5) 109. 18 ibid. 19 ibid 111.

The emergence of Bangladesh’s legal system

33

between the two works is made clear when, later in The Pure Theory of Law, we read that, where a basic norm is presupposed in the case of a consciously created constitution, the individuals who created it “are looked upon as norm-creating authorities.”20 The content of the grundnorm of a legal system with a written constitution may state that the first constitution made by the framers ought to be followed. For logical necessity, it must be assumed that the grundnorm authorised the framers of the first constitution to enact the constitution. However, Kelsen generally distinguished between two types of constitutions: written constitutions and customary constitutions. For a constitution that has both a written and a customary part, the grundnorm must be understood to perform two functions: authorising the framers to enact a written constitution and authorising the citizens to create from time to time “a material constitution by custom.”21 Change in the grundnorm

Revolutionary legality may be accounted for by claiming that a revolution changes the existing grundnorm. According to Kelsen, a revolution “occurs whenever the legal order of a community is nullified and replaced by a new order in . . . a way not prescribed by the first order itself.”22 It may, therefore, be argued that since the grundnorm is the ultimate rule of validity in a legal system, a legal system ceases to exist, and a new legal system is created whenever the grundnorm changes. The content of a legal system’s grundnorm may provide for mechanisms through which the grundnorm can be changed without a revolution. However, non-revolutionary changes to the grundnorm are beyond the scope of this chapter. If a Kelsenian account of revolutionary legality is to be accepted, it should be able to explain when and how the grundnorm changes. It can be recalled that the grundnorm is a hypothetical norm that Kelsen thought is necessary to explain the unity of a legal system. The grundnorm of a legal system is changed when jurists make new logical assumptions about it. As Harris explained: Being merely a hypothesis of juristic thinking, the grundnorm does not change the moment the revolutionaries shoot the King. It cannot change until jurists change their thinking, that is, until lawyers begin to make post-revolutionary assertions to the efect: “The law in the country now is . . .,” where “now” refers to some revolutionary established source of law.23

20 21 22 23

ibid 110. ibid 116. Kelsen (n 11) 117, as cited in Finnis (n 4). Harris (n 5) 117.

34

Nafiz Ahmed

So, the grundnorm changes when jurists presuppose the existence of a diferent basic law than before that authorises the creation of constitutional law. Once jurists start giving primacy to a new ultimate source of legal validity in their logical arrangements, the grundnorm changes. In a legal system with a written constitution, the grundnorm can be said to have changed through a revolution when “jurists begin to deduce laws from some newly promulgated constitution.”24 The grundnorm would then refer to the act of the framers (or fathers) of the new constitution to ground the normativity of the laws of that system. For the presupposition of a new grundnorm by jurists, an element of efcacy is also necessary.25 According to Kelsen, a grundnorm “can only establish a law-making authority whose norms are, by and large, observed, so that social life broadly conforms to the legal order based on the hypothetical norm.”26 Kelsen argued that the grundnorm must refer to the authority of a person or body of persons whose law-making actions have efective coercive force. A legal order is considered efective when the legal rules of that order are generally obeyed, and disobedience leads to coercion. A new grundnorm cannot be presupposed if an efectively coercive social order does not exist. So, jurists may only make presuppositions about a new grundnorm when such presupposition is necessary to interpret efective legal norms within the relevant territory as a consistent field of meaning.27 Flaws of the Kelsenian model The Kelsenian model of revolutionary legality has some apparent defects. The primary problem is with the idea of a grundnorm. It is difcult to accept that a revolution occurs when the grundnorm changes because the grundnorm is a hypothetical norm. Kelsen did not claim that the grundnorm exists as a social or political fact. Instead, Kelsen argued that presupposing a grundnorm is the only way to interpret the legal system as a consistent field of meaning. To Kelsen, presupposing the existence of a hypothetical basic norm was the only way to understand the unity of the law. We do not have to presuppose the existence of a hypothetical basic norm if an actual rule exists in a society that can explain the unity in its legal system. However, the unity of a legal system can be explained through Hart’s rule of recognition.28 The rule of recognition exists as a social fact. Since a more descriptively adequate account of legality is available, Kelsen’s theory of a hypothetical basic law must be rejected. Another problem with the Kelsenian model is that a grundnorm is presupposed after an efective legal system starts to exist. How a legal order emerges cannot be explained through the emergence of a fresh grundnorm. One

24 25 26 27 28

ibid 118. ibid 119. Hans Kelsen, The Pure Theory of Law (Max Knight trans., University of California Press 1967). Harris (n 5) 119. The rule of recognition is discussed at length in a later section.

The emergence of Bangladesh’s legal system

35

cannot claim that an autochthonous legal system emerged with the change of the grundnorm since the grundnorm can only be presupposed after the legal system has emerged. However, it may be argued that an autochthonous legal system emerges simultaneously with a new grundnorm. Jurists may, however, make new presuppositions regarding the grundnorm after a new legal system emerges, and such presupposition would be retroactive. The Kelsenian model is also vulnerable to attacks for its unnecessary emphasis on the “historically first constitution.” Kelsen thought that an inquiry into the validity of the constitution might lead us to “discover an older constitution; that means the validity of the existing constitution is justified by the fact that it was created according to the rules of an earlier constitution by way of a constitutional amendment.”29 Kelsen continued: In this way[,] we eventually arrive at a historically first constitution that cannot have been created in this way and whose validity, therefore, cannot be traced back to a positive norm created by a legal authority; we arrive, instead, at a constitution that became valid in a revolutionary way, that is, either by breach of a former constitution or for a territory that formerly was not the sphere of validity of a constitution and a national legal order based on it.30 Finnis noted that the quoted passage from Kelsen creates ambiguity in his account of how former imperial territories obtained their independence.31 If reference to the historically first constitution is made, that first constitution will retain some legal validity in a new legal system. Emphasis on the historically first constitution undermines the independence of the newly emerged legal system. This is highly undesirable for an autochthonous legal system as it does not depend on any previous constitutions for its validity. Another problem with the Kelsenian model is that Kelsen seems to have suggested that the content of the grundnorm is inherently moral. It is apparent from his suggested formulation of the content of the grundnorm that one ought to act as the historically first constitution prescribes.32 However, it is not necessary for the content of the ultimate rule of validity to be inherently moral. One may subscribe to a legal system for various pragmatic reasons that are far from moral.33 Hart’s rule of recognition A better account of the emergence of a new legal system from a revolution can be found in Hart’s rule of recognition. To explain how a legal system is formulated,

29 30 31 32 33

Kelsen (n 26) 200. ibid. Finnis (n 4) 413–414. Harris (n 5) 110. See Matthew H Kramer, H.L.A. Hart: The Nature of Law (Polity Press 2018) 159–162.

36

Nafiz Ahmed

Hart in chapter V of his Concept of Law34 provided the example of what he called a regime of primary rules or unofcial rules.35 A regime of primary rules is a society without any legal institutions. This is a society where human conduct is guided only by rules of custom, or what Hart called primary rules (rules which impose duties on the members of the society).36 Hart argued that a regime of primary rules would have some deficiencies in its social control mechanism. It would not have, inter alia, any authoritative way of identifying what rules count as valid rules of that society. Hart noted that in a regime of primary rules, If doubts arise as to what the rules are or as to the precise scope of some given rule, there will be no procedure for settling this doubt, either by reference to an authoritative text or to an ofcial whose declarations on this point are authoritative.37 Hart called this defect of a regime of primary rules its “uncertainty.”38 Hart argued that the defects of a regime of primary rules could be remedied only through the introduction of secondary rules, which are diferent from primary rules of obligation.39 Once the defects of the regime of primary rules are remedied through the secondary rules, the union of these two types of rules creates a legal system.40 Hart wrote, [Secondary rules] may all be said to be on a diferent level from the primary rules, for they are all about such rules; in the sense that while primary rules are concerned with the actions that individuals must or must not do, these secondary rules are all concerned with the primary rules themselves. They specify the ways in which the primary rules may be conclusively ascertained, introduced, eliminated, varied, and the fact of their violation conclusively determined.41 According to Hart, introducing an authoritative and ultimate rule of validity would remedy the defect of uncertainty. This ultimate rule of validity would be a secondary rule. Hart called this ultimate rule of validity “the rule of recognition.”42 The rule of recognition provides an authoritative criterion for

34 HLA Hart, The Concept of Law (Joseph Raz and Penelope A. Bulloch eds, 3rd edn, Oxford University Press 2012). 35 This example must not be seen as an anthropological study, but rather as a thought experiment that Hart ofered to “stimulate reflection on the crucial functions that are performed by secondary norms [norms about norms].” Kramer (n 33) 71. 36 Hart (n 34) 91. 37 ibid 92. 38 ib. 39 ibid 94. 40 ib. 41 ib. 42 ib.

The emergence of Bangladesh’s legal system

37

the identification of all valid legal rules. When a rule of recognition exists in a society, a primary rule is a valid rule only if it fulfills the requisites of the rule of recognition. The rule of recognition will “specify some feature or features possession of which by a suggested rule is taken as a conclusive afrmative indication that it is a rule of the group to be supported by the social pressure it exerts.”43 The rule of recognition can be said to exist in a society on the condition that such a rule is, as a matter of social fact, used by ofcials, judges, lawyers, and private persons to identify the legal rights and obligations of that society’s members. A rule of recognition can be uncovered by observing where a society’s ofcials, judges, lawyers, etc., look while trying to find the law. A rule of recognition may take many diferent forms, and the complexity of a rule of recognition would depend on the complexity of the relevant legal system. Unlike Kelsen’s grundnorm, the rule of recognition is not a hypothetical rule. Hart argued that the rule of recognition exists in society simply as a social practice.44 The existence of the rule of recognition is a matter of social practice in the same manner as the existence of primary rules in a regime of primary rules. As mentioned previously, a rule of recognition exists in the practice of society’s lawyers, ofcials, judges, and even private persons. They use the rule of recognition to identify the valid rules of society. For example, if in the legal system “L”, the rule of recognition is whatever the Assembly of citizens decides is law, that law of the Assembly would be the rule of recognition of “L” because the ofcials (judges, lawyers, and so on) as a matter of fact would look into the decisions of the Assembly to locate valid laws. Hart’s writings often confuse readers to think that all members of a society play a role in recognising a rule as the ultimate rule of validity.45 It is quite implausible to know what all members of a society consider to be the rule of recognition, especially in a complex modern legal system. In efect, only lawyers, judges, and ofcials use it to ascertain the content of the law in a modern legal system. Being aware of the complexities of a modern legal system, Hart noted that the addressees of a rule of recognition are the legal ofcials (this includes government ofcials).46 The conduct and attitudes of legal ofcials are the constitution of the rule of recognition.47 As Hart wrote, There is, of course, a diference in the use made by courts of the criteria provided by the rule and the use of them by others: for when courts reach a particular conclusion on the footing that a particular rule has been correctly identified as law, what they say has a special authoritative status conferred on it by other rules.48

43 ibid. 44 ibid 110. 45 As pointed out by Kramer (n 33) 79, Dworkin was guilty of such a misreading. See Ronald Dworkin, Law’s Empire (Hart Publishing 1998) 34–35. 46 Kramer (n 33) 79. 47 ibid. 48 Hart (n 34) 101–102.

38

Nafiz Ahmed

Since the rule of recognition imposes law-ascertaining duties and confers powers to perform those duties on legal ofcials, a rule providing the criteria of legal validity will become the rule of recognition of a society when the legal officials accept that rule as the ultimate source of validity. However, it is perfectly conceivable that simpler societies may exist where the rule of recognition is addressed to all the members of society. A new rule of recognition can be said to have been introduced in society if legal ofcials of that society accept that rule of recognition. In other words, for a rule of recognition to be existing, legal ofcials must take an “internal point of view” to that rule. Taking an internal point of view towards a rule means accepting that rule as the normative standard for behaviour. As Kramer noted: The internal point of view is that of a person who participates in some practice or activity of [the] institution. Such a person seeks to uphold the duty-imposing norms of the practice or activity or institution, by adopting the critical reflective attitude in relation to them.49 One can be said to have taken an internal point of view to rule “R” if – she uses “R” as a normative standard for her behaviour, criticises others for deviation from standards of “R”, and considers criticism to be justified if others criticise her for deviation from standards of “R”.50 According to Hart, a legal system would emerge when legal ofcials of a given society take an internal point of view to a rule of recognition. If the rule of recognition ceases to exist, the legal system will cease to continue. Since a revolution occurs when a new system replaces an old system, it can be said that when a new rule of recognition replaces the old rule of recognition through revolution, the previous legal system is replaced by a new legal system. A change in the rule of recognition changes the identity of the legal system. This new rule of recognition does not need to obtain legal validity from any other laws. It exists as a matter of social practice. Accepting this account would not require us to refer to any previous constitution or basic norm to find legality in the new legal system. Hart’s rule of recognition is a fit theory to explain how an autochthonous legal system emerges. Since the legality of all rules can be assessed through the rule of recognition, the rule of recognition is capable of explaining the unity in a legal system. Emergence of the BLS The legal system of Bangladesh emerged when the rule of recognition changed in 1971. Previously, Bangladesh (known as East Pakistan before 1971) was a part of Pakistan from 1947 until 1971. Before 1947, Bangladesh was a British

49 Kramer (n 33) 62. 50 Hart (n 34) 89–90.

The emergence of Bangladesh’s legal system

39

colony. Through the Indian Independence Act 1947, British India was divided into two separate nations, namely, India and Pakistan.51 Present-day Bangladesh was the then East Wing of Pakistan and was separated from its West Wing by 1,200 (twelve hundred) miles of Indian territory. Bangladesh’s time with Pakistan was plagued with constitutional problems as the country struggled to establish a democratic form of government.52 The leaders and the general people of Bangladesh demanded autonomy from the very inception of Pakistan.53 The Pakistani government’s (often military juntas) continued reluctance to give autonomy to Bangladesh and the lack of respect for the dignity of its people resulted in sustained and protracted movements demanding independence, leading to the eventual emergence of Bangladesh as a sovereign nation.54 In December 1970, the military government of Pakistan held a general election where the Awami League,55 which led the movements for Bangladesh’s autonomy, won all but 2 of 169 seats in Pakistan’s national parliament that were allocated to the then East Wing. The December elections were called for electing a Constituent Assembly for framing the Constitution of Pakistan (subject to the conditions and approval of the military junta).56 The Awami League had won 167 in a house of 313 seats and formed the majority in the assembly.57 This is the most significant period for the creation of the BLS. The military government showed continuous reluctance to hand over power to the elected representatives and repeatedly postponed the transfer of power. However, the people of Bangladesh accepted their elected representatives as their valid representatives with the power to form the government and frame a constitution. The elected representatives formed themselves into the Constituent Assembly for independent Bangladesh in a revolutionary way and were self-empowered to enact the Constitution.58 The illegality in delaying the transfer of power resulted in a rejection of the military government in March 1971. On 1 March 1971, the military government declared that the summoning of the National Assembly would be

51 For detailed discussion on the partition of India, see, Anita Inder Singh, The Origins of the Partition of India 1936–1947 (Oxford University Press 1987) 203–217. 52 See Hoque (n 1) 94. 53 ibid. 54 For a detailed discussion, see Hoque (n 1) 92–100. 55 Formerly known as East Pakistan Awami Muslim League and later East Pakistan Awami League (from 1955). Awami League was an East Pakistan–based secular political party. For details about the Awami League in the 1970s, see, M. Rashiduzzaman, ‘The Awami League in the Political Development of Pakistan’ (1970) 10(7) Asian Survey 574. 56 Sharif al Mujahid, ‘Pakistan: First General Elections’ (1971) 11(2) Asian Survey 159, 161. 57 Hossain (n 1) 65. 58 See the Proclamation of Independence, which stated as follows: “We the elected representatives of the people of Bangladesh, as honour-bound by the mandate given to us by the people of Bangladesh whose will is supreme duly constituted ourselves into a Constituent Assembly.” For the Proclamation of Independence, see the Constitution of Bangladesh, schedule 7.

40

Nafiz Ahmed

postponed to a “later date.”59 This declaration gave rise to public outrage and even the legal ofcials (in the sense of Hart’s theory) walked out of their ofces after the announcement by the military government. Hossain described the event of 1 March 1971 in the following words: Government employees began to walk out of the Secretariat and other government ofces; banks, insurance, and other commercial concerns were emptying out. A cricket match was on at the stadium; as soon as the spectators heard the radio announcement [made by the military government], they stormed out of the stadium. The students were already out in the streets in spontaneous demonstrations, shouting slogans of Joy Bangla [which translates to “victory of Bengalis”], and Bir Bangali osthro dhoro, Bangladesh shadhin koro [which translates to “Brave Bangalis take up arms, liberate Bangladesh”].60 The public outrage demonstrated by the people of Bangladesh showed the support the elected representatives had. After the announcement of 1 March 1971, the Awami League called for a non-cooperation movement. They directed the people of Bangladesh not to cooperate with the military government. Bangabandhu Sheikh Mujibur Rahman, the leader of the Awami League, in his statement, declared, “It is the sacred duty of each and every Bangalee not to cooperate with anti-people forces and indeed do everything in their power to foil the conspiracy against Bangladesh.”61 It is to be noted that Bangabandhu used the term Bangladesh, not East Pakistan. His call for non-cooperation was met with widespread acceptance. The non-cooperation movement shows that the people of Bangladesh, especially the legal ofcials accepted (took an internal point of view towards) the directions of the elected representatives. The Awami League started publishing central directives that were followed by the legal ofcials. This claim will become evident from a few examples. The first directive issued by the Awami League called for a province-wide strike in all sectors, including government ofces and courts (except for some emergency services), which was met with total compliance.62 Hossain described this event by noting that “the response to the call for non-cooperation was total. Nothing moved. Ofces, courts, and industries came to a total halt.”63 Even the curfews imposed by the military government were systemically defied by the people.64 The senior civil servants expressly declared their collective support to the elected representatives.65

59 60 61 62 63 64 65

Hossain (n 1) 79. ibid 80. ibid 82. ibid 84. ib. ib. ibid 86–87.

The emergence of Bangladesh’s legal system

41

Government ofces and banks started following the directions of the Awami League and began to look to their directions to locate valid laws.66 So, the people, including legal ofcials, started to take an internal point of view towards the directions of the elected representatives rather than the military government. In March 1971, thus, the elected representatives assumed the functions of a de facto government of the time. Elected representatives and senior civil servants started meeting daily and continued to issue governance directives.67 A group of Awami League members, selected by Bangabandhu (the leader of the elected party), and senior civil servants became the nucleus of the administration in the then Eastern Wing of Pakistan.68 The railways and ports started to function according to the directions of elected representatives.69 Even the Bangali civilian ofcials working in the defence force sought directions from the elected leaders.70 On 7 March 1971, in a public speech delivered in the presence of about one million people, Bangabandhu called for the independence of Bangladesh.71 The events of March 1971 show that the legal ofcials rejected the orders of the military government and accepted the directions of the elected representatives.72 On 26 March, Bangabandhu in a short message declared Bangladesh to be an independent country from thence. In the early hours of 26 March, the war of independence began. The elected representatives as a collective body issued a Proclamation of Independence on 10 April 1971 but with retrospective efect from 26 March 1971, ofcially declaring Bangladesh’s independence. Through these events and Bangladesh’s war of independence, the rule of recognition changed. The new rule of recognition recognised the directions and declarations of the elected representatives, issued through certain procedures, but most importantly through the Proclamation of Independence as the paramount source of law in the new system of governance in Bangladesh. The Proclamation of Independence,73 which efectively served as the first interim Constitution, made provisional arrangements for Bangladesh’s governance and empowered the president (Bangabandhu) to summon and adjourn the Constituent Assembly, and “to do all other things that may be necessary to give to the people of Bangladesh an orderly and just Government.”74

66 67 68 69 70 71

ibid 86. ibid 87. ib. ibid 90 ibid 92. In his speech, Bangabandhu said, “God willing, we shall free the people of this land. The struggle this time is a struggle for emancipation. The struggle this time is a struggle for independence.” For this historic speech, see the Constitution of Bangladesh, schedule 5. 72 For more on civil disobedience, see Alexander Livingston, ‘Fidelity to Truth: Gandhi and the Genealogy of Civil Disobedience’ (2018) 46(4) Political Theory 511. 73 See the Constitution of Bangladesh, schedule 7. 74 Hoque (n 1) 101.

42

Nafiz Ahmed

The Proclamation also confirmed the declaration of independence that Bangabandhu made on 26 March 1971.75 On 16 December 1971, the West Pakistani occupying military surrendered, and Bangladesh won its war of independence, which further solidified the new rule of recognition. On 11 January 1972, Bangabandhu, in his capacity as the president of Bangladesh (and the ultimate and unquestioned hero of Bangladesh’s liberation struggle)76 promulgated the Provisional Constitution of Bangladesh Order that extended the scope of the Proclamation of Independence. Even though the Provisional Constitution of Bangladesh Order was not directly promulgated by the Constituent Assembly, the authority to promulgate it stemmed from the Proclamation of Independence, making the new rule of recognition its source of legal validity. In Jadu Nath Majumdar v Hasina Begum,77 which was decided five months before the enactment of the Constitution, the Supreme Court of Bangladesh confirmed the legal status of the Proclamation of Independence and the Provisional Constitution of Bangladesh Order. The Court’s judgment implies that the Court considered the legitimate power to be lying with the elected representatives.78 The Court held that the actions of the elected representatives were legally valid. This decision further shows that the events of March 1971 and onward led to the emergence of a new rule of recognition. The Constitution of the People’s Republic of Bangladesh was adopted on 4 November 1972 and came into force on 16 December 1972. The Constituent Assembly consisted of elected representatives of the people of Bangladesh. Along with those elected to join the National Assembly, representatives elected in the provincial election joined the Constituent Assembly.79 The Constitution of the People’s Republic of Bangladesh was signed by 357 members of the Constituent Assembly. Since the new rule of recognition recognised the decisions of the elected representatives of Bangladesh as the ultimate source of law, the Constitution of Bangladesh gained its legal legitimacy from the elected representatives who formed the Constituent Assembly. The new Constitution provided that “all existing laws shall continue to have efect but may be amended or repealed by law made under this Constitution.”80 Even though the laws that existed on 25 March 1971 initially attained their validity from a previous rule of recognition, after the creation of the BLS, their legal validity

75 David Ludden, ‘The Politics of Independence in Bangladesh’ (2011) 46(35) Economic and Political Weekly 79. 76 Rounaq Jahan, ‘Bangladesh in 1972: Nation Building in a New State’ (1973) 13(2) Asian Survey 199, 207. 77 (1973) 25 DLR (HCD) 390 (decided on 30 June 1972). 78 ibid. 79 For details on the constitution of the Constituent Assembly, see Hoque (n 1) 103. 80 The Constitution of Bangladesh, art. 149. The Bangladesh (Adaptation of Existing Laws) Order 1972, also gave recognition to all the laws that existed in Bangladesh on 25 March 1972, subject to consequential changes.

The emergence of Bangladesh’s legal system

43

derives from the new rule of recognition. The laws enacted before the creation of the BLS are now laws of Bangladesh (provided that they were not changed or repealed) because the people of Bangladesh (through their representatives) chose to recognise them as valid laws. Conclusion The legal system of Bangladesh emerged through the events of 1971 when a new rule of recognition replaced the old one. It cannot be claimed that the legal ofcials accepted this new rule of recognition overnight, following the independence of Bangladesh on 26 March 1971. The acceptance of this new rule of recognition resulted from years of struggle for independence. Years of discrimination between the East and West Wings of Pakistan and the public outrage caused by the military junta’s denial to transfer power to the elected representatives of the 1970s general election resulted in the people of Bangladesh’s rejection of the previous rule of recognition and adoption of a new rule of recognition. The new rule of recognition recognised the people’s elected representatives as the ultimate law-making authority and gave legal validity to the Proclamation of Independence, the Provisional Constitution of Bangladesh Order, and the Constitution of the People’s Republic of Bangladesh. The revolution that led to the independence of Bangladesh and the creation of a new legal system is a unique one as elected representatives of the people (winners in the general election) directly led it. Since the leaders of the revolution were directly elected by the people for the purpose mainly of creating a constitution for the State of which Bangladesh was a part, the acceptance of the new rule of recognition was widespread. Once the Constituent Assembly promulgated the Constitution, it delegated its powers to the diferent organs of the State through the Constitution. The Constitution has normative force because it was enacted by the elected members of the Constituent Assembly to whom the people delegated their power, and the legal ofcials treated the decision of the Constituent Assembly as valid law. Using Hart’s rule of recognition enables us to explain the emergence of the legal system of Bangladesh through social and political facts, by referring to actual events instead of theorising on hypotheticals (as Kelsen’s grundnorm theory does). This account of the revolutionary legality, based on Hart’s rule of recognition, allows us to truly appreciate how the BLS emerged and what accounted for its validity.

3

The Constitution of Bangladesh and international law Kawser Ahmed*

Introduction Despite the common perception that Bangladesh is a dualist1 country, there is a divergence of opinions among scholars about the relationship between domestic law and international law in the legal system of Bangladesh. According to Karim and Theunissen, writing in 2011, the status of international law within Bangladesh’s domestic legal order is unclear in many ways.2 Conversely, Azad, after exactly ten years, comments that the position of international law, in general, is quite clear in the legal system of Bangladesh.3 A scholar has recently observed that the Supreme Court of Bangladesh is inching towards what might be called ‘creeping monism’ through judicial activism.4 Scholars from all sides have mainly relied on case laws and practices of the executive branch of the government in developing their respective views. To get a proper understanding of the whole gamut of the relationship between domestic law and international law in a given jurisdiction, it is essential to consider not only the state practices but also a structural study of the Constitution. The general paradigm of the relationship between domestic law and international law in Bangladesh, from the constitutional point of view, may not appear that much unclear. Of course, that does not mean that there are no grey areas in the framework of interaction between international law and domestic law in Bangladesh.

* The author dedicates this chapter to Prof Kajalendu Dey, a former professor at the Department of Bengali, Dhaka City College. He is grateful to Prof Ridwanul Hoque for his invaluable guidance and comments. The author also wishes to thank Emraan Azad and Md Azhar Uddin Bhuiyan for their support and assistance. 1 Alina Kaczorowska, Public International Law (4th edn, Routledge 2010) 147; Donald R Rothwell et. al., International Law: Cases and Materials with Australian Perspectives (CUP 2011) 161; Gideon Boas, Public International Law: Contemporary Principles and Perspectives (Edward Elgar Publishing 2012) 120. 2 Bianca Karim and Tirza Theunissen, ‘Bangladesh’ in Dinah Shelton (ed), International Law and Domestic Legal Systems: Incorporation, Transformation, and Persuasion (OUP 2011) 98. 3 Emraan Azad, ‘Customary International Law’ in Mohammad Shahabuddin (ed), Bangladesh and International Law (Routledge 2021) 61. 4 M Ekramul Haque, ‘Current International Legal Issues: Bangladesh’ (2017) 23 Asian Yearbook of International Law 3–16. DOI: 10.4324/9781003276814-4

The Constitution of Bangladesh and international law

45

Against this backdrop, this chapter explains how the Constitution envisages the interface between international law and domestic law in Bangladesh. There are two main theoretical questions in this regard: first, what is the status of international law in a domestic legal system and, second, how is international law given efect in a domestic legal order? The broad, difering approaches that states adopt to address these questions are classified as dualism versus monism in legal literature.5 With this dichotomy in view, the chapter begins with a brief overview of the positioning of international law vis-à-vis the Constitution of Bangladesh. It then provides an analysis of the status of international treaties and customs within the constitutional normative framework of Bangladesh. The following sections respectively discuss the modalities of domestic implementation and judicial invocation of international law. The chapter concludes that, despite the absence of explicit constitutional provisions, the constitutional design leaves no alternative to dualism for Bangladesh to follow. International law and the debates over the making of the Constitution Both the terms, ‘international law’ and ‘treaty’ appear in the text of the Constitution. The first reference to international law occurs in article 25 of the Constitution, which provides that Bangladesh shall base its international relations, among others, on the principles enunciated in the UN Charter and respect for international law.6 ‘International law’ appears for the second time in article 47(3) of the Constitution. According to article 47(3), any law that provides for detention, prosecution, or punishment for genocide, crimes against humanity or war crimes, and other crimes under international law will not become void or invalid on the grounds of being inconsistent with the Constitution.7 Article 47(3), therefore, makes it clear that the Constitution envisages the application of ‘domestic law’ when it comes to the domestic implementation of any international legal norms concerning war crimes, crimes of genocide, or other crimes under international law. Although article 47(3) is limited to a specific branch of international law, the provision by implication indicates that Bangladesh’s constitutional approach to international law is dualist. The appearance of the term ‘treaty’ did not occur in the Constitution until the insertion of article 145A by the Second Proclamation Order No. IV 1978, which laid down that any international treaties with foreign countries should be

5 M Shah Alam, ‘Enforcement of International Human Rights Law by Domestic Courts: A Theoretical and Practical Study’ (2006) 53(3) Netherlands International L Rev 399, 403–405; Ridwanul Hoque and Mostafa M Naser, ‘The Judicial Invocation of International Human Rights Law in Bangladesh: Questing a Better Approach’ (2006) 46 Indian J of International L 151, 153–163. See further Abdullah Al Faruque, ‘Judicial Invocation of International Law’, in Mohammad Shahabuddin (ed), Bangladesh and International Law (Routledge 2021) 37. 6 The Constitution of the People’s Republic of Bangladesh 1972, art 25 (Bangladesh Constitution). 7 ibid, arts 7 and 26.

46

Kawser Ahmed

placed before the parliament.8 However, the issue of the ratification of international treaties arose before the Constituent Assembly.9 On 24 October 1972, Mr Suranjit Sengupta, in his address to the Constituent Assembly, criticised the draft Constitution for not having any provision concerning ratification of treaties by parliament.10 Later, on 2 November 1972, Mr Sengupta proposed the insertion of a new article (namely, article 65A) in the draft Constitution requiring any treaty concluded with foreign countries to be submitted before the parliament for approval, in order for such a treaty to have any binding efect.11 Mr Sengupta argued that the sovereignty of parliament would be compromised if the executive authority was allowed to conclude treaties with foreign countries without the approval of the legislature.12 He further argued that the public should have clear knowledge about international treaties subscribed to by the nation so that they can express their opinion about those treaties.13 The deputy speaker of the Constituent Assembly ruled out Mr Sengupta’s proposed amendment without putting it on the vote, although such a provision would surely add the values of participatory and deliberative democracy to Bangladesh’s treaty-making practice.14 As a result, the term treaty remained absent in the Constitution as originally adopted on 4 November 1972. It is in this context that the Appellate Division of the Supreme Court held in Kazi Mukhlesur Rahman v Bangladesh that the treaty-making fell within the ambit of the executive power per article 55(2) of the Constitution even though this article does not make any explicit reference to treaty-making power.15 The term treaty has not been defined in either the Constitution or in the General Clauses Act 1897.16 Article 145A states that “all treaties with foreign countries shall be submitted to the President, who shall cause them to be laid before Parliament, provided that any such treaty connected with national security shall be laid in a secret session of Parliament.”17 The Bengali text of this provision makes it clear that “all treaties with foreign countries” actually

8 The Proclamation Order was a military decree. All changes to the Constitution by military proclamations during the first military regime (1975–1979) were later ratified by the Constitution (Fifth Amendment) Act, 1979. Article 145A was reincorporated again by the Constitution (Fifteenth Amendment) Act, 2011. 9 The Constituent Assembly was established under the Constituent Assembly of Bangladesh Order 1972 for the purpose of adopting a Constitution for Bangladesh. 10 Kawser Ahmed (ed), Proceedings of the Constituent Assembly of Bangladesh: Debates on the Making of the Constitution, vol 1 (Pencil Publications 2021) 203. 11 Kawser Ahmed (ed), Proceedings of the Constituent Assembly of Bangladesh: Debates on the Making of the Constitution, vol 2 (Pencil Publications 2022) 163. 12 ibid. 13 ibid. 14 ibid 164. 15 (1974) 26 DLR (SC) 44, 54 and 58, paras 23 and 38. 16 On the definition of a treaty, see the Vienna Convention on the Law of Treaties 1969, art 2(1) (a) (The VCLT). 17 On the meaning of “all treaties with foreign countries,” see Mahmudul Islam, Constitutional Law of Bangladesh (3rd edn, Mullick Brothers 2012) 1025; and Shahnaz Huda and Manzoor

The Constitution of Bangladesh and international law

47

means all treaties made with foreign countries.18 Article 145A does not expressly provide the executive branch with the power to enter into international treaties. Despite this omission, the treaty-making power has been traditionally exercised by the executive branch from the beginning.19 The status of international law in the Constitution Scholars are largely in agreement that Bangladesh follows dualism in the domestic application of international law,20 although there is a diference of opinions about why the legal system of Bangladesh adheres to the dualist approach. According to Karzon and Faruque, while Bangladesh adheres to dualism regarding the domestic implementation of international treaties, the status of treaties in the domestic legal system remains largely unsettled in the absence of explicit constitutional provisions.21 To them, during the British colonial period, courts followed the dualistic common law tradition regarding the status of international law, which continued after decolonisation in 1947 during the Pakistani era.22 Article 149 of the Constitution provides for the continuity of the ‘existing laws.’ Before the commencement of the Constitution (16 December 1972), the Laws Continuance Enforcement Order 1971 similarly provided for the continuity of the existing laws. Article 152 of the Constitution defines ‘existing law’ as any law in force in, or any part of, the territory of Bangladesh immediately before the commencement of this Constitution.23 Karzon and Faruque have argued that the term existing law includes the English common

18

19

20

21 22 23

Hossain, The Bangladesh Parliament and International Conventions (Bangladesh Institute of Parliamentary Studies 2000) 33–35. Kawser Ahmed, ‘Pandemic, Emergency & the Bangladesh Constitution: A Reflection’ (IACLAIDC Blog, 2 June 2020) accessed 22 March 2022. For example, article 7(2) of the VCLT provides that the Heads of State, the Heads of Government, and the Ministers for Foreign Afairs can ex ofcio perform all acts relating to the conclusion of a treaty. Hence, the international and national practice, taken together, can be interpreted to have efectively allocated the treaty-making power to the executive branch of the government. See, generally, Syed Mynuddin Hussain and Mohammed Mahbubul Haque Joarder, ‘Status of International Law in Bangladesh Courts’ (1984) 7(2) Law and International Afairs 67, 77; Sheikh Hafizur Rahman Karzon and Abdullah-Al-Faruque, ‘Status of International Law under the Constitution of Bangladesh’ (1999) 3(1) Bangladesh J of Law 23; Sumaiya Khair, ‘Bringing International Human Rights Law Home: Trends and Practices of Bangladeshi Courts’ (2011) 17 Asian Yearbook of International L 47, 50; Hoque and Naser (n 5) 166–169; Kamal Hossain and Sharif Bhuiyan, ‘Bangladesh’ in Simon Chesterman, Hisashi Owada, and Ben Saul (eds), International Law in Asia and the Pacific (OUP 2019) 604, 606–610; M Al-Ifran Hossain Mollah, ‘The Law of Treaties and Treaty Reservations’ in Mohammad Shahabuddin (ed), Bangladesh and International Law (Routledge 2021) 72, 73; Azad (n 3). Karzon and Faruque (n 20) 47. ibid 26. Notably, Karzon and Faruque did not substantiate the reasons behind their claim. Bangladesh Constitution, art 152.

48

Kawser Ahmed

law tradition which was adopted as the law of Bangladesh under article 149 and enforced through the judicial decisions before the Constitution came into force.24 Additionally, according to Karzon and Faruque, judicial decisions have clarified that customary international law (CIL) forms part of Bangladeshi laws provided that any given CIL norm is not contrary to the Constitution or the statutory law.25 In a 2019 essay, Hossain and Bhuiyan arrived at a somewhat similar conclusion albeit via diferent arguments.26 Unlike Karzon and Faruque, they have argued that although the Constitution or any statute has not provided any specific provision on the domestic application of international law, several judicial decisions settle that Bangladesh follows the dualist approach to the domestic application of international treaties.27 In respect of customary international law, Hossain and Bhuiyan think that Bangladeshi courts should follow the English common law (constitutional law) principle that CIL automatically forms part of Bangladeshi law as long as there is no inconsistent domestic legal provision.28 Karzon and Faruque’s explanation that Bangladesh’s adherence to dualism stems from the influence of English common law tradition internalised through the constitutional incorporation of all ‘existing laws’ in the domestic law looks farfetched because no such intention of the framers can be identified from deliberations in the Constituent Assembly and also because the term existing law in the Constitution arguably refers to all laws that were in force immediately before Bangladesh’s independence on 26 March 1971, and not to any tradition.29 On the other hand, Hossain and Bhuiyan’s argument, mostly based on the Kazi Mukhlesur Rahman case, that the constitutional silence about the domestic application of international treaties was settled by judicial decisions does not bear extra force because Bangladesh has been following the practice of dualism all along. For example, in 1973, Bangladesh enacted the Asian Development Bank Order 197330 for the implementation of the Agreement establishing the Asian Development Bank in 1965. In Kazi Mukhlesur Rahman, in 1974, the Court did not decide any question of domestic implementation of international treaties; it merely endorsed the prevailing treatymaking practice by the executive branch of the government. More importantly, the aforementioned views miss one vital point, which is that the Constitution is the supreme law as well as the single source of

24 25 26 27 28

See Karzon and Faruque (n 20) 27. ibid 28–34 and 47. Hossain and Bhuiyan (n 20) 604. ibid 606. ibid. In this regard, Hoque and Naser’s position can be described as a blending of the views of Karzon et al and Kamal Hossain et. al. See Hoque and Naser (n 5) 166. 29 Before its incorporation in the Constitution, the term existing law was defined in section 2 of the Bangladesh (Adaptation of Existing Laws) Order 1972 (President’s Order No. 3 of 1972) as any Act, Ordinance, Regulation, Rule, Order, or By-law. 30 President’s Order No. 3 of 1973.

The Constitution of Bangladesh and international law

49

legitimacy of legal order in Bangladesh. Therefore, any explanation of the relationship between Bangladesh’s domestic law and international law must necessarily be derived from the Constitution, even when there are no explicit constitutional provisions on the subject. The question should be asked why the courts or the administrative agencies in Bangladesh do not enforce or implement international treaty provisions directly, despite that they are not expressly barred from doing so by the Constitution. Against this backdrop, it is worth undertaking a fresh investigation into the relationship between domestic and international law in Bangladesh. The most fundamental issue concerning the status of international law in any given jurisdiction is enforceability. The classification of states under the so-called dualism or monism is based on the issue of enforceability of international law in the domestic sphere. International law does not define the relationship between domestic law and international law. Rather, the legal system of a country determines the modality of such a relationship.31 Since the Constitution is the grand source of legitimacy in the legal system of Bangladesh, determining the status of international law will require a critical investigation into the theory of legislation in the light of the Bangladesh Constitution. By ‘theory of legislation,’32 I mean the constitutional normative framework by which it identifies what body of norms is to be recognised as laws in Bangladesh.33 The issue of administrative implementation or the enforcement34 of international law arises once any international legal norm or rule conforms to such theory of legislation and attains the status of law. To determine any such constitutional normative framework, a structural analysis of the Constitution of Bangladesh is required. The preamble of the Constitution declares that it shall be a fundamental aim of the state to secure, among others, the rule of law for all citizens. According to the Constitution, the state comprises the parliament, the government, and the statutory public authorities.35 While the parliament and the government36 are the creations of the Constitution, the statutory public authorities are created under the authority of statutes. Their functions are determined according to the Constitution and the other laws of the country. Furthermore, the Constitution provides that every citizen of Bangladesh has

31 See Paola Gaeta, Jorge E Viñuales, and Salvatore Zappalá, Cassese’s International Law (3rd edn, OUP 2020) 224–225. 32 Ronald Dworkin, Taking Rights Seriously (HUP 1978) vii–viii. 33 HLA Hart, The Concept of Law (OUP 1994) 94–95. 34 By ‘enforcement’, I mean judicial measures giving efect to international law. 35 Bangladesh Constitution, art 152. 36 Traditionally, the term government includes all three branches namely, the legislature, the judiciary, and the executive. See HC Black, JR Nolan, and JM Nolan-Haley, ‘Government’ in Black’s Law Dictionary (6th edn, West Publishing Co 1990) 695. However, since the definition of ‘state’ in article 152 of Bangladesh’s Constitution separately mentions ‘parliament’, the term government, therefore, should be understood to mean the executive and the judiciary only.

50

Kawser Ahmed

an inalienable right to be treated in accordance with the law.37 Additionally, the branches and the agencies of the government are obliged to perform functions subject to the Constitution and the laws made or recognised thereunder. The Constitution is the supreme law of the land and any other law inconsistent with it is void.38 Article 152(1) of the Constitution defines the term law as any Act, ordinance, order, rule, regulation, by-law, notification, or other legal instruments, and any custom or usage, having the force of law in Bangladesh. These terms have well-defined meaning in the legal system of Bangladesh, and they do not include international treaties.39 The Constitution does not recognise international treaties as a source of domestic law in Bangladesh. Now the question is whether it is the executive or the judiciary that can directly apply treaties in the discharge of their functions under the Constitution. There is no denying that treaty-making power falls within the ambit of the executive power of the government. However, the fact that treatymaking power is vested in the executive branch does not make it entitled to implement treaties directly in the domestic sphere because, according to article 55(2) of the Constitution, the executive powers are subject to the Constitution that excludes international treaties as a source of domestic law. The resultant efect is that the administrative implementation of international treaties in Bangladesh cannot be carried out in the absence of any enabling domestic legislation. In the same vein, the establishment and jurisdiction of courts and tribunals are governed by the Constitution and the laws of the country.40 For instance, article 101 of the Constitution, which deals with the powers and functions of the Supreme Court, provides that the Supreme Court shall have such jurisdiction and powers as are conferred on it by the Constitution and the domestic law. Thus, the Constitution does not envisage that the courts and tribunals in Bangladesh will directly enforce international treaties in Bangladesh. The aforesaid analysis makes it clear that international treaties cannot be applied directly by any branch of the government in the absence of implementing domestic legislation under the constitutional normative framework of Bangladesh. However, to what extent the foregoing analysis applies to CIL would be an open question. Although no court has ever applied CIL,41 there is a tacit judicial endorsement that CIL forms part of the corpus juris of Bangladesh so long

37 Bangladesh Constitution, art 31. 38 ibid art 7(2). 39 Most of these terms have been defined either in the Constitution or the General Clauses Act 1897. 40 Article 94 of the Constitution provides for establishment of the Supreme Court. Besides, articles 114 and 117 respectively provide for the establishment by law of subordinate courts and administrative tribunals. 41 See Bangladesh Legal Aid and Services Trust v Bangladesh (2011) 63 DLR (HCD) 1, 8–9, paras 37–40 (the BLAST). Also see Hossain and Bhuiyan (n 20) 614.

The Constitution of Bangladesh and international law

51

as it is not inconsistent with domestic law.42 Although the Supreme Court in the BLAST case recognised the prohibition of torture as a CIL norm, it remained silent about the status of CIL norms generally in the legal system of Bangladesh and decided the case based on domestic law alone.43 The other branches of the government do not seem to have ever held any contrary views.44 The problem is that the Supreme Court did not explain why and how CIL should be recognised as part of the laws of Bangladesh. In this regard, Karzon and Faruque’s argument that CIL forms part of Bangladeshi laws through judicial decisions appears unsupported by evidence, because the two cases that they relied on (Bangladesh v Unamarayen SA Panama45 and Bangladesh v Somboon Asavaham46) did not embark on any discussion about the relationship between CIL and domestic law of Bangladesh. While, in the former, the Court said nothing about CIL, the Appellate Division in the latter case commented that “where there is municipal law on an international subject, the national court’s function is to enforce the municipal law within the plain meaning of the statute.”47 To overcome the problem of inarticulation of the relationship between CIL and domestic law, one solution could be to interpret the word custom in article 152 of the Constitution in an inclusive manner to cover CIL. No doubt, the determination of whether a CIL norm exists at all depends on the evidence, and that task belongs to international actors. At the domestic level, the Supreme Court will require a method by which the existence of any CIL norms can be proved. Needless to say, the identification of CIL has been one of the most complex tasks before the international courts and tribunals. The Evidence Act 1872 contains a few provisions dealing with how the existence of a custom may be proved before the Court.48 There is no reason not to extend the applicability of the Evidence Act to prove the existence of international customs with some necessary adaptations. Modalities of domestic implementation of international law in Bangladesh The Constitution of Bangladesh does not provide for any particular class of municipal law as necessary for the domestic implementation of international

42 See Chief Prosecutor v Abdul Quader Molla (2014) 22 BLT (AD) 8, 73, para 125. In the majority opinion, the Appellate Division noted: “there remains no doubt that the Act of 1973 has primacy over [CIL] and [CIL] will be applicable so far as it is not inconsistent with the Act.’ Cf Hossain and Bhuiyan (n 20) 615. 43 The BLAST (n 41). 44 Initial Report of Bangladesh on the International Covenant on Civil and Political Rights (CCPR/C/BGD/1), para 8. 45 (1977) 29 DLR (HCD) 252. The name of the respondent has appeared as ‘Unimarine S.A. Panama’ in the Appellate Division’s judgment and in several scholarly works. 46 (1980) 32 DLR (AD) 194 (Somboon Asavaham). 47 ibid 197–198, para 6. 48 The Evidence Act 1872, ss 13, 32 and 48.

52

Kawser Ahmed

law. As a result, international law can be implemented in Bangladesh through both primary legislation and secondary legislation as well as the Constitution.49 The Government of Bangladesh, in its several initial state party reports under certain international human rights treaties, has simply mentioned that the Constitution together with other laws gives efect to those treaties in the domestic sphere.50 In this connection, an interesting case in point would be the implementation of the measures adopted by the Security Council under article 41 of the UN Charter through a mixed regime comprising both primary legislation and secondary legislation. The United Nations (Security Council) Act 1948, a piece of primary legislation, empowers the government to implement such measures by an order published in the Ofcial Gazette, that is, through secondary legislation.51 The Constitution also does not require the enactment of specific legislation each time a new treaty is concluded. Laws already in force may sufce to implement treaties made at a later point in time if their respective mandates coincide. Moreover, a particular piece of legislation may be designed to implement multiple treaties.52 By contrast, a particular treaty can be implemented through multiple legislations. For example, the Constitution along with other laws gives efect to the provisions of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT) in Bangladesh.53 It is also not required that the implementing legislation should expressly mention which international law it intends to give efect to. Nevertheless, the parliament in recent years has passed several legislations specifying in their preambles the international treaties they intend to implement.54 Interestingly, the Overseas Employment and Migrants Act 2013 mentions several international treaties in its preamble but, in practice, does not implement any of them in full. Lastly, I turn to the question of whether the courts of Bangladesh can declare any norms of international law as part of the corpus juris of the state and then enforce it. Article 111 of the Constitution provides: “The law declared by the Appellate Division shall be binding on the High Court Division and the law declared by either division of the Supreme Court shall be binding on all

49 Hossain and Bhuiyan (n 20). 50 CCPR/C/BGD/1 (n 44) paras 15 and 18; Initial Report of Bangladesh on the International Covenant on Economic, Social and Cultural Rights (E/C.12/BGD/1) para 19; Initial Report of Bangladesh on the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT/C/BGD/1) paras 8–12. 51 The United Nations (Security Council) Act 1948, s 2. A more recent example includes the Anti-Terrorism Act 2009 and the Anti-Terrorism Rules 2013. 52 As examples, the Bangladesh Labour Act 2006 and the Anti-Terrorism Act 2009 may be mentioned. 53 CAT/C/BGD/1 (n 50) para 5. See also Bangladesh Constitution, art 35; and the Torture and Custodial Death (Prohibition) Act 2013. 54 For example, the Children Act 2013 claims to give efect to the UNCRC, and the Rights and Protection of the Persons with Disabilities Act 2013 claims to give efect to the UNCRPD.

The Constitution of Bangladesh and international law

53

courts subordinate to it.” Arguably, the language of article 111 leans towards the declaratory theory of precedent, which means the decisions of the judges do not derive from their law-making power; they only constitute evidence of what the law is.55 In other words, judges in Bangladesh are not supposed to make law but only to find it.56 There are cases where the Appellate Division of the Supreme Court has upheld this position and recognised that the plenary legislative power lies with the parliament alone. For example, although the High Court Division in Human Rights and Peace for Bangladesh v Bangladesh declared ‘the Precautionary Principle’ and ‘the Polluter Pays Principle’ as part of the corpus juris of Bangladesh,57 the Appellate Division on appeal overturned that ruling on the ground that it was absolutely within the domain of parliament to enact or amend laws under the Constitution to incorporate such principles of international environmental law.58 Judicial invocation of international law in Bangladesh It has already been argued that the Constitution does not envisage international treaties as a source of domestic law and that the application of international treaties requires implementing legislation. Despite such constitutional limitations, the Supreme Court did not shy away from referring to or citing international treaties in its judgments from time to time. Therefore, the question arises as to what extent the judiciary can ‘draw upon’59 international law in the discharge of its functions. The answer to this theoretical yet constitutional question may be demystified by evaluating the judgments of the Supreme Court. The first and foremost approach is that where there is municipal law on an international subject, the national court’s function is to enforce the municipal law within the plain meaning of the statute.60 The second approach is that although the courts will not enforce international treaties unless these are incorporated into municipal laws, they can use them as an aid to the interpretation of domestic law.61 In Sheikh Hasina, the Appellate Division held that Bangladeshi courts “will not enforce the covenants and convention even if ratified by the State unless these are incorporated in municipal laws.”62 In this case, the

55 Rupert Cross and JW Harris, Precedent in English Law (OUP 2004) 25. 56 M Rizwanul Islam, ‘Judges as Legislators: Benevolent Exercise of Powers by the Higher Judiciary in Bangladesh with Not So Benevolent Consequences’ (2016) 16 OUCLJ 219, 220–221. 57 Human Rights & Peace for Bangladesh v Bangladesh (2019) WP No 13989/2016, at 279 of the judgment (the HRPB) (HCD’s judgment delivered on 30 January and 3 February 2019). 58 Nishat Jute Mills Limited v Human Rights and Peace for Bangladesh (HRPB), Appellate Division, CPLA No. 3039 of 2019, judgment delivered on 17 February 2020, at 35–37. 59 Somboon Asavaham (n 46); Hussain Muhammad Ershad v Bangladesh (2001) 21 BLD (AD) 69, 70. 60 Ershad (n 59) 74–75, para 12 (AM Mahmudur Rahman J). 61 The BLAST (n 41) 8, para 38. Bangladesh v Sheikh Hasina (2008) 28 BLD (AD) 163. 62 Sheikh Hasina (n 61) 181, para 90.

54

Kawser Ahmed

Court, however, noted that it would look into the ICCPR and other relevant conventions “while interpreting the provisions of part III [of the Constitution] to determine [the scope of the] right to life, right to liberty and other rights enumerated in the Constitution.”63 Arguably, the third approach is to treat, in an appropriate case, international customary law principles as part of domestic law.64 In the HRPB, the High Court Division declared ‘the Precautionary Principle’ and ‘the Polluter Pays Principle’ as part of the corpus juris of the state,65 although the declaration was later overruled by the Appellate Division.66 At this juncture, to what extent the invocation of international treaties either by the parties or the Supreme Court itself has influenced the outcome of a case is worth examining. A careful reading of most of the reported judgments of the Supreme Court does not demonstrate any direct nexus between the Court’s treatment of international treaties and the outcome of the cases. For instance, in BLAST67 and Bangladesh National Women Lawyers Association (BNWLA) v Bangladesh,68 directions were sought from the Supreme Court for the adoption of guidelines/policies respectively for preventing extra-judicial punishments and sexual harassment of women and girls at workplaces and educational institutions. In both cases, the Court cited several international treaties and then remarked that it would not enforce international treaties as they were not part of the corpus juris of the state, however, would look into these conventions and covenants as an aid to interpreting the domestic law of the country.69 Similarly, in the State v Md Roushan Mondal,70 the Supreme Court dealt with the conviction and death sentence of a minor boy for his alleged commission of rape and murder of a minor girl. Although the Court referred to some provisions of the Convention on the Rights of the Child (UNCRC) in its judgment, it set aside the conviction and sentence mainly on the grounds of lack of jurisdiction of the trial court for its non-compliance with the Children Act 1974.71 In the case of Saiful Islam Dildar v Bangladesh,72 the petitioner

63 ibid. Cf Professor M Samsul Alam v Bangladesh (2018) 10 SCOB (HCD) 205, 229–230, paras 75–77. 64 The HRPB (n 57) 279. 65 ibid. 66 Nishat Jute Mills Limited (n 58). Many authors maintain that ‘the precautionary and the polluter pays principles’ have become CIL norms. See Alan Boyle, ‘Southern Bluefin Tuna Cases’, Max Planck Encyclopedias of International Law [MPIL] (2008) para 9 accessed 26 April 2022; Svitlana Kravchenko, Tareq MR Chowdhury, and MJH Bhuiyan, ‘Principles of International Environmental Law’ in Shawkat Alam et al. (eds), Routledge Handbook of International Environmental Law (Routledge 2014) 43, 53. 67 The BLAST (n 41) 2, para 2. 68 (2009) 29 BLD (HCD) 415, 416, para 1 (the BNWLA). 69 The BLAST (n 41) 8, para 38; the BNWLA (n 68) 425, para 35. 70 (2006) 26 BLD (HCD) 549, 577, para 77 (Roushan Mondal). 71 ibid 578, para 77. The other reason cited was insufcient evidence on record to prove the charge. 72 (1998) 50 DLR (HCD) 318, 324, para 7.

The Constitution of Bangladesh and international law

55

sought to stop the deportation to the Indian authorities of Mr Anup Chetia, the secretary-general of the United Liberation Front of Assam (ULFA), who was charged with treason in India. The petitioner inter alia argued that Mr Chetia was fighting for the right of self-determination of the Assamese people, which had evolved as a principle of international law. He relied particularly on the jus cogens nature of the right of self-determination.73 In fine, the petitioner submitted that Bangladesh had a legal obligation to grant him a refugee status (political asylum) under international law, emphasising that Mr Chetia’s extradition would violate international law and articles 25, 31, 32, and 145A of the Constitution.74 Given that self-determination is a core principle of CIL, what was not clear from the petitioner’s submission is how the purported extradition of Mr Chetia would violate the right of self-determination of the people of Assam, which refers to a collective right of a people. The Court, in its turn, pointed out that the expression ‘self-determination’ does not occur in article 25 of the Constitution. The Court dismissed the petition on the domestic law consideration namely, the Special Powers Act 1974 and the Extradition Act 1974. It did not address the petitioner’s submission that Bangladesh had a legal obligation to grant Mr Chetia refugee status under international law.75 In several cases, the Supreme Court has referred to non-binding soft instruments such as declarations, UN resolutions, recommendations, guidelines, and so on if they were thought to have any persuasive authority.76 This trend has been best portrayed in the case of Hussain Muhammad Ershad v Bangladesh.77 The appellant, in this case, challenged the confiscation of his passport on the grounds of violation of fundamental rights as well as article 13 of the Universal Declaration of Human Rights (UDHR). Justice AM Mahmudur Rahman who wrote the majority opinion reasoned that the UDHR was not a part of municipal law and, therefore, was not binding.78 On the contrary, Justice Bimalendu Bikash Roy Choudhury in his separate opinion argued that article 13 of the UDHR having been recognised in article 36 of the Constitution applied to the facts of the case.79 While Justice Rahman and Justice Choudhury held mutually exclusive opinions, Latifur Rahman, the chief justice, agreed with them both, without ofering any reasoning at all.80 Also, it appears that there are cases in which the Supreme Court should have been more careful in mentioning international legal terminologies and

73 74 75 76

77 78 79 80

ibid 319, paras 3–4. ibid 319, 322, paras 3, 6. ibid 322–324, paras 6–7. See the BNWLA (n 68) 424, para 33; Ershad (n 59) para 3; Professor Nurul Islam v Bangladesh (2000) 20 BLD (HCD) 377, 386, para 9; Dr Shipra Chaudhury v Bangladesh (2009) 29 BLD (HCD) 183, 186, para 24. Ershad (n 59). ibid 74–75, para 12. Bangladesh was not yet a party to the ICCPR when the case was decided. ibid 70, para 3. ibid (per Latifur Rahman CJ).

56

Kawser Ahmed

concepts in the judgments. For example, the Court has mentioned Bangladesh as a ‘signatory’ vis-à-vis certain treaties in several cases whereas Bangladesh is a ‘party’ to those treaties.81 The diference between a ‘party’ and a ‘signatory’ is that while the former denotes a state which has consented, via ratification, accession, etc, to be bound by a treaty, the latter generally signifies that a state that may formally assume the treaty obligations in the future subject to the ratification of the treaty concerned.82 In the BLAST case,83 the Supreme Court characterised the infliction of lashes on a woman by some village leaders/opinionators as a form of ‘torture’ under the UNCAT and the International Covenant on Civil and Political Rights (ICCPR), overlooking the fact that the two treaties do not conceive of torture in the same manner.84 Especially, it begs the question of whether the infliction of lashes by persons who are not themselves public ofcials nor did ostensibly commit the alleged act at the instigation of any public ofcial constitutes torture under the UNCAT. It is also noticeable that the Court, while referring to treaty provisions, sometimes omitted to take account of Bangladesh’s reservations and objections of other states (if any) to those reservations.85 For example, the Court’s reference to article 16 of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) in Dr Shipra Chaudhury could have been couched in a diferent language had it considered Bangladesh’s reservation to paragraph 1(c) of the said provision.86 Moreover, the Court, in some cases, omitted to mention international treaties which were more directly relevant to the subject matter of the case. For example, the reference to UNCAT would have been more relevant than CEDAW in the BNWLA case because of the subject matter of the case (i.e., sexual harassment of women and girl children at workplaces and educational institutions).87 Conclusion The relationship between domestic law and international law in Bangladesh, despite the absence of any specific constitutional provision regarding the

81 See Professor Nurul Islam (n 76) 397 para 20; Dr Shipra Chaudhury (n 76) 186, para 23; Roushan Mondal (n 70) 572, para 67; State v Metropolitan Police Commissioner (2008) 60 DLR (HCD) 660, 665, para 27. See also Hoque and Naser (n 5) fn 45. 82 The VCLT, art 2(1)(g). See, e.g., The United Nations, Treaty Handbook (eISBN-13 978-921-055293-6, U.N. Sales No. E.12.V.1, 2012) 5. 83 The BLAST (n 41) 3, para 5. 84 See Human Rights Committee, General Comment No. 20: Article 7 (Prohibition of Torture, or Other Cruel, Inhuman or Degrading Treatment or Punishment) (44th Session, 1992) paras 2–4 and 13. See generally, Nigel S Rodley, ‘The Definition(s) of Torture in International Law’ (2002) 55(1) Current Legal Problems 467. 85 Kawser Ahmed, ‘Reservations to Human Rights Treaties: Doubtful Commitment to Human Rights’, The Daily Star (Dhaka, 13 December 2016) 12. 86 Dr Shipra Chaudhury (n 76) 186, para 23. 87 The BNWLA (n 68) 423–424, paras 28–30.

The Constitution of Bangladesh and international law

57

subject, is not unclear. Based on the structural and purposive interpretation of the Constitution, it has been argued in this chapter that the constitutional design leaves no choice for Bangladesh but to follow dualism. The analyses of Constituent Assembly debates, legislative practice, and judicial decisions show that neither does the constitutional normative framework approve of international treaties as a source of domestic law, nor has the judiciary directly applied international treaties. Consequently, the chapter strongly disagrees with the view that Bangladesh is inching towards ‘creeping monism’ in its practice regarding the implementation of international law.88

88 Haque (n 4).

4

Secularism and Islam as the state religion Conflict or coexistence? Muhammad Rezaur Rahman

Introduction The constitutional principle of secularism, as adopted by Bangladesh’s founding Constitution, went through a tumultuous history. It took a complicated turn in 2011 as the 15th constitutional amendment reinstated secularism while retaining Islam as the state religion.1 This led to a debate about whether secularism can coexist with the state religion or whether the arrangement results in an irreconcilable conflict between secularism and state religion. This chapter attempts to critically capture the narratives of the coexistence and the conflict of secularism and state religion. Instead of justifying a particular position, the chapter dialogically explores the arguments from both sides and examines their strengths and limitations. It shows that while the arguments are persuasive, they are not irrefutable. The chapter identifies some key factors that recurrently reinforced this debate, such as national identity, the binary between the secular and the religious, ambiguity in the meaning of secularism, and parochial understanding of the sociopolitical role of religion. The chapter argues that a viable coexistence between the two principles remains unsettled unless these fundamental factors are resolved. As such, the chapter seeks to provoke a new discourse to address debates relating to national identity, secularism, and a religion’s role in public life. In retrospect: from secularism to coexistence of state religion and secularism Establishing a secular polity was a key motive behind Bangladesh’s emancipation from the West Pakistani quasi-colonisation. For West Pakistan, Islamic identity was considered the unifying national bond.2 West Pakistani’s denial of Bengali cultural identity sparked the language movement from 1947–1952,

1 The Constitution (Fifteenth Amendment) Act 2011. 2 Muhammad Rezaur Rahman, ‘The Introduction of Religion to Politics and the Constitutional Framework and the Aftermath: A Critical Overview of the History of Pre and Post Bangladesh Eras’ 21 accessed 5 June 2022. DOI: 10.4324/9781003276814-5

Secularism and Islam as the state religion

59

initiated a [secular] linguistic Bangalee nationalism, and led to the liberation war in 1971. Secularism is, therefore, arguably rooted in composite Bengali culture and is meant to be ‘the repudiation of an Islamic ideology used to legitimise the West Pakistani colonial domination.’3 Some critics have questioned this secular origin of national identity and argued that secularism was an imposition of the political elites and vernacular intelligentsia4 on the Muslim community, whose identity remained deeply rooted in Islam.5 Some claim that Bangladesh adopted secularism to enhance good relations with India.6 The Bangladesh Awami League’s (AL) 1970 election manifesto contributed to this debate, which guaranteed the inclusion of special constitutional protection of the Islamic law of the Holy Qur’an and the Sunnah against the state law.7 It may be contended that Ayub Khan’s Legal Framework Order 1970 (LFO) mandated all the parties to include such a pledge to protect Islam and religious institutions.8 The critics pointed out that it is not only the Islamic overtone of the 1954 and 1970 manifesto; indeed, there was no reflection on secularism in any pre-independence documents – six-point demands, eleven-point student demands or the Proclamation of Independence.9 However, AL leaders, including Syed Nazrul Islam and Tajuddin Ahmad, in their speeches during Muktijuddho (1971 war of liberation), repeatedly declared secularism as a primary state policy.10 Bangabandhu, upon returning from Pakistani prison on 10 January 1972, publicly proclaimed (at Racecourse) secularism to be Bangladesh’s core state principle.11 The process of constitutionalising secularism involved extensive debate in the Constituent Assembly (CA).12 The CA members debated whether secularism is an appropriate founding principle for Bangladesh, given that Islam

3 Donald E Smith, ‘Secularization in Bangladesh’ (1973) 16 Worldview 11, 15. 4 Tazeen M Murshid, The Sacred and the Secular: Bengal Muslim Discourses, 1871–1977 (Oxford University Press 1995) 335. 5 Howard Schuman, ‘A Note on the Rapid Rise of Mass Bengali Nationalism in East Pakistan’ (1972) 78 Am. J. Soc. 290. 6 MJH Bhuiyan, ‘The Contested Concept of Secularism and Bangladesh’ (2022) 69(3) Am. J. Comp. L. 399. 7 The Awami League Manifesto is reprinted at (1971) 4 NYU J Int’l L & Pol 524 (see at p 526). Also, the 1954 United Front election manifesto had explicitly recognised the protection of Islamic ideology. See MN Islam and MS Islam, ‘Islam, Politics and Secularism in Bangladesh: Contesting the Dominant Narratives’ (2018) 7 Social Sciences 37, 8. 8 Kevin YL Tan and Ridwanul Hoque (eds), Constitutional Foundings in South Asia (Hart Publishing 2021) 99. 9 Islam and Islam (n 7) 8. 10 Anisuzzaman, Identity, Religion, and Recent History: Four Lectures on Bangladesh Society (Maulana Abul Kalam Azad Institute of Asian Studies 1995) 37. 11 Rounaq Jahan, ‘Bangladesh in 1972: Nation Building in a New State’ (1973) 13 Asian Survey 199, 201. 12 Tan and Hoque (n 8) 111.

60

Muhammad Rezaur Rahman

is the religion of the majority.13 Bangabandhu was aware of the religiosity in Bangladesh and made it clear in the CA speeches that secularism would not mean the absence of religion. Instead, secularism was to eliminate communal politics and any form of exploitation in the name of religion.14 Finally, dhormo niropekkhota, translated as secularism, was incorporated in the 1972 Constitution in article 12 as one of the fundamental principles of state policy. The original article 12 states: The principle of secularism shall be realised by the elimination of – (a) communalism in all its forms; (b) the granting by the State of political status in favour of any religion; (c) the abuse of religion for political purposes; (d) any discrimination against, or persecution of, persons practising a particular religion. Other legal and social reforms concerning religion were in the making simultaneously. The original article 38 banned religious political parties; the national radio and Bangladesh Television stopped broadcasting Qur’anic recitation; and the Islamic Academy was abolished.15 However, secularism’s constitutional inclusion did not go unchallenged. There was a public procession against secularism.16 The discontent against AL and secularism gradually grew. From late 1972, the AL started to become unpopular due to the country’s poor socioeconomic conditions, deteriorating law and order situation, and rising corruption, and secularism lost ground due to the ruling elite’s inability to communicate secularism’s translatable meaning and significance to the ordinary people.17 Despite explaining that secularism is not irreligiosity, Bangabandhu failed to counter anti-secularist propaganda or increase secularism’s acceptance. From 1973, Bangabandhu’s attitude towards religion also changed noticeably. Although a strenuous supporter of secularism, his political rhetoric encapsulated Islamic idioms. This change was a strategy to gain political recognition and economic cooperation with wealthy Middle Eastern and North African countries.18 Following Bangabandhu’s assassination in August 1975, Bangladesh witnessed several military coup d’états, culminating in General Ziaur Rahman’s assumption of power in 1976. Through the 5th Amendment (1977), Zia replaced secularism and Bangalee nationalism with absolute faith and trust in almighty

13 14 15 16

ibid. ibid. Bhuiyan (n 6) 423. Lailufar Yasmin, ‘The Tussle between Secularism and Non-Secularism in Bangladesh’ (2013) South Asian Journal 66, 68. 17 Muhammad A Hakim, ‘The Use of Islam as a Political Legitimization Tool: The Bangladesh Experience, 1972–1990’ (1998) 6 Asian J. Pol Sc 98, 104. 18 Muhammad Rezaur Rahman, ‘Country Report on Religious Diversity and Violent Religious Radicalization in Bangladesh’, 21 accessed 9 April 2022.

Secularism and Islam as the state religion

61

Allah and Bangladeshi nationalism. Zia’s manoeuvre attempted to distinguish the Bangladeshi (Muslim) people from Indian (Hindu) Bangalees.19 He also inserted the Islamic invocation Bismillah-ar-rahman-ar-Rahim above the constitutional preamble and incorporated a new article 25 envisaging Bangladesh’s endeavour to develop and strengthen fraternity with Muslim countries based on Islamic solidarity. Zia removed the ban on religious political parties as well. Following Zia’s assassination, General Hossain Muhammad Ershad assumed power (1982) and continued to use religion for political legitimacy. He declared Islam the state religion20 through the 8th Amendment (1988). The newly added article 2A, the state religion clause, stated that ‘the state religion of the Republic is Islam, but other religions may be practised in peace and harmony in the Republic.’ Though constitutional changes were intended to gain populist support, there was a solid objection to the state religion Bill. Some parliament members walked out in protest.21 There were violent countrywide protests, general strikes, and mass meetings opposing state religion. Three writ petitions were filed challenging the constitutionality of article 2A.22 Nonetheless, simultaneous measures continued to translate the Islamisation of the Constitution to a broader social context.23 In the 1990s, Ershad was ousted from power through a mass anti-autocratic movement, ultimately leading to the democratic multi-party election in 1991. As its election publicity, AL promised to reinstate secularism once voted to power. The AL lost the election to the Bangladesh Nationalist Party (BNP), who continued the Islamisation project.24 The typical picture of post-90s politics was that BNP and AL formed alliances with the Islamist political parties to consolidate vote banks.25 The AL’s 1996 government did not restore

19 Jasmin Lorch, ‘Islamization by Secular Ruling Parties: The Case of Bangladesh’ (2019) 12 Politics and Religion 257. 20 Ershad justified the state religion clause as: “Our people . . . are religious-minded and want to see Islam’s ideology and ideal reflected in society. That is why we made it the state Religion.” See Anwar H Choudhury, ‘Religious Politics and Communal Harmony in Bangladesh: A Recent Impasse’ (2017) 17(3) Global J. of Human Soc. Sc. 8, 23. 21 Rokeya Chowdhury, From ‘Secular’ to ‘Islamo-Secular’ Bangladesh (PhD Thesis, McGill University 2022) 44. 22 Three writ petitions were separately filed by NariPokkho (W.P. No 1330 of 1988), Citizens’ Committee for Resisting Communalism and Autocracy, and Mr Shakti Das Goswami (W.P. No. 1177 of 1988). See Shah Alam, ‘The State-Religion Amendment to the Constitution of Bangladesh: A Critique’ (1991) 24 Verfassung in Recht und Übersee 209, 211. 23 For example, changing weekend from Sunday to Friday, exhibiting Qur’anic quotations in public ofces, broadcasting Azan on the national networks, establishing Bangladesh Madrasah Education Board, imposing Islamic practices in observing Language Martyr Day. Mubashar Hasan, ‘Democracy and Political Islam in Bangladesh’ (2011) 31 South Asia Research 97, 102; Bhuiyan (n 6) 428. 24 Smruti S Pattanaik, ‘Majoritarian State and the Marginalised Minorities: The Hindus in Bangladesh’ (2013) 37 Strategic Analysis 411, 417. 25 Ali Riaz, God Willing: The Politics of Islamism in Bangladesh (Rowman & Littlefield 2004).

62

Muhammad Rezaur Rahman

secularism. Things started to change when AL dis-aligned itself with Jamaate-Islami and promised to reinstate secularism in its 2008 election campaign. Eventually, the Supreme Court, in the 5th Amendment case,26 declared the 5th constitutional amendment unconstitutional. Following this decision, in 2011, the parliament adopted the 15th Amendment27 and reinstated secularism and other 1972 fundamental principles (nationalism, socialism, democracy). However, major religious elements such as the state religion (Islam) and the citation of ‘Bismillah’ at the beginning of the preamble were untouched.28 This began the controversial coexistence of secularism and the state religion. Debates over the meaning of secularism Secularism is a contested concept, ‘the proper use of which inevitably involves endless disputes about their proper uses on the part of their users’.29 Bangladesh adopted a genre of political secularism, which involves diferent normative positions: separation between state and religion, religious neutrality, the equidistance between religion and state, equal respect for all religions, and anti-religion attitude of the state. However, the meaning/normative position of Bangladeshi (political) secularism was contested due to its undefined nature.30 Article 12 does not define secularism; rather prescribes only some negative obligations to eliminate elements that block the realisation of secularism. Bangabandhu addressed the definitional vacuum during the CA debates and later political speeches. To quote one of his CA speeches: Secularism does not mean the absence of religion [or irreligiosity]. The Hindus, the Christians, the Buddhists, [will] all freely perform their religious rites. There shall be no use of religion for political purposes.31 It can be contended that Bangabandhu did not take secularism as the separation between religion and state. This perception is also called the modus

26 Khondker Delwar Hossain v Bangladesh Italian Marble Works Ltd. (2010) 62 DLR (AD) 298. The matter was first heard in the HCD in the Bangladesh Italian Marble Works Limited v Government of Bangladesh (2006) 14 BLT (Special) (HCD) 1. 27 15th Amendment (n 1). 28 The amended article 2A is as follows: ‘The state religion of the Republic is Islam, but the State shall ensure equal status and equal right in the practice of the Hindu, Buddhist, Christian and other religions.’ The following (in italic) was added to the Bangla/English translation of Bismillah: ‘In the name of Allah, the Beneficent, the Merciful)/In the name of the Creator, the Merciful. 29 WB Gallie, ‘Essentially Contested Concepts’ (1956) 56 Proceedings of the Aristotelian Society 167, 169. 30 Joseph T O’Connell, ‘Dilemmas of Secularism in Bangladesh’ (1976) 11(1–2) J Asian & African Studies 47. 31 Author’s translation from M Abdul Halim (ed), Gono Parishad Bitorko (CCB Foundation 2015) 70.

Secularism and Islam as the state religion

63

vivendi secularism, which ensures that a state is neither beholden to religion nor obstructing the free exercise of religion. In such cases, secularism guards against politicising religion, instigating communalism, or promoting bigotry. However, except for banning religious parties, whether any other act, decision, or legislation is perceived as communal, fanatical, or favouring religion was an open question that produced conflicting ideas about secularism. The CA debates indicate that some members had diferent ideas about secularism. For example, Sarder Amzad Hossain identified ‘disenchantment’ as an aspect of secularism.32 Khandaker Mustaque Ahmad defined secularism as the prohibition of the state’s entanglement of religion with governance.33 Kamal Hossain, the chair of the Constitution Drafting Committee who presented the Constitution Bill, supported Bangabandhu’s view but later construed secularism as separation of the state from religion.34 Later, when the constitutional amendments, among others, related to secularism and article 2A were subjected to writ petitions, even the Supreme Court (SC) could not provide any consolidated definition. In the 5th Amendment decision’s obiter, the Court explained secularism. However, it was conceptually limited – (i) it indicated multiple normative positions for secularism (e.g., tolerance, equal treatment to all religions, state’s strict neutrality, and non-favouritism to religion) (ii) it did not unpack the core tenets of secularism such as tolerance, equal respect for religions, non-favouritism, and state neutrality.35 In the Goswami case,36 where the constitutionality article 2A (under the 15th Amendment) was challenged, the Supreme Court ofered the following insights into Bangladeshi secularism: (i) secularism does not have an agreed definition, (ii) Bangladeshi secularism is diferent from Western secularism, and (iii) the equality of all religions is the normative basis of secularism (implied observation).37 This decision, thus, again failed to clarify what secularism meant. Like the Supreme Court, contemporary political leaders also interpret secularism diferently. The current prime minister, Sheikh Hasina, associated secularism with Islamic tolerance.38

32 ‘We need to understand this clearly that secularism does not mean irreligiosity. Today we kept secularism in the Constitution to protect religion, for salvation from religious persecution, to ensure freedom oppression and for disenchantment,’ ibid, 139 [author’s translation]. 33 Ahmad states that ‘we don’t want religion to don the cloak of the state to be dragged into the state governance.’ ibid 149 [author’s translation]. 34 Kamal Hossain, Bangladesh: Quest for Freedom and Justice (University Press Limited 2016) 142–143. 35 Khondker (n 26). 36 Samarendra Nath Goswami v Government of Bangladesh and Ors (2017) 27 BLT 1 (HCD). 37 ibid. 38 Farah Chowdhury, Islam and Women’s Income: Dowry and Law in Bangladesh (Routledge 2016) cited in Bhuiyan (n 6) 430.

64

Muhammad Rezaur Rahman

Furthermore, there are considerable disagreements within the academic discourse about the meaning of secularism: that secularism in Bangladesh is not separation of religion and state;39 but some argue that secularism is the separation or the state’s indiference/neutrality towards all religions;40 that Bangladeshi secularism is somewhat akin to Indian secularism – sarba dharma sama bhaba;41 that ‘the government established a “multi-theocracy”’42 or polyreligious secularism.43 Some contend secularism is non-communalism,44 while some think secularism (not irreligious) ‘still is the idea that negates the Islamic morality, hence can also be interpreted as a rejection of religion.’45 Some historians identified secularism as religious tolerance.46 The previous discussions show no settled definitional position of Bangladesh secularism. The following section shows that one core justification for the coexistence between secularism and the ofcial religion is precisely this lack of clarity. Justifications for the coexistence of state religion and secularism and their critiques This section thematically unfolds the critical political, theoretical, and praxiological justifications in favour of the coexistence of secularism and Islam as the state religion and presents their critiques. Inclusive, non-separatist secularism

Taylor, Bhargava, and Laborde47 have criticised the traditional liberal assumption of separation between religion/church and state as a constitutive element of the modern liberal state and secularism. It can, thus, be argued that Bangladeshi secularism difers from Euro-American separatist secularism.

39 Werner Menski, ‘Bangladesh in 2015: Challenges of the Iccher Ghuri for Learning to Live Together’ (2015) 1(1) University of Asia Pacific J of Law & Policy 9, 23; Smith (n 3). 40 Anisuzzaman (n 10); Mahfuza Khanam and Topon Kumar Dey (eds), Dharmanirapekhyta: Samprodayik Sampritir Mail-Bandan (Merit Fair Prokashan 2015). 41 Tazeen M Murshid, ‘State, Nation, Identity: The Quest for Legitimacy in Bangladesh’ (1997) 20 J South Asian Studies 1. 42 Hakim (n 17). 43 Habibul H Khondker, ‘The Curious Case of Secularism in Bangladesh: What Is the Relevance for the Muslim Majority Democracies?’ (2010) 11 Totalitarian Movements and Political Religions 185. 44 MJH Bhuiyan, ‘Secularism in the Constitution of Bangladesh’ (2017) 49 The J of Legal Pluralism and Unofcial Law 204. 45 Hussin Mutalib and Taj ul-Islam Hashmi (eds), Islam, Muslims and the Modern State (Palgrave Macmillan 1994). 46 Muntasir Mamoon, Bangladesh: Bengali Psyche State Formation and Modernity (International Center for Bengal Studies 2009) 55. 47 See Charles Taylor, ‘Can Secularism Travel?’, in Akeel Bilgrami (ed), Beyond the Secular West (Columbia University Press 2016); Rajeev Bhargava, ‘An Ancient Indian Secular Age?’ in Bilgrami ibid; and Cécile Laborde, Liberalism’s Religion (Harvard University Press 2017).

Secularism and Islam as the state religion

65

Both Menski and Billah see Bangladeshi secularism as a non-separatist one, drawing on the contextually diferentiated role of religion in Bangladesh and the West.48 Billah argues that religion is ingrained in the sociocultural ethos of Bangladeshi society.49 Bangladeshi secularism is constructed with a more inclusive language to capture the religion’s sociopolitical and legal relevancy in society.50 Goswami case’s obiter resonates with this position. The Supreme Court observed that secularism was never practised in the country ‘in the sense that all religious practices are to be completely separated from the activities of the State.’51 This inclusive, non-separatist character of secularism sees no conflict when it coexists with an ofcially recognised state religion. In contrast, Anisuzzaman saw Bangladeshi secularism as a tool to detach religious afairs from state initiatives. He argued that the religion is a matter of citizens’ private beliefs and conduct, and while the state must guarantee the freedom of religion, it shall have no relation to religions.52 Islam views secularism as a lack of religiosity in the state and the state’s indiference towards religion.53 Also, Anisuzzaman showed that from Bangabandhu’s time, the term secularism was understood as ‘not absence of religion,’ and secularism was broadly construed as ‘religious neutrality among religions or equal treatment of all religions and not separation between church and state.’54 This approach eventually dominated the discourse. Therefore, the non-separationist dimension is arguably a politically constructed idea. Secularism beholding social reality

This argument posits that declaring Islam the state religion responds to Bangladesh’s changing social reality. It is based on a particular assumption about social reality. As one reflected in PM Hasina’s statement – ‘Many things have changed with time. We have to accept Islam as the state religion [as] [t]he people of this country want Islam to be the state religion.’55 She further asserted that ‘the majority’s sentiment will be respected and the government’s action would not hurt their sentiment . . . , but Bangladesh will be a state based on secularism.’56 A Pew survey provides an essence of the current popular senti-

48 SM Masum Billah, ‘Rethinking Secularism under Bangladesh Constitution’ (2014) 1(1) Jagannath University LJ 149; Menski (n 39) 31. 49 SM Masum Billah, ‘Can “Secularism” and “State Religion” Go Together?’ in Mizanur Rahman and M Rahmat Ullah (eds), Human Rights and Religion (ELCOP 2014). 50 SM Masum Billah, ‘Bangladesh: Public Law, Religious Freedom and Regulating Religious Sentiment’ in Li-ann Thio and Jaclyn L Neo (eds), Religious Ofences in Common Law Asia: Colonial Legacies, Constitutional Rights and Contemporary Practice (Hart Publishing 2021) 217. 51 Goswami (n 36). 52 Khanam and Dey (n 40). 53 ibid. 54 Anisuzzaman (n 10) 39. 55 Chowdhury (n 21) 49. 56 Bhuiyan (n 44) 216.

66

Muhammad Rezaur Rahman

ment. The survey shows 82% of Bangladeshi Muslims support having Islamic law as ofcial law.57 This data reveal the changing social reality where the politicisation of Islam is deeply entrenched and majoritarian hegemony has been normalised, so declaring Islam as state religion was unavoidable. Anisuzzaman questioned whether the Bangladeshi society had transformed enough to have such coexistence. He acknowledged the growing relevance of religion in society but claimed that it should not be construed as creating the need for a state religion.58 There had been no public demand for state religion. The military rulers made these changes for their own political purpose59 and the people accepted them because they had no other choice.60 However, it is also true that it was the people who overthrew Ershad, the military ruler to first make Islam the state religion.61 This factor indicates that the state religion does not take precedence over other political demands such as freedom of religion and democracy. The Supreme Court in Chadpuri62 raised the question of whether the state needs religion because it ‘cannot perform religious duties.’63 Strategic political compromise

Coexistence is a strategic political move or compromise not meant as a permanent strategy. This strategy gets some support from senior AL leader Abdur Razzaq, who in 2016 said that ‘the State of Muslim-majority Bangladesh will drop Islam as the country’s state religion when the time comes . . . Islam has been kept as the state religion for strategic reasons.’64 The strategy is to preserve secularism while avoiding political backlash. For example, in 2016, Hefazat-e-Islam,65 in response to a writ petition challenging the ofcial status of Islam, publicly threatened that removal of Islam as the state religion would end in millions of people taking to the street and social chaos.66 The coexistence of secularism arguably mitigates such violent

57 Mubashar Hasan, ‘Religious Freedom with an Islamic Twist: How the Medina Charter Is Used to Frame Secularism in Bangladesh’ accessed 18 April 2022. 58 Anisuzzaman (n 10) 42. 59 ibid 43. 60 ibid. 61 ibid 43. See also, Muhammad Rezaur Rahman, ‘The Compatibility of State Religion and Constitutional Secularism Co-Existence: Bangladesh in Context’ (2020) 24(1) Indian J. of Secularism 30, 39. 62 Maulana Syed Rezaul Haque Chadpuri v Bangladesh Jamaat-e-Islami (2014) 66 DLR (HCD) 14. 63 Chowdhury (n 21) 199. 64 ‘Bangladesh Will Drop Islam as State Religion When the Time Comes’ accessed 18 April 2022. 65 Julien Bouissou, ‘Bangladesh’s Radical Muslims Uniting Behind Hefazat-e-Islam’, The Guardian (30 July 2013) accessed 29 May 2022. 66 ibid.

Secularism and Islam as the state religion

67

possibility. Thus, coexistence can be seen as ‘a compromise formula involving religion and [a] secular ideal.’67 The coexistence is an astute move to placate both secularists and Islamists, indicating that state religion is not a matter of need but rather a convenience that has nothing to do with respecting religious pluralism or acknowledging the positive role of religion in social life – something the government claims. Prime Minister Hasina’s statement that ‘we have to accept Islam as the state religion’ testifies to it. Moreover, during the Ershad regime, Hasina acknowledged that due to the broader sentiment attached to Islam, the majority’s religion, the state religion could not now be removed from the Constitution. A strategic response to or political compromise through coexistence might have been a preemptive response to a possible backlash, which, however, does not mitigate the conflict between secularism and the state religion. Coexistence is the mode of living (modus vivendi)

Bhuiyan claimed that coexistence is a form of modus vivendi (MV).68 Modus vivendi arrangement is an institutional strategy that allows conflicting groups to live together peacefully, where peace should be construed as a stable absence of violence.69 In Bangladesh, if Muslims and religious minorities are construed as conflicting groups, the coexistence strategy ofers peace without compromising secularism with the state religion and vice-versa. However, the theoretical requirements must be satisfied to construe coexistence as an MV. When the MV is translated into the Bangladeshi context, there are some differences. There are no conflicting groups. Instead, politically instigated and/or radicalised majoritarian Muslims one-sidedly persecute the minorities. Thus, theoretically, the premises for MV do not exist in Bangladesh. Symbolic recognition to the majority religious community

Billah contended that the state religion should be considered a symbolic ceremonial recognition of a religious community that constitutes a majority of the population.70 This proposition is based on the following: Islam as a state religion is not a fundamental constitutional principle. It is mainly apolitical recognition of Islam without any overarching impact on secularism. Also, the substitution of ‘absolute trust on Almighty Allah’ with secularism, as a fundamental constitutional principle, confirms its constitutional priority. Secondly, the state religion neither establishes a Sharia-based theocratic legal system

67 Harun-or-Rashid, ‘Desecularisation and Rise of Political Islam in Bangladesh’ (2012) 57 J of Asiatic Society 29, 38. 68 Bhuiyan (n 6) 447. 69 Fabian Wendt, ‘The Moral Standing of Modus Vivendi Arrangements’ (2016) 30 Public Affairs Quarterly 351, 351. 70 Billah (n 48).

68

Muhammad Rezaur Rahman

nor mandates the establishment of Sharia courts71 to override the validity of secular law. Besides personal religious laws, secular laws continue to be the corpus juris of the Bangladeshi legal system. Thirdly, the provision of a state religion does not prevent the state from enacting any secular law derogating from Islamic principles.72 Fourthly, article 2A is diferent from other jurisdictions where constitutional recognition of majority religion goes beyond symbolism. For example, in Sri Lanka, the Constitution declares the primacy of majority religion – Buddhism, which requires the state to protect and foster Buddhism.73 Bangladesh’s Constitution does not require any such positive obligation. Thus, the state religion is mainly symbolic. Bardon74 and Laborde75 propose certain conditions for permissible symbolic establishment or recognition of any ofcial religion. The symbol must be non-divisive, non-political, and justified to people. Based on this framework, declaring any religion as the state religion as a symbolic recognition becomes problematic because it is divisive (i.e., a marker of social vulnerability and domination)76 and political. Religious minority’s responses to state religion signal the divisive political nature of the recognition. Religious minorities have always been cautious of a state religion.77 The Bangladesh Hindu Buddhist Christian Unity Council has posed state religion as a seed of communal politics and minority persecution.78 Also, Hefazat-e-Islam’s public warning to bring public havoc in response to writ against state religion entails the political importance of the state religion. Finally, the state religion is not justified to the people because while it grants equal respect to all other religions, it contradictorily sets Islam as the ‘standard’ of treatment for other religions.

The equal respect argument

Laborde argues that recognising the majority religion may be justifiable ‘if equality between believers of diferent religions is interpreted as mandating

71 MJH Bhuiyan, ‘Law and Religion in Bangladesh’ (2017) Brigham Young U L Rev 839, 857. 72 Rahman (n 61) 37. 73 Article 9 of the Constitution of Sri Lanka says: ‘The Republic of Sri Lanka shall give to Buddhism the foremost place and accordingly it shall be the duty of the State to protect and foster the Buddha Sasana, while assuring to all religions the rights granted by Articles 10 and 14(1)(e).’ 74 Aurélia Bardon, ‘Christmas, Crescents, and Crosses: When Is Symbolic Religious Establishment Permissible?’ (2022) 66 AJPS 255, 259–260. 75 Laborde (n 47). 76 ibid 137. 77 Heiner Bielefeldt, ‘Report of the Special Rapporteur on Freedom of Religion or Belief on His Mission to Bangladesh’ accessed 31 March 2022. 78 Sumon Corraya, ‘Hindus, Buddhists and Christians Say No to Islam as State Religion’ accessed 18 April 2022.

Secularism and Islam as the state religion

69

even-handed support of all by the state.’79 The SC in the Goswami case afrms that equal respect part of article 2A mitigates any derogation from the ideal of secularism and does not raise any question of discrimination,80 though the Court did not clarify how the equal respect mitigates the conflict.81 Billah explains the significance of ‘equal respect’ by comparing the language of the old article 2A with the present version. He argues that the old version stipulates that Islam is the state religion but that other religions may be practised in peace and harmony. In contrast, the present article 2A uses the expression of equal status, and the idea of ‘equal respect’ puts a positive obligation on the state to ensure equality among all religions.82 However, the fact remains that the state religion’s status has only been granted to Islam. The escalation of communal violence, the government’s reluctance to regulate Hefazat, persecution of free thinkers,83 and PM Hasina’s declaration of running the country based on the Medina Charter contradict the idea of equal respect for all religions.84 Thus, without objective criteria, mentioning equal respect for all religions under article 2A does not practically mitigate the hierarchy between Islam and other religions.

Maintaining religious pluralism

Coexistence is often argued to be a means to deal with Bangladesh’s pluralist religious dynamics. Hirschl’s constitutional theocracy theorises that in contrast to the traditional assumption to see religious inclusion in the Constitution as a bad omen, religion is sometimes strategically imported by secular elites as a token to contain and spread religion.85 Constitutional courts under constitutional theocracy can use constitutional means to ‘tame’ or ‘moderate’ religion by interpreting it liberally.86 Likewise, Hoque considers coexistence an innovative formula cognisant of religiously pluralist Bangladeshi society.87 It ‘seems to ofer a uniquely skilled tool to navigate competing identity claims.’88 This

79 Cécile Laborde, ‘Political Liberalism and Religion: On Separation and Establishment: Political Liberalism and Religion’ (2013) 21 J Poll Philosophy 67, 72. 80 Goswami (n 36). 81 Chowdhury (n 21). 82 Billah (n 48) 154. 83 Rahman (n 18). 84 ‘Country to Be Run as Per Madinah Charter: PM’ accessed 13 June 2022. 85 Ran Hirschl, Constitutional Theocracy (Harvard University Press 2010). 86 ibid. 87 Ridwanul Hoque, ‘Eternal Provisions in the Constitution of Bangladesh: A Constitution Once and for All?’ in Richard Albert and Bertil E Oder (eds), An Unamendable Constitution? (Springer 2018) 207. 88 ibid 14.

70

Muhammad Rezaur Rahman

argument reiterates Menski’s position that article 2A presents ‘the more productive and realistic approach to address religious pluralism and connections of religion with politics [and] society,’ bringing them to the table for debate and management.89 All these arguments imply that article 2A is a tool to navigate the competing claims of religions within reach of constitutional law, without which there is a chance of full-blown religious penetration. Shah outlined the adverse long-term efects of constitutionalising any particular religion. Without a strict rule of law, constitutionalised religion might become malleable and bring unintended, perverse consequences.90 Schonthal argued that ‘association of constitutional law with the reduction of conflicts over religion belies the fact that constitutional practice often coincides with the escalation of conflict,’91 which can ‘harden religious divisions, perpetuate disputes and, in some cases, amplify the perceived religious dimensions of social conflicts.’92 The harm is already visible. Bangladesh’s democratic crisis, strong political presence of religion in the public sphere, the weak rule of law, meagre protection for religious minorities, and unscrupulous history of religion-based politics do not indicate an ideal political platform for constitutionalising religion. Anti-coexistence justifications and their critiques Historical justification

Subcontinental history shows the negative outcome of religion-based politics. For instance, Hinduism during the Swadeshi movement against the British Raj, the Muslim preference for the Bengal partition, the two nations theory, or Islamisation of the Pakistani Constitution’s religiously driven political or legal interventions, none of these religiously driven political moves played in the interest of the mass.93 Religion-based politics gradually dismantled tolerance, forged division, cost lives in communal violence, and fragmented a united geographical entity in 1947. These historical contexts motivated Bangladesh’s liberation struggle on secular grounds. Also, the 1971 genocide of Bangalees and the persecution of Hindus were strong factors in the 1972 Constitution’s design. Secularism intended to prevent repeating the mistakes Pakistan made by creating political hegemony. That said, politico-legal reformers need to acknowledge the present reality. After the 15th Amendment, it is imperative to interpret the coexistence as a

89 Menski (n 39) 31. 90 Dian AH Shah, Constitutions, Religion and Politics in Asia: Indonesia, Malaysia and Sri Lanka (Cambridge University Press 2017) 4. 91 Benjamin Schonthal, Buddhism, Politics and the Limits of Law: The Pyrrhic Constitutionalism of Sri Lanka (Cambridge University Press 2016). 92 ibid. 93 Rahman (n 2).

Secularism and Islam as the state religion

71

crafty balance between the past and the present, whether or not the present government practises its claim of giving precedence to secularism over Islam. State religion is inconsistent with Bangalee nationalism

Using his ‘kite theory of law’,94 Menski argues that secularism, socialism, democracy, and nationalism are the four corners of a kite that represents the key elements of Bangladesh’s national vision.95 These four corners must work in consonance and, thus, test the coexistence’s compatibility. For Menski, nationalism is directly connected to secularism.96 The language and spirit of the liberation war, the two constitutive elements of Bangalee nationalism, reflect the denial of religious hegemony and the formation of a new nation based on language and culture, not religious normativity. The SC’s obiter in the 16th Amendment Case is also relevant, where it remarked that the 15th Amendment retained the provision of state religion ‘to cope with the religious sentiment’ that ‘directly goes against the spirit and aspiration of our liberation war.’97 In the Court’s view, ‘the principle of secularism was compromised’ by the legislature and that constitutional change keeping Islam as the state religion under the 15th Amendment ‘buried the spirit of original constitution and liberation war.’98 This position has been criticised too. Firstly, whether nationalism is the correct principle to contend with the issue of the state religion. The nationalism principle is argued to be an imposition by political elites and intelligentsia against Bangladeshi people’s religious identity. Bangalee nationalism is allegedly partisan and exclusionary as it afrms only the dominant Bangalee ethnicity, excluding almost fifty-four diferent non-Bangalee indigenous groups.99 Secondly, while language- and culture-based nationalism was historically a response to religious hegemony, it does not indicate indiference to religious culture forming an integral part of Bangalee’s life.100 De-secularisation argument

This position argues that the state religion has escalated the reactionary presence of Islam and marginalised secularism. The ultra-rightist Islamic groups

94 Werner Menski, ‘Remembering and Applying Legal Pluralism: Law as Kite Flying’ in Lukas H Urscheler and Seán P Donlan (eds), Concepts of Law: Comparative, Jurisprudential, and Social Science Perspectives (Routledge 2016). 95 Menski (n 39). 96 ibid. 97 Bangladesh v Advocate Asaduzzaman Siddiqui (2017) 25 BLT (Special Issue) (AD) 1. 98 ibid. 99 See generally, Ridwanul Hoque, ‘Inclusive Constitutionalism and the Indigenous People of the Chittagong Hill Tracts in Bangladesh’ in MP Singh (ed), The Indian Yearbook of Comparative Law 2016 (Oxford University Press 2017). 100 Rahman (n 61) 49.

72

Muhammad Rezaur Rahman

have recently escalated demands for Sharia-based governance. Increased religious sensibilities in political discourse indicate strain on secularism and state capitulation towards religiosity. Public warnings by PM Hasina to the bloggers for criticising Islamic sentiments101 and the government’s recent attachment with Hefazat are examples that signal the gradual decline of secularism and religious revivalism. It may be argued that de-secularisation got momentum after the 2011 constitutional amendment. While there is a stream of increased religious sensibilities or intolerance, there is no revolutionary movement against secularism or for the establishment of a theocratic/Islamic state. De-secularisation and its apparent connection with the state religion can be questioned. By contrast, it may be questioned if there was ever any formal secularisation in Bangladesh. Towards a new discourse of secularism and state religion debate The previous discussion shows that every justification in favour or against coexistence can be questioned by historical-social facts, political discourse, and jurisprudence. This is partly because of the disagreement on religion’s role in society and politics – religious versus secular identity conflict; functionality of secularism in a Muslim country; concrete meaning of secularism; the role of religion in public life; rationale for having a state religion; and the efectiveness of present secularism. Without resolving these issues, focusing on the coexistence debate may distract attention from the possible way out. The need for an alternative discourse is, therefore, apparent. As such, the current crisis may not be resolved just by removing the state religion clause in the Constitution, but it could be the first step. Therefore, it is essential to start a new discourse to address national identities, religion, and governance issues. Consequently, Bangladesh may explore the possibility of adopting formal secular policy through micro- and macro-level deliberations with people from diferent religions and non-religious communities. Legal and administrative policies related to the governance of religion must be based on the reasonable consensus of the communities. This is a difcult balance to strike in Bangladesh. Nevertheless, such difculties should not be an excuse for leaning towards the specific policy of having Islam as the state religion, which may alienate part of the population from being equal citizens of the republic. Conclusion The inclusion of secularism in the constitutional framework was not a smooth process. The earliest attempts to defuse the secular and religious tension intended to provide a religiously conducive meaning to secularism but did not

101 ‘Bangladesh Bloggers Fear Threat from State’ accessed 18 April 2022.

Secularism and Islam as the state religion

73

ease the tension. The ambiguities of the meaning of Bangladeshi secularism escalated the tension and led to the removal of secularism and the inclusion of Islam as the state religion. The 15th Amendment, nevertheless, brought back secularism while not removing the state religion, creating the constitutional paradox of coexistence. While pro- and anti-coexistence factions have cogent arguments to support their position, they are not decisive. Although the result of coexistence is supported by the ruling government and is not seriously questioned by the Court, the constitutional innovation under the 15th Amendment fails to strike a balance between the state religion and the freedom of religion of the believers in other religions as well as non-believers. The chapter has traced all these debates, identified the discrepancies of each argument, and finally showed that the present challenges relating to governance of religions is not amenable to the simple removal of Islam from the ofcial position. The solution requires an alternative discourse in finding a stable mechanism for governance of religion.

Part II

Constitutionalism, rule of law, and judicial review

5

Rule of law within the constitutional scheme A judicial perspective Syed Refaat Ahmed

Introduction This chapter proceeds on the premise that, firstly, justice is based on the understanding that law and morality are intertwined concepts, in turn determining how justice is delivered, and, secondly, law as a department of morality is defined by its distinct substance distinguishable and refined by institutional structures and constitutional schemes. I am indebted to Ronald Dworkin’s espousal of these ideas in his Justice in Robes1 while critiquing and largely rejecting the doctrinal positivism of HLA Hart. Hart views the “existence and the content of the law” to be “identified by reference to the social sources of the law (e.g., legislation, judicial decisions, social customs) without reference to morality except where the law thus identified has itself incorporated moral criteria for the identification of the law”.2 Dworkin explains that legal positivists have subscribed to this view to insist that judges should strictly obey legislative commands and not arrogate to themselves the authority to either criticise the law or substitute legislative commands with their own. Note, therefore, Jeremy Bentham’s assignment to the sovereign ruler and a popular legislature sole authority to declare and decree upon the content of the law. Hence, the positivist truism Law Stops Where Decree Ends.3 In contradistinction to the positivist view, I submit that efcient and efective delivery of justice must involve a determination of the substance of law, and the role assumed by judges in this regard is a real one. Judicial review of administrative decisions/orders as sanctioned under article 102 of the Constitution of the People’s Republic of Bangladesh (hereafter ‘the Constitution’) and the recognition of judicial authority to enforce fundamental rights under article 102(1), read with article 44(1), are two significant aspects of such a role. Detractors of such a judicial role see it to be discordant with the majoritarian democratic ideal of only a popularly elected legislature being authorised

1 Ronald Dworkin, Justice in Robes (The Belknap Press of Harvard 2006). 2 HLA Hart, The Concept of Law (Oxford University Press 1994), 269. See also Dworkin, ibid 144. 3 Dworkin (n 1) 174. DOI: 10.4324/9781003276814-7

78

Syed Refaat Ahmed

to define the substance of the law. In other words, they would view the judicial review process to be undemocratic. If, however, to the contrary, one adheres to the notion of fairness being indispensably linked to a functional democracy, the judiciary’s role in ensuring such fairness remains pivotal. In this sense, “judicial review is not inconsistent with democracy because democracy does not mean just majority rule, but majority rule subject to those conditions that make majority rule fair”.4 Many who oppose this concept of democracy and also the necessity of judicial review, nevertheless, concede in a limited sense and confined within a restricted scale the existence of constitutionally guaranteed freedoms or fundamental rights.5 Judicial review, therefore, marks a shift away from majoritarian righteousness (and the strict positivist view) towards ensuring fair play in a democratic constitutional order. Such a shift is not merely tactical but unavoidable. Judicial role in discovering the true proposition of law as a manifestation of the rule of law Based on the previous section, I posit that it falls on judges today operating within a modern-day constitutional dispensation to decide on the true proposition of law. That indeed has been the preoccupation and thrust of common law principles that have evolved over the centuries in the field of judicial review of the legality of administrative or executive decisions. The content of these principles derives from the concepts of political and personal morality like justice, liberty, equality, and right and wrong. It becomes imperative, therefore, for the judiciary in the discharge of its constitutional mandate to rely on these interpretative concepts in finding and identifying the true proposition of law. Furthermore, the sum total of these concepts is reflected in our image of legality and the rule of law6 constituting the fundamental basis of the Bangladeshi or any democratic order. Indeed, that is the ideal that any proposition of valid law must aim at. It is that ideal that, in turn, reflects the aspirational value of the law. There are certain pathways through which the aspirational value may be determined. Judicial independence marked by integrity, morality, and pragmatism is but one of the indicators that judges must conform to in arriving at coherent, intelligible, and reasoned conclusions as to the scope and nature of the law. It is at this juncture that a theoretical or jurisprudential ascent takes

4 ibid. See also R Dworkin, Freedom’s Law: The Moral Reading of the American Constitution (Harvard University Press 1996). 5 Dworkin (n 1) 147–148. 6 The principle of legality, which can be equated with the rule of law, is especially enshrined in article 102(2) of the Constitution, which allows the Court to enforce the principle in a judicial review proceeding. The concept of the rule of law, on the other hand, is a core principle of the Constitution (see the preamble).

Rule of law within the constitutional scheme

79

place in discarding traditional, and strictly positivist, modes of defining and applying the law. The philosophical underpinnings of the rule of law in a democracy converge in the following order of the High Court Division of the Supreme Court made in an election dispute. That order is notable in that it encapsulates, in a nutshell, the content and true essence of the rule of law and the process by which it is safeguarded. In an election dispute involving the interpretation of article 66(2)(d) of the Constitution, brought to the Court in a constitutional judicial review,7 the petitioner challenged the cancellation of her candidacy in the parliamentary election on the ground that, pending appeal, her conviction was determinative to disqualify her. The key part of the Court’s order in Begum Khaleda Zia v Bangladesh Election Commission8 reads thus: The mainstay of the prayer for a Rule Nisi has been the ratio decidendi of the Appellate Division Judgment in Khaledur Reza Chowdhury vs. Saleha Begum reported in 48 DLR (AD) (1996) 268, . . . The moot issue arising in this case, therefore, is . . . the substantive status and efect of an order of conviction and sentence during the pendency of an appeal. The Petitioner’s learned Advocate, Mr A.J. Mohammad Ali has argued on the 48 DLR Case as authority for the view that an electoral disqualification stemming from a conviction and sentence would only mature and become final either on a final disposal of an appeal or an expiration of the limitation period of filing of [the] appeal. Mr Mahbubey Alam, appearing for the Election Commission, has gone on to contradict that position. Mr Alam’s assertion on the contrary has been that the 48 DLR Case remains authority instead for a limited exercise of authority in judicial review by a constitutional court in matters of election disputes. He has also cited the judgment in Zahedul Islam Khan vs. HM Ershad reported in 6 BLC 2001, 3019 . . . as indicative of a disqualification attaching immediately upon conviction in the context of article 66(2)(d) of the Constitution. The debate above demonstrates to this Court, and in [this judge’s]10 considered opinion, a lack or absence of a definitive and entrenched judicial view, expressed in particular by the Appellate Division, on the nature of disqualification attaching upon a conviction in the context of article 66(2)(d) of the Constitution and the substantive efects flowing therefrom. That in itself, in the undersigned’s view, merits a Rule Nisi to

7 Writ Petition No. 15740 of 2018, High Court Division (order of 11 December 2018), resulting in the reported case of Begum Khaleda Zia v Bangladesh Election Commission (2019) 7 CLR (HCD) 8. 8 (2019) 7 CLR (HCD) 8, 10–11. 9 Upheld in Hussain Mohammad Ershad v Zahidul Islam Khan (2001) 21 BLD (AD) 142. 10 The author of this chapter was the judge writing the order.

80

Syed Refaat Ahmed be issued [by this Court]. Furthermore, it has not escaped this judge’s attention that the impugned order of rejection [of the Petitioner’s candidacy] by the [Returning Ofcer, Bogura] is substantively flawed in its citation of a disqualifying provision of the RPO11 evidently inapplicable in the facts and that the other impugned order . . . issued by the . . . Election Commission [of] Bangladesh, afrming such rejection and cancellation order of [the Returning Ofcer], is not a unanimous one. Indeed[,] a dissenting order of one Election Commissioner is on record questioning the sufciency of the rejection order of 2.12.2018 passed by the [Returning Ofcer]. These facts also further attest to the need for further review of all relevant issues by this Court. There is additionally, an element of the Petitioner potentially being treated in a manner that is in contravention of fundamental guarantees under article 27, in particular, of the Constitution given her contention that certain individuals otherwise similarly placed as her have been allowed to contest the forthcoming election. Predicated on the above, an entire gamut of issues convinces the undersigned that the issue of disqualification that is focal to this case arising from a conviction and sentence is far from being a settled matter authoritatively and definitively decided upon by the superior court at any level. With jurisprudence so unevolved . . . concerning the issue of disqualification as arises here, the merit in this Application . . . lies . . . in ofering an opportunity to establish a definitive judicial stance on such issue. Until then, the undersigned sees no ground that can reasonably be taken to satisfactorily apply any ostensible objective standard with any level of certainty in the facts and circumstances. To argue and insist otherwise would be to take an overly formalistic view of the application of the relevant law and constitutional provision.

The senior judge of the Bench thought that “a final and authoritative ruling” on the interpretation of the application of article 66(2)(d) of the Constitution warranted “a full-scale hearing of the matter”.12 He also thought that: to summarily reject [the petition] in the absence of any definitive judicial endorsement of a standard test .  .  . would result in ofending the entrenched constitutional equality and anti-discrimination standards preventing jurisprudential development and authoritative interpretation of article 66(2)(d) and stunting, resultantly, the growth of a substantive democratic order beyond a mere formal one.13

11 The Representation of the People Order 1972 (President’s Order No. 155 of 1972). 12 Begum Khaleda Zia v Bangladesh Election Commission (2019) 7 CLR (HCD) 8, 11 (emphasis added). The author of this chapter was the senior judge of the Bench. 13 ibid 11.

Rule of law within the constitutional scheme

81

In view of this reasoning, and “upon prima facie satisfaction of the merit of [the] Application”, the senior judge issued a rule nisi calling upon the Respondents to show cause as to why their orders/decision “should not be declared to have been passed illegally” and why “the Petitioner should not be allowed to participate in the ensuing national parliamentary elections on 30 December 2018” pursuant to a decision of the Appellate Division of the Supreme Court reported in 48 DLR (AD) 208.14 The Court ordered a stay of the operation for three months of the impugned decisions passed by the returning ofcer cancelling the nomination paper of the petitioner and affirmed by the Election Commission as the appellate body. Furthermore, “the Respondents [were] directed to allow the Petitioner to complete all necessary formalities to contest in [then ensuing] 11th parliamentary elections . . . beyond the timeline otherwise fixed by the Respondents”.15 The theoretical ascent we speak of has a core moral element to it, and that element, in turn, is essentially constitutional. Bangladesh’s Constitution, like others, places constraints on legislative and executive power in terms construed to be moral. Constitutionally guaranteed freedoms and rights, in themselves, read as limits on ofcial power to arbitrarily derogate from or deny the same. Increasingly, the fundamental principles of state policy16 are being invoked by the Constitutional Court not merely for the interpretation of the law but also for the progressive development of the law. Article 102 of the Constitution, in authorising the judiciary to examine violation of fundamental rights or to issue writs of certiorari, prohibition, mandamus, habeas corpus, or quo warranto, sanctions the various pathways through which judges can make moral judgments on moral-legal issues for the attainment of that ultimate aspirational value of both legality and the rule of law. The following section analyses this aspect of the rule of law. Morality as an aspirational value of the rule of law One such judicial exercise at determining the substance or the true proposition of law involved two cases, Md. Mehdi Hassan v Bangladesh with Venita Salgado v Bangladesh,17 disposed of analogously by a common judgment of the High Court Division.18 That judgment probed into the inadequacies of a legal provision, the inequities that result from it, and the responsibility thrust upon the Court to identify and clarify the true content and proposition of the law. The presumption is that of a moral test applied by the Court in asking itself what ought the law fairly and reasonably achieve? In other words, what does

14 15 16 17 18

ibid. However, the other judge of the Bench, Kabir J, dismissed the petition summarily. ibid 12. These directive policies are enshrined in Part II of the Constitution (arts. 8–25). (2012) 1 LCLR (HCD) 380 (also reported in (2014) 19 BLC (HCD) 472). The author of this chapter was the author judge, writing the opinion of the Court.

82

Syed Refaat Ahmed

the law aspire to achieve? The validity of that exercise is further amply attested to by legislative changes brought into the law at the heels of the judgment analysed next. That consequential amendment removes all scope for arbitrary interpretation and application of the law as addressed in the judgment itself. What emerges, therefore, is a complementary functioning of two organs of the state – the judiciary and the legislature – mutually reinforcing the common quest for establishing the rule of law without straying beyond their constitutional boundaries. The judgment in Md. Mehdi Hassan Case has emerged as a landmark ruling both with regard to issues of maintainability/reviewability and enunciation of the definition of worker under the Bangladesh Labour Act 2006 (hereafter “BLA”). It was argued that the actions of a company’s Board of Trustees (BOT) are not subject to judicial review as the BOT is not a statutory public authority performing functions in connection with the afairs of the republic or of a local authority and that the employees with a supervisory/managerial role are not workers under the BLA. The Court found that the BOT of Unilever’s Workers Participation and Welfare Fund (“the Fund”) exercises powers under the BLA for and on behalf of the government and under its express and continuous supervision. It is the fundamental responsibility of the state, as enshrined in the preamble, article 10, and article 14 of the Constitution,19 to emancipate workers from all forms of exploitation. Accordingly, the Court found that the BOT, in implementing the provisions of the BLA, which was enacted to protect workers from exploitation, performs public functions closely related to those required to be performed by the state in its sovereign capacity. As such, the illegalities committed by the BOT are amenable to the writ jurisdiction of the Court. Furthermore, the Court held that the judicially sanctioned standards for determining whether an employee is a worker or not include such matters as the power of the employer to hire or fire, the authority to appoint employees, and/or to take any disciplinary actions against them, the power to discharge any policy-making responsibility and the ability to exercise any discernible degree of discretionary power in the discharge of one’s duties. The judgment remains the authoritative exposition and interpretation of the law on accessibility to the workers’ Fund.20 Following the judgment, the legislature, in untying the Gordian knot, brought changes by an amendment21 to section 233 of the BLA inter alia providing an expansive definition of “beneficiaries” of the Fund. The amended definition, freed from interpretational trappings, emphasises the notion of accessibility to the Fund as was indeed the focal point of consideration in the judgment. Significantly further, there is a notable shift in the prime determinants of such accessibility. The performance of administrative, managerial, and

19 These provisions are further detailed in another section. 20 Although an appeal against the judgment was lodged, that process was abandoned when Unilever filed an application for withdrawal from the appeal process. 21 Via the Bangladesh Labour (Amendment) Act 2013 (Act No. 30 of 2013).

Rule of law within the constitutional scheme

83

supervisory roles is no longer a bar for someone to be recognised as a worker. Indeed, a broader concept of beneficial interest in the Fund is adopted regardless of one’s ofcial status or designation subject to the easily calculable prerequisite of a nine-month minimum service period. The legislature appears to have taken note of the judgment’s elaboration of the pitfalls of, and arbitrariness inherent in, the process of segregating workers according to their responsibilities discharged and has been guided by a more benevolent notion of equity and fair play by opening up accessibility to the Fund to all workers. Indeed, the legislature has gone a step further than the Court in the proper administration of the Fund. While the Court sought the best feasible implementation of a difcult piece of legislation by resorting to tests of fair play and good reason and confined itself to the given legislative perimeter, that jurisprudential ascent provided the legislature with an indication of the way forward. The legislature with its entrenched democratic authorisation, therefore, completely overhauled the access mechanism to deter any possibility of exploitative machinations and devices hatched. That theoretical ascent, made by the Court, was but a moral value attached to a fundamental constitutional tenet against the exploitation of workers. Dwelling on the “public nature” of the functions of a private entity as the Unilever BOT, the Court ofered the following exposition of the constitutional scheme within which such functions have to be discharged: The public nature of the functions of the BOT is found further to be predicated on the very scheme of the [Act of 2006]. The purpose of both the Acts is to protect the rights of the workers i.e., to ensure in the present instance that they get a fair share of the Company’s profits and to prevent exploitation of the workers by their employers. The BOT by administering the Welfare and Participation Funds in accordance with the directions of the Government is ensuring that workers are protected from exploitation by their employers. To that extent, the BOT by implementing the provisions . . . of the Act of 2006, is intended to facilitate fulfillment of the fundamental responsibility of the State to emancipate workers from all forms of exploitation. In that regard, this Court takes due note of the Preamble of the Constitution which states that it shall be the fundamental aim of the State to realize through the democratic process a socialist state free from exploitation i.e., a society in which the rule of law, fundamental human rights and freedom, equality and justice, political, economic and social, will be secured for all citizens. Indeed, in keeping with the demands of a socialist state, the framers of the Constitution enacted articles 10 and 14 of the Constitution. Article 10 provides that a socialist economic system shall be established with a view to ensuring the attainment of a just and egalitarian society, free from exploitation of man by man (e.g., of workers by employers). Article 14 of the Constitution makes it a fundamental responsibility of the State to protect peasants and workers from all forms of exploitation. Given further that

84

Syed Refaat Ahmed Articles 10 and 14 are fundamental principles of State policy, according to article 8(2) [these] principles . . . are fundamental to the governance of Bangladesh and shall be applied by the State in the making of laws . . . and shall form the basis of the work of the State i.e., the duties and responsibilities vested by statute in the BOT . . . to implement the provisions . . . of the Act of 2006. This Court holds in this regard that the BOT, being a statutory public authority, is a component of the State. And in view of the socialist character of the State, the functions of the BOT in protecting workers from exploitation by implementing the provisions of the Act of 2006, are in fact public/governmental functions and closely related to those required to be performed by the State in its sovereign capacity.22

The Court, accordingly, arrived at conclusions as to the scope and nature of the law based on its opinion on justice, equality, right, and wrong. Distilled further from that judicial opinion has been the true objective or the aspirational value of the law drawing upon article 8 of the Constitution. Nowhere in the Constitution is there a greater moral value attached to a legal order than in article 8(2) which declares the fundamental principles of state policy such as those enshrined in articles 10 and 14 to be “fundamental to the governance of Bangladesh” and mandates them to “applied by the State in the making of laws” and “a guide to the interpretation of the Constitution and of the other laws” (article 8(2) of the Constitution). The test case of Md. Mehdi Hassan attests to an exercise in pragmatism and democratic fairness in gauging the true proposition of law by subscribing to the declaration in article 8(2). Does that, accordingly, reveal the true status of the Constitution itself as a treatise on legal and political morality? Is its preambular aspiration to “realize . . . a socialist society, free from exploitation – a society in which the rule of law, fundamental human rights and freedom, equality, and justice, political, economic, and social, will be secured for all citizens” an indulgence in a discourse on political morality? I say that it is. Dworkin believes that any adequate account of the aspirational concept, the values of legality, and the rule of law must accord prominence to the ideal of political integrity, that is, that a state should try so far as possible to govern through a coherent set of principles whose benefit it extends to all citizens.23 The judiciary’s role as an organ of the state is to declare the true and ideal content of such principles. It would be remiss not to acknowledge that the judiciary is well on its way “to usher in a new era of a liberal and progressive constitutional order” through “the great judicial power entrusted to our judges by the entrenchment of the jurisdiction of judicial review of administrative and legislative acts”.24 Md. Mehdi Hassan is but one such example of judicial insight and pragmatism in progressive jurisprudential development.

22 Md. Mehdi Hassan v Bangladesh (2012) 1 LCLR (HCD) 380, 391–392. 23 Justice in Robes (n 1) 176. 24 Syed Ishtiaq Ahmed, Certiorari: An Administrative Law Remedy (Mullick Brothers 2011) 148.

Rule of law within the constitutional scheme

85

The rule of law within the constitutional scheme and the moral reading of the law Significantly, the Constitution does not provide a definition of what the notion of rule of law is precisely intended to encompass. This, I submit, is by design rather than oversight and in acknowledgment of the evolving frontiers of that all-important concept. I subscribe wholly to what Bingham has had to say in his compelling work The Rule of Law.25 In a similar context of the draftsmen’s notable omission of an otherwise expected “pithy definition” in the Constitutional Reform Act of 2005, Bingham observes: I think, they recognized the extreme difculty of devising a pithy definition suitable for inclusion in a statute. Better by far, they might reasonably have thought, to omit a definition and leave it to the judges to rule on what the term means if and when the question arises for decision. In this way . . . it would be possible for the concept to evolve over time in response to new views and situations.26 However, in deconstructing the rule of law to its bare essence one may look no further than the preamble to the Constitution where “the people” of Bangladesh, having proclaimed their independence and, through a historic struggle for national liberation, established an independent sovereign Republic by enacting and giving themselves the Constitution, pledged: that it shall be a fundamental aim of the State to realize . . . a society in which the rule of law, fundamental human rights and freedom, equality and justice, political, economic and social, will be secured for all citizens.27 In the preamble of the Constitution, the people also afrmed their sacred duty to safeguard, protect and defend this Constitution and to maintain its supremacy as the embodiment of the will of the people of Bangladesh so that [they] may prosper in freedom and may make [their] full contribution towards international peace and co-operation in keeping with the progressive aspirations of mankind.28 Indeed the constituents of the rule of law are readily discernible in the supremacy of the Constitution “as the solemn expression of the will of the people”;29 the fundamental principles of state policy comprising of lofty but judicially

25 26 27 28 29

Tom Bingham, The Rule of Law (Penguin 2011). ibid 7–8. The Constitution, preamble. ibid. ibid art. 7.

86

Syed Refaat Ahmed

non-enforceable principles “fundamental to the governance of Bangladesh”;30 separation of the judiciary from the executive;31 promotion of international peace, security, and solidarity;32 equality before law;33 the prohibition against discrimination;34 and the judicial enforcement of fundamental rights;35 among others. But even in the plethora of pledges, convictions, aspirations, and guarantees one remains hard-pressed to decipher the true essence of the notion of rule of law. Perhaps the answer lies latent in the very genesis of the Constitution as a social contract aiming for the establishment of a democratic society free from exploitation through limited government. In the annals of the liberal tradition of political thought, this best corresponds to John Locke’s narrative of the relation between the Sovereign State and the Sovereign People in the context of the people being recognised as the legitimate source of the state’s powers. As Held in Models of Democracy36 has exhaustively discussed, a constitution as a compact is basically a licence to a limited government upon express conditions attached marking, in Locke’s vision, the essential transitory device from a state of nature to that of regulated governance. Held shows that the notion of limited government circumscribed by a duty owed to the citizenry is in Locke’s view a licence granted to regulate the enjoyment of rights informed by a pre-licence reality. That reality, as evident in the law of nature, is one of any individual’s liberty being limited by the enjoyment of such liberty by another. Such prohibition against encroachment into or infringement of enjoyment of another’s rights reinforces the obligation commonly owed to preserve each other, deterring the domination of one individual or group by another. This Locke views as the basic principle of morality as developed within the law of nature. For Locke, the transition from the state of nature to limited government is informed, however, by inadequate regulation of guarantees to life, liberty, and property and the resultant conflicts. Held thinks that the device adopted to oversee this transition is a social compact to organise into an independent society that gives up certain facets of its autonomy to a civil association to govern in a manner that ideally best serves the governed.37 The citizenry organised in a civil-political society retains the powers as the final arbiter of the quality of governance and of the resultant change in the instrument and mode of governance. Locke presciently opined that in return for legislative and executive rights so relinquished by the citizenry, the social compact significantly made the citizenry the repository of “sovereign power” or capacity to determine

30 31 32 33 34 35 36 37

ibid art. 8. ibid art. 22. ibid art. 25. ibid art. 27. ibid art. 28. ibid art. 44. David Held, Models of Democracy (2nd edn, Stanford University Press 1996) 74–88. ibid.

Rule of law within the constitutional scheme

87

the beneficial use of such rights. The consent given actively and directly to establish a governmental structure led to such consent being deemed to be expressed through the people’s representatives to govern as trustees as per the social compact. Locke also envisioned the law-making power to be in consonance with the law of nature, that is, the principles of morality. The rights to life and liberty, so essential to human existence, also have a priority attached and are deemed non-derogatory. These are, therefore, immutable, or unalterable. They transcend the process of transformation from the basic form of human association (i.e., the state of nature) to that of an independent society and a civil association in the form of a government. This perhaps was the notion behind, for example, HR Khanna, J.’s dissenting view in the Indian Habeas Corpus Case that the right to life is a natural right incapable of suspension at any time.38 As Chandrachud has observed, here Khanna, J.’s dissent is predicated on the unalterability of natural law.39 The corollary view is that any attempt to curb such fundamental rights undermines the morality of the law. In Khanna, J’s dicta, there is a clear endorsement of Locke’s notion of rights existing in a pre-“civil association” natural state that transcends the process of transformation of human society and the source of which shall always be natural law. Accordingly, Khanna, J. found that article 21 of the Indian Constitution may not be treated as the only or essential repository of the right to life and personal liberty.40 In his view, “even in the absence of Art 21 in the Constitution the State has got no power to deprive a person of his life or personal liberty without the authority of law” and that is “the essential postulate” of the rule of law in every civilised society.41 The moral moorings of the rule of law clearly are undeniable in Khanna, J.’s observation. Predicated on that premise, it is my proposition that a positivist-naturalist deconstruction of the ratio of any judgment applying the law in general to secure substantial justice permits concomitantly the moral construction of the underlying constitutional/legal system. A 2010 judgment of the High Court Division best permits, in my view, such deconstruction and reveals the moral moorings of the rule of law as attested by the Constitution. In April 2010 the Court delivered a judgment in Mohammad Badiuzzaman v Bangladesh,42 disposing of two writ petitions touching on the Chittagong Hill Tracts (CHT) Peace Process. The Court, faced with a constitutional challenge to the execution of the CHT Peace Accord of 1997 in these cases (“CHT Cases”), found the Accord to be a political pact, and, thereby, not to be a subject of judicial review. However, a concomitant and corresponding challenge

38 39 40 41 42

ADM Jabalpur v Shivakant Shukla AIR 1976 SC 1207. Abhinav Chandrachud, Due Process of Law (Eastern Book Company 2011) 128. HR Khanna, Making of India’s Constitution (2nd edn, Eastern Book Company 2008) 536. ibid. (2010) 7 LG (HCD) 208 (commonly referred to as the CHT Cases).

88

Syed Refaat Ahmed

to the CHT Regional Council Act 1998 stemming from the execution of that Peace Accord was found to be a colourable piece of legislation given that the establishment of the Regional Council and its consequential powers envisaged in the Act were found to be potentially destructive of the fabric of a unitary republic. The legal challenge mounted in the two petitions was at once against the constitutionality of a political process as well as the legislation that it spawned in the enforcement process. An admixture of politics and law and questions of legality and justice permeated the deliberations before the Court, thereby, often constraining the Court to consider: (i) the law as it is and as it ought to be; (ii) that there is an archetype of law the approximation to which all legal systems aspire and such an aspiration being a moral one, the law is intrinsically a moral phenomenon; and (iii) that there is intrinsic moral importance to the rule of law. In being asked to determine the validity of the Peace Accord, the expectation was for the Court itself to devise a more equitable sharing of the powers between the organs of state of collectively addressing the concerns of the people in which the executive, in particular, should not feel alone in dealing with the issue. Generally, opponents of such an enhanced role for the judiciary baulk at the very idea of any such association and interaction with the executive as detracts from the judges’ sole fundamental role to implement the popular and sovereign will, reflected in any legislative enactment. For the court to assume otherwise would be to act in the irreverence of democracy. The view is further that interaction with the executive presupposes a level of specialist knowledge informed by preconceived knowledge of issues and parties that judges are either not equipped with or not deemed to have in the discharge of their constitutional functions freely, fairly, and objectively. Judges are least suited, therefore, to anticipate legislation. Nor should the judiciary embroil itself in politically charged issues as are best left to the executive. Being forewarned of such arrogation of authority, the reality can be of the judiciary being left to uncomfortably deal with sensitive issues in instances where the executive has abdicated its responsibility to first address them as a matter of governance by the exercise of its political power. The fiduciary bond that the executive has with the people stands negated when unpopular decisions are left to be made by the courts at their discretion. Indeed, the risk is of the courts being given or assuming too many discretionary, and perceptibly unfettered, powers by default. A greater ignominy is of the judiciary falling prey to the machinations of the executive in situations where the responsibility to make unpopular decisions are shoved onto the courts. Alarming still is the scenario where electoral calculations lead the executive to resort to constitutional devices to further entrench its position and give rise to the prospects of the courts ensuring the adherence to the form of law and not to its substance or morality. The Court in the CHT Cases at least was not faced with such a predicament.

Rule of law within the constitutional scheme

89

The Court in the CHT Cases was driven by the rationale of judicial restraint. Nowhere is the resultant judicial skepticism of the spectre of judicialisation of politics more evident than in the following extract from the judgment:43 these two Writ Petitions place certain complex political, legal and constitutional questions for our consideration and determination and from which have stemmed, evidently, deeply entrenched political positions which could be or ought to have been settled more satisfactorily through an integrated political process based on a broad consensus at the initiative and behest of the elected branches of the Government. But that has not been done and the issues have been left to fester for far too long. The Judiciary has, therefore, had to step into a peace process in which the Executive and the Legislature still have a fair share of their responsibility to discharge. It shall be prudent at this juncture to point out . . . that this Court having so stepped into that stagnant peace process shall necessarily have to guide the elected organs of the State through certain pathways to be pursued to revive or resuscitate the peace process with a view to its fruitful culmination. In that exercise this Court is mindful, however, of the limits on its ability to make comprehensive, detailed and specific prescription[s] which must remain within the domain of authority of the elected lawgivers and policy-makers.44 This Court is alerted to the pitfalls of doing otherwise by Justice Sandra Day O’Connor who[,] musing on her experiences in the U.S. Supreme Court, [extrajudicially wrote as follows]: “Our eforts to describe broad legal principles assured by the Constitution have sometimes run aground when the Court attempted to translate those principles into detailed, workable rules that achieve the constitutional goal”.45 Justice O’Connor observes that should courts not exercise restraint in this regard the authority of courts to enforce individual rights “can be stretched too thin”. These considerations, accordingly, broadly set the pace for the Court to uphold the rule of law by making both legal and moral decisions to secure substantive justice. The Court remained satisfied that the Peace Accord was signed against the reality of “political activism in the CHT” as had fundamentally to do with “the absence of express safeguards of tribal rights and interests in the Constitution” and that the Accord was “but an intermediate stage in a political process that commenced many years prior to 1997 and is in fact an ongoing one”.46 The fulfillment of the Accord’s primary objective of securing a political

43 Mohammad Badiuzzaman v Bangladesh (2010) 7 LG (HCD) 208, 219. 44 ibid (emphasis added). 45 Sandra Day O’Connor, The Majesty of the Law: Reflections of a Supreme Court Justice (Random House 2003) 247. 46 ibid 221 and 223.

90

Syed Refaat Ahmed

resolution of the politico-military conflict, the Court found, inevitably led to the exhaustion of its “essential political substratum”. Further, the Court found the Accord to be born of a certain political exigency that informed the mutually accepted manner of its execution. Accordingly, the treaty was termed a “‘Treaty of Peace’ that proceeds beyond a mere truce and aims at a permanent end to an insurgency based on commitments of sustainable peace”.47 But the Accord was found to be a treaty with a diference. Predicated on the definition of a treaty being an agreement between belligerent powers stipulating terms of truce and conditions of peace, the Court found the Accord to answer to this description with the qualification that it was not entered into between independent entities both having the right of self-government. The Parbatya Chattagram Jana Sanhati Samiti (“PCJSS”) in this regard was found not possessed of the right of self-determination. These features cumulatively made a constitutional analysis upon a strict constructionist approach untenable given that the Accord neither answered to the description of article 145 “contracts or deeds” nor indeed to article 145A “international treaties”. The Court, therefore, restrained itself from a misguided foray into the realm of executive action, and held: The multi-dimensional Peace Accord does not permit of a neat categorization under the Constitution. Being an essential link in a long-standing and ongoing political process this intrastate peace pact . . . is not strictly contemplated for in our Constitution and must, therefore, be found to be indeterminable as to its nature and validity by reference to the Constitution. It is here that we find the relevance of and the merit in Dr Kamal Hossain’s submission that the Constitution indeed lacks in process formulation and the CHT peace process [and] the Peace Accord as its vital component, therefore, considered on their own[,] do not indeed permit of a constructionist approach. In a similar vein Mr Devasish Roy appearing for the [CHT] Regional Council has argued to this Court’s satisfaction that the . . . Accord is neither an executive deed nor a contract within the meaning of article 145, but is merely a political document/agreement setting out the political goodwill between . . . the Government and the PCJSS representatives of the tribal people to bring an end to the armed hostility in the CHT.48 In the CHT Cases, the Court viewed the Peace Accord as a “checklist of measures” to be adopted by the elected branches of the state to ensure sustainable peace, but not as a document creative of “substantive and enforceable rights and obligations”.49 It is consequentially with a purpose deemed more appropriate to its constitutional mandate in judicial review that the Court probed into the extent to which the legislature may have either discharged or abdi-

47 ibid 225. 48 ibid 226. 49 Ibid 227.

Rule of law within the constitutional scheme

91

cated its responsibility to best secure the Accord’s implementation within the constitutional framework. The Court, thus, engaged in examining the validity of certain amending pieces of legislation of 1998 pertaining to three district councils in the CHT and the CHT Regional Council. Two philosophical views dominate in this context, determining the positioning further of the issue of the morality of law. Debate in this regard has been dominated by HLA Hart and Lon Fuller from the positivist and naturalist perspectives respectively. Hart, while not wholly denying any necessary connection between law and morals, sees no reason to draw a corresponding concomitant connection between the validity of a law and its resultant justice or injustice. Fuller’s thesis has as its starting point the identification of “precepts” or “desiderata” that must inform any law-making process in order to produce good law.50 For Fuller, legal systems within the rule of law framework have to be based on declared rules that are prospective, inherently clear, entrenched, and permitting of compliance and execution in keeping with declared objectives.51 These cumulatively constitute for Fuller “the inner morality of law”.52 A legal regime will have its validity gauged by its degree of compliance with such precepts. For that reason, the quest for total approximation is seen as a moral aspiration sustaining the argument that law, therefore, is inherently a moral phenomenon. As Nigel Simmonds highlights in Law as a Moral Idea, “instances of law count as such in virtue of their approximation to an archetype which is an intrinsically moral ideal” and that indeed “all instances of law participate in the ideal to some extent”.53 It is this inner morality of law or rather the failure of the CHT Regional Council Act 1998 to measure up to certain precepts of the archetypical good law that appears to have dictated the finding against its legality in the CHT Cases. The objection to the Act of 1998 gauged against Fuller’s desiderata was that the Act failed to approximate the precepts of being intelligible, free from contradiction, of easy compliance, and its congruity of declaration and enforcement. It is to be noted at this juncture that Fuller and Hart’s views briefly converge to suggest a separate sphere of operation of the substantive justice or injustice that may follow from laws. Divergence follows immediately thereafter in the positivist prescription of the courts being bound by the principle of absolute fidelity to and strict legality of the black-letter law without resorting to extraneous considerations. It is here that morality in its substantive sense enters the fray truly setting apart the naturalist tendency to invite extra-legal considerations – political, social, and moral – to inform the delivery of substantive justice. In contradistinction to his inner morality of law, Fuller views

50 Lon Fuller, The Morality of Law (revised edn, Yale University Press 1969). See further Simmonds (n 51). 51 Nigel Simmonds, Law as a Moral Idea (Oxford University Press 2007) 65. 52 ibid 69. 53 ibid 100.

92

Syed Refaat Ahmed

this as the law’s external morality reflected in the law’s enforcement to deliver substantive justice.54 The argument here is of a bigger socio-legal landscape, necessitating greater, more forthright judicial activism. The caveat to such enhanced activity is that judges ought not to overreach themselves, thereby, undermining the deference due from them to the democratic compact. That deference is owed of course to the sovereign will of the people expressed through a truly representative legislature. It is with that motto that the High Court Division observed that the CHT peace process, to be sustainable, must be informed by concerted innovative eforts at constant evaluation and reinvention and proposed concrete guidelines, but only as indicators, of the broad spectrum of issues to be considered in that regard. In upholding the rule of law, this was the ultimate frontier that the Court wanted to traverse charting certain pathways for the legislature and the executive to explore. Herein, the Court established the legal system’s distinct moral virtue of achieving as complete a substantive justice as permissible. The judgment in the CHT Cases, read with care, chronicles at length the inequities of history visited upon the CHT at material times. It followed, therefore, that justice in these cases had not only to be legalistic but also inspired by the need to do good. Thus, the Court took into account “the political vicissitudes of the tribal peoples” best introduced in the memoirs of the former Chakma chief, Raja Tridiv Roy.55 Considered also were statistics and indicators (e.g., communication, education, non-agricultural land, electrification, health and sanitation, safe drinking water, annual per capita income, availability of plain land) that the present Chakma chief and counsel for the respondents in the CHT Cases, Mr Devasish Roy, submitted indicating that the tribal population of the CHT constitute a backward section of society within the meaning of the Constitution.56 Notably, a paradigmatic shift in international law governing indigenous populations from an integrationist approach to an approach more assertive of the indigenous and tribal groups’ entitlement to self-identification and ensuring their empowerment in order that they may exist as distinct peoples gets highlighted in the judgment. This is so in recognition of Bangladesh’s obligations as a ratifying state under the ILO Convention on Indigenous and Tribal Populations, 1957 (Convention No. 107) and the relatively recent ILO Convention No. 169 of 1989. The latter Convention, according to Mr Devasish Roy, serves as a review of the former, endorsing the paradigm shift “both on moral and practical grounds”.57

54 55 56 57

Fuller (n 50) 71. Raja Tridiv Roy, The Departed Melody (PPA Publications 2003) 330–331. See the Constitution, art. 28. Mohammad Badiuzzaman v Bangladesh (2010) 7 LG (HCD) 208, 229.

Rule of law within the constitutional scheme

93

Mindful of its limitations in implementing a peace process as this and of its limited mandate under judicial review, the Court reminded the executive of its failings thus: It has not escaped this Court’s attention that the peace process has not been served well by [the] inordinate delay in its full implementation and that time has not indeed been kind to the peace process. The present fractious, volatile and the deeply . . . polarized political situation in the CHT amply attest[s] to that. It is certainly an irony that the peace process as aims at democratic governance has not thus far been able to ensure the practice of democracy in the CHT to any discernibly commendable extent. One of the best possible ways for the local government or District Councils to have been actively engaged in the management of their own afairs was to have regular elections to the District Councils that would not only have strengthened participatory politics as well as the process of integration of the peoples of the CHT[,] but would have been an antidote to anarchy and defused the power of anarchic forces. It is this Court’s considered view that democratic governance by the active exercise of participatory politics in the three [CHT] Districts is and always will be the lifeblood of the peace process and should be encouraged and pursued in all earnest.58 The Court, therefore, proposed inter alia the formation of a statutory public authority to act as a facilitator of local governance and to act as a conduit between the elected district councils and the government, the setting up of a commission to ascertain and determine “backwardness” of the people of the CHT on the basis of reliable and quantifiable data, and a better concordance of the municipal law with international law in general and the ILO Conv. No. 107 in particular. It is in this context that the Court enunciated the most farreaching of the pathways thus: It is inevitable that the sustainability of the peace process will depend on innovation and progressional development of ideas and measures that shall, however, always need measuring against the Constitution. Should, in this regard, any kind of exigency demand action not strictly envisaged in the Constitution, lawmakers shall prudently henceforth allow for the Constitutional entrenchment of the same.59 Nowhere in the judgment is the paradigmatic shift for moral reasons gaining currency under the ILO Conv. No. 169 of 1989 better endorsed than this proposition. It is also a recognition that the impugned Acts, struck down as

58 ibid 239. 59 ibid 240.

94

Syed Refaat Ahmed

ultra vires the Constitution for setting up a “parallel government” and a collective device establishing regionalism and paving the way for the ultimate dismantlement of the state’s unitary fabric, may have fared better with the aid of constitutional entrenchment sanctioning a level of regional autonomy within the framework of a unitary state as achieved, for example, in Italy, Spain, and China. In the final analysis, this was the stage in the CHT Cases, therefore, at which the moral considerations became relevant and evident. The view taken was that, even from a positivist/legalist angle, the law is not a mere system of rules (lex lata) but encapsulates principles such as that of equity. By skilled application of such principles to legal rules the judicial process distils a moral content out of the legal order. On the other hand, subscription to the naturalist point of view enabled the Court to exercise its inherent discretion to avoid manifest situational injustice. This was achieved by reference to a whole host of factors – historical, political, social, economic – extraneous to the black-letter law as is and existing rules to determine what the law ought to have been and can be (lex ferenda). The CHT Cases presently await final determination by the Appellate Division of the Supreme Court. Pending such determination, it is safe to opine that these cases have enabled a broadened vision of the concept and essence of the rule of law. To revert to Bingham’s The Rule of Law:60 The concept of the rule of law is not fixed for all time. . . . (I)n a world divided by diferences of nationality, race, colour, religion and wealth it is one of the greatest unifying factors, perhaps the greatest, the nearest we are likely to approach to a universal secular religion. It remains an ideal, but an ideal worth striving for, in the interests of good government and peace, at home and in the world at large. Is that an ideal, therefore, not worth aspiring for? The people of Bangladesh in the solemn expression of their “sovereign will” have declared it so, as surely have peoples all around the world. That very pursuit of an ideal speaks of the moral virtue of individual legal systems and of humanity collectively. It speaks no less of law as a moral idea. Judicial independence as a constituent of the rule of law It becomes imperative at this juncture to throw light on institutional mechanisms that bolster the rule of law and undertake an analysis of the philosophical base, the internal workings, and the assumptions implicit in the notion of judicial independence. I analyse the notion by deconstructing the core concepts that are its important constituents. The objective is not to draw firm deductions of the ideal arrangement through which this is achieved. Rather,

60 Bingham (n 25) 174.

Rule of law within the constitutional scheme

95

the aim is to chart pathways the pursuit of which shall be informed by one’s experience as a stakeholder in the judiciary and the quest for it remaining a functional and relevant, if not indispensable, organ of the state. For an all-encompassing definition of judicial independence, one may look no further than the one found in the UN Basic Principles on the Independence of the Judiciary:61 The judiciary shall decide matters before them impartially, on the basis of facts and in accordance with the law, without any restrictions, improper influences, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason. The terms influences, pressures, and interference are inextricably linked with any mention of the independence of the judiciary. These notions, as are correlative to forces external to the judiciary and the extent to which they may bear on the discharge of judicial functions, determine the extent to which the judiciary may act impartially, that is, free of bias, prejudice, fear, and other extra-judicial compulsions and constraints. Indeed, the three organs of the state, in an ideal constitutional structuring, are intended to operate as checks and balances on each other, as is the overarching aim of the separation of powers. That view entails the necessity for each branch or organ to discharge its functions “responsibly and [with] restraint”.62 Experience shows that such restraint is often elusive, requiring concerted and deliberate eforts at regulating such separation. That objective, as is the bedrock of a constitutional democracy founded on the rule of law, is best exemplified in our jurisdiction by article 22 of the Constitution which enjoins the state to ensure the separation of the judiciary from the executive organ. Furthermore, the question of independence is crucial in relation to the judiciary in light of its constitutional function of not only providing “a constructive and purposive . . . interpretation of legislation” but also deciding the constitutionality of legislation.63 Chief Justice Mustafa Kamal’s observation in Secretary, Ministry of Finance v Md. Masdar Hossain emphasises that unique functional status of both the superior and subordinate judiciaries thus: The Supreme Court and the subordinate courts are the repository of [the] judicial power of the State. Functionally and structurally judicial service stands on a diferent level from the civil administrative executive services of the Republic. . . . [The judiciary] is an independent arm of

61 The UN Basic Principles on the Independence of the Judiciary (n 65). 62 Parliamentary Supremacy and Judicial Independence: Latimer House Guidelines for the Commonwealth, 19 June 1998. 63 ibid.

96

Syed Refaat Ahmed the Republic which sits on judgment over parliamentary, executive and quasi-judicial actions, decisions and orders.64

The state’s compulsion within such a constitutional framework is to ensure elasticity in inter-organ linkages, ensuring that a lone organ does not unduly and disproportionately benefit from an imbalance of power causing such tenuous but essential linkages to irreparably snap. Indeed, predetermined standards of judicial independence/separation trickling down from international law down to municipal legal regimes constitute important objective determinants of such independence. There is a plethora of international guidelines and international law documents reflecting an international and regional consensus on the governing philosophy and the plan of action in this regard.65 International standards stand to be evaluated and applied in municipal regimes primarily through political will but, more significantly, as shepherded by the judiciary. While separation from the other organs of government remains the preliminary objective of independent functioning, it definitely is not the sole determinant of judicial strengthening/independence. External institutional separation additionally demands complementary internal initiatives spearheaded by the judiciary itself. This lays the ground for drawing a distinction between institutional independence (constitutionally/ statutorily declared) and judicial functional autonomy in the efcient and transparent delivery of justice.66 There is, thus, a need to appreciate the mutually complementary yet distinct notions of constituting the judiciary and the

64 (2000) 20 BLD (AD) 104, 125. 65 See the UN Basic Principles on the Independence of the Judiciary, the Bangalore Principles of Judicial Conduct 2002, and the Commonwealth (Latimer House) Principles on the Three Branches of Government 2003, which exemplify a plethora of similar other documents. 66 On the judicial autonomy of action (and by extension judicial independence) in Bangladesh, note the rarely visited provisions of the Constitution in article 107 in general (read with articles 113 and 116) and article 107 (3) and (4) in particular. In a unitary state system in which the propensity is for centralised power, these provisions, as are in a state of disuse, sanction an equitable sharing of judicial administrative power in the “bicameral” institutional framework of the Supreme Court. The centrifugal scheme in article 107, thus, necessitates a distribution of administrative power between the High Court and Appellate Divisions and mandates the exercise of coextensive authority consequentially. Clauses (3) and (4) of art. 107 permit senior judges of either Division to determine the constitution and reshufing of benches in their respective Divisions. Not only has no chief justice ever invoked their authority under art. 107 to so empower the next most senior judges of either Division, but there also is noted a conscious design to bypass and remove from the judicial institutional framework any notion of such coextensive administrative status. This, too, has had the unsalutary consequence of ignoring the seniority principle in the assignment of tasks and for determining eligibility for the elevation of judges to the Appellate Division from the High Court Division. Institutionalised empowerment of the senior judges of the High Court Division under art. 107(3) and (4) would have deterred arbitrary and controversial selection of candidates for elevation to the Appellate Division at the whim of the executive acting through the chief justice.

Rule of law within the constitutional scheme

97

functioning of the judiciary.67 Note that the latter aspect presupposes constitutional latitude at judicial self-governance by internally framed rules and regulations as envisaged, for example, in article 107(1) of the Constitution.68 Institutional independence coupled with accountability demands that the mode of appointment and the regulation of tenure of service and the disciplining of judges must be free of executive and legislative interference. Governing standards of accountability endorse and require a Code of Ethics and Conduct to be devised and implemented by the judiciary to gauge accountability69 and the enforcement of disciplinary measures through bodies or tribunals that are “independent and impartial”.70 Here, the preferred mode of oversight and regulation is one of collegiate authority in the form of a judiciary council/ body with majority representation from the judiciary. While lay representation on such bodies or councils, which are assigned independent and deliberative powers of appointments and disciplining,71 remains almost universally recommended, the degree of political representation therein is either envisaged to be minimal72 or indeed emphatically reduced to none at all. Given the objectives of judicial independence, autonomy, and accountability, broadly stated, the question remains as how best to achieve these. Is there one panacea mechanism that can immediately be served up as a potent elixir, or is the process more evolutionary in nature brought about by trial and error with a large dose of vision and fortitude admixed? Pragmatists will in all probability argue for the latter pathway. The state’s constitutional and statutory initiatives at the separation of the judiciary must unavoidably vary according to its own constitutional political framework dictates. Inherent institutional strengths, self-restraint, and earnestness inculcated over time through trial and error at securing independent judicial functioning may arguably deter a politicised appointment and removal

67 Latimer House Guidelines (n 65). 68 See the Supreme Court of Bangladesh (High Court Division) Rules 1973 (esp. chapter 1A: “Business Not of a Judicial Character”) framed by the Court under art. 107. The High Court Division Rules provide for the setting up (with powers and functions) of various special committees of judges for the superintendence and control over the afairs of all courts and tribunals subordinate to the High Court Division (HCD) and overseeing case management and making recommendations to that efect as applicable both to the HCD and the subordinate courts. 69 Responsibility here is vested in the judiciary under the Bangalore Principles’ implementation mechanism. 70 See, for instance, Latimer House Principles (n 65). 71 For judicial appointments in Bangladesh, there is no such body at all. For a lucid discourse on the opaque and dysfunctional judicial appointment culture, see, Imran A Siddiq, ‘The Judicial Appointments Process in Bangladesh: In Search of Transparency’ in Chowdhury IA Siddiky (ed), The Rule of Law in Developing Countries: The Case of Bangladesh (Routledge 2018) 60. 72 See also Richard Stacey and Sujit Chowdhury, ‘International Standards for the Independence of the Judiciary’ NYU Law Briefing Paper 41, September 2013 (as endorsed in the UN Special Rapporteur on the Independence of Judges and Lawyer’s Annual Report 2009).

98

Syed Refaat Ahmed

procedure to slide irreversibly into the depths of constitutional anarchy.73 But far overwhelming is the apprehension that in systems with weak institutional frameworks, the notion of separation of powers remains elusive and fraught with risks of upsetting the inter-institutional balance. The argument, therefore, is for elements of independence to be constitutionally, legally, and institutionally formalised to clearly delineate the spheres of the judicial function, free of executive and legislative interferences. The Bangalore Principles addressed to the judiciary aim at securing three primary objectives: (i) providing a framework for ethical judicial conduct; (ii) assisting the executive, the legislature, lawyers, and the public in better understanding and aiding the judiciary; and (iii) ensuring judges’ accountability to independent and impartial institutions. Predicated on these objectives, the core values of the judiciary being independence, impartiality, integrity, propriety, equality, and competence and diligence emerge as the six core Bangalore Principles supplemented by extensive implementation mechanisms. The evolving contours of judicial independence and autonomy require one to adopt a more nuanced approach with regard to the concept of the rule of law. A more empowered and independent judiciary is better placed to explore the evolving frontiers of the rule of law beyond the basic constituents of any enactment by the legislature and to interpret and apply the law efectively. That enthronement of the law,74 it is evident, clearly places the independent judicial function of interpreting and applying the law at the forefront of the separation of powers under the Bangladeshi constitutional regime. As noted previously, the constituents of the rule of law are readily discernible in the constitutional supremacy clause (art. 7: Constitution as the solemn expression of the will of the people) and the directive for the separation of the judiciary from the executive organ (art. 22). These provisions clearly attest to an independent and autonomously functioning judiciary submitting only to the popular will while sitting in judgment over the legislative, executive, and quasi-judicial actions/inactions and decisions. The republican moorings of the Constitution are, therefore, undeniable as is its potential for aiding a better understanding of judicial independence and autonomy under the Bangladeshi constitutional dispensation. Despite such constitutional certainties, however, we would be unduly complacent and myopic in indefinitely nurturing a straitjacketed view of achieving and sustaining judicial independence and autonomy in Bangladesh. Judiciaries around the world today are readily adapting to altered realities, burgeoning expectations, and self-realisations at serving not only as an organ of the State but as a relevant one. To that end, visionaries continue to guide the strengthening of the judiciary, robustly renegotiating its relationships with the other

73 O’Connor (n 45) chaps. 3 and 10. 74 See also Bingham (n 25) 26.

Rule of law within the constitutional scheme

99

competing organs and engaging more beneficially with its constitutional and natural constituency, the general public. Conclusion This chapter has analysed the concept of the rule of law within the Bangladeshi constitutional framework with reference to some leading constitutional decisions written by the author as a judge. It highlighted the centrality of the judiciary’s role in upholding the rule of law by punctiliously investigating and formulating the true proposition of the law based on notions of justice, equity, and fairness. Predicated on the notion that the constant renewal of constitutional content establishes the Constitution as a living and evolving social contract, this chapter canvassed too the idea that judicial review permits constitutional growth and how best this can be achieved depends both on judicial perceptions of the rule of law and the position of independence and autonomy of action from which an empowered judiciary operates.

6

Judicial policy-making by the Supreme Court of Bangladesh Md Abdul Halim

Introduction There have been several instances of judicial policy-making in Bangladesh in the form of either political policy-making in judicial review proceedings or in the form of declaring constitutional amendments unconstitutional. Although there is no dearth of foreign legal literature on judicial policy-making, the available literature in Bangladesh has failed to address this trend of judicial policy-making. It is against this background that this chapter examines two important judicial review judgments, to argue that there is unprincipled unconstitutional policy-making by the Supreme Court of Bangladesh. The concept of judicial policy-making There is little consensus on the meaning of ‘judicial policy-making’, although this has been a key area of study in constitutional law and theory. The idea that the Supreme Court plays the role of policy-makers is not new.1 In 1957, Dahl claimed that the US Supreme Court is not only a legal institution but also a political one and that it makes national policies.2 Following Dahl’s argument, a series of articles claimed that the US Supreme Court makes policies even beyond its usual judicial review boundaries.3 In agreement with Dahl, Glick wrote about how diferent approaches to judicial policy-making work among diferent institutions of democracy.4 The

1 EM Whinney, ‘The Supreme Court and the Dilemma of Judicial Policy-Making’ (1954) 39 Minn L Rev 837; L Epstein, J Knight, and AD Martin, ‘The Supreme Court as a Strategic National Policymaker’ (2001) 50 Emory LJ 583. 2 RA Dahl, ‘Decision-Making in a Democracy: The Supreme Court as a National Policy-Maker’ (1957) 6 J Public Law 279 (finding that 86 provisions of federal laws had been struck down by the US Supreme Court in 78 cases during the first 167-years’ history of the Court). 3 G Rosenberg, ‘The Road Taken: Robert A. Dahl’s Decision-Making in a Democracy: The Supreme Court as a National Policy-Maker’ (2001) 50 Emory LJ 613. 4 HR Glick, ‘Policy-Making and State Supreme Courts: The Judiciary as an Interest Group’ (1970) 5(2) Law & Soc Rev 271. DOI: 10.4324/9781003276814-8

Judicial policy-making by the Supreme Court of Bangladesh

101

most common sources of judicial policy are decisions in which judges provide new solutions to problems and conflicts presented to them. Significant policies may be established in a single case or policy may develop gradually in a series of cases dealing with similar situations. This form of policy-making frequently occurs without much direct interaction between courts, legislatures, and executive agencies.5 This is what may be called ‘internal’ judicial policy-making, which is consistent with the principle of constitutionalism. Glick further states that even if relevant cases do not come before the court, or if judges are restricted in their decisions by existing statutes or issues of jurisdiction, they may still develop policies for several purposes: first, to establish a policy that cannot be implemented by the courts due to limitations on their judicial power; second, to influence governmental policy outside the regular channels of judicial decision-making; and third, to make policy in the area of judicial-legislature interactions.6 This third category of policy-making, Glick suggests, has received much emphasis in the politico-legal area in recent years. By using this ‘legislative policy-making strategy’, as Dahl and Glick suggest, the US Supreme Court has acted as a protector of fundamental minority rights against majority tyranny.7 Although the US Supreme Court had struck down federal or state laws, it had been done only because these statutes were contrary to rights or other provisions in the US Constitution. The policy of striking down a law is legitimate and within the limits of judicial review as envisaged in Marbury v Madison.8 I now turn to the form of judicial policy-making that can be consistent with constitutionalism. A permissible form of judicial policy-making in its strategy or method must pursue a goal of either improving the judiciary or protecting the rights of the people. In this regard, Dahl asked three questions: (i) who benefits from the policy-making by the court; (ii) how does the court’s role as a policy-maker fit into the notion of a democratic political system; and (iii) what has been the fate of the court’s policy-making activity (has it survived or has it been modified/reversed or ignored)?9 It appears that Dahl identifies two essential requirements for a judicial strategy to be considered a policy: first, the strategy or the method must have a goal of pursuing constitutionalism or rights protection; and, second, the policy must have a sustainable efect. In other words, it must either be adopted by the parliament by any subsequent legislation or it must lapse with time but still leave a far-reaching impact on constitutionalism.10 Judicial policy-making, as some proponents of Dahl’s theory suggest, is a strategy that, in addition

5 ibid. 6 ibid. 7 JD Casper, ‘The Supreme Court and National Policy Making’ (1976) 70(1) The American Poll Science Rev 50. 8 (1803) 5 US 137. 9 Casper (n 7) 51. 10 ibid.

102

Md Abdul Halim

to pursuing these stated goals, may also lead to supporting legislation or results in personal or group benefits for the judiciary.11 The latter type of policy-making is mostly absent in the judicial practice of the US system but is rampant in Bangladesh.12 Political policy-making by the Supreme Court of Bangladesh In some constitutional systems, particularly in unstable democracies, scholars have identified the trend of judicial engagement with unconstitutional constitutional amendments. Bangladesh is one such jurisdiction.13 A court’s decision striking down or endorsing any constitutional amendment is a form of judicial policy-making. Some scholars have, however, evaluated the scope of permissible judicial review of constitutional amendments under the doctrine of basic structure in Bangladesh.14 However, the available literature has failed to address the trend of judicial policy-making in judicial review cases generally. In Bangladesh, there have been several instances of judicial policy-making in the form of political policy-making or in the form of declaring constitutional amendments unconstitutional.15 It is not my intention to argue that this policy-making of annulling/endorsing constitutional amendments by the Supreme Court is barred or illegal. What I argue is that judicial policy-making by the Supreme Court in some cases has been undesirable and clearly political, and, hence, contrary to constitutionalism. Given the limited scope of this chapter, I will not analyse judicial policy-making in all areas of adjudication including the field of social and economic rights. I will instead analyse two cases of political judicial policy-making, one concerning judicial review of political issues and the other involving constitutional amendments, to assess

11 See RS Kay, ‘Judicial Policy Making and the Peculiar Function of the Law’ (2007) 40 Connecticut L Rev 1261; Whinney (n 1). 12 I have discussed this elsewhere. See MA Halim, The Supreme Court and Administration of Justice (in Bengali) (1st edn, CCB Foundation 2015). 13 For details, see Rehan Abeyratne and Bui N Son, The Law and Politics of Unstable Constitutional Amendments in Asia (Routledge 2022); Mark Tushnet and Madhav Khosla (eds), Unstable Constitutionalism: Law and Politics in South Asia (Cambridge University Press 2015). 14 See Ridwanul Hoque, Judicial Activism in Bangladesh: A Golden Mean Approach (Cambridge Scholars Publishing 2011) 112–118. See further S Krishnaswamy, Democracy and Constitutionalism in India: A Study of Basic Structure Doctrine (Oxford University Press 2011). 15 The Supreme Court for the first time reviewed a constitutional amendment (8th Amendment) in 1989 in Anwar Hossain Chowdhury v Bangladesh (1989) BLD (Spl) 1, where it adopted the doctrine of basic structure, borrowing the concept from the Indian decision in Kesavananda Bharati v State of Kerala (1973) AIR SC 1461. The judicial policy-making in the Anwar Hossain Case is found legitimate and desirable by scholars. See Mahmudul Islam, Constitutional Law of Bangladesh (3rd edn, Mullick Brothers 2012) 522–527; Hoque (n 14) 112–118.

Judicial policy-making by the Supreme Court of Bangladesh

103

whether or not judicial policy-making in the two selected cases is legitimate or constitutional. The 13th amendment judgment and mega judicial policy-making In Md Abdul Mannan Khan v Bangladesh,16 the Appellate Division held that the 13th Amendment to the Constitution providing for interim caretaker government (CTG) was unconstitutional. In its brief verdict of 10 May 2010, the Appellate Division held as follows: The Constitution (Thirteenth Amendment) Act, 1996 is prospectively declared void and ultra vires the Constitution. The election to the Tenth and the Eleventh Parliament[s] may be held under the provisions of the above-mentioned Thirteenth Amendment Act. The parliament, however, in the meantime, is at liberty to bring necessary amendments excluding the provisions of making the former Chief Justices of Bangladesh or the Judges of the Appellate Division . . . the head of the Non-Party Caretaker Government. The 13th Amendment Act was declared unconstitutional on the ground of being violative of ‘democracy’ as one of the ‘basic structures’ of the Constitution. Declaring a constitutional amendment ultra vires by applying the doctrine of basic structure is legitimate since the decision in the 8th Amendment Case.17 First, the short facts of the 13th Amendment Case can be described. It was in 1990 when political parties opposing the then autocratic ruler HM Ershad discussed the possibility of a better environment for free and fair national elections with the help of an interim caretaker government (CTG). They jointly made a demand for it. After the resignation of General HM Ershad in December 1990, the three alliances of political parties nominated the then chief justice Shahabuddin Ahmed, to head the interim government. Although the first, CTG of 1990 was intended to help the country’s transition from authoritarianism to democracy, it was the Awami League, the then opposition party during the end of the term of the first post-democratic transition government that spearheaded a very strong movement for the introduction of a constitutional CTG. The then ruling party BNP conceded to the opposition’s demand for a CTG when it adopted the CTG system through the Constitution (Thirteenth Amendment) Act 1996. However, political unrest was ever-present ahead of

16 (2012) 64 DLR (AD) 1. On this, see MA Halim, The 13th Amendment Judgment: An Analysis (CCB Foundation 2013). 17 See Chowdhury (n 15). See also Ridwanul Hoque, ‘The Politics of Unconstitutional Amendments in Bangladesh’ in Abeyratne and Son (n 13) 210–228.

104

Md Abdul Halim

every national election since the introduction of CTG in 1996. In particular, from 2006 onward the CTG system became increasingly controversial as the ruling party had always attempted to use the system in their favour. In this context, lawyer M. Saleem Ullah filed a constitutional petition (writ petition) before the High Court Division in 1999.18 In that case, the High Court Division on 4 August 2004 held that the CTG system was not unconstitutional because it did not change the basic structure of the Constitution. On appeal, the Appellate Division by a 4 to 3 decision on 10 May 2011 overturned the unanimous judgment of the High Court Division, declaring unconstitutional the CTG system that lasted for 15 years. In this case, the Supreme Court has exercised its judicial review power over a constitutional amendment by going far beyond its limits and has, thereby, engaged in a ‘mega’ judicial policy-making.19 After the short judgment of 10 May 2011, the parliament omitted the whole CTG system from the body of the Constitution. The judicial decision was acted upon by the parliament on 3 July 2011, but long before the full verdict of the Appellate Division was released on 15 September 2012. From the point of view of policy-making, the Supreme Court has invalidated the 13th Amendment with three main purposes. First, to favour the political interest of the party in power so that the ruling party can perpetuate its tenure in ofce. Ironically, the same party, the Awami League, which took the advantage of the court decision, is still in power following the judicial and parliamentary annulment of the CTG. There are credible allegations of vote-rigging and malpractices in all national elections since the omission of CTG.20 Second, the personal interest of judges who were in the majority also played a role in their decision. The appeal against the judgment of the High Court Division was pending since 2004, but it was only after Justice Haque took the ofce of chief justice on 30 September 2010 that the appeal was quickly taken up for hearing.21 Justice Haque delivered the short judgment as the author judge, just eight days before he retired on 18 May 2011.22 Further, he delivered the judgment in complete disregard for the opinion of all but two of the eight amici curiae. All three judges who concurred with the chief justice, in this case, were eventually appointed as chief justices of Bangladesh.23 After his retirement as the chief justice, Mr Haque was appointed the chairman of the Law Commission of Bangladesh, a position he has held since

18 Writ Petition No. 4112 of 1999. 19 Ran Hirschl, ‘The Judicialization of Mega Politics and the Rise of Political Courts’ (2008) 11 Annual Review of Poll Sc 93–118. 20 A Riaz, Disappearance of Democracy (in Bangla) (Prothoma Prokashon 2021) 211. 21 Ridwanul Hoque, ‘The Judicialization of Politics in Bangladesh’ in Tushnet and Khosla (n 13) 284–285. 22 ibid. 23 ibid 285–286. The three judges were: Md Muzammel Hossain, SK Sinha, and Syed Mahamud Hossain JJ.

Judicial policy-making by the Supreme Court of Bangladesh

105

2012. I would, therefore, argue that what the Supreme Court has done in this case is pure political policy-making with a far-reaching negative impact on Bangladeshi constitutionalism. The political and personal interests of the four judges in the majority outweighed the interests of democracy, constitutionalism, and judicial independence. Third, the doctrines of ‘political question’ and ‘separation of powers’ were not considered at all by the Appellate Division in this case. When the CTG system was introduced to the Constitution, it was introduced as a political device only to strengthen democracy and make it sustainable. Mr Mahmudul Islam, an amicus curia, along with the majority amici curiae, opined that ‘although the provisions of the CTG suspend representative government for [the] short interregnum, it ensures operation of democracy in the country. In social engineering[,] there is no panacea which can cure all political maladies in all places and for all times’.24 It is a universally settled principle of judicial review that the judiciary should not intervene in politics because doing so would be violative of the constitutional principle of separation of powers. However, the Supreme Court avoided the doctrine of a political question in this case, although it cited the US Supreme Court case of Baker v Carr, which established that the courts must not resolve a political question.25 Importantly, the US Supreme Court exercised judicial review to strike down laws in many cases,26 but it never declared any constitutional amendment unconstitutional. In a case where Congress did not follow the amendment procedures, for example, it held that a Constitutional amendment is a ‘political question’ and is not subject to judicial review.27 Although the Supreme Court of Bangladesh has established the authority to annul a constitutional amendment, there are constitutional limits on that judicial power.28 In the 13th Amendment Case, the Court went beyond its limits. Fourth, this longest-ever judgment in the constitutional history of Bangladesh29 is a non-speaking judgment in the sense that it failed to show how the 13th Amendment or the CTG system violated ‘democracy’, a basic feature of the Constitution.30 The Court, in contrast, ignored that the CTG

24 Islam (n 15) 446, 551–552, 858, 859. 25 (1962) 369 US 186. 26 Hollingsworth v Virginia (1798) 3 US 378 (on the constitutionality of 11th amendment); National Prohibition Cases (State of Rhode Island v Palmer, and Seven Other Cases) (1920) 253 US 350; Dillon v Gloss (1921) 156 US 368; United States v Sprague (1931) 282 US 716. 27 See Coleman v Miller (1939) 307 US 433. 28 See R Dixon and D Landau, ‘Transitional Constitutionalism and a Limited Doctrine of Unconstitutional Constitutional Amendment’ (2015)13 Int’l Journal of Constitutional L 606. See also D Landau, ‘Abusive Constitutionalism’ (2013) 47 UC Davis L Rev 189. 29 See Halim (n 16). The judgment was 633 pages long in a reported version. 30 ibid 713–745. ‘Democracy’ was declared to be a ‘basic feature’ feature in the 8th Amendment Case.

106

Md Abdul Halim

strengthened the constitutional mandate of free and fair elections as part of democracy. The Court held: according to . . . Article 123(3) of the Constitution[,] election to parliament would be held 90 days before the expiry of the tenure of parliament and all MPs would remain as MPs as they were during the poll time[,] thus leaving no vacuum in people’s representation.31 As this statement suggests, the Court verily engaged in politics as it ignored the constitutional conventions and practices when interpreting article 123 of the Constitution. In parliamentary democracies, parliaments are by and large dissolved before national elections. In Australia, for example, the government goes into a caretaker mode once the elections are called for and are unable to make any major decisions. In this case, the Court did not consider these practices in other democracies. To put it simply, the Court enforced issues of ‘pure politics’ through this judgment. Given that it is not the function of the Court to enter into academic discussion or enforce political preferences, it arguably veered into politics rather deliberately, which is nothing but an illegitimate form of megapolicy-making.32 The choice of the Supreme Court to resort to an abusive interpretation is against the principle of presumption of validity of the provisions of the Constitution. Fifth, I argue that in this case, the Supreme Court resorted to legislative policy-making when it declared CTG void and at the same time very contradictorily endorsed the provision of CTG as lawful for the next two upcoming parliamentary elections. Unprecedentedly, the Court directed the parliament to hold the next two general elections in a particular manner by excluding the chief justices from the CTG.33 The exclusion of chief justices when forming a CTG was a built-in option for the political parties to resort to, within the constitutional provisions. The Court, thus, apparently enforced its preference for a political system. In this regard, eminent jurist Mahmudul Islam wrote as follows: When the judiciary, in the exercise of its power of judicial review, kills a piece of legislation, it cannot at the same time inject life into it for any future time. The Constitution has not provided the judiciary with an intensive care unit equipped with artificial life-support mechanism.34 Sixth, by holding that ‘the constitutionality of the 13th Amendment is to be tested against the principles of the original Constitution’,35 the Supreme

31 32 33 34 35

ibid 395. Hirschl (n 19). Halim (n 16) 369. See also Islam (n 15) 858. Islam (n 15) 858. Halim (n 16) 369.

Judicial policy-making by the Supreme Court of Bangladesh

107

Court usurped the ‘constituent power’,36 which only the parliament can exercise in a limited manner. It was the authority of the parliament to do away with the system of CTG, and not of the Court. In striking down the 13th Amendment, the Supreme Court seems to have stepped into the shoes of the forefathers of the Constitution as well as the then parliament.37 The 13th Amendment decision can, thus, be argued as being an amendment by the judiciary. Seventh, in directing the parliament to amend the Constitution to hold elections in a particular manner,38 the Supreme Court acted as a supraparliamentary body, which is not only prohibited by the doctrines of judicial review39 and separation of powers but also under article 106 of the Constitution. Under article 106, the Supreme Court can issue advisory opinions on any constitutional issue if only the President makes a constitutional reference to the Court for its opinion.40 The case concerning the broadcasting of the Al Jazeera documentary In the Al Jazeera Documentary Broadcast Case,41 the Court intervened in a way that led to unprincipled policy-making. The issue was whether judicial review power could be exercised over a documentary broadcast by a foreign television network. In this case, the High Court Division (HCD), without issuing any rule nisi, suo motu directed the Bangladesh Telecommunication Regulatory Commission (BTRC) to take immediate steps to stop further streaming, in Bangladesh, of the Al Jazeera Channel/Network’s video documentary titled All the Prime Minister’s Men.42 As I argue next, this case is one of the recent examples of political policy-making by the Supreme Court. First, the short facts of this case can be outlined. A lawyer practising in the Supreme Court filed this writ petition under article 102 of the Constitution

36 The theory of ‘constituent power’ is used to define the relationship between constituent and constituted power as a delegation of limited authority. See Yaniv Roznai, Unconstitutional Constitutional Amendments: The Limits of Amendments Power (Oxford University Press 2017) 105–134. See further Richard Albert, Constitutional Amendments: Making, Breaking and Changing Constitutions (Oxford University Press 2019) 217. 37 The original Constitution of 1972 was adopted by the Constituent Assembly, which had constituent power as opposed to the derivative constituent power of a parliament. 38 Halim (n 16) 408. 39 The judicial review power does not allow judges to decide on a legal matter which is not an issue before them. 40 Neither the US Supreme Court nor its UK counterpart provides any advice to the government or any direction to the parliament in the way the Supreme Court of Bangladesh has done in the 13th Amendment Case. See Muskrat v US (1911) L Ed 246, 252; 219 US 346 (1911). 41 Md Amanul Kabir Emon v Bangladesh (Writ Petition No. 1839 of 2021, High Court Division, judgment 16 Feb 2021, (herein after Al Jazeera). (2020) 8 CLR (HCD) 128. 42 ibid paras 96–97.

108

Md Abdul Halim

seeking certain remedies, amongst others, to ban the broadcasting of Al Jazeera in the country and to remove the contents of the Al Jazeera documentary All the Prime Minister’s Men from social media and streaming platforms. The applicant sought a ruling and direction so that the contents of this video are removed from Facebook, YouTube, Instagram, and Twitter by the public authorities, as the video, it was argued, was spreading malicious, false, defamatory, and misleading information about the prime minister and the government ministers.43 The video report was released on 1 February 2021 on social media and millions of people from Bangladesh and beyond viewed it. However, in response to this video, the Army headquarters issued a statement on 15 February 2021 criticising the video documentary, claiming that the video was produced to deliberately spread false, unreliable, speculative, and fabricated information to damage the reputation and capability of the government and the Bangladesh Army.44 The petitioner contended that Bangladesh was wrongly and maliciously portrayed as a mafia state in this video documentary.45 The petitioner’s further contention was that under section 8 of the Digital Security Act 2018, the law enforcement agencies, through the director general of the Digital Security Agency and the inspector general of police, may request BTRC to remove or block any data or information propagated on digital media which may hamper the solidarity, financial activities, security, defence, religious values, or public discipline of the country or which may incite racial hostility and hatred.46 The petition was filed in the form of a PIL, and, upon a preliminary hearing, the court set out six points for its decision and sought for opinions of six amici curiae.47 The main legal issues before the court and for the amici curiae were, among others: (i) whether the petitioner had any locus standi; (ii) whether the petitioner was ‘any person aggrieved’ under article 102 of the Constitution; (iii) whether any order in the form of a writ of mandamus could be issued and if so whether the order could be enforced against an international news channel, namely Al Jazeera; (iv) whether the petition was maintainable (that is, whether it had an arguable case); and (v) whether any direction is required to be passed to stop the airing the documentary.48 Five out of six amici curiae opined that the petitioner had no locus standi to file the writ petition because the petitioner himself was not afected by the broadcasting of the documentary and the petition did not seek to enforce

43 44 45 46 47

ibid para 1. ibid para 10. ibid para 11. ibid para 5. The amici curiae were chosen from amongst the senior members of the Bar who are mostly known sympathisers of the two major parties, the Awami League and the Bangladesh Nationalist Party. Exceptions were Mr Kamal ul-Alam, Mr Probir Neogi, and Dr Shahdeen Malik. 48 Al Jazeera (n 41) para 11.

Judicial policy-making by the Supreme Court of Bangladesh

109

any of the fundamental rights of the poor and disadvantaged people in the country.49 The Court also found, in line with the majority amici curiae, that the petitioner was not ‘any person aggrieved’ on the ground that nothing had been asserted by the petitioner as to which of the fundamental rights of the petitioner had been violated.50 On the issue of the maintainability of the writ petition, the Court ruled that since the petitioner did not seek remedies from the regulatory authorities before invoking the writ jurisdiction, which is a requirement of article 102, the petition was not maintainable.51 On the substance of the petition, the Court held that the two public authorities concerned did not make any request to BTRC as per section 8 of the Digital Security Act 2018 to enable it to remove or block the contents, it could not pass any direction against the BTRC.52 The Court held further that as per sections 29 and 31 of the 2018 Act, publishing or transmitting any defamatory information on any website or in any other electronic format that has the potency to create enmity, hatred, or hostility among diferent communities in society is a punishable ofence to be dealt with by a criminal court and, hence, no constitutional remedies could be enforced against Al Jazeera in Bangladesh.53 The Court acknowledged that the government reserves legal authority to block any content on any digital platform; and therefore, an intervention of the court in a judicial review proceeding was uncalled for.54 The Court, therefore, disposed of the writ petition without issuing any rule nisi or remedies. However, in complete disregard for its findings and opinions of the majority amici curiae as well as long-standing judicial practice, the Court at the same time issued a suo motu (of its own motion) direction to the BTRC. The respondent BTRC was directed to ‘take immediate measure requesting the owning company of those social media that is, Twitter, Facebook, Instagram [and] YouTube not to upload or stream the documentary as mentioned above nationally and internationally any further through any link and website’.55 This action was also not in terms with the rules of the Court as I will discuss. It is not my argument that the High Court Division (HCD) lacks the power to issue suo motu direction. My argument is rather that the HCD exercised its suo motu power going far beyond the limits of this power and engaged in judicial policy-making by abusing its constitutional power under article 102 of the Constitution. This phenomenon has been described by some scholars as ‘abusive constitutionalism’.56

49 50 51 52 53 54 55 56

ibid para 76. ibid para 77. ibid paras 78–80. ibid para 79. ibid paras 85–86. ibid para 85. ibid para 97. Landau (n 28) 195.

110

Md Abdul Halim

First, when the Court found that the petitioner did not have either locus standi or reasonable grounds in filing the writ petition as a PIL, the only option open to the Court was to dismiss the petition. The Court did not show any reason or describe the procedure based on which it could pass a suo motu direction in a PIL.57 The Court acted not in accordance with, but rather against, the rules relating to its suo motu jurisdiction under the High Court Rules 1973.58 By not adhering to these mandatory procedures, the Court abused the process and substance of its jurisdiction. Second, in Mohammad Tayeeb v Bangladesh59 the Appellate Division held that the HCD has the power to issue a suo motu rule based on a newspaper report or media report provided that there is an infringement of fundamental rights and the infringement is of great public importance.60 The Court further held that the High Court Division, while issuing the suo motu rule, should not usurp the role of the executive government keeping in view the principle of separation of powers.61 However, in the instant case, the HCD passed suo motu direction in a PIL case in clear violation of not only the case law of the Appellate Division but also the High Court Rules of Procedure. Third, and most importantly, when a PIL case does not lie in writ jurisdiction, a suo motu rule or direction cannot be issued either. This is simply because the suo motu jurisdiction has been an extended form of PIL. Since the Court held that the petitioner lacked standing, it could not issue the remedy suo motu, that is, independent of that dismissed litigation. Thus, the suo motu direction issued in this PIL case is arguably unconstitutional. Fourth, in NBR v Abu Sayeed Khan62 the Appellate Division had set fourteen guidelines to be considered by the HCD while passing any order or issuing any rule in a PIL case. In the instant case, the HCD needed to state which of the guidelines it was using to base its direction against the BTRC. Fifth, while passing the direction, the Court relied on the submissions of the attorney-general and the counsel for the BTRC, but it ignored the views of the majority amici curiae. The Court simply stated that based on the submissions of the attorney-general, it was of the view that it ought to exercise the power of judicial review under article 102.63 The Court’s basis of suo motu direction was not explained enough, which is contrary to the impartial dispensation of justice.

57 See for details R Hoque, ‘Suo Motu Jurisdiction as a Tool of Activist Judging: A Survey of Relevant Issues and Constructing a Sensible Defence’ (2003) 8 Chittagong U J of L 1–31. 58 Chapter XIA of the Supreme Court of Bangladesh (High Court Division) Rules 1973 provides for the general procedure in writ jurisdiction. Rule 10 in this chapter provides a detailed procedure of suo motu rule. 59 (2015) 67 DLR (AD) 57. 60 ibid paras 71, 72, 329. 61 ibid para 95. 62 (2013) 18 BLC (AD) 116. 63 Al Jazeera (n 41) para 97.

Judicial policy-making by the Supreme Court of Bangladesh

111

Sixth, the Court further held that there had been no prescribed law that enables the BTRC to ask or request a company owning any social media to ban or take down any content that may malign the prestige of the authorities of the government.64 The Court did not mention how it was filling the gap in the law or on what basis it was undertaking the task of the legislative branch in the sense of mandating the BTRC to do exactly that thing. Here, it arguably assumed the role of the executive government and undertook a legislative function. Seventh, the concluding part of the judgment says that as ‘sons of the soil’ the Court itself was: equally shocked and felt humiliated by discovering that the honour, dignity, and prestige of our Head of the State, Government and that of Army Chief were being maligned, tarnished, demeaned by none other than... an international T.V. channel and some social media.65 As such, the Court passed the direction suo motu to BTRC so that it takes immediate steps to ban the further transmission of the video. However, as these emotional words suggest, the Court was not an unbiased arbiter in this case and was seemingly promoting the political interest of the government. It lacked the required judicial independence in passing the said suo motu directions. Conclusion These analyses of two constitutional judgments substantiate the argument that the Supreme Court of Bangladesh has engaged in political policy-making in the garb of its judicial review power. By doing this, it has abused the judicial review power and acted in line with the political interest of the ruling party as well as the personal interest of judges. Whenever the Court has veered into the political terrain, the downside of judicial activism becomes apparent. The strange judicial policy-making in these and other similar cases has turned the Supreme Court into a hindrance to democracy,66 while its mandated constitutional role is to support, sustain, and advance democracy in the country.

64 ibid para 96. 65 ibid para 96. 66 On this, see further MA Halim, ‘The 7th Amendment Judgment: Judicial Politics or Judicial Activism’ (2013) 1(1) Counsel Law Journal 19.

7

Judicial review and the separation of powers Is one contingent upon the other? Chowdhury Ishrak Ahmed Siddiky

Introduction The Supreme Court of Bangladesh under article 102 of the Constitution can exercise judicial constitutional review. The scope of judicial review, however, is not explicitly elaborated in the Constitution. Although articles 7, 26, 44, and 102 together form the authoritative base for judicial review, the Supreme Court has mostly cited article 7, the constitutional supremacy clause, as a basis of its judicial review power. Article 7 states that any law inconsistent with the Constitution will be void, which, however, is silent as to who will determine the consistency of any law with the Constitution and declare any unconstitutional law void. The Supreme Court has unequivocally established that it, as the guardian of the Constitution, has the authority to enforce article 7. This chapter first explores the history of the constitutional origin of judicial review in Bangladesh. It then evaluates whether the Supreme Court acts independently as one of the coequal branches of the government when exercising judicial review power as a tool for enforcing the separation of powers. The chapter then goes on to analyse some important case laws to examine how the Supreme Court has interpreted, applied, and expanded its power of judicial review. In relevant places, a comparison with other jurisdictions will be made to understand the trajectory and the future of judicial review in Bangladesh. Judicial review in Bangladesh The Constitution of Bangladesh was adopted on 4 November 1972 and came into efect on 16 December 1972.1 The core fundamental principles of the Constitution were secularism, democracy, socialism, and nationalism, which have been amended numerous times by various governments leading to certain provisions of the Constitution being contradictory.2 Judicial review is a manifestation as well as an integral part of democracy, one of the four fundamental cores.

1 Constitution of the People’s Republic of Bangladesh (hereafter “Constitution”). 2 For example, Islam is the state religion of Bangladesh while the enjoyment of other religions is also guaranteed. See art. 2A of the Constitution. DOI: 10.4324/9781003276814-9

Judicial review and the separation of powers

113

Article 102 of the Constitution has provided for judicial review, without using the nomenclature though. In addition, articles 7, 26, and 44 provide the basis, rationale, and scope of the judicial review power. These provisions, which, respectively, provide for constitutional supremacy, a bar on parliament’s power to make law inconsistent with fundamental rights, and the right to judicially enforce fundamental rights, outline the substantive aspect of the judicial review power, while article 102 largely provides the procedural aspect.3 In Bangladesh, judicial review is undertaken if any law is inconsistent with the fundamental rights or any other provisions of the Constitution. Executive actions including delegated legislation and judicial decisions (against which no appeals are available) are amendable to judicial reviewable on the ground of their illegality.4 Since 1989, in the aftermath of the 8th Amendment Case, constitutional amendments are also judicially reviewable.5 Judicial review power under article 102 is the original jurisdiction of the High Court Division of the Supreme Court, from whose decisions an appeal lies to the Appellate Division.6 Although articles 7, 26, and 44 together provide the basis of judicial review, the Supreme Court has mostly cited article 7, the constitutional supremacy clause, as the basis. Article 7 states that any law inconsistent with the Constitution will be void, which, however, is silent as to who will determine the inconsistency of any law with the Constitution. The Court in several cases has showcased this clause as a source of its authority to strike down any law if found inconsistent with the Constitution and stated that it holds the ultimate authority to determine the compatibility of any law with the Constitution.7

3 Article 7, the constitutional supremacy clause, states that the Constitution “is, as the solemn expression of the will of the people, the supreme law of the Republic” and if any other law is inconsistent with the Constitution that other law shall be void. Article 26(1), on the other hand, states that all existing laws inconsistent with fundamental rights “shall, to the extent of such inconsistency, become void”. 4 See Mahmudul Islam, Constitutional Law of Bangladesh (Mullick Brothers 1995) 78. 5 ibid 79. 6 Article 102(1) of the Constitution states: “The High Court Division on the application of any person aggrieved, may give such directions or orders to any person or authority, including any person performing any function in connection with the afairs of the Republic, as may be appropriate for the enforcement of any fundamental rights conferred by Part III of this Constitution”. Article 102(a)(ii) states: “The High Court Division may, if satisfied that no other equally efcacious remedy is provided by law – (a) on the application of person aggrieved, make an order – ii) declaring that any act done or proceeding taken by a person performing functions in connection with the afairs of the Republic or of a local authority, has been done or taken without lawful authority and is of no legal efect”. 7 See Abdul Mannan Khan v Bangladesh (2012) 64 DLR (AD) 169, 234. See, however, Kawsar Ahmed, ‘The Supreme Court’s Power of Judicial Review in Bangladesh: A Critical Evaluation’ (paper presented at the seminar hosted by BILIA to celebrate the 40th anniversary of the Constitution of Bangladesh, 12 October 2012) (arguing that the Supreme Court has not explained how its judicial review power under article 102 extends to giving remedies under article 7 of the Constitution “when Article 102 itself provides for remedy”. Ahmed seems to overlook that the remedy under article 7 (to declare any law unconstitutional) is also embedded in article 102(2).

114

Chowdhury Ishrak Ahmed Siddiky

The framers of the Constitution have also been silent on this matter. Upon a reading of the proceedings of the Constituent Assembly, it appears that the framers did not envisage the use of article 102 for judicial review of constitutional amendments. In his speech before the Constituent Assembly on 30 October 1972, Dr Kamal Hossain, chairman of the Constitution Drafting Committee opined that “the way we drafted Article 102, if any authority or person – who exercises governmental authority does anything beyond jurisdiction and anyone sufers injury for that reason, the High Court may issue direction to the concerned authority or person if the aggrieved person makes a such application”.8 It is important to note that the use of article 102 by the Supreme Court to invalidate and strike down constitutional amendments was not envisaged by the framers. The framers were to some extent against judicial review of constitutional amendments.9 Separation of powers and the judiciary The separation of the judiciary from the executive is one of the major pillars of any democratic constitution. In Idrisur Rahman v Bangladesh (2009), the Court observed that “so long the judiciary remains truly distinct from both the legislature and the executive the general power of the people can never be endangered from any quarters”.10 The principle of separation of the judiciary has been enshrined in article 22 of the Constitution which states that “the State shall ensure the separation of judiciary from the executive organs of the state”.11 Further, article 94(4) obligates the chief justice and the other justices of the Supreme Court to act independently.12 Although the original Constitution had cast a duty on the state to separate the judiciary from the executive, no steps were taken by the state to separate the judiciary from the executive organ until 2007. The lower criminal judiciary was separated from the executive on 1 November 2007 by the then caretaker government in compliance with the direction of the Appellate Division of the Supreme Court in Secretary, Ministry of Finance v Masdar Hossain.13

8 See Kawser Ahmed (ed), Proceedings of the Constituent Assembly of Bangladesh: Debates on the Making of the Constitution, vol 1 (Pencil Publications 2021) 378 (trans. by Kawsar Ahmed). 9 It can be argued that the framers did only anticipate judicial review power to protect the fundamental rights of the people in general and to scrutinise the legality of administrative actions/inactions and Acts of parliament. 10 Idrisur Rahman v Bangladesh (2009) 61 DLR (HCD) 523. 11 See art. 22 of the Constitution. 12 See art. 94(4) of the Constitution. 13 (2000) 52 DLR (AD) 82 (judgment of 2 Dec 1999).

Judicial review and the separation of powers

115

In Masdar Hossain, the Court was of the opinion that the provisions of the independence of the judiciary afrmed in articles 94(4) and 116A are the “basic pillars of the Constitution which could not be abridged, curtailed or diminished in any manner”.14 In that case, the independence of the lower judiciary was considered the essential condition of judicial independence as a whole.15 The decision, emanating from a judicial review proceeding, has, therefore, contributed to the rule of law by strengthening the independence of the judiciary.16 Although the Constitution empowered the Supreme Court to control the lower judiciary and despite the judiciary having been separated from the executive, the Supreme Court has not yet gained efective control over the subordinate judiciary. The problem remains because articles 115 and 116 of the Constitution have created a schism in the meaningful separation and independence of the judiciary.17 These two articles have empowered the president to appoint the judges and judicial magistrates of the subordinate judiciary and to deal with the posting and promotion of judicial ofcers in consultation with the Supreme Court. These two articles serve as leverage for the executive to interfere with the functioning of the lower judiciary because the president acts upon the recommendation of the prime minister under article 48(3) of the Constitution. In Idrisur Rahman, the Court declared the Supreme Judicial Commission Ordinance 2008 unconstitutional on the ground that the ordinance breached the constitutional principle of judicial independence by including majority members in the Supreme Judicial Commission from outside the judiciary.18 This case also resulted in the amendment of article 95(1) of the Constitution, which now provides that the Supreme Court judges shall be appointed “after consultation with the Chief Justice”.19 The Supreme Court, however, showed its true mettle in upholding the separation of powers in Asaduzzman Siddiqui v Bangladesh (2014), which challenged the 16th Amendment to the Constitution.20 The 16th Amendment empowered the parliament to remove judges of the Supreme Court by taking the power of removal of judges away from the Supreme Judicial Council headed by the chief justice.21 It was argued that the doctrine of basic structure

14 15 16 17

18 19 20 21

ibid para 57. ibid. On the judicial independence aspect, see further Chapter 5 in this volume. Article 116 was substituted by the Constitution (Fifteenth Amendment) Act 2011. Through the 15th Amendment, the executive formalised the mechanism to interfere with the lower judiciary. See Idrisur Rahman (n 10). See art. 95(1) of the Constitution. Bangladesh v Asaduzzman Siddiqui (2014) 62 DLR (AD) 298. The president has this removal power upon a resolution of Parliament to remove any judge(s). On an appreciative account of the decision See Po Jen Yap and Rehan Abeyratne, ‘Judicial Self-Dealing and Unconstitutional Constitutional Amendment in South Asia’ (2021) 19 Int’l J of Con L 127.

116

Chowdhury Ishrak Ahmed Siddiky

is a widely used tool to test the validity of any constitutional amendment. By relying on articles 7, 7B, and 22 of the Constitution, the Court held that the 16th Amendment would lead to legislative intervention in the judiciary, thereby destroying the “basic structure” features of judicial independence and separation of powers. Although there is an argument that the parliamentary removal system being part of the original constitutional structure, the 16th Amendment restoring an original provision would be beyond judicial review, it is important to note that articles 22 and 94(4) ensure the separation of power of the courts from the executive. The majority judges in the High Court Division in Siddiqui (2014) rightly opined that the Amendment created a public perception that the judiciary is not independent, which is a direct blow to the separation of power concept.22 The role of the Court in Siddiqui was also noteworthy as the Court protected judicial independence and the separation of power by invalidating the 16th Amendment to the Constitution. Although the role of the Court has been criticised as “an afront to the separation of powers”, because it “lacks the power to invalidate the original provision of the Constitution”,23 it is important to note that the Constitution cannot be a static document that cannot be changed even despite the change in circumstances.24 The Court had no other option but to intervene as the failure of the electoral process in Bangladesh has resulted in a subservient parliament that does not reflect the true aspirations of the people. As a result, keeping the power to remove the judges at the hands of parliament would have resulted in the judiciary being under the thumb of the executive, which would have had serious implications on the independence of the judiciary. Although the Court has always tried to protect the independence of the judiciary, it has at times intervened in cases which fall outside the scope of its jurisdiction. This has resulted in the breach of the separation of power by the judiciary itself. For example, in Hussain Mohammad Ershad v Zahedul Islam Khan (2002), the Court, within weeks before the national election, held that the conviction on corruption charges and the sentence of imprisonment exceeding three years disqualified Hussain Mohammad Ershad from participation in the parliamentary election.25 However, it is important to note that

22 The full text of the High Court Division judgment is available at: 23 Ridwanul Hoque and Sharowat Sharmin, ‘Developments in Bangladeshi Constitutional Law’ (2016) Global Review of Constitutional Law (I.CONnect-Clough Centre, Boston College 2017) 17. See, for a full critique, Ridwanul Hoque, ‘Can the Court Invalidate an Original Provision of the Constitution’ (2016) 2(1) U of Asia Pacific J of Law and Policy 14. 24 Although there are critiques who point out that such amendments cannot come from the Supreme Court, it can be argued that the Supreme Court is simply trying to fill up the void left by a lack of legislative leadership in this regard. 25 (2002) 31 CLC (AD) 1316.

Judicial review and the separation of powers

117

article 66(4) of the Constitution provides that any dispute regarding a candidate’s disqualification would be referred to the Election Commission. The Court disregarded article 66(4) of the Constitution by stating that “once a candidate had been convicted of a crime involving moral turpitude . . . , there remains no dispute to be decided by the Election Commission and the politician would be disqualified automatically”.26 The invalidation of the 13th Amendment to the Constitution in the case of Abdul Mannan Khan v Bangladesh was another controversial interference which caused political turbulence in the country.27 The majority Court held that “the 13th Amendment was unconstitutional as it allowed for an unelected government to rule Bangladesh, thereby violating democracy, an unamendable basic feature of the constitution”.28 Justice Mia, a dissenting judge, held that “elections held under the political government were tainted with manipulation, rigging and hijacking, and multiple free and fair elections had been held under the current Non-Party Caretaker Government System”.29 Although the Court has over the years been active in keeping the public agencies accountable, it did not follow the same principle for private individuals or entities violating the Constitution. Hoque argues that “the Court’s reluctance to apply fundamental rights horizontally, although there is some measure of indirect horizontality, does not quite match with either the letter or the spirit of Article 102(1) of the Constitution that makes fundamental rights enforceable against any person”.30 This was found to be true in State v Sukur Ali where the Court confirmed the death sentence of a minor boy by reasoning that “it could not defy the language of the concerned special statute that provided the mandatory death penalty for any person guilty of the ofence”.31 This reasoning was clearly against the spirit of the Constitution. Environmental issues are another area where the Court has shown its inclination to proactive adjudication. In a long list of cases, the Court has actively ensured the protection of the environment by giving guidelines and even remedies such as directing the relevant government agency to act. For example, recently the Court has declared rivers as a “living entity” to protect them from encroachment.32 In this landmark judgment, the Court nominated

26 ibid. See also Begum Khaleda Zia v Bangladesh Election Commission (2019) 7 CLR (HCD) 8 where the former prime minister of Bangladesh was declared to be ineligible for elections in 2018 as she was convicted of an ofence. 27 (2012) 64 DLR (AD) 169. 28 ibid 171. 29 ibid. 30 Ridwanaul Hoque, ‘Constitutionalism and the Judiciary in Bangladesh’ in S Khilnani, V Raghavan, and A Thiruvengadam (eds), Comparative Constitutionalism in South Asia (Oxford University Press 2013) 303. 31 (2004) 9 BLC (HCD) 238. 32 Human Rights and Peace for Bangladesh (HRPB) v Bangladesh (2016) 4 CLR (HCD) 121. See also Cemex Cement (Bangladesh) Ltd. v HRPB (2015) 12 ADC 455.

118

Chowdhury Ishrak Ahmed Siddiky

the National River Protection Commission (NRPC) as the legal guardian of all waterways and directed other state agencies to fully assist the Commission. In another case, the Court invalidated a contract given to a foreign company to construct a terminal in the Chittagong Port due to a lack of transparency.33 It also had once struck down a local government law that undermined the Constitution34 and directed the setting up of special courts in the Chittagong Hill Tracts to protect children and women.35 In all these cases, the Court has proactively taken it upon itself to intervene, protect the rights of citizens, or invalidate laws passed arbitrarily. However, these actions by the Court can be construed as a violation of the separation of power principle as they have gone beyond their remit. The Court has not been consistent in all the cases involving corruption or cases with a mixture of politics. As Hoque points out, “While the Court has shown a disproportionately active engagement with cases concerning its independence, it has not for example yet authoritatively established the jurisprudence of public law compensation for gross constitutional breaches”.36 Judicial review of constitutional amendments has become a regular occurrence in Bangladesh. The 5th, 7th, 8th, 10th, 13th, 14th and 16th Amendments were all challenged before the Supreme Court.37 Although it is claimed that the judgments in all these cases were given on merit and that no questions regarding the competency of the Court to use judicial review were raised, the fact remains that the Court’s review of some constitutional amendments violated the separation of power. Although Anwar Hossain Chowdhury acknowledged the inherent limitations on the power of amendment, the Court made a distinction between the constituent power of adopting a new constitution and the derivative power of amending the constitution.38 Although in that case the Court was correct in identifying certain basic provisions of the Constitution, questions remain as to whether they have the jurisdiction to make the Constitution of a country unamendable or to amend the Constitution in the guise of reviewing a constitutional amendment. It is important to consider that the Constitution is the expression of the will of the people as envisaged by the framers of the

33 Engineer Mahmud-ul-Islam v Bangladesh (2003) 23 BLD (HCD) 80. 34 BLAST v Bangladesh (2008) 60 DLR (HCD) 234. 35 BLAST v Secretary, Ministry of Law, Justice and Parliamentary Afairs (2009) 61 DLR (HCD) 109. 36 Hoque (n 30) 324. 37 See Italian Marble Works Ltd v Bangladesh (2010) 62 DLR (AD) 70 (5th Amendment Case); Siddique Ahmed v Bangladesh (2013) 33 BLD (AD) 129 (7th Amendment Case); Anwar Hussain Chowdhury (n 38) (8th Amendment Case); Dr Ahmed Hussain v Bangladesh (1998) 18 BLD (AD) 184 (10th Amendment Case); Abdul Mannan Khan (n 27) (13th Amendment Case); Farida Akhter v Bangladesh (2005) 57 DLR (AD) 201 (14th Amendment Case); and Bangladesh v Asaduzzaman Siddiqui (2014) 62 DLR (AD) 298 (16th Amendment Case). 38 Anwar Hossain Chowdhury v Bangladesh (1989) BLD (AD) (Special) 1.

Judicial review and the separation of powers

119

Constitution (by exercising “constituent power”) and that being the case, unelected judges have a very thin line to tread upon in deciding challenges to constitutional amendments, a power that was not enshrined in the Constitution at the time of the founding. Judicial review over the years The concept of judicial review was adopted by the original Constitution via article 102 as a vehicle for the enforcement of fundamental rights and the scrutiny of administrative/executive actions. However, the Constitution did not incorporate the concept of basic structure, which made the judicial review of constitutional amendments (since 1989) complicated because the Court could not decide what the Constitution’s basic structure features are. The concept of judicial review of constitutional amendments in Bangladesh was first endorsed by the Supreme Court in Anwar Hossain Chowdhury where the Appellate Division of the Supreme Court held that the power of judicial review is conferred by article 102 of the Constitution, and it cannot be taken away or curtailed even by a constitutional amendment. Since Bangladesh’s independence, three remarkable expansions of the judicial review power have been through the judicial review of constitutional amendments (JRCA), the adoption of the concept of public interest litigation (PIL), and judicial review of private entities of public nature. These developments are briefly analysed next along with the traditional facets of judicial review, that is, judicial review of administrative/executive decisions involving the breaches of human rights and the principle of legality. Judicial review of legislative acts and ordinances, another significant aspect of the judicial review power as a tool for ensuring the separation of powers, has been kept out of the scope of this chapter.39 Judicial Review of Constitutional Amendments (JRCA)

Anwar Hossain Chowdhury v Bangladesh (1989)40 was the beginning of a judicial review of constitutional amendments in Bangladesh. One of the judges in the case opined that while judicial review of laws passed by the parliament is marked as a precursor of constitutional supremacy, judicial review of constitutional amendments was to be seen with both reverence and suspicion.41 For Justice Kamal, if the judiciary, “the guardian of the Constitution, remains silent . . .

39 See also Italian Marble Works Ltd v Bangladesh (2010) 62 DLR (AD) 70 (5th Amendment Case); Siddique Ahmed v Bangladesh (2013) 33 BLD (AD) 129 (7th Amendment Case); Anwar Hussain Chowdhury (n 38) (8th Amendment Case) where the martial law orders/ ordinances were invalidated. 40 (1989) 41 DLR (AD) 165. 41 Justice Mustafa Kamal, Bangladesh Constitutions: Trends and Issues (Dhaka University 1994) 141.

120

Chowdhury Ishrak Ahmed Siddiky

it will make the constitution a plaything of the majority [party-ridden] parliament and will give birth to parliamentary autocracy”.42 This clearly shows that the Supreme Court was not only careful to draw a line between the parliament and the Court but also to reafrm its commitment to upholding constitutionalism in its role as a guardian of the Constitution. In Anwar Hossain Chowdhury,43 popularly known as the 8th Amendment Case, the then military government difused the High Court Division into seven diferent benches through martial law regulations and later amended article 100 of the Constitution via the 8th Amendment to legalise those extraconstitutional changes. The petitioners challenged the 8th Amendment and argued that “the High Court Division’s plenary judicial power over the whole Republic was part of the basic structure of the Constitution which was unalterable even by a constitutional amendment”.44 In its majority judgment, the Appellate Division held that the parliament did not have unlimited amending power and that certain provisions of the Constitution cannot be altered by the parliament as they are considered the basic pillars of the Constitution.45 The Court invalidated the 8th Amendment on the ground that the amendment altered some unalterable basic structures/features of the Constitution. This is how the concept of judicial review of constitutional amendments, or the doctrine of basic structure, was adopted in Bangladesh. Before this case, the concept of the basic structure doctrine was unheard of in Bangladesh, although the argument of the unamendability of certain constitutional provisions was already considered in an earlier case of M. Abdul Huq v Fazlul Quader Chowdhury.46 The landmark judgment in Anwar Hossain Chowdhury might not have been possible if not for the Indian case of Kesavananda Bharati v State of Kerala (1973),47 upon which the Court relied.48 Kesavananda Bharati, for the first time, established “in the common law world the doctrine of the inviolability of the basic structure of the Constitution”.49 In Kesavananda, the Indian judges acted in furtherance of their duty to ensure governance by the standards of the rule of law and were acting to ensure that the fundamental features of the Indian Constitution were

42 43 44 45 46

ibid 142. (1989) 41 DLR (AD) 165. ibid 169. ibid 174. M Abdul Huq v Fazlul Quader Chowdhury (1963) 15 DLR (Dacca) 355 (upheld by the Supreme Court of Pakistan in the case of Muhammad Abdul Haque v Fazlul Quader Chowdhury (1963) 10 DLR (SC) 84). 47 (1973) 4 SCC 225. 48 See Ridwanul Hoque, Judicial Activism in Bangladesh: A Golden Mean Approach (Cambridge Scholars Publishing 2011) 325, who thinks that “but for this strong persuasive decision [in Kesavananda] from a powerful neighbouring jurisdiction it would be extremely difcult, if not impossible, for the Bangladesh Court to produce such a structurally radical decision”. 49 ibid 166.

Judicial review and the separation of powers

121

not threatened. That decision, therefore, can be seen as the judicial enforcement of the principle of separation of powers. Relevantly, article 7(2) of the Constitution states that if “any other law” is inconsistent with the Constitution then that “other law” shall be void to the extent of the inconsistency. In Anwar Hossain Chowdhury, it was argued that a constitutional amendment is not within the scope of “any other law” under article 7 and, hence, not subject to judicial review. Later, in Kudrat-e-Elahi Panir v Bangladesh,50 Justice Mustafa Kamal held that even if the Constitution does not fall within the ambit of any other law referred to in article 7(2), a constitutional amendment can be the subject of judicial review.51 In 2010, the Appellate Division in Khondker Delwar Hossain v Bangladesh Italian Marble Works52 invalidated the 5th Amendment of 1979 for violating the principle of constitutional supremacy. The 5th Amendment was done under the military regime that changed a few important aspects of the Constitution, including making it subservient to the Martial Law Proclamation. The Court held that “making the Constitution subordinate and subservient to the Martial Law Proclamations, Regulations and Orders are absolutely illegal, void and non-est in the eye of law . . . so any attempt to legalise this illegality in any manner or method and by any Authority or Institution, how high soever, is also void and non-est and remains so forever”.53 The 16th Amendment of the Constitution54 was on the removal of the Supreme Judicial Council, which had the power to impeach judges, and authorised the parliament instead to impeach judges. This amendment was declared illegal and unconstitutional by the High Court Division,55 and the decision was confirmed and upheld by the Appellate decision in 2018.56 The decision is currently under review at the Appellate Division, with the government giving ninety-four arguments in favour of the amendment. It can be observed that, when reviewing constitutional amendments throughout the years, the judiciary has sometimes maintained the separation of powers while at other times has not quite adhered to the principle. Public Interest Litigation (PIL)

Public interest litigation (PIL) has been a valuable tool for the court to come up with landmark judgments for the protection of the rights of citizens, the environment, and others violated through various administrative decisions. In

50 51 52 53 54 55

(1992) 44 DLR (AD) 319. ibid 341. (2010) 62 DLR (AD) 298. ibid. The Constitution (Sixteenth Amendment) Act 2014 (Act No XIII of 2014). See Siddiqui (n 22). The full text of the High Court Division judgment is available at: 56 (2017) 14 ADC 1.

122

Chowdhury Ishrak Ahmed Siddiky

Dr Mohiuddin Farooque v Bangladesh (1997), the Supreme Court extended the scope of writ jurisdiction through which any organisation or individual, without any personal interest in a particular case, could challenge the validity of an administrative action/inaction afecting the public interest.57 PIL has subsequently been used on many occasions to challenge laws and constitutional amendments. Although the High Court Division in this case summarily dismissed Dr Mohiuddin Farooque’s challenge because he was not an aggrieved person under the ambit of article 102 of the Constitution and there was not an explicit right to a healthy environment under articles 31 and 31, the Appellate Division held that: Any person, other than an ofcious intervener or a wayfarer without any interest in the cause beyond the interest of the general people of the country, is qualified to be person aggrieved and can maintain an action for judicial redress of public injury arising from a breach of some public duty or for violation of some provision of the Constitution or the law and seek enforcement of such public duty and observance of such constitutional or legal provisions.58 This view of the Court was further strengthened in Mahmudul Islam v Bangladesh (2003), where the Court took the view that a citizen could seek a court’s intervention for the enforcement of the rights and interests of citizens.59 The Supreme Court held that as the guardian of the Constitution “it [had an] obligation to correct and remedy any wrongdoing by abuse/misuse of ofcial power or any violation of the Constitution”.60 PIL, thus, has been a vehicle for the Supreme Court to intervene in cases where there is a violation of the Constitution. The decisions given out by the Supreme Court have forced the executive to enact laws or to correct any wrongs towards the citizens of the country. The Supreme Court has been proactive in various fields such as environmental protection61 and access to justice.62 As a result, PIL has played an important role in the separation of power as the Court has tried to protect its turf by passing judgments

Mohiuddin Farooque v Bangladesh (1997) 49 DLR (AD) 1. ibid. Mahmudul Islam v Bangladesh (2003) 55 DLR (HCD) 45. ibid. In a landmark decision in Human Rights and Peace for Bangladesh v Secretary, Ministry of Shipping (Civil Petition for Leave to Appeal No. 3039 of 2019), the Appellate Division declared all rivers in Bangladesh as a legal entity and assigned the National River Protection Commission (NRPC) as the legal guardian to act as their parents in protecting the rivers, waterbodies, and canals. 62 Dr Mohiuddin Farooque v Bangladesh (2006) 3 ADC 529.

57 58 59 60 61

Judicial review and the separation of powers

123

highlighting the supremacy of the Court in upholding the values of the Constitution.63 Judicial review of public functions of private entities

The Supreme Court has also recently expanded the scope of judicial review in matters of actions of private bodies which are of public nature. In Md. Abdul Hakim v Bangladesh, the Court dealt with whether an order issued by an ostensibly private authority could be reviewed in its writ jurisdiction.64 In reaching its judgment in Hakim, the Court was satisfied that the chairman of the managing committee of a non-governmental madrasah in discharging his powers and duties engaged efectively in regulating the services of the teachers, which was a function of public nature.65 By doing so the chairman remains a repository of power that otherwise is the preserve of the state under articles 15(a) and 17 of the Constitution to ensure and provide education, the Court reasoned.66 The decision in Abdul Hakim has set a precedent against the long-held view that any order or decision of a private body cannot be challenged under article 102 of the Constitution. However, what the Court carefully considered is whether the power of a chairman of the managing committee of a nongovernmental madrasah is woven into a system of governmental control. The answer was in the afrmative and, hence, the Court’s invocation of its judicial review power. Importantly, the Court relied on several English cases, including the famous Datafin PLC,67 where private functions of public nature were found reviewable.68 By citing Datafin PLC, the Court pointed to the need to make a broad assessment of all circumstances of a case and, in particular, the “extent to which the powers can be said to be woven into a system of governmental control”.69 Judicial review and the enforcement of human rights

The Supreme Court has over the years tried to protect the human rights of the citizens of the country through judicial review. It has intervened through

63 Providing a detailed account of PILs and their achievements is beyond the scope of this chapter. The literature is also vast on PIL in Bangladesh. But see Naim Ahmed, Public Interest Litigation in Bangladesh: Constitutional Issues and Remedies (Bangladesh Legal Aid and Services Trust 1999); Ridwanul Hoque, ‘Taking Justice Seriously: Judicial Public Interest and Constitutional Activism in Bangladesh’ (2006) 15(4) Contemporary South Asia 399; and Awal Hossain Mollah, ‘Judicial Activism and Human Rights in Bangladesh: A Critique’ (2014) 56(6) Int’l J of Law and Management 475. 64 (2014) 34 BLD (HCD) 129. 65 ibid 135. 66 ibid 136. 67 R v Panel on Takeovers and Mergers, exparte Datafin PLC (1987) QB 815. 68 The London Metal Exchange ex p. Albatros Warehousing BV (1998) EWHC Admin 903. 69 Md Abdul Hakim v Bangladesh (2014) 34 BLD (HCD) 129.

124

Chowdhury Ishrak Ahmed Siddiky

judicial review to uphold the values of the Constitution. It has, for example, come down heavily on arbitrary arrest, detention, and torture in police custody. In Bangladesh v Bangladesh Legal Aid and Services Trust (BLAST),70 the High Court Division issued a set of guidelines to be followed by magistrates and the police concerning arrests without a warrant, remand to and detention in police custody, and interrogation of suspects.71 The guidelines, finally endorsed by the Appellate Division of the Supreme Court,72 now require the police to disclose identity when making an arrest, prepare a memorandum of arrest, inform the relatives or friends of the arrest, and take the arrestee to a doctor in the event of any injury.73 The Supreme Court, through the passing of this landmark judgment, not only upheld the rule of law but was able to protect the fundamental rights of the citizens of the country and ensured that due process is maintained by the law enforcement agencies. The Supreme Court also played a pioneering role in protecting the rights of women by setting out guidelines about sexual harassment of women in BNWLA v Bangladesh (2011)74 and Salma Ali v Bangladesh (2009).75 Although several laws over the years were enacted to curb violence against women, there has not been any specific law dealing with the sexual harassment of women in workplaces. As a result, the Supreme Court by its intervention in these cases was able to fill in the legislative void. These landmark judgments not only defined the concept of sexual harassment but also provided guidelines for protecting women from sexual harassment. As a result, the Supreme Court has tried to play its part in protecting the human rights of citizens through its judgments and directions in various cases. Although critics point out that it has abused its position by not respecting the separation of power concept, the fact remains it has simply tried to uphold the spirit of the Constitution. The principle of legality

Article 102(2) empowers the Court to exercise judicial review to enforce the principle of legality. Although article 102(2) does not use this nomenclature, it allows the Court to issue remedies both nullifying any executive actions done without any legal backing and mandating the executive branch to do something that it is required by law to do. The principle of legality requires that government decisions must have a specific legal authority. As Dyzenhaus et al. said, the principle connotes that “broadly expressed discretions are subject

70 BLAST v Bangladesh (2003) 55 DLR (HCD) 363. 71 ibid. 72 Bangladesh v BLAST (2017) 69 DLR (AD) 63. See also A Faruque and Fazlul Bari, ‘Arbitrary Arrest and Detention in Bangladesh’ (2019) 19(2) Australian J of Asian Law 315. 73 BLAST v Bangladesh (2003) 55 DLR (HCD) 363. 74 (2011) 31 BLD (HCD) 324. 75 (2009) 29 BLD (HCD) 415.

Judicial review and the separation of powers

125

to the fundamental values, including values expressive of human rights, of the common law” and is “properly located within a particular conception of democratic legal culture, the culture of justification, in which decision-makers are obliged to justify their decisions”.76 The Court has frequently applied this principle to hold the executive accountable. In Faisal Mahbub v Bangladesh (1992), for example, the validity of preventive detention was challenged as each and every citizen has an inalienable right to be treated in accordance with the law.77 The Court held that the mere citation of the relevant statute in the detention order was not sufcient ground to preventively detain anyone.78 The Court would have to consider whether the grounds of detention are justified and supported by evidence. In Nasrin Kader Siddique v Bangladesh (1992), the Court demanded that materials supporting “the commitment [of the detainee] would have to be placed before the court for its satisfaction as to whether the irregularities in it if any could be detected”.79 The principle of natural justice is another expression of the principle of legality and is one of the key elements of the rule of law.80 Natural justice is a common law concept and represents fairness, reasonableness, equity, and equality. Article 102 allows the Supreme Court to intervene in any case of violation of natural justice. In Mohiuddin v Dhaka University (1983),81 it was held that where a petitioner’s licence was cancelled without him being given a fair opportunity to defend against the allegations made against him, the action of the authorities was a violation of article 27 of the Constitution, which is the principle of equality before the law.82 Conclusion The Supreme Court of Bangladesh has evolved greatly over the last 50 years in its approach to judicial review in matters it considers pertinent to intervene. However, its intervention has been chequered and sometimes outside its jurisdiction.83 During the martial law imposed in 1975, the Supreme Court left its role as the guardian of the Constitution by allowing the government

76 David Dyzenhaus, Murray Hunt, and Michael Taggart, ‘The Principle of Legality in Administrative Law: Internationalisation as Constitutionalisation’ (2001) 1 Oxford Univ Commonwealth L J 6. 77 Faisal Mahbub v Bangladesh (1992) 21 CLC (HCD) (online). 78 ibid. 79 Nasrin Kader Siddiqui v Bangladesh (1992) 21 CLC (AD) (online). 80 On this concept from a Bangladesh perspective, see Abdullah al Faruque, Natural Justice: From Principles to Practice (Palal Prokashoni 2013). 81 (1993) 45 DLR (HCD) 292. 82 See also Abdul Jalil v BSFC (1991) 43 DLR (HCD) 474; Zakir Ahmad v University of Dacca PLD 1965 122; and Bangladesh v Professor Golam Azam (1993) 45 DLR (AD) 423. 83 See, for example, Abdul Mannan Bhuiyan v State (2008) 60 DLR (AD) 49, where the Court based on a newspaper report suo motu took some actions which violated the clear separation of

126

Chowdhury Ishrak Ahmed Siddiky

at that time to forcibly acquire the property of the citizens and suspend the right of judicial review. When this was challenged in Halima Khatun v Bangladesh (1978),84 the Supreme Court held that it had no other option but to give efect to martial law regulations and proclamations.85 The Court stated that “if the laws which this court administers does, therefore, amount to what is known as harsh or unjust legislation, the court will still have to administer it”.86 In State v Haji Joynal Abedin,87 the Court stated that “the Constitution had been reduced to a position subordinate to the 1975 Martial Law Proclamation as clause (g) of the said Proclamation clearly states that no court shall call into question any action taken by or under any Martial Law Regulation”. However, in this decision, it was not considered by the Court that the ofence committed by the accused petitioner was committed before the Martial Law Proclamation. The intervention of the Court in some of the cases discussed has shown the Court’s tendency to interfere in areas within the jurisdiction of the legislature and the executive. There have also been criticisms in the parliament regarding the judiciary that it is not respecting the separation of power as it regularly tries to legislate from the bench. The BWNLA case, and the 8th and the 13th Amendment Cases, discussed previously, are good examples of such interference. The judiciary has over the last fifty years been able to protect its turf but has otherwise failed to act when needed. It has also at times not abided by the principle of separation of powers while interfering in cases through judicial review. The country has so far seen two martial law regimes and four states of emergencies and whenever constitutional amendments have been passed during those times, the Court has consciously tried to stay above the fray despite the desecration of the Constitution. Moreover, they only acted when the crisis has abated.88 As a result, it can be concluded that while the Court has used judicial review and the separation of powers to protect its interests, it became the handmaiden of the government when political issues arose.

84 85 86 87 88

powers between the organs and risked setting a precedent which had the potential to politicise the judiciary. (1978) 30 DLR (SC) (1978) 207. ibid 220. ibid 220. (1978) 30 DLR (HCD) 371. See cases cited in note 39. In all these cases, the court intervened after many years after the actual time of parliamentary or government action. This aspect substantiates the notion that the Court only acts when the crisis has abated.

Part III

Political parties, executive authority, and parliament under the constitutional scheme

8

Constituting limits and accountability of the executive power in Bangladesh Md Lokman Hussain

Introduction In the last few centuries, states transformed from omnipotent monarchical power to modern constitutional states. While the craving for written constitutions was not a Western uniqueness, argues Colley, global constitutions as a political technology transformed from the function of empowering the citizens to that of limiting the power of the rulers.1 Comprehending constitutionalism as an antidote to the abuse of public power is central to the idea of constitutionalism.2 According to Sajó and Uitz, constitutionalism stands for “a set of interrelated concepts, principles, and practices of organizing and thereby limiting government power in order to prevent despotism.”3 For modern political theories, the idea of limiting the government goes back to the works of Thomas Hobbes (1588–1679) and John Locke (1632–1704). Other scholars of constitutionalism also emphasised the limiting function of constitutions.4 In explaining the origin of political order, Fukuyama argued that modern democratic political order includes three sets of institutions: the government (for the execution of power), the judiciary, and parliament (the latter two for controlling that power).5 In this sense, a constitution works as a design for the powers in the state, through designing, and legitimising the exercise of, the power. Two connected features are common to these understandings of constitutionalism. One is the function of the constitution as a limit on powers or as a check against abuse of powers, and the other is the constitution’s role

1 Linda Colley, The Gun, the Ship, and the Pen: Warfare, Constitutions, and the Making of the Modern World (Liveright Publishing Corporation 2021). 2 Charles H McIlwain, Constitutionalism: Ancient and Modern (revised edn, Liberty Fund 2007). 3 András Sajó and Renáta Uitz, The Constitution of Freedom: An Introduction to Legal Constitutionalism (Oxford University Press 2017) 13. 4 See, for example, McIlwain (n 3); Scott Gordon, Controlling the State: Constitutionalism from Ancient Athens to Today (Harvard University Press 2002). 5 Francis Fukuyama, Origins of Political Order: From Prehuman Times to the French Revolution (1st edn, Farrar, Straus and Giroux 2012). DOI: 10.4324/9781003276814-11

130

Md Lokman Hussain

as an instrument or design in clear contrast to the consecration of laws and the source of authority. In the previously mentioned quotation of Tajuddin Ahmad, the prime minister of the provisional government of Bangladesh during the 1971 liberation war, one can identify the instrumental understanding of constitutionalism in the Bangladesh context, which recognises that, due to the fallibility of human beings, a constitution is no better than the understanding of the human individuals making it. This understanding, contrary to the popular trend of consecrating the Bangladeshi Constitution as a document, was also highlighted by Mahmudul Islam as he identified both the Constitution’s instrumental role6 and its function of limiting the power of government.7 During the making of Bangladesh’s Constitution in 1972, a quote was reiterated in the Constituent Assembly, which was that the constitution is only a framework or a skeleton, its flesh and blood are provided by the actual processes of politics. This metaphor compares the constitution with the human body. The reference to blood and flesh in the saying perhaps indicates the character of the organic growth of the national constitution. Ironically, however, political parties in Bangladesh have largely failed to allow the Constitution of the nation to grow as intended by the founding fathers.8 Further, attempts to constitute and design limits on the executive power in Bangladesh were flawed since the days of the Constituent Assembly. The constitutional design and the ability of the Constitution as a check on the executive power have since deteriorated further. The Constitution has largely failed to be the arbiter between the freedom of the individuals and the powers of the state. The main reason for such a failing is probably that the design of powers of the executive was never theoretically sound given the local sociopolitical contexts. Moreover, the devised constitutional checks on the executive have not ever been practically implemented with conviction by the ruling and the opposition parties. It seems that the Bangladeshi Constitution, rather contradictorily, focuses on the limits of individual freedoms,9 while shying away from strongly articulating limits on the executive power.

6 Mahmudul Islam, Constitutional Law of Bangladesh (2nd edn, reprint, Mullick Brothers 2003) ix. 7 ibid 1. The instrumental understanding of constitution diferentiates between constitution and constitutionalism. This chapter can be understood as more a discussion about constitutionalism than constitutional law. 8 On the role of political parties generally, see Chapters 9 and 10 in this volume. 9 Most of the fundamental rights provisions are subject to law, public policy, and other vague grounds (see, for example, the rights in arts. 36–41). However, see art. 26, which says that laws inconsistent with fundamental rights are void.

Constituting limits and accountability of the executive power

131

Separation of power as a method for limiting the state The rationale for constitutionalism lies in the need for both empowering the state and preventing the abuse of its power. The theory of separation/balance of powers is, therefore, used to devise constitutional limits on state powers. Two familiar models of democratic governments follow diferent designs of the separation of powers. They are a presidential form of government (the United States of America is a famous example) and the system of parliamentary democracy (the United Kingdom, the so-called Westminster model, is the classic and a much-replicated example of this model). However, the diferences in constitutional architecture in the UK and the USA have one common function of constitutionalism – limit the executive. The theory of separation of power is attributed to the work of Montesquieu, The Spirit of Laws,10 where the core logic was that unless the powers of the organs of the state are separated, the liberty of the individuals is in peril. He suggests that there should be a sophisticated tension among the three state organs for ensuring the liberty of the individuals. Later, during the framing of the American Constitution, Madison argued for the separation of powers, particularly in Federalist Paper no. 48. To avoid confusion about separation as total separation, he argued that the three state powers should not be that much separate that they cannot check each other.11 In his words, “unless these departments [executive, legislature, and judiciary] be so far connected and blended as to give to each a constitutional control over the others, the degree of separation which the maxim requires, as essential to a free government, can never in practice be duly maintained.”12 The US judiciary reminds us of this tension, observing that the framers of its constitution recognised the necessity of institutional design to safeguard liberty from the abuse of power.13 It resolved this necessity in two ways: by making a federal structure of the government and by dividing the federal power of the government into three defined categories of legislative, executive, and judicial power.14 The concern that underlies Madison’s proposal for separation of power is the problem of governmental tyranny which is “common to all forms of government.”15 Unless there is an efective separation of powers, any system of government, “will degenerate into tyranny.”16 Thus, separation of powers is not only a democratic value in itself, it is also a remedy for the perennial problem of tyranny in any form of government.

10 Montesquieu, Charles de Secondat, The Spirit of Laws (trans. by Thomas Nugent, Hafner Pub. Co. 1949). 11 Alexander Hamilton, James Madison, and John Jay, The Federalist Papers (Oxford University Press 2008). 12 ibid 245. 13 Seila Law LLC v Consumer Financial Protection Bureau, 591 U.S. 2020, 21. 14 ibid. 15 George W Carey, ‘Separation of Powers and the Madisonian Model: A Reply to the Critics’ (1978) 72 The American Poll Science Rev 151. 16 ibid.

132

Md Lokman Hussain

The separation of powers does not deny the need for the executive to be strong enough to execute the laws. This often creates confusion. The Lockean formulation of the separation of powers is identified to be supporting the absolute power of the executive branch. Unless one endorses the supremacy of the constitution over ordinary laws, or at least identifies the diference between them, one may be tempted to consider Locke to be either supporting extra-legal prerogatives of the executive or considering the executive subject to the law.17 Locke’s executive prerogatives are both legitimated by the constitution and subject to it.18 However, the Lockean prerogative for the executive has another pragmatic necessity to fulfill: to “deal with unforeseen issues that arise, especially those which cannot be anticipated by the legislative branch.”19 While, in the US context, the judiciary developed tools for testing the constitutionality of such an exercise of executive power, in Bangladesh, this power is not usually tested routinely. For example, an unofcial emergency declared during the COVID-19 pandemic in 2020 was not judicially tested.20 However, the ordinance-making power of the president under article 93 of the Constitution is a more appropriate legal tool in the hands of the executive for dealing with unforeseen issues. In the case of COVID-19, Bangladesh did not involve this ordinance-making power. The country did not use the regular law-making power of the parliament either. Rather, it relied on an inappropriate executive tool of declaring public holidays by broadly citing the Rules of Business.21 Bangladesh’s model is neither American nor British It is important to note that constitutionalism is a global phenomenon in that the culture of constitutionalism is influenced by the practices of other countries, most of which that have written constitutions. The diference may be in the design of power and the content of rules. For Bangladesh, constitution-making was influenced by the then international politics. For example, the attempt to incorporate the contradictory ideals of democracy and socialism at the same time was arguably a reflection of the Cold War international politics of the time.22 From the point of view of the constitutional design of Bangladesh, I would argue that Bangladesh did not follow either of these two models of

17 Lee Ward, ‘Locke on Executive Power and Liberal Constitutionalism’ (2005) 38 Canadian J of Poll Science 719. 18 ibid 721. 19 Joshua L Friedman, ‘Emergency Powers of the Executive: The President’s Authority When All Hell Breaks Loose’ (2012) 25 J of Law and Health 265. 20 Ridwanul Hoque, ‘Bangladesh’s Unofcial Emergency: Managing the COVID-19 Crisis By Notifications’ (Verfassungsblog, 6 May 2020). 21 The Rules of Business 1996, framed by the president under art. 55(6) of the Constitution. 22 See Ridwanul Hoque, ‘The Founding and Making of Bangladesh’s Constitution’ in Kevin Y L Tan and Ridwanul Hoque (eds), Constitutional Foundings in South Asia (Hart Publishing 2021) 91–119.

Constituting limits and accountability of the executive power

133

constitutionalism in controlling the executive power. It missed the focus on controlling the executive power even after the horrible experience of the Pakistan era.23 Anti-colonial narratives that tempt us to identify this global culture of constitutionalism as part of neo-imperial or neo-colonial hegemony may recognise that measuring accountability and imposing limits on executive power based on the US or UK models is not more hegemonic than the idea of constitutionalism itself. Moreover, Bangladesh did not manifestly denounce those models for the sake of decolonisation. Rather, during the constitution drafting, it heavily relied on the constitutional experience of these two and other countries. The democratic values, in particular, were borrowed from others and transplanted into the national Constitution.24 Thus, it is legitimate to measure the constitutional design of executive power in Bangladesh in the light of theories and models from the UK and the USA. Bangladesh incorporated into Constitution parliamentary democracy in 1972. It may seem that it is difcult to ensure separation of powers in a Westminster form of government. However, there are viable mechanisms of checks and balances in that system. In Britain, members of the parliament can vote against the Bills proposed by the government party and, due to parliamentary supremacy, the executive remains checked by the legislature. Moreover, the balance of power is ensured through the political freedom of members of parliament. A political party can restrict the power of the members solely in the case of a confidence vote. Although Bangladesh supposedly replicated the British model of parliamentary government, mostly because of the colonial legacy, the form lacks nearly all of the features mentioned.25 In Bangladesh, the three powers are so close that they cannot check each other. It is obvious that the Westminster model of separation of powers, which Bangladesh aimed to transplant into its system, is not “of the type practised in the American jurisdiction.”26 Ironically, the design of the Bangladeshi separation of powers as adopted is not the same as the Westminster model either. The Constitution rather made “an assignment or distribution of diferent powers of the Republic to the three organs” and, instead of an efective separation of power, it set a canon that “no one organ could transgress the limits set by the Constitution.”27 Moreover, in Bangladesh, the power of the members of parliament is curtailed and controlled by a culture of dominance by party leadership, which dominance is embedded in the Constitution (art. 70). Article 70 that bars members from voting against their party in parliament is, it may

23 See for example, Ayesha Jalal, Democracy and Authoritarianism in South Asia: A Comparative and Historical Perspective (Cambridge University Press 1995); Lawrence Ziring, Pakistan: At the Crosscurrent of History (Oneworld 2003). 24 Tan and Hoque (n 22). 25 On Bangladesh’s borrowing of the Westminster model of parliamentary democracy, see Chapter 9 in this volume. 26 Islam (n 6) 15. 27 ibid v.

134

Md Lokman Hussain

be argued, contrary to the parliamentary role in ensuring the accountability of the government. It rather turns out to be a model of the elected authoritarianism in the country.28 Whereas the discussion in this chapter is mainly related to the parliamentary form of government, it is not irrelevant to mention that the constitutional dismemberment by the 4th Amendment of 1975 resulted in the single-party dominated presidential form of government – the form which was much criticised and rejected by Bangladesh’s Constituent Assembly for excessive and unaccountable power of the executive – the president.29 Ironically enough, the presidential form under the 4th Amendment did not provide any mechanism for checking the executive power that is seen even in a presidential system.30 As Islam rightly observed, that form of government “was an apology of a presidential form as the normal checks and balances of a presidential form of government was not incorporated.”31 The problem of demarcation of powers Dividing the power and responsibility of the state into three organs at least goes back to Aristotle. However, the demarcation line between the branches in Bangladesh is blurry, perhaps a lot more than what a parliamentary model of government would suggest. Categorisation of the executive may help to clarify the matter. It is common to categorise the executive branch of the state into two layers: the political executive and the permanent executive. Posts of the president and ministers are within the first category, whereas the public administration or the bureaucracy is the permanent executive.32 The relationship between the two layers is crucial for efective democratic governance. In Bangladesh, the constitutional positioning of the permanent executive under the control of the political executive was a step to roll back from the bureaucratisation of the Pakistan era, which was a continuation of the colonial legacy with cosmetic changes.33 However, this control of the political executive over the permanent executive was a constitutional wish only. The reality was bleak. One of the major concerns in the early 1970s was that a neutral and autonomous permanent executive required for a working parliamentary

28 M Abdul Halim, Constitution, Constitutional Law and Politics: Bangladesh Perspective (4th edn, CCB Foundation 2008) 186–187. 29 Richard Albert, ‘Constitutional Amendment and Dismemberment’ (2018) 43 Yale J of Int’l Law 1. 30 Dilara Choudhury, Constitutional Development in Bangladesh: Stresses and Strains (Oxford University Press 1997). 31 Islam (n 6) 18. 32 Shriram Maheshwari, ‘The Political Executive and the Permanent Executive: An Analysis of the Emerging Role Patterns’ (1980) 26 Indian J of Public Administration 739. 33 Mohammad M Khan, ‘Resistance to Administrative Reform in Bangladesh, 1972–1987’ (1989) 9 Public Administration & Development 301.

Constituting limits and accountability of the executive power

135

democracy was not built at the time.34 Moreover, since independence the attempts to reform the permanent executive towards aligning it to the constitutional promise of good governance faced resistance.35 Each time the country entered into an authoritarian regime, the permanent executive became instrumental support to the endurance of the regime.36 Also, there may be an incapacity of the legislative branch in ensuring the executive. The political capacity of the parliament that determines its ability to make the government and the public servants accountable mostly depends on its political capacity.37 However, parliament loses its capacity in “a single-party majority government, where party discipline is high and party leadership structure gives the Prime Minister considerable dominance in his/her party.”38 Thus, the problem of demarcation of powers and functions of the three state organs demands a more nuanced investigation. For example, where the arguably judicial function of pardoning by the president under art. 49 sits within the theory of separation of powers needs to be investigated.39 Other questions that need to be addressed are the questions of whether art. 70, the anti-defection clause, is an obstacle to the separation of powers or of the extent to which the executive can control the judicial administration, which is presently the case in Bangladesh.40 However, the subsequent discussion is limited to some aspects of the constitutional design of the political executive and its limits. A cosmetic design of separation of power? The Constitution dedicates three diferent parts to deal with the three distinct powers: Part IV (arts. 48–64) deals with the executive power, while Part V (arts. 65–92) and Part VI (arts. 94–117) deal with, respectively, the legislature and the judiciary. However, these Parts of the Constitution do not clarify the level or extent of separation of state powers. Besides, other relevant provisions determine the relationship among the three branches of the Bangladeshi state.

34 A T R Rahman, ‘Administration and Its Political Environment in Bangladesh’ (1974) 47 Pacific Afairs 171. 35 Khan (n 33). 36 It may be interesting to investigate the link between prestige, popularity, and aura of public services and the regime types. 37 Muhammad M Rahaman, ‘Parliament and Good Governance: A Bangladeshi Perspective’ (2008) 9 Japanese J of Political Science 39. 38 ibid. 39 Article 49 is as follows: “The President shall have power to grant pardons, reprieves and respites and to remit, suspend or commute any sentence passed by any court, tribunal or other authority.” 40 Judicial administration in Bangladesh is under the control of the executive branch through the Ministry of Law, Justice, and Parliamentary Afairs. Moreover, articles 115 and 116 vested the power in the executive branch to control the judiciary through the posting, promotion, and disciplining of judicial ofcers. See, for example, M M Hossain, ‘Separation of Judiciary in Bangladesh-Constitutional Mandates and Masdar Hossain Case’s Directions: A Post-Separation Evaluation’ (2020) 11 Int’l J for Court Administration 4.

136

Md Lokman Hussain

For example, article 22, which enshrines one of the judicially unenforceable fundamental principles of state policy under Part II of the Constitution, obligates the state to “ensure the separation of the judiciary from the executive organs of the State.” Yet this provision works as a ground for the separation of the judiciary from the executive. The Supreme Court has interpreted the impact and (indirect) enforceability of the fundamental principles of state policy in several cases. One such remarkable and renowned case is Secretary, Ministry of Finance v Masdar Hossain,41 which interpreted the impact of art. 22 on the powers of the executive and the judiciary under the Constitution. The Supreme Court afrmed that independence of the judiciary is a basic feature of the Constitution, and, because of this salience, the government had an enforceable constitutional duty to separate the lower criminal judiciary from the control of the executive. Before this decision, magistrates administering criminal justice were members of the permanent executive branch of the government. Although the separation between the executive and judicial powers is a constitutive element of judicial independence, the Bangladeshi judiciary is not fully independent even in the post-Masdar Hossain era.42 Thus, questions about the separation of powers remain. The independence of the judiciary is rather an outcome of the practice of constitutionalism. That practice is dwindling back and forth, rendering the judicial independence a matter of play at the hands of politics. Constituting an omnipotent prime minister It may not be appropriate to comprehend the breadth, depth, and length of the executive power from the limits imposed upon it. It is particularly more challenging in the case of Bangladesh as the limits are not obvious and listed. Thus, to comprehend the constitution of executive power, it is necessary to understand the power that the executive holds under the existing constitutional design. The Constitution gives very broad and blanket power to the prime minister, for example. Article 55(2) says that “[t]he executive power of the Republic shall, in accordance with this Constitution, be exercised by or on the authority of the Prime Minister.”43 The executive power of the state is vested in the prime minister. Interestingly, the subsequent clause, art. 55(3), provides that the cabinet is collectively responsible to the parliament. The Constitution diferentiates between the vesting of the executive power in

41 (2000) 20 BLD (AD) 104. 42 The magistracies, executive and judicial, were separated on 1 November 2007. However, the separation does not ensure the independence of the judiciary as the control, supervision, posting, and disciplining of judges are still largely at the hands of the executive. 43 In his speech presenting the draft Constitution Bill before the Constituent Assembly, Dr Kamal Hossain remarked that “the cabinet formed under the leadership of the prime minister shall exercise all executive power.” See Halim (n 49) 75. However, the Constitution replaced the word “cabinet” with “prime minister.”

Constituting limits and accountability of the executive power

137

the prime minister and imposing responsibility on her. This diference, which could also be explained as organic weakness,44 is an antithesis of the separation of powers in a parliamentary democracy. Besides, the Constitution seems ambiguous in vesting the executive authority in the prime minister, as it was done in Pakistan,45 and prescribed that all executive actions shall be done in the name of the ceremonial executive, the president.46 However, this provision may not seem that ambiguous if it is read with the provision in the next clause that “the President shall act in accordance with the advice of the Prime Minister.”47 Choudhury observed that unlike in India, there were no “debates about the type and nature of the executive to be adopted” at the time of constitutionmaking.48 However, there were discussions, if not debates, about the form of government in the Constituent Assembly. For example, Syed Nazrul Islam, the acting president of Bangladesh, remarked that among two forms of separation of powers, one that is followed in the USA vested absolute power in the president, which separated his ofce from the Congress and, thus, turned the position into a dictatorship.49 To avoid the possibility of the whimsical power of the presidential form of government, Mr Islam preferred the parliamentary to the presidential form.50 Regarding the question of whether the prime minister was given any excessive powers, he reasoned that the parliamentary government’s highest importance was given to the prime minister, which is usual for this post if one looks at the examples of Britain and India.51 Moreover, the motion of no-confidence that can be brought against the prime minister is the parliamentary tool against the abuse of powers, he further argued.52 However, bestowing excessive power on the prime minister, as is the case in Bangladesh, is not a UK model. A diferent argument was forwarded by Mrs Badrunnesa Ahmed when she observed that it is dangerous to entrust all power to one individual like what happened in the presidential form in Pakistan.53 Her argument in some way substantiated Suranjit Sengupta’s comment that the executive power was so designed that it placed an individual before the Constitution.54 Unfortunately, to align with the party line in supporting the constitutional design of the

44 45 46 47 48 49

50 51 52 53 54

ibid. Choudhury (n 31) 29. The Constitution, art. 55(4). ibid art. 48(3). Choudhury (n 31) 24. M Abdul Halim, Bangladesh Constituent Assembly Debate (1st edn, CCB Foundation 2014) 101. This actually happened to be true in the United States during Donald Trump’s presidency in recent years. Halim, ibid. ibid 102–103. ibid. ibid 379. ibid.

138

Md Lokman Hussain

executive power, Mrs Ahmed argued, by referring to Harold Laski’s Parliamentary Government in England, that entrusting more power to the prime minister is not a problem as the prime minister remains accountable to parliament and parliament remains accountable to the people.55 It was not clear how indirect accountability to the people is better than the direct election of a president whereas both posts are entrusted with similar powers without no practicable limits on them. It seems that choosing the form of government was influenced by the anti-Pakistani sentiment, just merely in form, due to the history of tyranny during the Pakistan period, and the form chosen did not result from a strong commitment to a truly limited government. Although Choudhury identified other reasons such as the familiarity with the parliamentary form of government since the British period,56 the constitutional design of the executive power as analysed suggests otherwise. Consequently, instead of devising a more efective mechanism to tackle abuse of power, the framers resorted to the rhetoric of parliamentary democracy as apathy to their experience during the Pakistan era without embedding the core principles of a limited government into the Constitution. Although the excessive executive power of the prime minister was defended by the logic of accountability through parliament, Bangladesh has never had an efective parliament to ensure that accountability. We need to look into the design of accountability proposed in the Constitution. First, the executive branch is not directly responsible to the people, as indirect responsibility through parliament (or through elections, to say otherwise) is the chosen mechanism. Second, the anti-defection clause (art. 70) hinders the accountability of the executive. Theoretically, the prime minister can be removed from ofce through a no-confidence vote in parliament. Practically, a successful no-confidence vote seems to be impossible. Article 70 states that voting in parliament against the party will automatically lead to the vacation of the seat of the concerned member. It is unclear whether art. 70 is applicable in a no-confidence vote or what is meant by “against the party.” If art. 70 applies to a no-confidence vote or if “against the party” means against the prime minister in a no-confidence motion, then the no-confidence process does not seem to ofer an accountability mechanism at all vis-à-vis the prime minister or her cabinet. An all-powerful executive weakens accountability The design of the accountability mechanism is also weak in art. 55(3). As mentioned earlier, against the vesting of all executive power in the prime minister, art. 55(3) provides a collective responsibility mechanism. Mr Suranjit Sengupta proposed for a regime of individual responsibility of the cabinet

55 ibid. 56 Choudhury (n 30).

Constituting limits and accountability of the executive power

139

members in the light of constitutional conventions/norms in other countries such as the UK. Dr Kamal Hossain, the chair of the Constitution Drafting Committee, provided an evasive explanation as he clarified that the collective responsibility of the cabinet means that an individual minister will not be responsible for another minister’s actions.57 He continued to say that it is the prime minister, not the parliament, who can expel a minister. If any such action is not taken by the prime minister, then the whole cabinet will be responsible to the parliament.58 This explanation takes us back to the problem of the practical impossibility of any no-confidence motion created by art. 70. While refuting the relevance of French and Italian mechanisms of individual responsibility, Dr Hossain highlighted the diferences that exist between these constitutional systems and that of Bangladesh. He did not find reasons to translate the constitutional convention of individual responsibility into the Bangladeshi system. Ironically, Bangladesh transplanted the foreign constitutional practices of restricting constitutional fundamental rights, which, as explained subsequently, had further weakened the separation of powers. Paradoxically, the chosen principle of collective responsibility, originally devised as a check on the executive power by parliament, “now conversely . . . operates to strengthen the power of the prime minister, and to reduce the parliament’s control” in Bangladesh.59 There is another mechanism in Bangladesh parliament through which the government ministries can, at least theoretically, be held accountable. That mechanism is the parliamentary committee (PC) system, necessary both for executive accountability and the coordination between the executive and parliamentary functions. However, despite the achievements of the PCs, they are not efective in ensuring the parliamentary check against the executive.60 While the separation of powers requires that the relevant parliamentary committee and the members of parliament (MPs) should have an important role in the budget and although the parliament is possessed of the public purse,61 the parliamentary committee or the MPs are powerless regarding the budget. Moreover, rule 111(3) of the Rules of Procedure of Parliament (RoP) is clearly against the separation of power as the rule says that “the Budget shall not be referred to any Committee and no other motion shall be made with reference to it except as provided in the rules contained in this Chapter.”62 Further, the RoPs have given wide powers to the prime minister.63 For example, rule 33

57 58 59 60

ibid 694. ibid. Halim (n 28) 208. Nizam Ahmed, ‘Parliamentary Committees and Parliamentary Government in Bangladesh’ (2001) 10 Contemporary South Asia 11. See also, Chapter 10 in this volume. 61 Article 83 of the Constitution says that “[n]o tax shall be levied or collected except by or under the authority of an Act of Parliament.” 62 Rules of Procedure of Parliament of the People’s Republic of Bangladesh 2007. 63 Akbar Ali Khan, Abak Bangladesh: Bichitro Chholonajale Rajniti (Surprising Bangladesh: Politics in Many Webs of Illusions) (2nd edn, Prothoma Prokashan 2018) 178.

140

Md Lokman Hussain

prescribes that “the prime minister may, in any case, or classes of cases, permit or condone a departure from these Rules to the extent he deems necessary.”64 Despite the design of an omnipotent and unaccountable executive branch, the broad power vested in the prime minister has some limits. First, due to constitutional supremacy, that power is subject to the Constitution. Moreover, there are inherent limitations of that power under art. 55(2) because the prime minister “cannot act without the aid of his colleagues in the Cabinet.”65 Because of her dependence on the actions of the cabinet as a whole and the principle of collective responsibility, the prime minister’s disregard for her colleagues may result in inefciency and erosion of her confidence in holding the position.66 However, fifty years of political constitutionalism in Bangladesh has rendered this mechanism a mere theoretical possibility due to the high leadership power concentration, dynastic politics, and populism. Judiciary and check on executive and legislative powers Judicial review is one of the most efective and pragmatic mechanisms for ensuring constitutional limits on the executive and legislative organs of the state. This has become so routine and living a practice that one may overlook it as too obvious. In Bangladesh, the Supreme Court’s writ jurisdiction under art. 102 of the Constitution against executive decisions or inactions is an example of the application of limits on the executive.67 The writs issuable by the Court in judicial reviews are limited by their content and the scope of relevant constitutional provisions. The Supreme Court is indeed willing and ready to apply “the due process test to determine the validity of governmental actions.”68 However, Ahmed identifies that even after the development of the law of writs in the UK, the Supreme Court of Bangladesh is yet to maneuver the power of writ of certiorari in adjudicating administrative law cases.69 For Ahmed, the Court can broaden the scope of providing remedies within the constitutional framework of fundamental rights adjudication in judicial review proceedings. Nonetheless, there are successful instances of judicial review in checking and balancing the executive power.70

64 65 66 67 68 69 70

According to section 13 of the General Clauses Act 1897, “he” includes “she.” Islam (n 6) 301. ibid. On this aspect of judicial review, see Chapter 7 in this volume. Islam (n 6) vii, referring to Ain-O-Shalish Kendra v Bangladesh (1999) 19 (HCD) BLD 488. Syed Ishtiaq Ahmed, Certiorari: An Administrative Law Remedy (Mullick Brothers 2011). See, for example, Sahar Ali v A. R. Chowdhury (1980) 32 DLR (HCD) 142; Dr Nurul Islam v Bangladesh (1981) 33 DLR (AD) 201; Mohammed Ali v Bangladesh (2003) 23 BLD (HCD) 389; Alam Ara Huq v Bangladesh (1990) 42 DLR (HCD) 98; Korban v Bangladesh (2003) 55 DLR (HCD) 194; Shamima Sultana Seema v Bangladesh (2005) 57 DLR (HCD) 201; Rabia Bashri Irene v Bangladesh Biman (2000) 52 DLR (HCD) 308; Bangladesh Biman v Rabia Bashri Irene (2003) 55 DLR (AD) 132; State v DC, Satkhira (1993) 45 DLR (HCD) 643.

Constituting limits and accountability of the executive power

141

However, judicial checks on executive and legislative power may not be smooth. For example, the practice of judicial law-making signals complexity. Under its judicial review power, the judiciary sometimes issues directives to the executive for making regulations or laws. Although such directives are “apparently motivated by a benevolent desire for ensuring better governance,” the trend of judicial law-making is contrary to the separation of powers.71 As Islam observed, this trend symbolises the corrosion of democracy and, thus, reveals the dysfunctionality of political forces while emboldening the functional image of apolitical forces.72 The established theory of separation of power is not so established in Bangladesh. Treating the problem as remaining with the judiciary alone, therefore, overlooks the broader problem of the constitutional design of powers in Bangladesh. However, the role of the judiciary should be read in the context of ensuring the human rights of the people, discussed very briefly in the following section. Fundamental rights as a limit to the executive power Fundamental rights are, perhaps, the most important contribution of modern political constitutionalism. Though constitutions were theoretically originated to limit the power of the states and to articulate the rights of the people, legal constitutionalism evolved to develop limits on rights. Thus, the fundamental rights became specific and continuously limited by the constitutional power of the state. Constitutionalisation of freedom, thus, now performs two functions: for the state, it acts as a limit to its powers, and, for the citizens, it not only provides for what they are entitled to but also what they are restrained from doing. As long as the restraining feature of fundamental rights is understood to be the safeguard for other fellow citizens’ rights, they do not pose much risk. However, if it is interpreted in terms of the security and other vague power of the state organs, then it may jeopardise freedom. During the making of the Bangladeshi Constitution, Dr Kamal Hossain relied on an article by Rene Marcic73 to advance a reasoning for restrictions associated with fundamental rights. Making a reference to the two methods of imposing restrictions on fundamental rights – the general unrestricted power of the legislature and the legislature’s power to impose restrictions on clearly defined purposes – he observed that it is not possible to provide more safeguards than what is proposed in the Constitution.74 Four such clearly defined purposes of imposing restrictions are: “(a) due recognition and respect for the

71 See M Rizwanul Islam, ‘Judges as Legislators: Benevolent Exercise of Powers by the Higher Judiciary in Bangladesh with Not So Benevolent Consequences’ (2016) 16 Oxford U Commonwealth L J 219. 72 ibid. 73 Rene Marcic, ‘Duties and Limitations Upon Rights’ (1968) 9 J of the Int’l Commission of Jurists 59. 74 Halim (n 49) 480.

142

Md Lokman Hussain

rights and freedoms of others, and meeting the just requirements of (b) morality, (c) public order, and (d) the general welfare in a democratic society.”75 However, the Constitution subjects the fundamental rights to the general powers of the legislature. Although the Bangalee are known to be argumentative (debaters)76 and one author highly applauded the culture of dissent in the Constituent Assembly,77 it was not critically debated whether the restrictions on fundamental rights were according to clearly defined community interests. One author observed that “the Constitution of Bangladesh has struck a balance between the guarantee of individual rights and the collective interests of the community.”78 However, there are instances, for example, in the Digital Security Act 2018, where the freedoms were subjected to not-so-clearly defined purposes. The reasons for the birth of Bangladesh were embedded in the failure of constitutionalism in Pakistan during 1947–1971. Ironically, however, the founding Constitution of Bangladesh resembled Pakistan in some respects including the structure of the executive power. Referring to Pakistan’s 1962 Constitution, Mr Sengupta remarked in the Constituent Assembly that the constitutional power of the executive was designed in a way that would cater to an individual, not an ofce.79 In addition to the emergency power that empowers the executive to curtail fundamental rights in an unrestricted manner, restrictions on fundamental rights resemble the ones under the constitutions of Pakistan of 1956 and 1962. The restrictions in the Pakistani Constitution of 1956 were criticised by Bangabandhu in the then Constituent Assembly.80 Mr Asaduzzaman Khan, a member of the Bangladesh Constituent Assembly, defended the restrictions by reference to the doctrine of police power, practices in global constitutionalism, and the Universal Declaration of Human Rights 1948 (UDHR). He also argued that the reasonableness of any restriction could always be tested in court.81 However, to what extent those restrictions are reasonable or what would be the key test for determining the reasonableness remain an unanswered question. Moreover, generally, the fundamental rights are direct limits to all the organs of the state. Scholars and lawyers have noted the diminishing status of

75 ibid. 76 Amartya Sen, The Argumentative Indian: Writings on Indian History, Culture and Identity (1st edn, Picador 2006). 77 Asif Nazrul, ‘50 Years of Bangladesh Constitution: Intentions, Institutions and Implementations’, The Daily Star (3 July 2021) accessed 19 October 2021. Moreover, we cannot just overcome the lack of dissent in the Constituent Assembly by applauding the dissent of the lone opposition member. The lack of dissent in parliament is the breeding ground for an omnipotent executive power. 78 Halim (n 28) 103–104. 79 Halim (n 1) 215. 80 ibid 211–214. 81 ibid 273–280.

Constituting limits and accountability of the executive power

143

human rights conditions in Bangladesh in recent times,82 which can be attributed to the flaws in the constitutional design that stretches the executive power of the state beyond separation or balance of power. Human rights violations in today’s Bangladesh are mostly attributable to various executive or lawenforcement agencies of the state. Judicial enforcement of human rights83 can, therefore, serve as a significant means of ensuring separation of powers and executive accountability. In the context of post-democratic-transition judicial activism (post-1990),84 the Supreme Court has stood up in defence of the constitutional rights of the citizens. In recent years, however, there is a sharp decline in this judicial role, which is arguably associated with both democratic backsliding and the lack of optimal judicial independence. Conclusion In creating the Constitution, the Constituent Assembly was nearly unanimous, and it lacked the democratic culture of dissent. The charismatic leadership of Bangabandhu also contributed to the lack of any strong dissent from the party members. Objectivity and impersonality were, thus, compromised in the constitutional design of the executive powers in Bangladesh in 1972. What history witnessed later was that an executive ofce designed for a benevolent leader failed to be a befitting ofce for the successors including the leader himself. Here lies a source of complexities reflected in the constitutional amendments that changed the form of government several times. While the form of government was changed, the design, including the excessive extent, of the executive power was not changed. It can be concluded that the constitutional design in Bangladesh did not provide efective separation of powers from the very beginning. For Bangladesh, what is necessary is a sophisticated tension among the three main organs of the state so that there is a balance of power.85 The examples of sophisticated tension found in the American and British models were not followed in Bangladesh. Moreover, “balance” is not mere rhetoric as opposed to the understanding of political leaders about it;86 it is to be understood in

82 Shahdeen Malik, ‘Culture of Constitutional Amendments: (Contentious) Reflections’, in Ahmed Javed (ed), Constitution of Bangladesh: Various Issues (1st edn, Anyaprokash 2020) (in Bangla). 83 See art. 44(1) of the Constitution, which guarantees the right to seek judicial remedies for the breaches of fundamental rights. Article 102(1), on the other hand, empowers the High Court Division of the Supreme Court to enforce fundamental rights by issuing an appropriate remedy including writs under art. 102(2). 84 See, generally, Ridwanul Hoque, Judicial Activism in Bangladesh: A Golden Mean Approach (Cambridge Scholars Publishing 2011). 85 Reducing power, duration, and the number of terms is an obvious solution. 86 ‘President for Maintaining Balance among Three State Organs’ The Dhaka Tribune (7 December 2019) .

144

Md Lokman Hussain

terms of the relative capacity of the state organs. In Bangladesh, the executive branch is omnipotent, and the two other branches lack the capacity to ensure balance. Instead of a constitutional design of tension among the state organs, the Constitution increased the power of the executive by keeping a gap in accountability mechanisms and imposing vague restrictions on fundamental rights, among others. Most noticeably, the Constituent Assembly designed the executive power to fit the grandeur of Bangabandhu Sheikh Mujibur Rahman at the time. Individual leaders have inspired the framing of political institutions in history. However, if the influence of those individuals extends beyond providing guidance and leads instead to designing power supposedly with a particular individual in mind, then it is difcult to avoid the harm of individual emotions, impulses, and temptations upon the political institutions.

9

Parliament of Bangladesh Constitutional position and contributions M Jashim Ali Chowdhury*

Introduction At the end of British colonial rule in 1947, Bangladesh became a part of Pakistan. It declared independence in March 1971, fought a nine-month-long war, and emerged as an independent state in December 1971. At independence, Bangladesh adopted the Westminster parliamentary system of government. Like their subcontinental forerunners in India and Pakistan, the framers of the Bangladesh Constitution had a natural orientation towards the Westminster traditions.1 The Pakistani military’s authoritarian, presidential, and “internal colonial rule”2 also contributed to that preference. However, the fifty years of Bangladesh’s political history recorded a roller coaster ride through a oneparty regime (1972–1975) followed by several phases of direct or indirect military rule (1975–1990 and 2006–2007), a phase of “competitive authoritarian governance”3 by two rival political parties (1991–2006),4 and, lastly, the one-party monopoly (2014-present).5 The political constitutionalism that followed Bangladesh’s independence was highly executive-minded. The constitution-making and the state-building process were heavily conditioned by the charismatic leadership of the country’s

* A substantial part of this chapter is adapted from my PhD thesis. See M Jashim Ali Chowdhury, The ‘Westminster’ Parliament of Bangladesh: A Critical Evaluation (Unpublished PhD Thesis, King’s College London 2022). 1 Ridwanul Hoque, ‘The Founding and Making of Bangladesh’s Constitution’ in Kevin YL Tan and Ridwanul Hoque (eds), Constitutional Foundings in South Asia, 91–119 (Hart Publishing 2021) 106, 115. 2 Nizam Ahmed, ‘In Search of Institutionalisation: Parliament in Bangladesh’ (1998) 4(4) J of Legislative Studies 34, 35. 3 Under competitive authoritarianism, nominally democratic institutions such as opposition parties and periodic elections are allowed to exist, but the ruling party manages to hold onto power through brute force and the fraudulent use of the electoral process. See Steven Levitsky and Lucan Way, ‘The Rise of Electoral Authoritarianism’ (2002) 13(2) Journal of Democracy 51. 4 SM Mostofa and DB Subedi, ‘Rise of Competitive Authoritarianism in Bangladesh’ (2021) 14 Politics and Religion 431. 5 Ali Riaz, Bangladesh: A Political History since Independence (IB Tauris 2016). DOI: 10.4324/9781003276814-12

146

M Jashim Ali Chowdhury

founder President Sheikh Mujibur Rahman (Bangabandhu).6 Although the Constitution preferred a cabinet government drawn from, and responsible to, the parliament, the parliament did not get as much importance as a typical Westminster parliament deserved. The political forces perceived the legislature as a deliberative forum and an enabling, rather than accountability, institution.7 This chapter tries to make sense of this trivialisation of the legislative branch by referring to Bangladesh Parliament’s Three Eastminster Traits that distinguish its position and stature from its Westminster progenitor – the British parliament. The Three Eastminster Traits are identified from what Kumarasingham calls the South Asian region’s “Five Eastminster Deviations”8 from the Westminster system. The next section will summarise the history of parliamentary politics in Bangladesh. Then, it will briefly outline Kumarasingham’s “Five Eastminster Deviations” from the Westminster model and identify the Three Eastminster Traits that constitute the focus of this chapter. It also considers how those three deviations – the dynastic and hereditary rule of political selection, absence of internal party democracy, and the brute majoritarian politics – weaken the Bangladesh parliament’s constitutional position and limit its contribution to the country’s constitutionalism. The chapter concludes by summing up the findings. A brief history of the Bangladesh parliament During the liberation war of 1971, the Bangladeshi revolutionaries issued a Proclamation of Independence,9 formed a Constituent Assembly, and opted for an absolutist presidential government as a wartime arrangement. Understandably, the Assembly lacked the legislative power, and the president was given a blank check in conducting the war. After the war, the Provisional Constitution Order of 197210 replaced the presidential system with a parliamentary government. Under the new arrangement, the prime minister and his cabinet were made accountable to the Constituent Assembly. The Assembly, however, did not gain the general legislative power. It was confined to the sole task of framing the Constitution. The president retained his wartime legislative

6 Moudud Ahmed, Bangladesh: Era of Sheikh Mujibur Rahman (University Press Ltd 1983) 6–8. 7 M Jashim Ali Chowdhury and Raihan Rahman Rafid, ‘Parliaments during the Pandemic: A Dual State Explanation of Bangladesh Jatiya Sangsad’ (2020) 18(1–2) Bangladesh J of Law 25, 44–45. 8 Harshan Kumarasingham, ‘Eastminster: The Westminster Model in British Asia’ (The Constitution Unit, Department of Political Science, University College London, 22 September 2016). 9 The Proclamation of Independence of 10 April 1971 (with efect from 26 March 1971), annexed to the Constitution as the 7th Schedule accessed 29 May 2023. 10 The Provisional Constitution of Bangladesh Order 1972.

Parliament of Bangladesh

147

power. By the time the Constitution was adopted on 4 November 1972, a large body of Bangladesh’s administrative and public law was built by presidential orders and executive regulations.11 Election to the first parliament was held in March 1973. Shortly, the 4th Amendment of February 1975 converted it into a servile legislature under a one-party presidential government.12 Parliament’s role was substantially curtailed.13 While a significant number of the ruling party members were reportedly not in favour of the proposed amendment,14 they had to give way to the preference of their leader, Bangabandhu.15 The decision to radically transform the system was taken outside the parliament and presented to its members as a fait accompli.16 Months later, a brutal coup on 15 August 1975 killed Bangabandhu and most of his family members. Power then went to the military, and a series of coups and countercoups ultimately placed Major General Ziaur Rahman (Zia) in the presidency in 1977. Zia continued with the presidential system introduced by the 4th Amendment but permitted multiple political parties to exist. Election to the second parliament (1979–1981) was held in 1979. Zia’s hastily constituted Bangladesh Nationalist Party (BNP) got an absolute majority over Bangabandhu’s party, the Awami League (AL). However, the status of parliament under Zia’s presidential government remained unclear. While Zia’s supporters boosted it as “independent” and “sovereign”, the parliament’s inability to make the government answerable, the president’s absolute authority to dissolve it, and the consistent suppression of its law-making power by excessive use of presidential ordinances created a situation where the legislature was arguably legitimising policies rather than legislating.17 Zia was assassinated in April 1981 by a dissident section of the Army. The Army chief Hossain Mohammad Ershad (Ershad) seized power in March 1982. After four years of absolute military rule, Ershad followed his predecessor Zia’s footsteps and sought to civilianise his regime. As part of the process, Ershad formed his political party – Jatiya Party (JP). Election to the third parliament was held in 1986. The result was considered rigged in favour of JP,18

11 Justice Mustafa Kamal, Bangladesh Constitution: Trends and Issues (University of Dhaka 1994) 6. 12 Known as BAKSAL (Bangladesh Krishak Sramik Awami League), the party was placed at the helm of a soviet-style socialist system. 13 Zillur R Khan, ‘Bangladesh’s Experiments with Parliamentary Democracy’ (1997) 37(6) Asian Survey 575, 580. 14 Ahmed (n 6) 208–209. 15 M Morshedul Islam, ‘The Politics behind the Passage of Fourth Amendment to the Constitution of the People’s Republic of Bangladesh and Its Provisions: A Modest Analysis’ (2014) 4(9) Public Policy and Administration Research 55. 16 Ahmed (n 6) 217, 233. 17 Azizul Haque, ‘Bangladesh 1979: Cry for a Sovereign Parliament’ (1980) 20(2) Asian Survey 217, 221–122. 18 Staf Correspondence, ‘Violence Mares Election in Bangladesh 1985’ The New York Times (5 August 1986) accessed 29 May 2023.

148

M Jashim Ali Chowdhury

which, despite the rigging, got only a simple majority in parliament. Later, the third parliament (1986–88) legitimised Ershad’s accession to power through a constitutional amendment. However, Ershad found the presence of a strong parliamentary opposition unhelpful. In the face of a brewing anti-government movement, Ershad dissolved the third parliament in 1988 and called the new election the same year. The fourth parliament (1988–1990) was notorious for hosting unknown political parties collectively labelled as the Combined Opposition Party (COP). The coalition was hurriedly coalesced together just days before the election, which the leading opposition parties boycotted, hence the term “domesticated opposition parties” for the COP.19 However, in the face of violent street agitation and growing public resentment against his rule, Ershad had to dissolve the parliament and quit in December 1990. Operating under presidents hailing from the garrison, the second, third, and fourth parliaments had little to ofer in democratic legislation and parliamentary oversight.20 Apart from being used as a legitimising tool for the presidents, those parliaments barely had a role in the policy discourse. Presidential ordinances massively outnumbered the laws passed by those parliaments.21 In 1990, the parties mobilising against Ershad’s regime promised to forestall the parliament in the centre of democratic governance once the regime changed. A non-political caretaker government was formed after the resignation of Ershad, and it held the fifth parliamentary election in 1991, which returned the BNP to power under the leadership of Zia’s wife, Begum Khaleda Zia (Begum Zia). During its initial two years, the fifth parliament experienced a livelier, participatory, vigilant opposition and meaningful instances of backbench assertiveness.22 This parliament passed the 12th Amendment that restored the parliamentary system sixteen years after it was abolished in 1975.23 Unfortunately, the fifth parliament’s encouraging vibe could not be carried through. In 1994, a parliamentary by-election was widely rigged in favour of the ruling party, BNP.24 The opposition parties then started boycotting parliament. Later, the opposition MPs resigned en masse from parliament, demanding the introduction of an election-time non-party caretaker government. As soon as the opposition parties resigned and started agitating in the streets, the backbenchers strongly coalesced

19 Syed Rahman, ‘Bangladesh in 1988: Precarious Institution-Building Amid Crisis Management’ (1989) 29(2) Asian Survey 216, 217. 20 Nizam Ahmed, ‘Parliamentary Committees and Parliamentary Government in Bangladesh’ (2001) 10(1) Contemporary South Asia 11, 13–14. 21 M Abdul Halim, Constitution, Constitutional Law and Politics: Bangladesh Perspective (2nd edn, Md. Yusuf Ali Khan 2003) 261–164; M Habibur Rahman, ‘Our Experience with Constitutionalism’ (1998) 2(2) Bangladesh J of Law 115, 126. 22 Nizam Ahmed, ‘Parliamentary Opposition in Bangladesh: A Study of its Role in the Fifth Parliament’ (1997) 3(2) Party Politics 147. 23 Ahmed (n 20) 15. 24 Golam Hossain, ‘Bangladesh in 1994: Democracy at Risk’ (1995) 35(2) Asian Survey 172.

Parliament of Bangladesh

149

behind their respective party leadership.25 With politics being taken back to the street again, the fifth parliament had to be dissolved before its tenure. An uncompromising BNP went for a one-party election to the sixth parliament in February 1996 and returned with a landslide victory.26 The stubborn opposition (AL, JP, and their allies) then increased the scale of violent agitations. Therefore, the sixth parliament lived a life of months.27 Before dissolution, it enacted the 13th Amendment to the Constitution and introduced an election-time non-party caretaker government.28 The seventh parliament, established through a general election in 1996, saw Bangabandhu’s daughter (Sheikh Hasina) and his party (AL) back in power. BNP secured more than 100 seats and became the largest opposition in the history of parliament.29 The seventh parliament also became the first parliament since independence to complete its full tenure (1996–2001). One of its major successes was the committee system’s consolidation.30 Apart from establishing the parliamentary standing committees, the seventh parliament started sending legislative Bills to special select committees for scrutiny.31 However, BNP continued to raise questions about the speaker’s partisan role and staged a continuous boycott and walk-out of parliament during its tenure. BNP and its coalition partner Jamaat-e-Islami (JI) dominated the eighth parliament (2001–2006). Despite several committees working on a bipartisan basis,32 this parliament also was hit by a continuous opposition boycott and a dysfunctional committee system. The ninth parliament (2009–2013), dominated by AL, showcased a relative success in institutionalising the committee system. The weakened and consistently boycotting opposition, however, remained a continuing concern. Most disturbingly, this parliament abolished the non-party caretaker system.33 BNP boycotted the tenth parliamentary election held under the AL government. In the one-party election of 5 January 2014,

25 Nizam Ahmed, The Parliament of Bangladesh (Routledge, reprint 2018) 226–227. 26 Adeeba A Khan, Electoral Institutions in Bangladesh: A Study of Conflicts between the Formal and the Informal (PhD Thesis, School of Oriental and African Studies 2015) 27, 29 accessed 29 May 2023. 27 Craig Baxter, ‘Bangladesh: Can Democracy Survive?’ (1996) 95(600) Current History 182. 28 The caretaker government headed by a retired chief justice of the Supreme Court would take charge of the government during the election and provide the logistic and administrative support to the Election Commission. For details, see Sonia Z Khan, The Politics and Law of Democratic Transition: Caretaker Government in Bangladesh (Routledge 2017). 29 In the seventh parliamentary election, the main opposition party, BNP secured 116 seats against the 146 seats of the ruling party AL. For statistical data on parliamentary elections, see Nizam Ahmed, The Bangladesh Parliament: A Data Handbook (BRAC University Press 2013). 30 Muhammad M Rahman, ‘Parliament and Good Governance: A Bangladeshi Perspective’ (2008) 9(1) Japanese J of Poll Sc 39, 54. 31 Ahmed (n 2) 55. 32 Rahman (n 30) 54–55. 33 Adeeba A Khan, ‘The Politics of Constitutional Amendments in Bangladesh: The Case of the Non-Political Caretaker Government’ (2015) 3 Int’l Rev of Law 11.

150

M Jashim Ali Chowdhury

AL returned to power with a landslide victory.34 The AL has since continued to successfully manipulate its ally, JP, to play the role of the ofcial opposition. With an ally pretending to be an opposition, the tenth parliament (2014–2018) showed weak conviction towards government accountability. In the eleventh parliament (2019–present), the country’s second-largest political party, BNP, initially held a handful of parliamentary seats. By the end of 2022, those handful of BNP MPs resigned their seats. The parliament continues to be servile to an invincible cabinet government. “Deviations” of the Westminster parliamentary system in the East Kumarasingham used the “Eastminster” coinage to theorise the working of the Westminster system in the Indian subcontinent. His studies explain how the formal constitutional institutions of these countries are largely circumscribed by informal and cultural value systems that nurture a personalisation, rather than institutionalisation, of powers.35 Kumarasingham identifies five cultural traits that diferentiate a Westminster-idealised from an “Eastminster”-inaction. He argues that an Eastminster-in-action is identifiable through the presence of a) elite-controlled “selective dictatorship” (opposed to Westminster’s “elective dictatorship”), b) a personalised perception of public power (opposed to Westminster’s institutionalised perception), c) crude majoritarianism intolerant of the opposition (opposed to the Westminster’s bipartisanship), d) an interfering presidency (opposed to the Westminster’s disengaged monarchy), and e) an “abusive viceregalism” (opposed to the Westminster’s conventional norm of exercising the prerogative powers in a politically accountable way).36 The first three of these “Five Eastminster Deviations” are particularly relevant for the Bangladesh parliament. The first deviation, the prime minister and cabinet’s “selective dictatorship”, is distinguishable from Westminster’s “elective dictatorship”. Britain’s theoretical “elective dictatorship” operates within a practical chain of democratic delegation.37 The authority is primarily delegated from the people to the majority party, then to the cabinet, and finally to the prime minister. Within each delegation chain, there exists a corresponding chain of accountability. The

34 Ali Riaz, ‘Bangladesh’s Failed Election’ (2014) 25(2) Journal of Democracy 119. 35 Harshan Kumarasingham, ‘Eastminster – Decolonisation and State- Building in British Asia’ in Harshan Kumarasingham (ed), Constitution-Making in Asia, Decolonisation and StateBuilding in the Aftermath of the British Empire (Routledge 2016), 1–35. 36 Harshan Kumarasingham, ‘Written Diferently: A Survey of Commonwealth Constitutional History in the Age of Decolonisation’ (2018) 46(5) Journal of Imperial and Commonwealth History 874, 892. 37 In 1976, Lord Hailsham famously labelled the British government as an “elective dictatorship” that is “absolute in theory but tolerable in practice”. The system is tolerable because the cabinet dictatorship over the parliament is compensated, to some extent, by the intra-party accountability of the prime minister. See Lord Hailsham, ‘Elective Dictatorship’ (The Richard Dimbleby Lecture, 14 October 1976, BBC, London).

Parliament of Bangladesh

151

cabinet is answerable to the majority party backbench and, to some extent, the opposition. The prime minister’s sustenance depends on the continued confidence of his cabinet colleagues and the party backbench. In Eastminster, Kumarasingham argues, Westminster’s “elective dictatorship” is replaced by a “selective dictatorship” system.38 The selective dictators here efectively subdue their cabinet colleagues and the parties. Absolutist leaders successfully established an alternative chain of delegation and selection from the reservoir of their relatives and retainers in the family lines.39 The second deviation is marked by a socially resonant fondness of personalist and clientelist, rather than institutionalist, public power.40 Kumarasingham argues that the East’s political and legal relationships are built upon a “complex of personal relationships” diferent from the West’s institutional ideas of public power.41 The system operates within an “authoritarian framework of constitutionalism” where the rules of law are applied to perpetuate a particular person or group of persons’ power.42 Once the personalisation of power is ingrained at the top echelon of a party structure, a series of personalities or dynasties take root at the subordinate layers of the party hierarchy. In the process, the prospects of intra-party democracy and the bottom-up leadership selection wither away, and parties become entangled in a clientelist chain of top-to-bottom accountability. Members of parliament selected through the process are expected to adopt a mere partisan delegate or mercenary’s role in their parliamentary works. Thirdly, the conditions supportive of a liberal-conservative bipartisanship are largely absent in the East. The Westminster system essentially depends on the existence of at least two main and stable political parties that alternate in government at a reasonable frequency.43 Regular and orderly alteration of power constitutes an incentive for the parties to preserve and defend the model in the expectation that all will benefit from it in the long run.44 In Eastminster, the opposition is a matter of suspicion and suppression rather than appreciation.45 Therefore, the brute majoritarianism that results from a

38 Kumarasingham (n 8). 39 Harshan Kumarasingham, A Political Legacy of the British Empire: Power and the Parliamentary System in Post-Colonial India and Sri Lanka (IB Tauris 2013) 19–21. 40 Andrew Harding, ‘The Rulers and the Centrality of Conventions in Malaysia’s ‘Eastminster’ Constitution’ in Harshan Kumarasingham (ed), Constitution-Making in Asia – Decolonisation and State-Building in the Aftermath of the British Empire (Routledge 2016) 257, 270, 272. 41 Kumarasingham (n 39) 11. 42 ibid 26. 43 Peter Trubowitz and Nicole Mellow, ‘“Going Bipartisan”: Politics by Other Means’ (2005) 120(3) Poll Sc Quarterly 433, 434. 44 Gregoire Webber, ‘Loyal Opposition and the Political Constitution’ (2017) 37(2) Oxford J Legal Studies 357. 45 M Jashim Ali Chowdhury, ‘In Search of Parliamentary Opposition in Bangladesh’ (IACLAIDC Blog, 21 January 2021) accessed 29 May 2023.

152

M Jashim Ali Chowdhury

Westminster system minus its bipartisan framework makes the East’s political competition unprincipled and mutually destructive. The next three parts of the chapter will consider how these Eastminster deviations – which I call the Bangladesh parliament’s Three Eastminster Traits – impact its existence, work, and contribution to the Bangladeshi Constitution. “Selective dictatorship” and the ministerial responsibility in Bangladesh By the 1980s, Bangladesh’s party system had a strong dynastic shape. During the democratic revival movement in the early 1990s, Bangabandhu’s daughter Sheikh Hasina was placed at the helm of the AL. Zia’s widow Begum Zia got a similar hold over the BNP, while the deposed ruler Ershad got a very firm personal grip over the JP. The emergence of such a personalistic leadership style has hurt the development of intra-party democracy and inter-party relationships in the later decades.46 The ascendancy of the executive branch has been reinforced by a near abdication of meaningful debates and deliberations in parliament and scrutiny in the committee stages. The selective dictatorship resulting from the country’s clientelist, patrimonial, and dynastic political party system has created an absolute dominance, not mere whipping, of the political parties and the persons or dynasties leading them.47 This scenario has efectively cut down the chain of vertical and horizontal governmental accountability to the people, parliament, and the judiciary. The lack of intra-party democracy has afected the parliament’s capacity to enforce the government’s collective responsibility and the ministers’ individual responsibility in numerous ways. It also has severely curtailed the parliament’s legislative power and the committees’ scrutiny power. Articles 55(3) and 57(2) of the Constitution require the prime minister to resign if s/he ceases to retain the support of a majority of the members of parliament.48 However, no prime minister in Bangladesh has ever faced a no-confidence motion in the parliament, nor did they face a leadership challenge from within their parties. The Constitution contains an anti-defection clause, known as article 70. It bars the members from voting against their parties on the floor of parliament and remains a Damoclean sword49 upon the backbenchers of the ruling and opposition parties. Article 70’s purpose and impact have been widely debated. While the framers of the Constitution

46 Quamrul Alam and Julian Teicher, ‘The State of Governance in Bangladesh: The Capture of State Institutions’ (2012) 35(4) South Asia: J of South Asian Studies 858, 876–880. 47 Nizam Ahmed, ‘Parliament-Executive Relations in Bangladesh’ (1997) 3(4) J of Legislative Studies 85–88. 48 The Constitution of the People’s Republic of Bangladesh, art. 58(4) accessed 29 May 2023. 49 Justice Badrul Haider Chowdhury, former chief justice of Bangladesh, quoted in AKM Shamsul Huda, Constitution of Bangladesh, vol 2 (Rita Court 1997) 560.

Parliament of Bangladesh

153

justified it as a protection against amoral defections by the MPs and the consequent fall of governments,50 it is popularly identified as the sole troublemaker in Bangladesh’s parliamentary politics.51 There is a perception that the total removal of article 70 from the Constitution might cause sudden disintegration of the major political parties,52 especially when the article is not the only reason for the lack of backbench assertiveness.53 Apart from a voting restriction, it does not bar the MPs from debating their government’s policies on the House floor and scrutinising the government in the committees. The internally undemocratic political parties constitute the greatest barrier to backbench autonomy. While the MPs may criticise or ask questions or explanation from ministers, they cannot enforce their resignation unless the prime minister so intends. Article 58(2) of the Constitution has made the ministers answerable to the prime minister rather than to the parliament. Therefore, the parliament’s incapacity to enforce the collective and individual ministerial responsibility marks a “ministerial non-responsibility”54 regime in Bangladesh. The undemocratic and clientelist party system has afected the parliamentary committees as well. The Constitution55 and the parliament’s Rules of Procedure mandated a committee system comprising standing committees, select committees, and special ad hoc committees.56 The parliamentary standing committee system sufers structural (institutional and procedural), political, and behavioural (attitudinal) setbacks.57 Party influence over the committee agenda and hard-lined party stances of the members on key issues hamper the committees’ autonomous functioning. Committees have been structurally weakened by factors like ministers’ presence in the committee as ex ofcio

50 Sabbir Ahmed, ‘Article 70 of the Constitution of Bangladesh: Implications for the Process of Democratisation’ (2010) 31(1) BIISS Journal 1, 3–7. 51 In the 16th Amendment case – Advocate Asaduzzaman Siddiqui v Bangladesh (2016) 10 ALR (AD) 03 – for example, the Supreme Court considered article 70 to be an ominous threat to the parliament’s autonomy. See M Jashim Ali Chowdhury and Nirmal Kumar Saha, ‘Advocate Asaduzzaman Siddiqui v. Bangladesh: Bangladesh’s Dilemma with Judges’ Impeachment’ (2017) 3(3) Comp Constitutional & Administrative L Quarterly 7, 16. 52 Zahed Iqbal, ‘Article 70 of the Constitution: A Critical Analysis (In Bangla)’ (8th Monthly General Meeting of the Asiatic Society of Bangladesh, Dhaka, 8 April 2021) 15. 53 Hasanuzzaman, ‘To Amend Article 70 or Not’, The New Age (Dhaka, 22 April 2011) accessed 29 May 2023. 54 M Jashim Ali Chowdhury, ‘Ministerial Non-Responsibility’, The Daily New Age (Dhaka, 31 May 2019) 6. 55 The Constitution (n 48) art. 76(1) 56 The Rules of Procedure of Bangladesh Parliament 1973, rule 189(1) accessed 29 May 2023. 57 Nizam Ahmed, ‘Reforming the Parliament in Bangladesh: Structural Constraints and Political Dilemmas’ (1998) 36(1) Commonwealth and Comparative Politics 68, 71; Ahmed (n 20) 31–33; Ahmed (n 47) 77–78.

154

M Jashim Ali Chowdhury

members,58 nominal logistic support from the parliament secretariat, and the negative attitude of the bureaucracy towards the parliamentary oversight process.59 Partisan control over the appointment of members and chairs of the committees jeopardises the committees’ assertiveness and retards their expertise.60 Absent a political will to change the status quo, the parliamentary committees will continue to play only a marginal role in ensuring executive accountability and legislative quality.61 Undemocratic party system, role abdication, and localisation of the MPs Strict partisan control over the legislative process has significantly minimised the parliament’s actual ability to legislate. Hoque’s study shows that Bangladesh’s first four constitutional amendments (1973–1975) were conceived and drafted at the sole discretion of the party in power.62 Those were later tabled and passed in parliament with almost no deliberation. The most controversial one – the 4th Amendment – altered the Constitution drastically. Still, it was passed through less than thirty minutes of parliamentary deliberation.63 The 5th to 10th Amendments (1979–1990) were passed by three “rubber stamp parliaments”64 working to “achieve constitutional changes desired by the military rulers”.65 The 11th and 12th Amendments (1992) were largely based on a political consensus outside the parliament. The 11th Amendment legitimised a chief justice–led government that conducted the 1991 parliamentary election. The 12th Amendment (1991) restored the parliamentary system, and the 13th Amendment (1996) constitutionalised the election-time caretaker government system, the basic principles of which were agreed upon through “mere élite preferences rather than deliberative and participatory decision making”.66 With the key principles having been decided outside the parliament, the caretaker system lacked any inputs from

58 M Jashim Ali Chowdhury, ‘11th Parliament: Rays of hope for the Committee System’, The Daily Star Law and Our Rights (Dhaka, 5 March 2019) accessed 29 May 2023. 59 ATM Obaidullah, ‘Standing Committees on Ministries in the Bangladesh Parliament: The Need for Reorganisation’ (2011) 18(2) South Asian Survey 317, 322. 60 Navid Saifullah, ‘Efectiveness of the Parliamentary Standing Committees in Bangladesh’ (Master’s in Governance and Development Thesis, BRAC University 2006). 61 Muhammad Mustafizur Rahaman, ‘The Limits of Foreign Aid in Strengthening Bangladesh’s Parliament: Analysis of the UN’s Strengthening Parliamentary Democracy Project’ (2010) 50(3) Asian Survey 474, 483–494. 62 Ridwanul Hoque, ‘Deconstructing Public Participation and Deliberation in Constitutional Amendment in Bangladesh’ (2021) 21(2) Australian J of Asian Law 7, 11–13. 63 ibid. 64 Haque (n 17). 65 Hoque (n 62) 15. 66 Khan (n 28) 2.

Parliament of Bangladesh

155

the government backbench or parliamentary committees.67 The 14th (2001), 15th (2011), and 16th (2016) Amendments represent what Hoque calls examples of “abusive constitutional amendments”.68 The 14th Amendment increased the retirement age of the Supreme Court judges allegedly to politicise the upcoming caretaker government (2006). The 15th Amendment abolished the then caretaker government at the sole decision of the head of the government, ignoring the views of an all-party parliamentary committee. The committee expressed a clear preference for retaining the caretaker government after consulting hundreds of constitutional experts, Supreme Court judges, civil society leaders, journalists, and people from diferent walks of life.69 However, Prime Minister Sheikh Hasina had a diferent opinion, and the amendment Bill, reflecting her choices, was passed literally within minutes of its presentation to the parliament.70 Constitutional amendments apart, the parliament’s general capability to deliberate and influence the legislation has been minimal. Until the mid-1990s, governments frequently legislated through presidential ordinances. After the demise of military rule in 1990, around one-third of laws passed by the fifth parliament (1991–1996) were the approval of presidential ordinances issued earlier.71 Most of them, including the bulk of other regular parliamentary bills, did not go through committee scrutiny either.72 The number of ordinances has decreased since the seventh parliament (1996–2001). However, the parliament’s legislative power did not increase. The Transparency International Bangladesh’s study of the incumbent parliament’s legislative activities in 2019 shows that it spent an average of 32 minutes passing each bill laid on the table. The time included time for formal presentment, MPs’ discussion, the minister’s speech, and voting.73 One of the latest examples of the trend has been the 2022 Act for the appointment of election commissioners,74 which establishes a search committee for appointments to the Election Commission.75

67 MSH Bhuiyan, ‘The Caretaker Government in Bangladesh: An Appraisal of its Formation’, (2003) 40 Politics Administration and Change 33, 46–47. 68 Hoque (n 62) 17–18. 69 Maimul A Khan, ‘Constitutional Disaster and ‘Legal’ Impunity: Constitutional Amendments in Perspective’, Asian Human Rights Commission accessed 29 May 2023. 70 ibid. 71 Halim (n 21). 72 Ahmed (n 2) 55. 73 Transparency International Bangladesh, ‘Parliament Watch, Eleventh Parliament (1st to 5th Sessions; January-December 2019)’ (TIB, Dhaka, September 2020) 17 . 74 The Appointment of Chief Election Commissioner and Other Election Commissioners Act 2022 (Act No. 1 of 2022). 75 ibid sections 5 and 6.

156

M Jashim Ali Chowdhury

The government refused to pass such a law until December 2021,76 but it suddenly changed its mind in early January 2022. In late January 2022, the Bill passed in a lightning speed and without adequate deliberation.77 The absence of democracy within political parties has also muted the MPs in parliamentary questions and debates.78 Though regularly asked and answered, the parliamentary questions fail to touch upon key accountability issues of the government and bureaucracy,79 and successive parliaments invariably failed in criticising government policies and actions.80 An additional impact of the lack of intra-party democracy has been the excessive entanglement of Bangladeshi MPs in the local government afairs, which has resulted in misgovernance at the local level and a low standard in their legislative and scrutiny roles in parliament.81 A good explanation of this tendency is that of Nizam Ahmed, who argues that the mutual interests of the MPs and their party high commands shape the MPs’ constituency works.82 By localising the MPs, the government contributes to downgrading the quality and quantity of its legislative and oversight functions and achieving a practical immunity from parliamentary scrutiny. In return, the government compensates the MPs by allowing them wide control over local afairs.83 It is easier to dominate the elected local government bodies through another set of elected representatives, the MPs, than trying to do it through the bureaucracy. Localisation helps the government centralise its power and suppress the elected local government bodies.84 It is also necessary for efcient handling of the opposition. The ruling parties cannot rely only on the administration and the police forces to tackle the destabilising tactics of the opposition. Rather, an alert and powerful MP at the local level ensures that hard-line resistances do not arise from the bottom. It leaves the government and the police to focus more on the opposition activities and resistance in the capital city, Dhaka.85 MPs also benefit in significant ways. Unlike in the UK, where constituency units of the

76 Partha P Bhattacharjee and Mohiuddin Alamgir, ‘EC Formation: Chance of a Law Slim’, The Daily Star (Dhaka, 23 December 2021) accessed 29 May 2023. 77 Staf Correspondence, ‘EC Formation Bill Placed in JS Amid Opposition’, The New Age (Dhaka, New Age, 23 January 2022) accessed 29 May 2023. 78 Ahmed S Hoque, ‘Accountability and Governance: Strengthening Extra-Bureaucratic Mechanisms in Bangladesh’ (2011) 60(1) Int’l J of Productivity & Performance Management 59, 68. 79 Salahuddin Aminuzzaman, ‘Institutional Processes and Practices of Administrative Accountability: Role of Jatya Sangsad in Bangladesh’ (1993) 10(2) South Asian Studies 44, 55. 80 Rahman (n 30) 47–48. 81 N Ahmed, T Ahmed, and M Faizullah, Working of Upazila Parishad in Bangladesh: A Study of Twelve Upazilas (UNDP Dhaka 2011). 82 Nizam Ahmed, ‘Parliament and Poverty Reduction in Bangladesh: Role of the MP’ (2018) 25 (1–2) South Asian Survey 163, 179. 83 ibid 178. 84 The Constitution (n 48), arts. 59 and 60. 85 Ahmed (n 82) 180.

Parliament of Bangladesh

157

parties play a decisive role in candidate selection, party leaders in Bangladesh often impose their candidates upon the local units.86 Given the context, the incumbent MPs need to maintain a strong hold over the local party units so that strong leadership contenders do not rise to prominence.87 Illiberal bipartisanship and the suppression of parliamentary opposition Bangladesh has utterly failed to uphold the core Westminster norms of bipartisanship and institutionalised opposition. Bangladesh’s parliamentary system is excessively harsh to the opposition.88 As Ahmed observes, “Unlike other democratic systems, where the opposition is at least listened to, if not always consulted, the government in Bangladesh generally look[s] upon the opposition with suspicion”.89 Although the power has been alternated several times between the country’s two major political parties, AL and BNP, the potential of liberal-conservative bipartisanship has sufered a setback due to the historical distrust between the two parties and the personal antagonism between their leaders.90 A historical evaluation of the Bangladeshi parliament reveals that there have been at least four modes of parliamentary opposition: no opposition, marginal opposition, strong but disruptive opposition, and domesticated opposition. The first (1973–1975) and sixth (February–June 1996) parliaments had practically no opposition.91 In the first parliament, only seven opposition and independent members were elected to the three-hundred-members’ body. In the sixth parliament, only eleven opposition and independent members were elected. The second (1979–1981), eighth (2001–2006), and ninth (2009– 2013) parliaments saw some marginal opposition. The numerical majorities of the ruling parties in those parliaments were absolute.92 The second parliament had ninety-three opposition and independent members elected. The eighth parliament saw only ninety opposition and independent members, while the ninth had only forty-three opposition and independent members. On the other hand, the third (1986–1988), fifth (1991–1996), and seventh (1996–2001) parliaments saw a very strong opposition presence. However, the ruling parties denied the opposition parties their rightful participation in

86 Ahmed (n 2) 34, 59–61. 87 Zahir Ahmed, ‘From Shape Shifting to Collusion in Violence: An Ethnography of Informal Relationships between Bangladeshi Members of Parliament and Their Constituents’ (2019) 42(1) Legal & Poll Anthropology Rev 5, 6–7; Ahmed (n 82) 169. 88 Mohammad M Khan and Syed A Husain, ‘Process of Democratisation in Bangladesh’ (1996) 5(3) Contemporary South Asia 319, 331 89 Ahmed (n 47) 90. 90 Elora Shahabuddin, ‘Bangladesh in 1999: Desperately Seeking a Responsible Opposition’ (2000) 40(1) Asian Survey 181,185. 91 Ahmed (n 29) 31–32. 92 ibid.

158

M Jashim Ali Chowdhury

the parliamentary process.93 The opposition parties also showed excessively disruptive tendencies, boycotted the parliaments, and resorted to street agitation and violence.94 The third parliament had 147 opposition and independent members elected. The military ruler was uncomfortable with this and dissolved it within two years of its election. The fifth parliament had 142 elected opposition and independent members. Three years into its tenure, the opposition parties resigned and staged violent political agitations demanding the introduction of a non-partisan caretaker government. The seventh parliament had 122 opposition and independent members elected. They boycotted the parliament consistently and preferred street agitations. Absenteeism in the seventh (1996–2001), eighth (2001–2005), and ninth (2009–2013) parliaments were 43 percent, 60 percent and 75 percent, respectively.95 The fourth (1988–1990), tenth (2014–2018), and eleventh (2019-current) parliaments saw the presence of what is called domesticated opposition. These opposition parties have been the ruling party allies who filled the vacuum created by the main opposition parties who boycotted the elections. In the fourth parliament, a so-called Combined Opposition Party coalesced hurriedly at the behest of the president, participated in the election boycotted by the mainstream opposition parties, got elected in some seats, and then played the dummy opposition’s role in the parliament. In the tenth parliament, the ruling party’s coalition partner JP contested the election boycotted by all other major parties, got elected in some seats that were left uncontested by the ruling party, and then took ministerial positions within the cabinet. JP plays a similar role in the current eleventh parliament, with only six members elected from the actual opposition party – BNP – in the controversial election of December 2018.96 Conclusion Despite parliament’s many institutional failures, fifty years of parliamentary politics have witnessed occasional resilience from the backbench. In a rare show of parliamentary assertiveness, the ruling party backbenchers of the fifth parliament joined the opposition to force the government to rethink its policy decisions at least on two occasions,97 once when they refrained from voting

93 Shahabuddin (n 90) 185; Nizam Ahmed, ‘From Monopoly to Competition: Party Politics in the Bangladesh Parliament (1973–2001)’ (2003) 76(1) Pacific Afairs 55; M Moniruzzaman, ‘Parliamentary Democracy in Bangladesh: An Evaluation of the Parliament during 1991–2006’, (2009) 47(1) Commonwealth & Comp Politics 100. 94 Ahmed (n 20). 95 Rounaq Jahan and Inge Amundsen, The Parliament of Bangladesh: Representation and Accountability (Centre for Policy Dialogue and Chr. Michelsen Institute 2012) 54. 96 Ali Riaz, ‘Bangladesh: From an Electoral Democracy to a Hybrid Regime (1991–2018)’ in Voting in a Hybrid Regime: Explaining the 2018 Bangladeshi Election (Palgrave Macmillan 2019) 21–31. 97 Ahmed (n 22).

Parliament of Bangladesh

159

for the party’s controversial presidential candidate98 and, second, when they insisted that the prime minister respect her electoral promise of restoring the parliamentary system in 1991.99 The parliamentary committee system has witnessed a limited consolidation, due mainly to the increased pressure from international donor agencies and development partners100 and the prime minister’s ex-gratia concession.101 Until the fifth parliament (1991–1996), these ministerial standing committees were confined to scrutinising relevant Bills. After a 1992 amendment to the parliament’s Rules of Procedure (RoP), these committees got a scrutiny power over the administration and policies of the ministries.102 Parliamentary committees now broadly shadow the ministries and departments of the government.103 Until the ninth parliament, the committees were not formed until the lapse of a significant portion of its tenure.104 However, the ninth (2009–2013), tenth (2014–2018), and eleventh (2019-present) parliaments constituted the committees within the first session.105 A revision of the RoP in June 1997 also ensured that ministers would not chair the committee on their ministry. Ministers now remain in the committees as ex ofcio members. However, there is an apprehension that even the ex ofcio membership of the ministers negatively impacts the committee agenda, deliberation, and decisions. Ministers being the influential frontbench members of the ruling party, chairs of the committees are unlikely to be too assertive against them. It has long been proposed that ministers’ membership be scrapped, and they go to the committees only when invited for questioning. Pending the proposition, the tenth and eleventh parliaments have appointed senior party leaders and former ministers as the chairs of parliamentary committees. If continued, the practice would benefit the committee system by drawing from the chairs’ expertise and political superiority over the ministers.106 Also, until the ninth parliament, the ruling parties used to claim the

98 Ahmed (n 25) 233. The government’s pick barely escaped a defeat at the hand of the opposition candidate. 99 See Nizam Ahmed, ‘Parliamentary Politics in Bangladesh’ (1994) 32(3) J of Commonwealth & Comp Politics 364, 375; Zillur R Khan, ‘Bangladesh in 1992: Dilemmas of Democratisation’ (1993) 33(2) Asian Survey 150. 100 ATM Obaidullah, Institutionalization of the Parliament in Bangladesh A Study of Donor Intervention for Reorganization and Development (Palgrave Macmillan 2019). 101 M Jashim Ali Chowdhury, ‘Working and Impact of Parliamentary Committees in the UK and Bangladesh: A Theoretical Analysis’ (2021) 32(2) Dhaka U Law J 175, 194. 102 The Constitution (n 48) art 76(2)(c); Rules of Procedure (n 56) rr 246–248. 103 Ahmed (n 20); Taiabur Rahman, Parliamentary Control and Government Accountability in South Asia: A comparative Analysis of Bangladesh, India and Sri Lanka (Routledge 2008). 104 Jalal Firoj, ‘Forty Years of Bangladesh Parliament: Trends, Achievements and Challenges’ (2013) 58(1) Journal of the Asiatic Society of Bangladesh (Humanities) 83; Alam and Teicher (n 46); Ahmed (n 94) 68–69. 105 Chowdhury (n 58). 106 ibid.

160

M Jashim Ali Chowdhury

most committee chairs. Appointment of opposition members to the chair had been rare.107 Since the ninth parliament, chairs are now being distributed among the parties on a pro-rata basis,108 and a lawmaker from the opposition party in the current parliament (2019-present) now chairs the Public Accounts Committee.109 Despite these symbolic developments in the committee system, the parliament’s overall contribution has remained limited. It continued to work within an environment of competitive authoritarianism110 and dictatorial party leadership.111 While the Constitution accommodates the core values of democratic accountability, such as the presence of a symbolic head of state with a cabinet responsible to parliament, an institutionalised opposition, and a mandate for free and fair periodic elections, the failure of principled liberal-conservative bipartisanship and the emergence of an overtly clientelist party system have laid bare the limitations of the constitutional design of parliamentary system. The ruthless partisan drives for perpetual power have hijacked Bangladesh’s electoral institutions and processes.112 In general, the parliament’s electoraldemocratic legitimacy has been doubtful and its vertical accountability to the people questionable.113 The clique of intellectual and political elites posited at the helm of public power through a farcical electoral process has difused the Westminster system’s chain of the democratic delegation from electors to the ruling parties.114 Given this paradox of constitutional design and its political mishandling, the institutional value that the parliament of Bangladesh carries within the body politic remains extremely marginal.

107 KM Mahiuddin, The Parliamentary Committee System in Bangladesh: An Analysis of Its Functioning (PhD Thesis, Ruprecht-Karls-Universität Heidelberg 2009) 104–106. 108 Ahmed (n 47) 85–88. 109 Calls for appointing the chairs of Public Accounts, Public Undertaking, and Estimate Committees from the opposition parties have been old calls. 110 Shelley Feldman, ‘Bangladesh in 2014: Illusive Democracy’ (2015) 55(1) Asian Survey 67. 111 M Ehteshamul Bari, ‘The Incorporation of the System of Non-Party Caretaker Government in the Constitution of Bangladesh in 1996 as a Means of Strengthening Democracy, Its Deletion in 2011 and the Lapse of Bangladesh into Tyranny Following the Non-Participatory General Election of 2014: A Critical Appraisal’ (2018) 28(1) Transnational Law & Contemporary Problems 27. 112 Nizam Ahmed, ‘Critical Elections and Democratic Consolidation: The 2008 Parliamentary Elections in Bangladesh’ (2011) 19(2) Contemporary South Asia 137, 149. 113 Riaz (n 34). 114 Robert Blackburn, ‘The Future of UK Constitutional Law’, in Xenophon Contiades and Alkmene Fotiadou (eds.), The Routledge Handbook of Comparative Constitutional Change (Routledge 2020) 374.

10 Political parties in the process of constitution-making and amending From multi-party to one-party dominant politics? Nizam Ahmed Introduction A constitution is a living document, which must be amenable to change depending on the variables in its context or operation. In most democracies, there are limits to amending the constitution to ensure that it is not altered to satisfy the political gains of a single person or a coterie of persons or a regime. Yet, in Bangladesh, military interventions and usurpation of power have brought major constitutional changes not contemplated in the founding Constitution. As Hakim argues: [A constitution] really matters as long as the forces within the society are willing to obey it. But instances abound around the globe to substantiate the argument that the constitution is the supreme law of the land only so long as it is honored as the supreme law by actors and institutions of a country.1 In countries such as Bangladesh, constitutional changes by martial law statutes or regulations are as common as the regular amendment process led by political parties in a democracy. There is consensus among political scientists that parties are indispensable for constitutional rule. Political parties provide the foundation of democracy, allow citizens to participate in the political process, and help make the government accountable. They are an intermediate structure lodged between the citizens and the government and are capable of influencing and being influenced by factors as diverse as the preference of the electorate, the behaviour of other parties, their internal structures, and the system in which they operate.2 Political parties perform several functions such as organising public opinion, recruiting workers, training people in the art of leadership,

1 MA Hakim, The Changing Forms of Government in Bangladesh (Institute of Parliamentary Studies 2001). 2 SB Wolinetz, Parties and Party Systems in Liberal Democracies (Routledge 1988). DOI: 10.4324/9781003276814-13

162

Nizam Ahmed

articulating party demands, and communicating these demands to the centers of governmental power.3 The presence of a strong party system is undeniably necessary for strengthening democratic rule. However, although pervasive, parties are still not constitutionalised in many countries of the world. Moreover, the constitutionalisation4 of parties may vary from one democracy to another.5 The need for the constitutionalisation of parties arises from several factors. A central task for modern constitutionalism is to seek to preserve and sustain ground rules of political competition that enable parties to compete for political power on fair and appropriate terms.6 This is particularly needed to check that the big or ruling parties do not adopt any abusive means to gain political benefits in a constitutional system. This is intended to provide equality of opportunity to diferent parties and, in particular, to ensure that parties behave and act in an accountable manner. While the constitutional system of Bangladesh is based on multi-party politics, the extent to which parties are constitutionalised is a debatable issue. It can be said that the political parties in Bangladesh are inadequately constitutionalised. Whether or not constitutionalised fully, the political parties in Bangladesh were the key forces in making the founding Constitution and enacting constitutional amendments, despite the fact the military or extra-constitutional governments changed the Constitution several times. The success or otherwise of reform processes in generating and amending constitutions that reflect the people’s ideals and are considered legitimate by ordinary citizens depends to a large extent on the functioning of political parties. Concerning constitution-making or amending, what makes parties indispensable is that they are involved in almost every area of constitution-making activity, from raising awareness to collecting and balancing views from society at large and party members, and from communicating party positions on key reform issues to electing party representatives to participate in the reform, and so on. In modern constitutionalism, parties remain the key force in shaping, directing, and influencing every sphere of activities involved in the creation and amendment of constitutions.

3 GA Almond and JS Coleman (eds), The Politics of the Developing Areas (Princeton University Press 1960). 4 Constitutionalisation of parties does not imply that every aspect of party behaviour should be regulated. While broad aspects of rules governing the parties may find a place in the constitution, detailed regulations may be found in other laws. 5 The intensity of constitutionalisation is measured mostly by the frequency with which the words “party” or “parties” appear in the constitution. See IV Biezen and G Borz, ‘Models of Party Democracy: Patterns of Party Regulation in Post-War European Constitutions’ (2012) 4(3) European Political Science Review 327–359. 6 See RH Pildes, ‘Political Parties and Constitutionalism’ in Tom Ginsburg and Rosalind Dixon (eds), Comparative Constitutional Law (Edward Elgar Publishing 2011) 254.

Political parties in the process of constitution-making

163

The main objective of this chapter is to explore the role of political parties in the making of the Constitution and its amendments in Bangladesh. The Constitution, which was framed in 1972, has undergone seventeen amendments in the last fifty years, averaging one amendment every three years. Two amendments (5th and 6th) were made by the military government of Zia7 and four amendments (7th to 10th) were made by the government of General Ershad.8 Other amendments (1st to 4th, and 11th to 17th) have been initiated by party-led governments. This chapter focuses mostly on the 12th, 13th, 14th, and 16th constitutional amendments, exploring how diferent contending political parties have sought to influence the outcomes. The chapter starts by examining the position of political parties under the Constitution of Bangladesh and then proceeds to analysing the role of parties in the process of constitution-making and constitutional amendments in Bangladesh. Parties and the Constitution in Bangladesh: relations (re)defined The Bangladesh Constitution does not explicitly refer to political parties, except for two instances. Article 152 defines a political party as a group or combination of persons who operate within or outside parliament under a distinctive name and who hold themselves out to propagate a political opinion or engage in any other political activity.9 On the other hand, article 70 mentions “the political party” when laying down the anti-defection rule. Article 70 restricts the role of members of parliament to that of a party delegate, not a trustee. It stipulates that a person elected as a member of parliament at an election at which he was nominated by a political party shall vacate his seat if he resigns from that party or votes in parliament against that party.10 There are not many pieces of legislation intended to regulate the activities of parties in Bangladesh. The basic law regulating the activities of political parties in Bangladesh is the Representation of People Order 1972 (hereafter “RPO”), which did not undergo any notable or major changes in the first three decades

7 The 5th Amendment (spearheaded by Zia in 1979 through the second parliament) was enacted with a view to legitimising the activities of Mustaq, Sayem, and Zia governments undertaken between August 1975 and 6 April 1979. The Constitution (6th Amendment) Act 1981 (10 July 1981), sponsored by the Sattar government, sought to authorise the then Vice-President Sattar’s assumption of presidency upon Zia’s assassination. 8 The Ershad amendments were intended for diferent purposes. While the 7th Amendment was intended to legitimise his “illegal” regime/activities, the other amendments were passed for several purposes ranging from declaring Islam as state religion and decentralisation of the higher judiciary (8th Amendment) and modalities for the election of the vice-president (9th Amendment) and to extend the term of reserved seats for women in parliament (10th Amendment). 9 See art. 152 of the Constitution of Bangladesh. 10 ibid art. 70.

164

Nizam Ahmed

of independence.11 The non-party caretaker government (NPCG) during the time of emergency in 2007–2008 made some kind of revolutionary changes in the RPO, making it compulsory for the political parties to register with the Election Commission (EC) to become eligible to contest the elections.12 To qualify for registration, a party is required to do several things such as severing relations with their front organisations, such as the students’ wing, dissolving overseas units, allowing grassroot party units to have a say in the nomination of parliamentary candidates, holding party elections regularly, and allowing women to fill one-third of party positions at diferent levels.13 The amended RPO also requires the parliamentary candidates to disclose some vital information such as their educational qualifications, criminal records, sources of income, and sources of election funds.14 The amended RPO also disqualified loan and bill defaulters from contesting the elections. Restrictions were now imposed on government servants, making them ineligible to contest parliamentary elections in the first three years of their retirement.15 The amended RPO also provided for making the financial operations of the political parties transparent. Campaign finance also came under serious scrutiny. The contesting parties are now required to submit their sources of campaign finance and heads of expenditure within a certain period, failing which they risk punishment imposed by the EC. The EC is empowered to cancel the win of a candidate who breaches the election rules.16 Restricting candidature to only party members and independents was intended to confine election contests among genuine candidates only. To be an independent candidate, a contestant now has to attach with nomination papers a list of signatures of 1 percent of voters of their constituency in support of their candidature.17 Upon election, an independent candidate can join a registered political party. If he/she joins an unregistered political party, the party does not achieve eligibility to get registered.18 It seems that the policy of the law is to establish and sustain a party system that stands on par with any established constitutional democracy. The changes made in the basic election law in 2008 were generally pro-democratic,

11 There is another statute that prohibits the establishment of a political party with the object of propagating any opinion, or acting in a manner, prejudicial to the sovereignty, integrity, or security of Bangladesh and requires all parties to transact through bank accounts. See the Political Parties Ordinance 1978 (esp. sections 3 and 5). 12 Inserting Chapter VIA through the Representation of the People (Amendment) Ordinance 2008 (19 August 2008). The Ordinance was replaced by the Representation of the People (Amendment) Act 2009 (Act No. XIII of 2009). 13 The Representation of the People Order 1972, arts. 90A-90I. 14 ibid art. 12(3a)(3b) (inserted via the 2008 Ordinance noted in note 12). 15 ibid art. 12 (1f). Previously, many civil servants contested elections immediately after retirement, with some even taking retirement from service to contest elections. 16 ibid art. 91A(6c). 17 MS Hussain, Electoral Reforms in Bangladesh 1972–2008 (Palok Publishers 2012) 137. 18 The Representation of the People Order 1972, art. 90B(2).

Political parties in the process of constitution-making

165

although made during a non-political government. Several factors helped make the change during the caretaker period. The most important factor was probably that the country was under emergency at the time, minimising the possibility of resistance from the major political parties to those changes. However, the political parties largely accepted those changes when the emergency was withdrawn, and the regular government was formed after the 2008 general election. In particular, the Ordinance by which the caretaker government amended the RPO was endorsed and converted to an Act of parliament in 2009. Political parties and the making of the Constitution For more than 200 years, the people of Bangladesh forming part of the British Indian province of Bengal (until 1947) and Pakistan (1947–1971) did not have familiarity with constitutional rule and democracy until they emerged as an independent nation in 1971. Whatever attempts were made during the Pakistani days to introduce constitutional rule failed.19 Moreover, the long period (1947–1956) that the constitution-makers in Pakistan took to accomplish the task of providing the nation with a constitution provided a good lesson to those charged with the making of the constitution in the newborn country, Bangladesh. The process of constitution-making in Bangladesh began with the promulgation of the Bangladesh Constituent Assembly Order 1972 on 23 March 1972, providing for the formation of a 430-member Constituent Assembly (CA).20 Earlier, the government promulgated the Provisional Constitutional Order 1972, providing for the switch over of government from a presidential to a parliamentary system. However, unlike other countries, the CA lacked any legislative power; it was not given the responsibility of working as a legislature. As a result, “legislation by ordinance” remained the sole source of legislation. No mechanism existed for making the government accountable. In the preConstitution period, the country remained essentially under a one-party rule. The members of the CA (MCAs) were required to comply with party directives, failing which they risked losing their CA membership. The CA, in its second sitting, formed a 43-member Constitution Drafting Committee (CDC), with Dr Kamal Hossain, the law minister, as its head. All CDC members except one (opposition member Suranjit Sengupta) belonged to the Awami League (AL). There were two independent members. Several senior cabinet members were also included in the CDC. It was asked to submit the draft of the Constitution as soon as possible. The CDC spent 360 hours and held 74 meetings to prepare a draft. It asked for public submissions

19 For details, see R Jahan, Pakistan: Failure in National Integration (Columbia University Press 1972). 20 AF Huq, ‘Constitution-Making in Bangladesh’ (1973) 46(1) Pacific Afairs 59.

166

Nizam Ahmed

on diferent issues confronting the nation. No questionnaire was, however, circulated to seek public opinion. The rate of responses from the public was minimal. Most of the members appeared to be happy with the draft prepared within the stipulated time. Only five members gave notes of dissent. Their dissensions were mostly related to ownership of property or the concept of socialism. Some proposed punishment for disobeying party decisions, particularly expulsion from the party. Several members vehemently opposed the proposal for punishment for expulsion, and ultimately it was deleted from the text. Now members expelled from a party can still retain their seats. In general, the CA passed the Constitution without any serious hurdles. Amendments moved by diferent members did not relate to core issues; as a result, many of the proposed amendments (altogether eighty-four) were accepted. The Constitution was made with relative ease. Part of the reason was that the CA was composed of members, almost all of whom belonged to the AL. Following the passage of the Bill, the CA was dissolved and elections to the first parliament were held in March 1973. The AL won 291 of the 300 seats and secured nearly 73 percent of the votes cast.21 The Constitution framed by the AL government, observed one of its ardent critics, “was a full, comprehensive, and well-written document” and was a far more “improved” document than the existing constitutions of the subcontinent.22 Part of the reason was the leadership of Dr Kamal Hossain, the convener of the CDC. He had long been associated with the AL and the development of its policies. This link and his close relations with Shiekh Mujibur Rahman helped him to be aware of the ground realities facing the nation and, thus, to draft the document properly. Compared to India and Pakistan, Bangladesh’s Constitution was written within a short time. Several factors, particularly political homogeneity and geographic contiguity were very critical to adopting the Constitution within such a short time.23 The bitter experience of the past with the drafting of the 1956 Constitution of Pakistan worked, to some extent, as a deterrent, discouraging the framers to delay drafting. Perhaps more importantly, the CA was essentially a one-party House, and this had negative impacts on the deliberative environment in the assembly. The law imposed some restrictions on the independent behaviour of members of the CA by, for example, introducing the anti-defection rule. This restriction discouraged meaningful deliberation on the draft constitution. Main features of the parliamentary system in the founding Constitution The founding Constitution provided for a parliamentary system patterned on the Westminster model. It required the government to be collectively

21 R Jahan, Bangladesh Politics (University Press Limited 1980) 84. 22 Moudud Ahmed, Bangladesh: The Era of Sheikh Mujibur Rahman (University Press Limited 1983) 127. 23 ibid 127.

Political parties in the process of constitution-making

167

responsible to the legislature called Jatiya Sangsad. All members of the cabinet were members of parliament (MPs). Non-MPs included in the cabinet were required to get elected to the JS within six months of their assumption of ofce.24 The Constitution provided for the separation of powers, with each branch organising its activities and operations independently of others. This, however, does not imply that there were no relations among the three branches. As stated earlier, there was some kind of fusion between the executive and the legislature. Provisions for setting up elected local governments at diferent levels were also made. Perhaps the two noblest features of the Constitution were, first, an absence of the provision for preventive detention, and second, no provision for the declaration of emergency.25 This idealistic policy did not last long; the Constitution was amended soon providing for the introduction of both.26 Some serious eforts were made to restrict the power of the president to an absolute minimum. He was no better than a figurehead, performing almost all functions on the advice of the prime minister. Article 70 restricted floor-crossing mostly to ease government formation as well as to ensure government stability. The absence of both restrictions on presidential power and floor-crossing created stumbling blocks to the framing of the Constitution in Pakistan in the early years of partition. These, however, acted as a deterrent against the balanced growth of parliamentary democracy in independent Bangladesh. Jahan, however, argues that the AL did not introduce a Westminster-style government; rather, it was the Indian model of parliamentary democracy with a single dominant party.27 The main features of the Indian model followed by the AL were: the parliamentary system, single-dominant party, socialist ideology, and secular ideology. There were two diferent views within the AL in the early days of independence on the system of government, with the old guards reiterating their commitment to the British model, while some radicals were in favor of a revolutionary government with Mujib exercising the reign of state power in an absolute manner.28 The repudiation of the parliamentary model in less than two years (in 1975) implied a lack of strong commitment to it by the top party leadership. The AL, like the Indian Congress (INC) in the early years of partition, emerged as a dominant party in elections held in 1970 (immediately before liberation) and in 1973. As in India, the political opposition was in a disarray; the opposition parties were seriously disorganised. The AL won almost all of the seats in both elections. However, unlike in India where the ruling INC sought to nurture the opposition to help it play its due role in the political system, the Awami League leaders used force to wipe out the opposition.

24 25 26 27 28

Ahmed (n 22) 104–105. ibid 130. ibid. Jahan (n 21) 97. ibid 100.

168

Nizam Ahmed

Election results were reversed in a few constituencies where the opposition candidates were likely to win. As Jahan observes: The AL campaign strategy [was] to win all seats in Parliament indicated the party’s determination to have a single dominant party system. This drive to win monopoly control of political power necessarily resulted in an intolerant attitude towards opposition parties and opposing views. The strategy paid of and made the AL the dominant party, but it also created the ethos of a single-party system.29 The experimentation with the parliamentary democracy/Indian model of government did not last long. In less than two years of the formation of the new government in 1973, Prime Minister Sheikh Mujibur Rahman decided to replace the multi-party parliamentary system with a one-party presidential system. All political parties were banned, and a new party called Bangladesh Krishak Sramik Awami League (called BAKSAL) was established.30 In January 1975, the AL government moved a constitutional amendment Bill, providing for constitutional change. Although the fundamental principles of state policy remained untouched by the resultant 4th Amendment, fundamental rights were again suspended.31 The president was armed with executive, legislative, and judicial powers to such an extent that, should he want, he could easily declare himself “the state”. The president could refuse assent to Bills passed by the parliament. He also appointed and removed judges of the highest court at his discretion and headed the national party (BAKSAL), selecting its leaders at diferent levels at his will. This drastic constitutional change was critiqued strongly by scholars. Jahan thinks that the reasons for the adoption as well as repudiation of the parliamentary system were the same: the consolidation of power by the ruling party. She argues as follows: The nationalist elites became committed to the model of parliamentary democracy because the promise of increased participation was a powerful slogan to mobilize mass support behind the nationalist movement . . . Increased participation not only resulted in greater demands on the system; it also meant that the nationalist elite could be replaced by alternative leadership .  .  . The elite rejected parliamentary democracy and turned to an alternative model which promised a longer stay in power. Thus, both the adoption as well as repudiation of constitutional democracy as a model of government and politics were due to power consideration.32

29 30 31 32

ibid 103. On this aspect, see Chapter 8 in this volume. The Constitution (4th Amendment) Act 1975. Jahan (n 21) 97.

Political parties in the process of constitution-making

169

However, before the new one-party system could have a real beginning, it was replaced by the military era that indeed commenced with the brutal assassination of Sheikh Mujibur Rahman on 15 August 1975. The new government declared martial law and abolished the BAKSAL. The parliament was abolished in November 1975. The constitutional amendment, the two-party system, and democratic development Between 1975 and 1990, the county remained under absolute military rule for eight years: from 1975 to 1979 under General Zia, and from 1983 to 1987, under General Ershad. Both adopted almost similar strategies to civilianise their rule, among other things, by creating political parties – Bangladesh Nationalist Party (BNP) by Zia and Jatiya Party (JP) by Ershad – and holding elections to the parliament and the presidency. Zia was, however, assassinated while in ofce (as the president) in 1981. On the other hand, Ershad was forced to hand over power to Justice Shahabuddin Ahmed, then sitting chief justice, in December 1990. A mass upsurge against the Ershad regime took place in November– December 1990. Ershad declared a state of emergency and made a last-ditch efort to survive in power. He desperately looked upon the military, his main support base throughout his long tenure as the head of the government, for support, but failed. The three alliances of political parties which kept Ershad under surveillance and pressure since 1986 – an eight-party alliance of “left-of-centre” forces led by AL, a seven-party alliance of “centrists” led by BNP, and the “leftist” five-party alliance – adopted a series of strategies to force him to step down.33 Initially, the three alliances were divided and could not agree on a common strategy to force Ershad down. However, following the formation of the All-Party Students Unity (APSU), a conglomerate of student organisations afliated with the major opposition parties, to exert pressure upon the Ershad government to resign, the main parties found it difcult to follow a “go alone” policy. In November 1990, the three alliances announced a joint declaration, specifying the modalities for the transfer of power. The modus operandi of the joint declaration was: Ershad will be forced to resign and an interim caretaker government (CTG) will be formed under a vice-president acceptable to the three alliances to ensure the holding of a free and fair election to a sovereign parliament within three months. The head of the CTG as well as the other ministers were to be nonpartisan, neutral, and barred from participating in elections. The role of CTG would be limited to routine administration, reconstituting the Election Commission to hold free

33 For details, see MA Hakim, Bangladesh Politics: The Shahabuddin Interregnum (University Press Limited 1993).

170

Nizam Ahmed

and fair elections, and ensuring freedom of the mass media so that all parties participating in elections would get unhindered chances for publicity.34 Upon Ershad’s resignation on 6 December 1990, Chief Justice Shahabuddin Ahmed took the charge as president and formed a government composed of ten people who were not associated with any political party. He adopted a series of measures to hold the fifth election in a free and impartial manner.35 Since the government lacked a partisan agenda, it did not want to influence the electoral process. There was widespread consensus that the CTG of Shahabuddin Ahmed ensured a level playing field for diferent parties contesting the elections. As a result, elections were widely acknowledged to have been held in a free, fair, and impartial manner. The willingness of the parties contesting the polls to abide by the rules was also an important factor. Elections to the fifth parliament were held in February 1991. The BNP, which won 140 seats, formed the government in March 1991 with the conditional support of the Jamaat-e-Islami Bangladesh (JIB). The AL emerged as the main opposition in the fifth parliament (1991–95).36 The opposition, as well as government backbenchers in the fifth parliament, played a major proactive role in resolving many contentious issues. Perhaps the most important of the issues resolved was the system of government to be followed in the country. Substantial disagreements existed over the form of government between 1975 and 1991, with the BNP seeking to retain the then existing presidential system, while the AL pledged to restore the parliamentary system before the fifth election. Following the inauguration of the fifth parliament, the AL submitted a private members’ Bill providing for the abolition of the then presidential system and the reintroduction of the parliamentary system. Some other smaller parties also submitted Bills providing for similar changes. The then ruling BNP was initially opposed to any change in the form of government, with some senior ministers even arguing that since the presidential system had served the country well, it should be retained. Unlike the AL, JIB, and several other smaller parties which pledged to reintroduce the parliamentary system (before the elections), the BNP remained silent on the issue (the form of government) during the election campaign. It only observed that the issue would be resolved by the “sovereign” parliament once it was elected. Following the submission of the bill by the AL, BNP convened a meeting of its parliamentary party apparently to gauge the opinion of the government backbenchers on the opposition proposal. An absolute majority of government backbenchers present in that meeting favoured the parliamentary system, although the Constitution of the Republic (as well as the party constitutions) still provided for a presidential system. The BNP convened a meeting of its standing committee, ostensibly the highest policy-making body of the party,

34 ibid 128–130. 35 ibid 41–66. 36 Nizam Ahmed, The Parliament of Bangladesh (Ashgate 2002).

Political parties in the process of constitution-making

171

which decided in favour of the parliamentary system. A meeting of the BNP’s parliamentary party was convened in June 1991. Once again, most government backbenchers demanded that the parliamentary system be reintroduced. Thereafter, the BNP government decided to move the Constitution (12th Amendment) Bill, providing for a switchover to the parliamentary system.37 The two Bills, sponsored respectively by the BNP and the AL, agreed on the basic principles: both provided for restoring the parliamentary system of government. The diferences between the two are centered mainly on the provision seeking to restrain floor-crossing, the mode of election of the president under a parliamentary system, and the appointment of non-MPs as ministers.38 AL members resented the provision for a referendum on the amendment of some provisions of the Constitution. However, following the scrutiny of these Bills by a select committee composed of representatives of the treasury and opposition benches, a consensual Bill was introduced in the House. It was subsequently passed in early August 1991 and following a referendum on the Bill39 in September 1991, the parliamentary system was thus restored. Earlier to this change, the fifth parliament passed the Constitution (11th Amendment) Act 1991 (in August), legalising the actions taken by the Shahabuddin government from 6 December 1990 and allowing President Shahabuddin Ahmed to resume the responsibilities of the chief justice of Bangladesh after handing over the charge of the presidency to his successor. The restoration of the parliamentary system based on consensus represented the first formal government-opposition parliamentary collaboration in Bangladesh’s history. No such example has been repeated since then. On the contrary, the two main parties have since then considered each other as adversaries, to be precise, enemies. One has always tried to expand at the expense of the other. There was limited scope for partisan mutual adjustment. It is to be mentioned here that notwithstanding the general recognition that the CTG provided a better alternative to a party government in holding elections to the parliament, there was no serious attempt in the initial years of the fifth parliament to institutionalise the innovation of the CTG. Neither the BNP – the ruling party, nor the AL – the main opposition – showed any interest in this respect. Nor was there any public demand for such an arrangement. The JP opposed the concept of caretaker government since its inception. The JIB was, however, an exception. Its parliamentary party leader, Motiur Rahman Nizami, submitted a private members’ Bill in August 1991, seeking a permanent arrangement for holding all future parliamentary elections under a CTG. The Bill proposed that the prime minister (PM) would resign on the day the election schedule would be announced. Following the PM’s resignation, the president would form an advisory council with a senior adviser as its head.

37 For details, see Ahmed (n 36). 38 See Hakim (n 33). 39 In accordance with the then art. 142 of the Constitution of Bangladesh.

172

Nizam Ahmed

The Bill further provided that those to be included in the council would not belong to any political party. Nor would they contest the election. The council would automatically stand dissolved after the elected cabinet took over the charge of the government.40 The main parties also did not take notice of the JIB Bill for CTG for more than two years since its submission to the Parliament Secretariat in August 1991. AL and JP, however, changed their mind towards the end of 1993 when they submitted separate Bills for the CTG. The AL Bill was submitted by Abdur Rahim on 28 October 1993. It considered the Shahabuddin CTG as a model. The Bill, thus, provided for a caretaker government to be headed by the (incumbent) chief justice to oversee the conduct of parliamentary elections.41 The other provisions in the Bill were similar to the JIB Bill. The JP Bill, submitted in mid-November 1993, by Monirul Hoque Chowdhury, provided that the president would appoint at his discretion anyone as the head of an interim government after the incumbent PM resigned following the dissolution of the parliament.42 The Bills submitted by the AL, JP, and JIB had more similarities than differences. The main diference centered on the head of the caretaker government. While the AL bill restricted the choice of the president by requiring him to appoint the chief justice as the head of the caretaker government, the bills submitted by the JIB and the JP granted some discretion to him (president) in this respect. In all other respects, the three bills incorporated the main elements of Shahabuddin’s transitory model. One thing to be mentioned here is that the Bills on CTG did not initially receive any major publicity. Those submitting the Bills also did not make any serious attempt to popularise the ideas contained in them in the first few years of the BNP rule. But following the widespread allegation of vote-rigging by the BNP in a Magura by-election, the main parties decided to boycott any election under BNP and raised the demand that all future parliamentary elections be held under CTGs.43 Herein lies the resilience of the Shahabuddin model. The three mainstream boycotting parties (AL, JP, and JIB) did not initially have any formal communication with each other. But they subsequently formed an all-party committee to draft a common Bill on CTG, which was finalised on 7 June 1994. Thereafter, the boycotting parties set a deadline for the government to move and pass the Bill. They declared that if the government failed to pass the Bill on CTG, they would announce the modalities of a caretaker government. The boycotting parties announced the model of such a

40 S Babar, ‘Opposition Prepares Drafts of Caretaker Government’ (13 May 1994) 10(41) Dhaka Courier 8. 41 ibid 8. 42 ibid. 43 For details, see Nizam Ahmed, Non-Party Caretaker Government in Bangladesh (University Press Limited 2004) 17–20. See also Sonia Z Khan, The Politics and Law of Democratic Transition: Caretaker Government in Bangladesh (Routledge 2018).

Political parties in the process of constitution-making

173

CTG on 27 June 1994. A six-point outline was announced which, inter alia, provided for empowering the president to appoint, in consultation with the parliamentary opposition, a neutral person as PM. The PM would not contest the elections and the cabinet would be composed of persons who were not members of any political party. The existing law of the time, however, did not bar a sitting prime minister from contesting the polls.44 The government rejected the demand outright, arguing that it was unconstitutional. It also argued that a CTG could not be an alternative to an elected government. The opposition was aware that it would not succeed in passing the Bill without the support of the ruling party. But instead of moving a Bill for CTG, the government passed a Bill that was aimed at strengthening the Election Commission (EC) and ensuring a “foolproof” electoral system in the country.45 The new law – an Amendment Act of 1994 – empowered the EC to issue identity cards to each voter.46 Under the new law, no ballot paper would be issued to a voter at any polling station unless he/she produced an identity card issued by the EC before the polling ofcer concerned. The new law also empowered the EC to stop polls at any polling station at any stage if it was certain that elections could not be held fairly because of malpractice.47 The opposition did not outright reject the reform but considered it inadequate to check election fraud and rigging. It, thus, reiterated its demand for a permanent CTG. All opposition parties boycotted the parliament proceedings for four months and, thereafter, resigned en masse and turned to the street, demanding that the government enact a law for CTG. Civil society organisations and others including think tanks in course of time supported the opposition’s demand, hoping that it would resolve the issue of the succession of government permanently. Most importantly, civil servants also at one stage decided to withdraw support from the government and expressed solidarity with the opposition-led movement for CTG. The opposition supporters also turned violent, causing damage to public life and property. The government dissolved the fifth parliament in November 1995 and held elections to the sixth parliament in February 1996, which all opposition parties boycotted. The BNP won almost all seats and moved a constitutional amendment Bill on the day the sixth parliament was inaugurated. The Bill was passed hurriedly and the second Khaldea Zia government resigned. The Constitution (13th Amendment) Act 1996 introduced a neutral, non-party caretaker government (hereinafter “NPCTG”), providing for a ten-member NPCTG to be headed by the last retired chief justice and composed of ten advisers who would not contest the elections and would hand over power

44 45 46 47

ibid 21. See the Daily Star (Dhaka), 1 December 1994. The Representation of People (Amendment) Act 1994. ibid.

174

Nizam Ahmed

immediately after the appointment of a new PM. The caretaker government was to exist for ninety days and would not make policy decisions; it would only carry out routine activities of the government. Its main responsibility was to ensure that the EC held elections to the parliament in an impartial manner and freely and fairly.48 Following the constitutionalisation of the NPCTG, three parliamentary elections were held between 1996 and 2008. Although those who lost the elections alleged improper behavior of the successive NPCTGs, the general public always welcomed the results. No serious allegations of rigging and malpractices in these elections have been reported by election observers. The beneficial efects of the NPCTG have been noticed in several areas. For example, parliaments elected under NPCTGs were more balanced in partisan composition than those elected under party governments. During the caretaker era (1996–2008), the BNP and AL alternated in state power. None could win state power in succession. The voting pattern stabilised, and the rate of voter turnout surpassed all previous records. Elections under NPCTGs have led to the elimination of a large number of “paper” parties – those that had mushroomed in the past, especially during the Ershad rule. Thus, notwithstanding their antagonistic attitude towards each other, the dominant political parties in Bangladesh have succeeded in resolving the two most important controversies facing the nation – the form of government and the process of succession of government during caretaker rule. The NPCTG system, however, did not survive long. Notwithstanding strong popular support for the system, it was dissolved in 2011 on constitutional grounds. First, in 2010, the Supreme Court declared the system unconstitutional and, hence, void.49 It, however, observed that should the politicians wanted, the system could be used for two more elections.50 Following the Court’s decision, however, the AL hurriedly enacted the Constitution (15th Amendment) Act in 2011, thereby abolishing the system of NPCTG. Instead, the provision now exists for allowing the sitting government to hold state power during elections and without dissolving the parliament before elections. This appears to be a retrograde step, as explained in the next section. The abolition of caretaker government (NPCTG) and the reemergence of the single-dominant party system The abolition of the NPCTG system was not a unanimous one; it was AL’s lone, exclusionary decision. In response, the BNP and its allies refused to take part in any elections under the AL. They boycotted the tenth parliamentary elections and tried to halt the holding of elections by using force. The

48 The Constitution (Thirteenth Amendment) Act 1996. 49 Abdul Mannan Khan v Bangladesh (2012) 64 DLR (AD) 169. 50 ibid (short order of the Appellate Division of 10 May 2011).

Political parties in the process of constitution-making

175

elections were held in 2014 without the participation of the BNP and other major parties. Candidates in more than half of the seats (154) were declared elected uncontested.51 The next parliamentary election was held in 2018 in which the BNP participated. However, the results of the eleventh parliamentary election were manufactured.52 It is alleged that the (AL) government used force to win the election. Although the BNP took part in the elections, it failed miserably, winning only seven seats and securing less than 10 percent of the votes cast. Formally, Bangladesh now has a one-dominant party system, a system monopolised by the AL. The AL has won three parliamentary elections in succession (2008, 2014, and 2018). The opposition BNP has been marginalised to such an extent that the present PM is not ready to recognise it even as a party. More than once she expressed doubt in public if there was any opposition in Bangladesh. Herein lies the most important diference between the Indian and Bangladeshi systems of the single-dominant party model. The Bangladesh leadership is interested in establishing democracy without the opposition, while the Indians adopted various measures to allow the opposition to play its due role, especially during the Nehru years, although the current political developments in India may be seen as probably not that diferent to the Bangladesh scenario except for the election fairness/multi-party presence. The Indian government largely nurtured the opposition, even to the extent of allowing its backbenchers to seriously probe into government operations. No such example can be found in Bangladesh. Bangladesh has one of the most centralised party systems in the world, where almost everything is controlled by the prime minister or the ruling party. The 16th Amendment to the Constitution, enacted in 2016 by the current AL regime, which provided the parliament with authority to decide the impeachment of Supreme Court judges, could have made the top party leadership an omnipotent authority had the Supreme Court not declared it illegal. As long as article 70 of the Constitution (anti-defection rule) remains in force, the PM can be assured of the votes of all of its parliamentary party members. The amendment could have given Sheikh Hasina, the PM and AL president, an important leeway to control the higher judiciary. Restriction on floor-crossing exists in India, too, but it is not as absolute as in Bangladesh. Moreover, in contrast to Bangladesh, the Indian one-dominant party system worked in the context of democratic decentralisation. Measures were taken, in contrast to Bangladesh, to decentralise power to governments at the subnational levels.

51 A Riaz, Voting in a Hybrid Regime (Palgrave Macmillan 2019). 52 A Riaz and S Parvez, ‘Anatomy of a Rigged Election in a Hybrid Regime: The Lessons for Bangladesh’ (2021) 28(4) Democratization 801.

176

Nizam Ahmed

Critics suggest that the 16th Amendment was intended to make the higher judiciary compliant with political wishes. When challenged in court, the higher judiciary, in a unanimous judgment, considered the Amendment unlawful.53 This antagonised the government, and the ruling party and its lawmakers reacted to the verdict of the Supreme Court Appellate Division in an objectionable manner. As a punishment, then Chief Justice Singha was forced to resign in 2017.54 Subsequently, corruption charges were brought against him, leading to a conviction of a few years in prison. The Constitution empowers judges to make whatever judgments they think are the best, although the reality might be diferent. On the other hand, lawmakers are not independent; they are in chains put onto them by article 70, which restricts their freedom of action. As a natural rule, the power at the hands of parliament, dominated by a single party and operating within the limits under article 70, to remove a Supreme Court judge will ultimately increase the party control over the judiciary in the peculiar political contexts in Bangladesh. Conclusions This chapter has tried to explore the role and behaviour of political parties in making as well as amending the Constitution of Bangladesh. The role of the Constitution Drafting Committee, composed exclusively of politicians, played an extremely important role in the framing of a democratic constitution for the nation. Some amendments to the Constitution perceived and made by political parties led to the evolution of a consensus, in 1991 and 1996, on the form of government and the process of succession of government through the NPCTG. Multi-party consensus on these two basic principles held promises for a competitive political system in the country. In addition, stability in voting patterns and party identification of the electorate became quite distinct. But following the unilateral abolition of the caretaker government model, much of what was gained earlier was lost. A competitive party political system that was gradually developing during the caretaker era (1996–2008) has now been replaced by a single-dominant party system, considered to be antithetical to democracy in the Bangladeshi context. Currently, the line between

53 Bangladesh v Asaduzzaman Siddiqui (2017) 25 BLT (Special) (AD) 1. The decision is currently under a review hearing before the Appellate Division. The 16th Amendment judgment raised an important issue of whether the Court can amend an original article of the Constitution (here, article 96 which in the original Constitution provided for parliamentary removal of judges). On this, see Ridwanul Hoque, ‘Can the Court Invalidate an Original Provision of the Constitution’ (2016) 2(1) U of Asia Pacific J of Law and Policy 14; MJA Chowdhury and NK Saha, ‘Advocate Asaduzzaman Siddiqui v. Bangladesh: Bangladesh’s Dilemma with Judges’ Impeachment’ (2017) 3(3) Comp Con Law and Administrative Law Quarterly 7. 54 See SK Sinha, A Broken Dream: Rule of Law, Human Rights and Democracy (unknown publisher) (Published on 22 August 2018; accessed 29 May 2023.) PDF version 490–495.

Political parties in the process of constitution-making

177

a one-dominant party and a one-party state is very thin in Bangladesh, in contrast to India which made it (one-dominant party) work to benefit the majority of the people. Although India is currently on a democratic backslide, the Indian system at the time was democratic, while the Bangladesh one is authoritarian. This shift and, more specifically, the absence of multi-party constitutional politics will make the task of continuing with, and consolidating, the democratic system in the country extremely difcult.

Part IV

Social justice, inclusion, and the protection of rights

11 Constitutional protection of economic and social human rights Intention of the constitutionmakers and judicial interpretations Muhammad Ekramul Haque Introduction The Constitution of Bangladesh has recognised human rights in diferent forms. Civil and political (CP) rights are embodied in Part III of the Constitution (articles 26–47A) as judicially enforceable fundamental rights, while Part II (articles 8–25) contains economic, social, and cultural (ESC) rights as judicially unenforceable fundamental principles of state policy (FPSPs). Lengthy discussions and debates were held in the Constituent Assembly about the judicially unenforceable nature of FPSPs. It was, in fact, one of the most discussed issues in the Constituent Assembly. Nevertheless, article 8(2) of the Constitution finally declared, inter alia, all fundamental principles of state policy as judicially unenforceable. This chapter will scrutinise the mandates of article 8(2) as to the nature of the constitutional state principles relating to only one set of human rights – the ESC rights – that are recognised as FPSPs. To gauge the intention of the constitution-makers from an originalist perspective of constitutional interpretation, the chapter will analyse the debates held in the Constituent Assembly over the judicial unenforceability of FPSPs. It will also examine the scope for the Supreme Court of Bangladesh to play a significant role in protecting the ESC rights despite the purportedly clear constitutional bar against their judicial enforceability. As this study is a qualitative one, it will largely depend on archival research and a deeper analysis of relevant decisions of the Supreme Court. The chapter engages an originalist interpretation of constitutional provisions based on a critical examination of the relevant parts of the Constituent Assembly debates. Analysing the position of CP rights, made enforceable by the Constitution as fundamental rights, is beyond the purview of the chapter. The key conclusion of this chapter is that there is a scope for judicial enforcement of economic and social rights, that is the FPSPs, based on an originalist interpretation of the Constitution. This argument is derived from an originalist argument of democracy, which the framers intended to be one of the four pillars of the Constitution. It is argued that the sustainability of political democracy is DOI: 10.4324/9781003276814-15

182

Muhammad Ekramul Haque

much dependent on the equitable economic development of the nation, where basic economic human rights of the people are fulfilled. Constitutional nature and functions of the FPSPs The Constitution Drafting Committee (CDC) was formed by the Constituent Assembly of Bangladesh and was headed by the then Minister for Law and Parliamentary Afairs, Dr Kamal Hossain. Many discussions and debates were held in the Constituent Assembly about the FPSPs. It was, in fact, one of the most discussed issues in the Constituent Assembly.1 The chairman of the CDC at the time of presenting the Constitution Bill before the Constituent Assembly mentioned in his speech that socialism, one of the basic FPSPs, meant emancipation from economic exploitation.2 Entrusting the state with the responsibility to emancipate the peasants, workers, and toiling masses from all forms of exploitation, he confirmed that ‘the constitution . . . guaranteed fundamental human rights.’3 It was categorically pointed out that ‘the state also has been entrusted with the responsibility to ensure that every citizen gets the basic things that are required for decent living.’4 Therefore, it was indicated that the duties imposed on the state in Part II were to ensure the citizens’ basic economic human rights. Despite such an assurance, the enforceability of the basic economic human rights was lacking. Manabendra Narayan Larma, the only independent member in the Constituent Assembly, considered the protection of basic economic human rights inadequate. He warned that ‘unless we can ensure people’s right to food and clothing and their decent living, we can’t claim before the next generation that we have kept a good constitution for them.’5 At the beginning of Part II of the Constitution, article 8(2) declares the constitutional status and function of the FPSPs in the following words: The principles set out in this Part shall be fundamental to the governance of Bangladesh, shall be applied by the State in the making of laws,

1 The Constitution Bill was tabled before the Constituent Assembly for consideration on 19 October 1972 and the general discussion on the Bill continued till 30 October 1972. See the Bangladesh Constituent Assembly Debates (Gono Parishader Bitarka, Sarkari Biboroni), (Constituent Assembly 1972). This discussion has been compiled in the Bangladesh Constituent Assembly Debates (ibid 102–442), which included, inter alia, the discussion on the matter of the fundamental principles of state policy (ibid 122–123, 147–150, 154, 156–157, 161, 185, 196–197, 221–226, 236, 250, 259–262, 264–270, 280–283, 291, 293, 305, 309, 322–323, 325, 325–327, 333–334, 349, 353, 355, 357–358, 370, 372, 377–378, 384, 386–387, 391, 397, 399, 406, 408, 409–410, 413–414, 421, 435, 437, 439, 441–442). 2 ibid 24. 3 ibid (translation is of the author). 4 ibid. 5 ibid 110.

Constitutional protection of economic and social human rights

183

shall be a guide to the interpretation of the Constitution and the other laws of Bangladesh, and shall form the basis of the work of the State and its citizens, but shall not be judicially enforceable. In article 8(2), four positive features along with one negative feature are attributed to the FPSPs, which together determine the constitutional status, nature, and functions of the FPSPs. These features of the FPSPs can be classified under the following headings: relevance for the governance of Bangladesh, application in making laws, a guide to interpretation, basis of all works within the state, and judicial unenforceability (the latter being the negative feature). The great importance of the FPSPs is that they put the state under an obligation to take positive actions towards ensuring the economic human rights of the citizens. The FPSPs have a significant role to play in the interpretation of all laws including the Constitution itself, as these principles are mandated to ‘be a guide to the interpretation of the Constitution and the other laws of Bangladesh’ (article 8(2)). Thus, in interpreting the Constitution or any other laws, the court is constitutionally obliged to be guided by the FPSPs. For example, the court in Aftabuddin v Bangladesh6 interpreted article 116 of the Constitution (concerning control and discipline of subordinate court judges and magistrates) in light of article 22 (the principle of separation of judiciary from the executive), an FPSP.7 A clear provision of law or the Constitution cannot be transformed to an entirely diferent meaning by the use of FPSPs. However, the terms ‘judicial enforcement’ and ‘judicial interpretation’ must be distinguished carefully. The Constitution has given the mandate to use the FPSPs in ‘judicial interpretation,’ but ‘judicial enforcement’ of the FPSPs has been prohibited. For example, the Appellate Division of the Supreme Court of Bangladesh in Kudrat-E-Elahi Panir v Bangladesh8 employed articles 9 and 11 (two FPSPs) as an aid in interpreting articles 59 and 60 (constitutional provisions regarding local government). The High Court Division in Winifred Rubie v Bangladesh9 provided an interpretation of the term ‘public purpose’ by referring to certain FPSPs. In Winifred Rubie, where the public nature of a school’s functions was at issue, the Court ‘noted that the school did not conform to the national educational policy and was not recognised by’ the relevant government agency, and, ‘having regard to the principles of State policy stated in articles 14, 17 and 19(1), held that the school could not be categorised as serving a “public purpose.”’10

6 7 8 9 10

(1996) 48 DLR (HCD) 1. ibid 11, per Naimuddin Ahmed J. (1992) 44 DLR (AD) 319, 336–337. (1981) 1 BLD (HCD) 30. Mahmudul Islam, Constitutional Law of Bangladesh (2nd edn, Mullick Brothers 2003) 56.

184

Muhammad Ekramul Haque

Nonetheless, the Appellate Division criticised the use of FPSPs by the High Court Division.11 The Appellate Division observed: As for the State policy of education, it is unfortunate that the learned Judges have taken upon themselves an enquiry which is neither warranted by law in the Constitution by the arguments of the parties. It is for this reason that the constitutional mandate provided in the chapter on Fundamental Principles of State Policy that these are not enforceable in the Court of Law.12 It is submitted that the High Court Division rightly utilised the FPSPs in interpreting the Constitution and other laws while disposing of a judicial review in accordance with the Constitution (article 8(2)). Mahmudul Islam, the former attorney general of Bangladesh, has rightly criticised this observation of the Appellate Division in the following words: In order to find the meaning of ‘public purpose’ in relation to education, the High Court Division was not only entitled, but was also under constitutional obligation, to consider whether the requisition of property for a school of the type involved could be said to serve a public purpose when article 17 mandates the State to adopt efective measures for the purpose of establishing a uniform, mass-oriented and universal system of education. It is submitted that in making the above observation, the Appellate Division did not take into account the relevant provisions of the Constitution. There is a definite distinction between the enforceability of the principles of State policy and the interpretation of laws in conformity with those principles.13 The power of the Court to render interpretation based on FPSPs was highlighted in the Constituent Assembly debates. In the words of Tajuddin Ahmad, one of the main leaders of the liberation war of Bangladesh, if the Court finds any lacuna in interpreting any article of this Constitution, then it shall fill in that lacuna giving interpretations based on the fundamental principles of state policy.14 He further elucidated the significance of the provision regarding interpretation: We have made a law under which land and industrial factories and establishments can be nationalized. Due to the introduction of this system, if

11 12 13 14

Bangladesh v Winifred Rubie (1982) 2 BLD (AD) 34, 37. ibid. Islam (n 10) 57. Bangladesh Constituent Assembly Debates (n 1) 386.

Constitutional protection of economic and social human rights

185

in any case, the object of this law is frustrated for which it was enacted or some people are adversely afected, then if the judge gives judgement in favour of those who are now opposing this system, we will have nothing to do but to amend this Constitution.15 It may be noted that there is no express provision in the Constitution of India regarding the application of the directive principles of state policy (DPSP) in interpreting the Constitution and other laws. Nevertheless, the Indian courts have used the DPSP as an aid in the interpretation of laws.16 In contrast, article 8(2) of the Constitution contains a clear mandate and a duty for the Court to utilise the FPSPs in interpreting the Constitution and other laws. Article 8(2) denotes four utilities of the FPSPs, but it prohibits judicial enforcement of FPSPs. The opposition and the independent members in the Constituent Assembly, in total two, were in favour of judicial enforceability of the FPSPs and strongly protested their unenforceability.17 The question of judicial unenforceability of the FPSPs was, in fact, one of the two most debated issues in the Constituent Assembly.18 During the consideration of the Constitution Bill19 in the Constituent Assembly, Suranjit Sengupta, the only member of the opposition, raised an amendment proposal to omit the words ‘but shall

15 ibid. 16 See, eg, Mumbhai v Abdulbhai [1976] AIR SC 1455; Bhim v India [1981] AIR SC 234; Excel Wear v India [1979] AIR SC 25. 17 During the time of general discussion on the Constitution Bill, Suranjit Sengupta pointed out, inter alia, that some provisions of Part II were imitative of the Constitutions of Pakistan of 1956 and 1962. Then he quoted the following statement of Mr Abul Monsur, a member of the opposition in the then Constituent Assembly of Pakistan, where the insertion of such principles in an unenforceable manner in the Constitution of Pakistan was criticised: Now, Sir, what is this provision for directive principle which is found nowhere in the world except in India and Ireland? These are the two solitary examples where constitution provides for directive principles. It is preposterous to think that the constitution will give some directives which will not be enforceable in law and which will not be justifiable and will not be efective. If that is so, why should these things be in the constitution at all? It is not a plaything of children. It is a sacred document which shall be preserved in the breasts of the citizens of the state as a sacrosanct provision on which they would rely for protection of their rights – individual, social, collective and political. But they provide at the very beginning that these or such provisions shall not be enforceable in any court of law. If that is so, why do you provide it at all? Leave it to the people. (Bangladesh Constituent Assembly Debates 222) 18 Another major issue of debate was the restrictions imposed on the fundamental rights embodied in articles 32, 37, 38, 39 and 41 (ibid 492–526). 19 This phase of discussion and debates on the draft Constitution started on 31 October 1972 and continued until 4 November 1972 (ibid 443–690).

186

Muhammad Ekramul Haque

not be judicially enforceable’ in the draft article 8(2) of the Constitution.20 However, the proposal was rejected by the majority.21 Judicial enforcement of ESC rights recognised as judicially unenforceable FPSPs Economic, social, and cultural human rights embodied in Part II of the Constitution as FPSPs have been explicitly declared in article 8(2) to be nonjusticiable.22 However, non-justiciability does not negate every obligation. Judicial unenforceability under article 8(2) does not necessarily mean that the duties imposed on the state to realise the FPSPs are beyond any constitutional oversight or protection. The state is still constitutionally obliged to carry out the mandates vis-à-vis the FPSPs. In the Constitution 8th Amendment Case,23 Chief Justice Chowdhury observed that while the FPSPs are not judicially enforceable, the government must, nevertheless, make every efort to realise them. To quote him: Though the directive Principles are not enforceable by any Court, the principles therein laid down are nevertheless fundamental in the [g] overnance of the country and it shall be the duty of the State to apply these principles in making laws. . . . This alone shows that the directive principles cannot be flouted by the executive. The endeavour of the Government must be to realize these aims and not to whittle them down.24 During the time of the Constituent Assembly debates, Mr Tajuddin Ahmad, the first prime minister of Bangladesh,25 mentioned that the FPSPs represented a political agenda, and it would not be fruitful to enforce them via the judiciary.26 But, he did not mean that they would never be implemented. Without suggesting a specific method of implementation, he pointed out that the setting of a time limit within which the social and economic rights were to

20 ibid 454. 21 The chairman of the Constitution Drafting Committee requested that he not ‘press’ for the said amendment-proposal but he persisted. The speaker raised the amendment-proposal before the Assembly for voting and the proposal was comprehensively rejected by the Assembly (ibid 455–456). 22 The Constitution of Bangladesh, art 8(2). 23 Anwar Hossain Chowdhury v Bangladesh (1989) 41 DLR (AD) 165. 24 ibid 198. 25 He was the prime minister of the Bangladesh government-in-exile formed on 10 April 1971. See Moudud Ahmed, Bangladesh: Constitutional Quest for Autonomy (University Press Limited 1979) 264–266. 26 Bangladesh Constituent Assembly Debates (n 1) 386.

Constitutional protection of economic and social human rights

187

be implemented was a task for subsequent parliaments; that task did not fall within the expected functions of the Constituent Assembly.27 There was no explicit disagreement with Tajuddin Ahmad’s statement. Thus, it appears that the founders of the Constitution did not intend to keep the FPSPs unimplemented for an indefinite period. Accordingly, all subsequent parliaments incurred the obligation to set targets to implement the FPSPs, at the least, progressively. The ultimate intention of the constitution-makers was to pave the way to ensure people’s economic and social human rights and to establish economic justice. The state has a clear constitutional obligation to gear its activities towards the implementation of the FPSPs. Every branch of the state including the government and the Court is bound to comply with this obligation. To press this point, Tajuddin Ahmed said as follows: An additional wonderful system has been added [to] this Constitution of ours. The judge will take his oath according to this Constitution. He will decide everything in the light of this Constitution. Every man, every employee – whether he becomes a judge or whoever – will uphold this Constitution on the top. If anyone makes any violation [of] this constitution or if there is any such apprehension, then we must remain prepared to face that situation in diferent ways.28 It was never in the minds of the constitution-makers to relieve the government from the constitutional obligation to implement the FPSPs.29 It was assumed that if the government failed to perform its obligation regarding the FPSPs, that government would be removed by the people for which, the constitution-makers believed, the Constitution provided a mechanism. In the

27 To quote him: The contents of part II may be termed generally as political agenda. It cannot be implemented within one year or five years. A question might arise that these (time limit for implementation of the principles) could be fixed here. To answer this[,] I would tell that the system of law-making scope introduced in the Constitution has been done by this sovereign Assembly to a very logical extent. For this the parliament constituted through the persons elected by the people in near future within very short period of time after passing this constitution will look into it. …. But it is not logical to expect that time frame from this Assembly. This Assembly in fact also is not willing to do that. I think the elected assembly-representatives of that time will decide about it. The responsibility to decide which of the fundamental principles of state policy will be implemented this year and which one after five years has been left on the future people (ibid). 28 ibid. 29 ibid.

188

Muhammad Ekramul Haque

Constituent Assembly, Professor Mohammad Yusuf Ali30 remarked that the people are empowered to vote out a government that fails to implement the FPSPs. So, the FPSPs cannot be interpreted in such a way that the government stands beyond the reach of any consequence, simply on the plea that the FPSPs are not judicially enforceable.31 The members of the Constituent Assembly never contemplated that the government could continue in ofce despite its negligence towards the FPSPs.32 The Constituent Assembly thought that the government elected by the people would be a body of persons of high moral standard who would not and could not be negligent in performing duties under Part II of the Constitution. This assumption (constitutive intention) of the Constituent Assembly becomes apparent from the concluding speech of the chairman of the Constitution Drafting Committee, Dr Kamal Hossain, who said: Who has been entrusted with the responsibility of implementing these fundamental principles? That responsibility is of the peoples’ elected representatives of the country. They will be elected by the votes of the people. So, they (opposition and neutral member) could not tell that the Constitution does not have any provision to translate the principles into reality if they would have trust [in] the people and peoples’ representatives.33

30 He was an influential member of the Constituent Assembly and was the minister for education, cultural activities, and sports. The Proclamation of Independence was signed by him, as a ‘duly Constituted Potentiary by and under the authority of the Constituent Assembly of Bangladesh.’ See the Proclamation of Independence. (in the Constitution of Bangladesh (n 22) 7th Schedule). 31 As Singh argues in the context of the present constitution of Nepal, the post-conflict judicial experience of the country illuminates that a robust and experimental role conception embraced by the Court sets it as an important actor for realising socio-economic rights in Nepal, but only if it acts in alignment with civil society and other institutions. See Sabrina Singh, ‘Realizing Economic and Social Rights in Nepal: The Impact of a Progressive Constitution and an Experimental Supreme Court’, (2020) 33 Harvard Human Rights J, 275–310. 32 To quote Ali: Mr Speaker, it has been discussed both inside and outside this House that the present Constitution does not have guarantee for food, clothing, education and medical care. I am not sure how does it come at criticism? Constitution is a document of the hopes and aspirations of the nation at large …. Food-clothing-education-medical care is a program for the government. Whether the government will perform this program or not … depends on the Constitution. If any government fails to perform it then it is to be seen whether the constitution has provided any mechanism to remove that government or not. The mechanism to remove that government has been provided in the present constitution. That system has been given to the parliament …. The sovereignty of the people has been recognised. (Bangladesh Constituent Assembly Debates (n 1) 399.) 33 ibid 421.

Constitutional protection of economic and social human rights

189

Dr Hossain specifically mentioned that economic human rights were virtually guaranteed under the present constitutional scheme. He observed: Among all fundamental rights economic right is unique and the Constitution has enough arrangements to ensure the enjoyment of economic rights by the people. . . . There are many ways incorporated in the Constitution to drastically change food, clothing, medical care, education, and the whole economic system and to lead it towards a socialist track.34 He continued saying that no government could ignore the FPSPs. In his words: The power remains in the hands of whomsoever, whoever forms the government and whatever parliament is made for legislation, each of them has to proceed keeping in mind these fundamental principles, they have to go forward settings these objectives ahead.35 Dr Hossain gave a unique explanation for not making the FPSPs judicially enforceable. He urged that the people could better protect their basic rights than the court. His following opinion is self-explanatory: We see a unique characteristic of every century. So, a constitution cannot be made in the way [of] keeping trust only on the court and taking away every trust from the people. At that time the parliament that existed was the parliament of the rich people. No system of [the] adult franchise was recognized then. That constitution was enacted in a capitalistic format. The then courts were also reactionists. The role of the judiciary was also not that . . . satisfactory. .  .  . We in our constitution have kept our full trust [in] the peasants, workers and toiling masses. We have already completely recognized that they are the owners of all powers of this country. We have also recognized that they will exercise their powers through their elected representatives.36 This reasoning advanced by the chairman of the Constitution Drafting Committee opened up a new horizon to enforce the constitutional obligation, that is, the exercise of popular sovereignty, presumably at an election, instead of mere reliance on the judiciary. It is clear from this discussion that the constitution-makers did not consider the exercise of popular sovereignty to be less important than the judicial enforcement as a mechanism for implementing

34 ibid 437. 35 ibid 439. 36 ibid.

190

Muhammad Ekramul Haque

the FPSPs. Dr Ambedkar, the chairman of the Drafting Committee of the Constitution of India, at the time of introducing the draft constitution of India also stated that the violation of India’s judicially unenforceable directive principles of state policy could attract consequences from the electorate at the election time.37 In the Kudrat-E-Elahi Panir v Bangladesh, Mustafa Kamal J echoed Dr Ambedkar’s argument, observing that if the parliament passes any law violating the FPSPs then the judiciary is not the only light at the end of the tunnel, and there are several other ways like public opinion, political parties, and the elections.38 In making constitutional interpretations, the Supreme Court has enforced diferent economic and social rights through the vehicle of the constitutional fundamental right to life. For example, in Dr Mohiuddin Farooque v Bangladesh (Contaminated Milk Case),39 the Supreme Court enforced the unenforceable right to health, an FPSP in article 18(1), through the enforcement of the right to life, an enforceable civic right in article 32. In the Court’s words, [The] right to life is not only limited to the protection of life and limbs but extends to the protection of health and strength of workers, their means of livelihood, enjoyment of pollution-free water and air, bare necessaries of life, facilities for education, development of children, maternity benefit, free movement, maintenance and improvement of public health by creating and sustaining conditions congenial to good health and ensuring the quality of life consistent with human dignity.40

37 Dr Ambedkar stated in the Constituent Assembly of India (Constituent Assembly Debates, vol VII, 41) as follows: If it is said that the Directive Principles have no legal force . . . I am prepared to admit it. But I am not prepared to admit it that they have no sort of binding force at all. Nor am I prepared to conceive that they are useless because they have no binding force in law . . . The Draft Constitution as framed only provides a [piece of] machinery for the government of the country. . . . But whoever captures power will not be free to do what he likes with it. In the exercise of it, he will have to respect these instruments of instructions which are called Directive Principles. 38 (1992) 44 DLR (AD) 319, 346–47 [86]. Mustafa Kamal J observed: A hypothetical question has been posed. Parliament passes a law which glaringly violates and flouts a fundamental principle of state policy, and if its vires is challenged solely on the ground of inconsistency with that principle and on no other ground whatsoever, will the High Court Division declare … the law void? It is a madness scenario. The learned counsel could not show any such legislation in this sub-continent, but suppose, Parliament is struck with such madness, is the High Court Division in its writ jurisdiction the only light at the end of the tunnel? What do public opinion, political part[ies] and election[s] do if Parliament goes berserk? 39 (1996) 48 DLR (HCD) 438. 40 ibid 442 [17].

Constitutional protection of economic and social human rights

191

The Court added that although article 18(1) is not judicially enforceable, articles 31 and 32 of the Constitution can be interpreted in light of the provisions of article 18(1).41 The Court in Dr Mohiuddin Farooque v Bangladesh42 recognised the right to live in a pollution-free environment as a part of the right to life.43 The right to livelihood is an FPSP in article 15 of the Constitution. However, the Court in Dr Mohiuddin Farooque v Bangladesh44 included the right to livelihood within the folder of right to life. As Badrul Haque J observed, life ‘cannot be sustained without its basic necessities such as food and shelter’ or without the ‘facilities of health care [or] education,’ and the basic needs of life ‘cannot be had without proper means of livelihood.’45 Introduction of the basic structure doctrine and amendability of FPSPs In the context of the recent constitutional change regarding the introduction of the doctrine of basic structure of the Constitution, the utility of the judicial approach of enforcement of FPSPs through interpretation has been significantly increased, as it is not possible anymore to take such a step by way of a new constitutional amendment.46 In 2011, the parliament introduced the Constitution’s 15th Amendment, which has declared a set of constitutional provisions to be unamendable in any way, that says: Notwithstanding anything contained in article 142 of the Constitution, the preamble, all articles of Part I, all articles of Part II, subject to the provisions of Part IXA all articles of Part III, and the provisions of articles relating to the basic structures of the Constitution including article

41 ibid. 42 Dr Mohiuddin Farooque v Bangladesh (2003) 55 DLR (HCD) 69. 43 The Court at 79 said: Article 32 guarantees a right of life. This expression ‘life’ does not mean merely an elementary life or sub-human life but connotes in this expression the life of [a human being,] the greatest creation of the Lord[,] who has at least a right to a decent and healthy way of life in a hygienic condition. It also means a qualitative life among others, free from environmental hazards. This is also one of the basic rights of a human being to live in a healthy atmosphere and constitutional remedy under Article 102 will be available if this basic human right is threatened due to violation of any of the provisions of the relevant laws . . . (ibid 79.) 44 (1998) 3 MLR (HCD) 33. 45 ibid 4. 46 The suggestion given by Chowdhury that ‘socio economic rights that comprise the basic necessities of life ought to be recognized as constitutionally protected fundamental rights’ is no more possible to implement (M Jashim Ali Chowdhury, ‘Claiming a “Fundamental Right” to Basic Necessities of Life: Problems and Prospects of Adjudication in Bangladesh’ (2011 & 2012) 5 Indian Journal of Constitutional Law 184, 208).

192

Muhammad Ekramul Haque

150 of Part XI shall not be amendable by way of insertion, modification, substitution, repeal or by any other means (art. 7B of the Constitution). Thus, it has now been impossible to bring changes in the constitutional text of article 8(2), even if any future parliament wants to do that, to make the fundamental principles of state policy judicially enforceable.47 It appears that the newly inserted article 7B goes against the spirit of the Constitution and the intention of framers who wanted to make the FPSPs judicially enforceable at any future convenient time. Conclusion It has been clear from the debates held in the Constituent Assembly that the Assembly wanted to make the FPSPs judicially enforceable at a certain point in time depending on the economic development of the country. Thus, according to originalism, it appears that the framers of the Constitution did not intend to keep the FPSPs judicially unenforceable forever. According to the originalist theory of constitutional interpretation, there arguably is created a scope for the judiciary to enforce ESC rights recognised as FPSPs. Moreover, it appears from this study that the Supreme Court of Bangladesh indirectly but occasionally enforced constitutional principles on economic and social rights through the right to life, despite the bar against judicial enforcement of those principles. The need for such judicial creativity is even more important now in the context of the newly inserted eternal clause (art. 7B) in the Constitution that denies any possibility of legislative reform regarding the justiciability of FPSPs.

47 Hoque argued that ‘the all-embracing Bangladeshi eternity clause is almost certain to yield complex implications for national politics and constitutional adjudication’. See Ridwanul Hoque, ‘Eternal Provisions in the Constitution of Bangladesh: A Constitution Once and For All?’ in Richard Albert and Bertil E Oder (eds), An Unconstitutional Constitution?: Unamendability in Constitutional Democracies (Springer 2018) 226.

12 Locating women within ‘we, the people’ in the Constitution of Bangladesh Psymhe Wadud

Introduction Quite some decades ago, one constitutional law scholar asked: ‘can constitutions be for women too’?1 While she answered in the afrmative, aware, perhaps, of the dangers of overgeneralising,2 the question is still as relevant as it had been decades back. Constitutions can, and, in fact, should undoubtedly be for women, too. However, since the constitution we have depends upon the constitution we make and take further,3 it is important to delve into the history and development of the constitutional scheme to locate women’s agency and personhood within its broad spectrum as well as to visualise their constitutional futures. The embrace of formal equality and the explicit commitment to sex equality became a general trend in postwar constitutionalism.4 The experiences of Bangladesh are not exceptional in this regard. The 1972 Constitution entrenched the principle of formal equality, with leeway for positive discrimination in favour of women.5 This chapter maintains that, despite these commitments, a lack of gender sensitivity permeates the constitutional scheme. It adopts a thick understanding of the Constitution, which regards it as a symbolic and discursively

1 Donna Greschner, ‘Can Constitutions Be for Women Too?’ in Dawn Currie and B MacLean (eds), The Administration of Justice (University of Saskatchewan Social Research Unit 1986) 20. 2 Beverley Baines and Ruth Rubio-Marin (eds), The Gender of Constitutional Jurisprudence (Cambridge University Press 2005) 1. 3 Hanna F. Pitkin, ‘The Idea of a Constitution’ (1987) 37 J Legal Education 167, 168 (‘Except insofar as we do, what we think we have is powerless and will soon disappear. Except insofar as, in doing, we respect what we are – both our actuality and the genuine potential within us – our doing will be a disaster’). 4 Baines and Rubio-Marin (n 2) 7. 5 See the Constitution of the People’s Republic of Bangladesh (hereafter ‘the Constitution’), article 28(2) (‘Women shall have equal rights with men in all spheres of the State and of public life’). Article 28(4) states that ‘[n]othing in this article shall prevent the State from making special provision in favour of women or children or for the advancement of any backward section of citizens’. DOI: 10.4324/9781003276814-16

194

Psymhe Wadud

embedded document operating on multiple sites,6 such as the Court and the legislature. Rather than revisiting the existing debates regarding discrimination against women, this chapter evaluates women’s equal status within the spectrum of ‘we, the people’, through a scrutiny of the constitution-making process, relevant judicial decisions, and the representation of women in the legislature. The chapter proceeds in three parts. The first part traces the intersection of women and the constitution-making process. Considering that constitutional rights may also serve as constitutional limits in some cases and, thereby, have antithetical consequences,7 this part critically evaluates the provision of formal equality. Since no analysis of women’s constitutional rights would be complete without referring to the sphere of their application, the second part briefly discusses the role of the Supreme Court of Bangladesh in interpreting constitutional rights relevant to women. The idea spread through this part has been to locate women as agentic subjects within the judicial approaches to gender and the Constitution. The third part, in discussing women within the spectrum of ‘the political’, focuses on women’s historical and present status in the legislature. In doing so, the myopic vision8 that the successive governments have had since independence has been highlighted. This part argues that it was, by and large, the lack of a gender-sensitive political will that resulted in the under-representation of women in the legislature. This part further argues that the underrepresentation of women in the legislature violates one of the meta-norms of the Bangladesh Constitution, namely, representative democracy. The chapter concludes with some ways forward, particularly relevant for the judiciary and the legislature across the politico-legal landscape. Locating ‘women’ within ‘the making’ of and ‘the made’ Constitution of 1972 The nationalist movement for an independent Bangladesh did not have an underlying gender-conscious agenda. However, the images of a fraction of women mobilising and participating in underground resistance (for some, even in actual combat) tend to show that women, at least symbolically, constituted half of the national collectivity and conscience in the context of the liberation war.9 Besides, Bangalee nationalism foregrounded women as the carrier of

6 See generally, Robert Leckey, ‘Thick Instrumentalism and Comparative Constitutionalism: The Case of Gay Rights’ (2009) 40 Columbia Human Rights L Rev 425, 437. 7 Baines and Rubio-Marin (n 2) 10. 8 For instance, the first five Five-Year Plans were silent on the question of women’s political participation. It was only the sixth Five-Year Plan of Bangladesh (2011–2015) that addressed this issue. Ensuring direct election in the reserved seats in parliament was underscored as one of the main targets of the Plan. See the Sixth Five-Year Plan–2011–2015: Accelerating Growth and Reducing Poverty (Bangladesh Planning Commission 2011) 425. 9 Nayanika Mookherjee, ‘Gendered Embodiments: Mapping the Body-Politic of the Raped Woman and the Nation in Bangladesh’ (2008) Feminist Review 36, 44.

Locating women within ‘we, the people’ in the Constitution

195

nationality. Further, women, as a group, were aestheticised as the embodiment of political motherhood. However, so far as the constitution-making for Bangladesh was concerned, women could not share half the burden, as will be elaborated. Inequality permeated both the process of the drafting of the Constitution and its text, relevant to women. Constitution, equality, and women

The drafters of any written constitution are assigned with an almost superhuman task of setting out the limits and extents of powers of a nation-state, and therefore, imperfections in the linguistic or textual expressions can be challenging to avoid.10 However, the choice of words and expressions is of particular significance to women.11 In most societies, adverse assumptions about the roles, attributes, and capacities of women are common, and save caution, there are risks that such assumptions will be welded within the words of a constitution and transcend across generations.12 The Bangladeshi Constitution establishes the constitutional equality principle in article 27 and especially recognises equality between men and women in all spheres of ‘the State and public life’,13 provides for equal opportunities for women, and lays down women’s equality both as a fundamental right and as a fundamental principle of state policy.14 However, a careful reading of these admirable provisions, particularly in the light of the provision on gender equality as a fundamental right, produces unease.15 A purposive interpretation can make room for women’s equality with men, on every possible count, across both public and private spheres.16 A textual interpretation, however, can easily bring on board a dichotomy between the

10 Helen Irving, Gender and the Constitution: Equity and Agency in Comparative Constitutional Design (Cambridge University Press 2008) 38–40. 11 ibid 40. 12 ibid. 13 The Constitution, article 28(2). 14 See the Constitution, article 29(1), which states that ‘no citizen shall, on grounds only of religion, race, caste, sex or place of birth, be ineligible for, or discriminated against in respect of, any employment or ofce in the service of the Republic’. Article 19(1) states that ‘the State shall endeavour to ensure equality of opportunity to all citizens’ and article 19(3) provides that ‘the State shall endeavour to ensure equality of opportunity and participation of women in all spheres of national life’. 15 See generally, Psymhe Wadud, ‘Women and a National Imaginary’ in Mohammad Shahabuddin (ed), Bangladesh and International Law (Routledge 2021); Psymhe Wadud, ‘Women, Rape Law and the Illusory Sex Equality Clause in the Bangladeshi Constitution’ (Verfassungblog, 26 October 2020) accessed 8 November 2021. 16 Sara Hossain, ‘Equality in the Home: Women’s Rights and Personal Laws’ in Rebecca J. Cook (ed), Human Rights of Women: National and International Perspectives (University of Pennsylvania Press 1994) 475.

196

Psymhe Wadud

private and the public and, thereby, relegate women to a subordinate position in the private realm. The conceiving of the public realm of employment, work, and education and the private realm of domestic and intimate family relations as separate and dichotomous is particularly harmful to sex equality as it hides beneath it women’s de facto subordination within domesticity.17 Thus, by evoking the public-private dichotomy that fuels much of feminist legal jurisprudence, the Constitution in a way masks the myriad forms of discrimination that women encounter in the private spheres.18 Locating women in making ‘their’ Constitution

The mere numerical presence of women in power cannot overnight be translated into a pro-women impact on overall policy- or law-making, due primarily to institutionalised gender biases.19 However, even though the number is not all that counts, anyone concerned with gender equality must still count numbers.20 Among the thirty-four members of the Constitution Drafting Committee, there was only one woman, inducted from among seven female members of the Constituent Assembly who were (indirectly) elected to the reserved seats.21 Moreover, in terms of drafting and discussing the Constitution, especially texts

17 See generally, Catharine A. MacKinnon, Feminism Unmodified: Discourses on Life and Law (Harvard University Press 1988); Frances E. Olsen, ‘The Family and the Market’ (1983) 96 Harvard Law Review 1497; Ruth Gavison, ‘Feminism and the Public/Private Distinction’ (1992) 45 Stanford Law Review 1; Ann E Freedman, ‘Sex Equality, Sex Diference, and Supreme Court’ (1983) 92 Yale Law Journal 913–968; Susan Okin, Women in Western Political Thought (Princeton University Press 1979) 273–304; Taub and Schneider, ‘Perspectives on Women’s Subordination and the Role of Law’ (1989) 39 University of Toronto Law Journal 127; D Kairys (ed), The Politics of Law: A Progressive Critique (Basic Books, 1982) 117–127. 18 See Beverley Baines, Daphne Barak-Erez, and Tsvi Kahana (eds), Feminist Constitutionalism: Global Perspectives (Cambridge University Press 2012) 10. 19 Anne Marie Goetz, ‘Gender and Accountability’ in Alexandra Dobrowolsky and Vivien Hart (eds), Women Making Constitutions: New Politics and Comparative Perspectives (Palgrave Macmillan 2003) 52. 20 L. Trimble and J. Arscott, Still Counting: Women in Politics Across Canada (Broadview Press 2003) 157. 21 The Constituent Assembly of Bangladesh (CAB) derived its existence from the Proclamation of Independence of 10 April 1971 which had drawn its legitimacy from the ‘elected representatives of the people of Bangladesh’ returning from the 1970–1971 elections. Subsequently, the Provisional Constitution of Bangladesh Order (12 January 1972) also defined the CAB. The Bangladesh Constituent Assembly Order 1972 (23 March 1972) provided for the structure, powers and functions of the CAB. On 11 April 1972, CAB established a 34-member Constitution Drafting Committee chaired by Dr Kamal Hossain, the then law minister. Among the thirty-four members, there was only one female member, Ms Begum Razia Bano. Ms Bano had been elected to one of the women’s seats in the National Assembly in the 1970 elections. See further Ridwanul Hoque, ‘The Founding and Making of Bangladesh Constitution’ in Kevin YL Tan and Ridwanul Hoque (eds), Constitutional Foundings in South Asia (Hart Publishing 2021) 104–105.

Locating women within ‘we, the people’ in the Constitution

197

that directly concern and are significant to women, the female participation was superfluous. In the Assembly, there were fierce debates and discussions on many issues, such as the realisation of socialism, marginalisation of the ethnic minorities within the project of nationalism, the content and meaning of secularism, and prime ministerial powers, to name some. Following the publication of the draft Constitution, the reactions from diferent political factions also revolved around the same issues.22 Amid all these, something that remained at the margin was the ‘woman question’. The ambiguity embedded in the expression ‘state and public life’ did not garner attention of any of the members of the Assembly, let alone the drafting committee. However, a particular concern about the status of women in the private realm, especially in the backdrop of unequal norms of religion-based personal laws, was very much there – coming from none other than a woman. One of the seven female representatives of the Constituent Assembly, Badrunnesa Ahmed, clearly articulated the need to reform religion-based personal laws that often relegate women to a subordinate position in the private realm. She aestheticised the articulation with the hope for a secular approach from future parliaments.23 The sole woman member of the Constitution Drafting Committee, Begum Razia Bano, endorsed Badrunnesa Ahmed and further proposed that ‘the Constitution should have a scheme so that future parliaments can take recourse to it in reforming religion-based personal laws’,24 to help realise equality between sexes in the private realm. It is unclear whether she acknowledged the ambiguity or potential regress embedded in the expression of gender equality in the draft Constitution. She also noted that she had an amendment to propose to article 41, to protect the freedom of religion so as to constitutionally back such legislative reforms, which she could discuss, ‘with her party’s permission’.25 This proposition surprisingly did not invite any questions26 or strictures; the issue never came up in the subsequent days, not even when article 41 was discussed and debated at length in the Assembly. Interestingly, independent member Manabendra Narayan Larma observed that women were entirely ignored in the draft Constitution,27 although

22 Abul Fazl Huq, ‘Constitution-Making in Bangladesh’ (1973) 46 Pacific Afairs 59, 63. 23 Speech of Mrs Badrunnesa Ahmed, Gana Parishad Bitarka, Volume II, 11th Session, 27 October 1972. 24 Gana Parishad Bitarka, ibid (translation by the author). 25 ibid. 26 Interestingly, this important point was followed by complaints from one male member, Mr Golam Hasnayen, to the efect that ‘by letting 4 out of 7 women speak in the Assembly, Chief Whip was giving 60% of the total women an opportunity to speak, discriminating against men, no more than 12% of whom were getting such opportunity’ (translation is mine). The speaker condescendingly responded with ‘women always get more time’, ibid, informal interactions between Mr Hasnayen and the Speaker Shah Abdul Hamid. 27 Gana Parishad Bitarka (n 23), 9th Session, 25 October 1972.

198

Psymhe Wadud

without much substantiation. More interestingly, Suranjit Sengupta, the only member from the lone opposition party and a member of the drafting committee, put forward his dissent on reserving fifteen parliamentary seats for women. Mr Gupta was in favour of reserving twenty seats only in municipal areas to be filled with women elected by women, but the scope of his proposal remains unclear.28 The bright side is that he proposed direct election in the reserved seats. Court, the Constitution, and women The approach of the Supreme Court of Bangladesh (hereinafter ‘the Court’) to the question of equality of men and women in public life has been quite straightforward. The Court has largely adopted a ‘textualist’ approach to the Constitution when dealing with cases on the intersection of women and the so-called ‘state and public life’. Consciously or otherwise, the Court has been faithful to the distinction between public and private and has also opted for categorising diferent kinds of discrimination within the private realm. Overall, the decisions, even the ones that are admirable, are grounded in the ethos of value-neutral legal positivism, uninformed by a probing judicial analysis of gender politics, direct and indirect sex-based discrimination, and the social context. To a large extent, it has been either a plain textual reading of the constitutional provisions or that of the enacted laws. Amid all these, a particularly normative value-laden approach towards gender equality has largely gone missing. Recognising sex-based discrimination in ‘state and public’ life: a positivist approach

Generally, the Court has been quite prompt in underscoring sex-based discrimination in the public realm, for instance, in work and employment. In Dalia Parveen v Bangladesh Biman Corporation, for instance, the High Court Division adjudged unconstitutional a service regulation of Bangladesh Biman, the state-owned airline company, that discriminated between male and female cabin crews in respect of their age of retirement by relying on a textual interpretation of article 28.29 On another occasion, a regulation providing for the instantaneous termination of female cabin crews on account of pregnancy for the third child in the state-owned airline company was found discriminatory and unconstitutional.30 On both occasions, the Court did not deliberate on the nuances of indirect discrimination or discrimination across diferent

28 ibid, 15th Session, 2 November 1972. 29 (1996) 48 DLR 132. See also Rabia Bashri Irene v Bangladesh Biman Corporation (2000) 52 DLR (HCD) 308. 30 Marzia Tauhida v Biman Bangladesh Airlines, Writ Petition No. 5157 of 2010.

Locating women within ‘we, the people’ in the Constitution

199

intersectionality (such as age in the former case and pregnancy in the latter case) underpinned by socially constructed conditions prejudicial to women on account of their sex. In Shamima Sultana Sheema v Bangladesh,31 upon a plain reading of articles 27, 28, and 28(4), an ofcial notification32 was held to be discriminatory against women ward commissioners in a local government unit who were elected from the reserved seats. The Court observed that the ‘naked’ discrimination was ‘so stark and apparent that it [did] not require any elucidation’.33 Here as well, the Court spilled a lot of ink iterating the obvious – that afrmative action or positive discrimination for women is constitutionally provided. It did not elaborate34 how afrmative actions are means to attain equality. In Dr Ahmed Hussein v Bangladesh35 and Farida Akhter v Bangladesh,36 legal challenges against the extension of tenure for the reserved seats in the parliament for women and the provision for their indirect election failed.37 The Court observed that the provisions of reserved seats and indirect election were in the original Constitution and, hence, valid. The Court resorted to the notion of substantive equality by textually interpreting article 28(4). However, while appearing textualist, it again lost an opportunity to deliberate on the nuances, potential problems, and practical consequences of indirect election in the reserved seats. A detailed deliberation on this can be found in the later discussion on politics of reserve seats. In Advocate Md Salauddin Dolon v Bangladesh,38 the Court iterated the provisions on gender equality and freedom of expression while dealing

31 (2005) 57 DLR (HCD) 201. 32 The Ministry of Local Government, Rural Development and Co-operatives issued a circular on 23 September 2002 purporting to provide women Pourshava commissioners elected from reserved seats with reduced powers and functions as compared to the commissioners elected from general seats. 33 ibid. 34 Shamima Sultana is praiseworthy on one count. In his obiter, ABM Khairul Haque J noted the inefcacy of indirect election for the reserved seats in parliament. For him, the system does not seem to fit in democratic practices but, rather, raises a number of questions such as the question of who these members in the reserved seats are accountable to since they do not have any constituencies of their own. He further thought that it is anything but democratic if these members owe their loyalty to the existing members of parliament who elected them. This system, as it appears, instead of either helping the democratic process or upholding the dignity of the women, helps the majority/ruling party increase its edge over the other parties at the cost of the women members who are indirectly elected. 35 (1992) 44 DLR (AD) 109. 36 (2006) 11 MLR (AD) 237. 37 The original Constitution of 1972, article 65(3), reserved fifteen seats for women for ten years, to be indirectly elected by the members of parliament. Each member was to cast a vote for a candidate in each of the fifteen seats and the candidate securing majority votes in each seat was to be elected. See Mahmudul Islam, Constitutional Law of Bangladesh (3rd edn, Mullick Brothers 2012) 456. 38 (2011) 63 DLR (HCD) 80.

200

Psymhe Wadud

with a state ofcial’s arbitrary attempt to impose a gender-based dress code (hijab) on a woman (a de facto employee). In this instance, however, the Court missed the opportunity to appear comparatist39 and to analyse in detail how imposing such a sanction may potentially violate a woman’s freedom of religion and/or faith too and how it can be, in some cases, indirect discrimination against women unwilling to wear headscarves on the ground of religion/faith (besides freedom of expression, personal liberty, and privacy).40 However, it is significant to note that in interpreting sexual harassment within the gender-equality paradigm, the Court appeared more purposive41 than textualist in its interpretive approaches. In Bangladesh National Women Lawyers’ Association v Bangladesh,42 for example, the High Court Division observed that the Constitution embraces all elements of gender equality, a concept that includes protection from sexual harassment and abuse as well. The Court held that the state is accountable for not enacting a law to protect women from sexual harassment at the workplace and in educational institutions. It is, however, pertinent to mention that in this instance, the Court was heavily influenced by a similar decision of the Indian Supreme Court. The High Court Division merely adopted the purposive interpretive techniques employed by the Indian court in question.43 Loyalty towards the public-private dichotomy

The Court appears wary when it comes to challenging traditional concepts of sex-based inequality in the private realm. Such an approach expresses the Court’s inability or unwillingness to understand the indivisibility of the public and the private in the context of the ‘woman question’. In 1982, for example, the High Court Division in Nelly Zaman v Giasuddin44 observed that a husband’s unilateral plea for ‘forcible’ restitution of conjugal rights against an unwilling wife is ‘violative of the accepted state and public principle and policy’.45 The Court profered an argument of ‘social development’ to highlight the need for progressive judicial decisions, and based its decision on the equality clause of the Constitution.46 The decision was

39 See Psymhe Wadud, ‘An Aspect of Freedom of Religion’, The Daily Star (Dhaka, 15 May 2018). 40 ibid. 41 See generally, Aharon Barak, Purposive Interpretation in Law (Princeton University Press 2005). 42 (2009) BLD (HCD) 415. See also Naripokkho v Bangladesh (2008) 10 SCOB (HCD) 140. 43 Vishakha v State of Rajasthan (1997) 6 SCC 241. 44 Nelly Zaman v Md. Giasuddin (1982) 34 DLR (HCD) 221. See also Khodeja Begum v Sadeq Sarker (1998) 18 BLD (HCD) 31. 45 Nelly Zaman, ibid 225, per SM Hussain J. 46 Ridwanul Hoque and M Morshed Mahmud Khan, ‘Judicial Activism and Islamic Family Law: A Socio-legal Evaluation’ (2007) 14(2) Islamic Law and Society 204, 218.

Locating women within ‘we, the people’ in the Constitution

201

significant since the Court there went beyond the cubbyhole of positivism and applied the principle of sex equality in private relations that tend to determine women’s public realities and lived experiences. Subsequently, however, in Hosna Jahan v Shahjahan (Shaju),47 the High Court Division changed its stance in favour of a 1985 law that explicitly recognised the restitution of conjugal rights as one of the jurisdictional matters of the family court.48 On appeal from Hosna Jahan, the Appellate Division observed that the conscious policy of the legislature ‘would prevail over the [Court’s] decision’ in Nelly Zaman.49 Thus, the groundbreaking Nelly Zaman decision was discarded by a positivist judicial decision.50 Again, in Syeeda Malkani v Bangladesh,51 the Court refused to invalidate section 5 of the Citizenship Act 1951, which at the time provided that a Bangladeshi mother married to a foreigner could not transmit citizenship to her children.52 In doing so, the Court turned a blind eye to the citizens’ right to enjoy equal legal protection and equality under articles 27 and 28 of the Constitution. The Court decided against sex equality and favoured, instead, the traditional gender norms in the private realm, implying that one parent (father) is preferable to the other (mother) for conferring citizenship (a right having multifaceted implications in public life). Categorisation of discrimination within the private realm

Two cases that can be considered in understanding the categorisation of discrimination against women within the private realm are Dr Shipra Chowdhury53 and Jamuna Knitting.54 In dealing with the question of parental detention in the former case,55 the Court observed that the parents have the right to advise their children in terms of making significant decisions in their life such as a

47 48 49 50

51

52

53 54 55

(1998) 18 BLD (HCD) 321. The Family Courts Ordinance 1985, section 5B. Hosna Jahan v Shahjahan (Shaju) (1999) 4 BLC (AD) 117. However, given that Nelly Zaman did not abolish the remedy of restitution of conjugal rights but rather held that the remedy could not be enforced against an unwilling wife, Hosna Jahan has not arguably overruled that part of the ratio decidendi of the decision. See Hoque and Khan (n 46) 233–234. Writ Petition No. 3192 of 1997 (judgment of 1 September 1997). See Ridwanul Hoque, Report on Citizenship Law: Bangladesh (2016) EUDO Citizenship Observatory 7. Available at: . In 2009, section 5 of the Citizenship Act 1951 was amended via the Citizenship (Amendment) Act 2009 (Act XVII of 2009), section 2 (with efect from 31 December 2008), to enable the Bangladeshi mother to transmit to her children citizenship by descent. Dr Shipra Chaudhury v Bangladesh (2009) 29 BLD (HCD) 183. Jamuna Knitting and Dyeing Ltd v Messers Yunusco K. Textile Ltd, Civil Petition Nos. 4–5 of 2009 (decision of 30 November 2016). The petitioner, a Bangladeshi woman, had moved to the United Kingdom after completing her education. While visiting her family in Bangladesh, she was allegedly detained by her

202

Psymhe Wadud

decision about marriage, but they must not treat their children as their slaves. The petitioner’s liberty enshrined in the Constitution shall mean and include her right to make marital decisions free of coercion, violence, and discrimination, the Court added. In the latter case, the Court grappled with the question of whether the constitutionality of a rule of religion-based personal law (unconnected with gender) can be challenged. In this regard, it made an interesting observation in obiter. The Court observed that ‘under Muslim personal law, a woman can inherit her father’s property, however, a Hindu woman, under shastrik (classical) Hindu law, cannot. This is a rule of personal law and cannot be held to be discriminatory’.56 A comparison between Shipra Chowdhury and Jamuna Knitting lends credence to a made-up categorisation of discrimination within the private realm: while forced marriage is malignant, unequal inheritance laws are benign and, hence, tolerable. Overall, the ideological leaning of the judiciary towards positivism or positive law-making makes it important to probe where the legislature stands. Women in the ‘political’: legislature in context Under-representation of women in politics is a reality across jurisdictions to varying degrees. Two commentators identified interacting causal factors, ‘supply’ and ‘demand’, which result in women’s under-representation.57 The supply-side factors include women’s lack of interest or willingness to partake in politics.58 The demand-side factors are related mainly to the political parties, where such parties discriminate against women through the process of nominations for elections.59 In the context of Bangladesh, the supply-side factors can barely be ignored, which are, by and large, underpinned by numerous challenges marring women’s lives, including women’s responsibilities for family and children, the conservative religious and cultural climate in society, and discriminatory socioeconomic conditions, among others. Besides, some strong demand-side factors contribute to the further marginalisation of women in politics. For instance, the lack of gender-conscious political will of successive governments in Bangladesh since independence can be underscored as an important factor contributing to the under-representation of women in politics at large.

56 57 58 59

parents, forcibly injected with anti-psychotic drugs and mood stabilisers and forced to marry a man of their choice. Jamuna Knitting (n 54) para 40. Pippa Norris and Joni Lovenduski, Political Recruitment: Gender, Race and Class in the British Parliament (Cambridge University Press 1995). ibid. ibid.

Locating women within ‘we, the people’ in the Constitution

203

The politics of reservation in Bangladesh: a tool not ‘for’ women

Women’s battle for political representation is an old one, not peculiar to an independent Bangladesh. Sufrage came to the women of British Bengal through provincial legislative eforts only in the 1920s.60 The Government of India Act 1935 enfranchised women under British rule and made provisions for reserved seats for women in the Council of State and Federal Assembly.61 Upon partition, India and Pakistan chose diferent paths about retaining reservations (quotas) for women in the legislature; while Pakistan carried the British legacy forward, India did not. Pakistani governments, both civilian and military, established provisions of reserved seats for women in the parliaments in 1956,62 1962,63 and 1970.64 However, the proportion of reserved seats for women hung between 3 and 4 percent, no greater than what was envisaged by the Government of India Act 1935.65 The 1972 Bangladesh Constitution did not do anything diferent either. The approach to gender for an independent Bangladesh was coincidentally in perfect alignment with that of its predecessor, Pakistan’s Constitution.66 In the original Constitution, fifteen seats (4.8 percent of the total 300 seats) were reserved for women for ten years. Characterised by indirect election, the scheme of reservation,67 as a British-Pakistani legacy, turned out

60 Barbara Southard, ‘Colonial Politics and Women’s Rights: Woman Sufrage Campaigns in Bengal, British India in the 1920s’ (1993) 27 Modern Asian Studies 397. 61 Six seats were reserved for women in the Council of State, one each to be selected by the provincial legislatures of Madras, Bengal, Bombay, the United Provinces, Punjab, and Bihar. Nine seats were reserved for women in the Federal Assembly – two from Madras, two from Bombay, one from Bengal, one from the United Provinces, one from Punjab, and one from the Central Provinces – and were to be chosen by an electoral college consisting of the female members of each respective provincial legislature. These numbers remained extremely small, amounting to less than 4 percent of both chambers. See Nabeela Afzal, Women and Parliament in Pakistan, 1947–1977 (Pakistan Study Centre 1999), cited in Mona Lena Krook, Quotas for Women in Politics: Gender and Candidate Selection Worldwide (Oxford University Press 2009) 59. 62 Article 44(2) of the 1956 Constitution provided for ten reserved seats (five from West Pakistan and five from East Pakistan) for women in the National Assembly. 63 Article 20(2) of the 1962 Constitution provided for six reserved seats (three from West Pakistan and East Pakistan each) for women in the National Assembly. 64 Legal Framework Order 1970 reserved thirteen reserved seats for women (seven from East Pakistan, six from West Pakistan). 65 Krook (n 61) 76. 66 See Wadud (n 15). 67 In several respects, women MPs from reserved seats are treated less than equally compared to MPs in the general seats, and significant political disparities exist in the distribution of responsibilities. Thus, by failing to provide equal status to those women with the rest of the members (including women members) from the general seats, the afrmative measure not only upholds unequal power-based patriarchal ideologies but also distinctly reinforces women’s subordination and degradation in politics. Indeed, by the reserved seats women have been silenced and devalued rather than encouraged to exploit the benefit of the system for their self-advancement. See Najma Chowdhury, ‘Women in Politics’ (1994) 1 Empowerment:

204

Psymhe Wadud

to evolve as but one manifestation of the lack of gender consciousness permeating the psyche of diferent political parties. In the context of Bangladesh, the representation of women in the parliament has, by and large, been quite disappointingly low but for the reserved seats and their continuous increase.68 It is worth mentioning that the postindependence ruling party, the Awami League, did not nominate any woman candidate in the country’s first general election in 1973.69 As Halder perceptively puts it, ‘the party that publicised democratic ideals, considered reserved seats as the only way of ensuring women’s political representation’.70 In 1975, the government’s powers were usurped through unconstitutional means. The successive military rulers appeared quite condescending and established specific ofces responsible for mainstreaming gender in development. These initiatives followed the declaration of 1975 as the International Year of Women and the UN Decade of Women (1976–1985).71 In 1978, the then military government increased the proportion of women’s reserved seats in parliament from fifteen to thirty. Interestingly, it is argued that all these happened because the unconstitutional military regime wanted to increase the volume of donor assistance by picking up one of the donors’ favorite themes, ‘Women in Development’.72 The provision for the reservation of parliamentary seats for women lapsed in 1987, and there were no reserved seats for women in the parliament until 1991. In 1990, a constitutional amendment brought about by a democratically elected government restored the thirty reserved seats, albeit retaining

68

69 70 71 72

A Journal of Women for Women 41; Farah Deeba Chowdhury, ‘Women and Election: Issues in Bangladesh’ (2000) 8 Rajshahi University Studies 121; Afroza Begum, ‘Politics in Bangladesh: Need for a Reconceptualization of the Politico-Legal Approach to Mitigate Women’s Disadvantaged Positions in the Parliament’ (2000) 44 J of Asian and African Studies 171, 181. In the first parliament of 1973, the number of reserved seats for women was fifteen, while there were no directly elected women. In the second and third parliaments (of 1979 and 1986), the number was thirty for each, while the number of directly elected women was only two for each parliament. In the fourth parliament, while there were only four directly elected women, there were no reserved seats for women. In the fifth parliament of 1991, the number of women directly elected was four and the number of reserved seats for women was thirty. In the sixth and seventh parliaments (both of 1996), while the number of reserved seats remained at thirty, the number of directly elected women was respectively three and eight. In the eighth parliament of 2001, there were no reserved seats for women and the number of directly elected women was six. In the ninth and tenth parliaments (of 2008 and 2014) the number of women in the reserved seats was forty-five and fifty respectively and the number of directly elected women was only nineteen for each. In the eleventh parliament of 2018, while the number of women in the reserved seats was increased to fifty, directly elected women are only twenty-two. Nomita Halder, ‘Female Representation in Parliament: A Case Study from Bangladesh’ (2004) 6 New Zealand Journal of Asian Studies 27, 53. id. id. Rounaq Jahan, The Elusive Agenda: Mainstreaming Women in Development (Zed Books 1995) 42 (cited in Halder (n 69) 53).

Locating women within ‘we, the people’ in the Constitution

205

the same old scheme of indirect election.73 It was expected of the government at the time of the nation’s democratic transition that they would formulate a long-term plan to promote the status of women through systemic measures and not just by reserving some seats for them in parliament.74 However, nothing along that line happened. The indirect election to the reserved seats by simple majority votes of directly elected members of parliament historically ensured control of these seats by the party obtaining a numerical majority in the legislature.75 This mechanism encouraged excessive political dependence of the aspiring candidates upon party leadership.76 Thus, the ruling party had the power to manipulate its strength in the parliament by making women members from reserved seats loyal to the party for their nominations.77 As a lucrative ‘vote bank’, the provision of reserved seats for women through indirect election has been maintained by successive ruling parties or coalitions, with no intention of uplifting the status of women in politics or national governance. This system, for example, arguably helped the Bangladesh Nationalist Party (BNP) in 1991 and the Awami League (AL) in 1996 to form singleparty governments.78 The provisions reserving thirty seats for women lapsed again in 2000, requiring another round of constitutional amendment for its continuance. By that time, several women’s organisations and other civil society organisations hosted several seminars and workshops to press their demand for legal reform concerning women’s seats in parliament. They specifically demanded a direct election in those reserved seats, among others. However, disregarding all these demands, the ruling party, AL, introduced a Constitution Amendment Bill in June 2000 proposing the continuation of thirty reserved seats for women for another ten years. Amid political fiasco and the boycotting of parliament by the then opposition, BNP, the Bill, however, did not pass the House.79 Following the 2001 elections, the BNP came to power. As the party (BNP) had won more than two-thirds of the seats in parliament and formed a coalition government with a fundamentalist party, Jamaat-e-Islami Bangladesh, it supposedly did not need any support from the ‘vote bank’ of women.80

73 The Constitution (Tenth Amendment) Act 1990. 74 Galina Negrustueva, ‘Women in Structures of Political Power’ in Bharati Ray (ed), Women in Politics: France, India and Russia (KP Bagchi & Company 2000) 131, 133. 75 The House of the Nation (Reserved Seats for Women) Act 2004 (Act No. 30 of 2004). 76 Chowdhury (n 67) 41. 77 ibid. 78 Nizam Ahmed, ‘In Search of Institutionalisation: Parliament in Bangladesh’ (1998) 4 J of Legislative Studies 34; IDEA, State of Democracy (International Institute for Democracy and Electoral Assistance 2001) (cited in Haldar (n 69) 53). 79 Halder (n 69) 55. 80 ibid.

206

Psymhe Wadud

Perhaps because of that background scenario, there were initially no seats reserved for women in the eighth parliament. Finally, the scheme of reservation was reinstated in 2004, and the number of seats was increased from thirty to forty-five for another ten years, through the Constitution (Fourteenth Amendment) Act 2004. The 14th Amendment entitled all political parties to have all forty-five reserved seats allocated to them proportionately.81 In 2011, the seats were further increased to fifty.82 In 2018, by the 17th Amendment, the tenure of the scheme of fifty reserved seats for women was extended to the next twenty-five years.83 Women’s under-representation and democracy: are some citizens more equal than others?

After all these years and despite women in top political positions, the mode of nomination for reserved seats and the nature of the representation remains unchanged, signaling that women’s legislative empowerment still is a secondary concern.84 Representative democracy requires the electorate to be connected to those elected85 so that the power which derives from the people is the same power that the government exercises. One method of achieving that connection is by ensuring the equal participation of all citizens.86 Ideally, a democracy is supposed to treat all its citizens equally and place vulnerable groups and minorities at its centre, and not at the margins.87 Inclusivity and representation are key criteria of democracy and, therefore, it is imperative that minorities, whether defined by gender, ethnicity, region, socioeconomic status, or education, have a voice in the decision-making process.88 Therefore, it might be expected that women, as a difused minority, would be more represented in countries with entrenched democratic processes.89

81 The Amendment provided for proportional representation (implying allocation of the reserved seats in proportion to the votes secured by each political party) through a single transferable vote. See the Jatiya Sangsad (Reserved Seats for Women) Election Act 2004, schedule 1. 82 The Constitution (Fifteenth Amendment) Act 2011. 83 The Constitution (Seventeenth Amendment) Act 2018. 84 Begum (n 67) 180. 85 AV Dicey, An Introduction to the Law of the Constitution (MacMillan Press 1960, reprint 1970) 84. 86 Deborah Cass and Kim Rubenstein, ‘Representation/s of Women in the Australian Constitutional System’ in Kim Rubenstein (ed), Traversing the Divide Book Subtitle: Honouring Deborah Cass’s Contributions to Public and International Law (ANU Press 2021) 195. 87 Alexandra Dobrowolsky and Vivien Hart (eds), Women Making Constitutions: New Politics and Comparative Perspectives (Palgrave Macmillan 2003) 186. See also, Tracy-Ann JohnsonMyers, The Mixed Member Proportional System: Providing Greater Representation for Women? A Case Study of the New Zealand Experience (Springer 2017). 88 Pippa Norris, ‘The Impact of Electoral Reform on Women’s Political Representation’ (2006) 41 Acta Politica 197 (cited in Johnson-Myers (n 87)). 89 Melanie M Hughes and Pamela Paxton, ‘The Political Representation of Women over Time’ in Susan Franceschet, Mona Lena Krook and Netina Tan (eds), The Palgrave Handbook of Women’s Political Right (Palgrave Macmillan 2019) 44.

Locating women within ‘we, the people’ in the Constitution

207

Bangladesh’s Constitution provides for representative democracy as one of its four foundational core norms.90 However, as seen previously, there continues to be an under-representation of women in the legislature, which means that no challenge is made to the status quo of the imbalance in men’s representation.91 The imbalance appears normal and is arguably considered inevitable by the body politic and the political parties. Thus, what we see in Bangladesh is the paradox of representative democracy, in which men and women are formally represented, but the social power and the politics render some citizens (‘the men’) more equal than others (‘the women’).92 Conclusion Constitutions are not only about crafting political rules, rights, and institutions93 but are also about encapsulating a country’s highest ideals.94 They are intended to stand above everyday politics, authorising the rules of the game and legitimating the processes and outcomes of governments.95 The lack of gender sensitivity in constitutional text and interpretation, therefore, can militate against the high ideals that a constitutional scheme should ideally carry. While the constitution-making process cannot be revisited and changed in retrospect, the present and future interpretations can surely be made more gender-conscious. The legislature and the judiciary can remedy the original deficiencies by, for example, making gender-sensitive laws, accommodating women in decision-making processes, and adopting a gender-transformative legal as well as constitutional interpretation. For the judiciary, the first step towards achieving a substantive-equality jurisprudence is to recognise that value-neutral positivist approaches are not the answer.96 The subordination of women is so deeply embedded in the societal psyche that only a categorical critique of sexist practices and patterns, going beyond the positivistic legal interpretations, can provide an impetus for change.97 It is significant for the judiciary to break through the public-private dichotomy and advance a gender-conscious jurisprudence based on sex equality across the spheres. For

90 See the Constitution, preamble and art. 11. See also Abdul Mannan Khan v Bangladesh (2012) 64 DLR (AD) 1. 91 Cass and Rubenstein (n 86) 198. 92 Iris Marion Young, ‘Polity and Group Diference: A Critique of the Ideal of Universal Citizenship’ (1989) 99 Ethics 250 (cited in Margaret Thornton, ‘Embodying the Citizen’ in Margaret Thornton (ed), Fragile Frontiers: Feminist Debates around Public and Private (Oxford University Press 1995) 259). 93 Dobrowolsky and Hart (n 87) 2. 94 id. 95 id. 96 Ann E Freedman, ‘Sex Equality, Sex Diference, and Supreme Court’ (1983) 92 Yale Law Journal 913, 962. 97 ibid 965.

208

Psymhe Wadud

the legislature, making protective and ameliorative laws for women based on the constitutional principle of equality is imperative. With regard to women’s participation in politics, it is significant to emphasise intra-party democracy. If a party is not inclusive, it cannot be expected to nurture the values of inclusivity in governance and politics.98 The law should obligate political parties to nominate women candidates for elections and foster women’s participation in politics more generally.99 Lastly, no constitution by itself can alter the attitudes of diferent actors towards gender equality. At times, informal and unwritten rules and practices underpin legislative and judicial behaviours. For women to be counted as constitutional subjects (that is, within ‘we, the people’), all unwritten rules or practices that relegate the women’s position to subordination should (or ought to be) be discarded.

98 Rounaq Jahan, Political Parties in Bangladesh: Challenges of Democratization (Prothoma Prokashan 2015) 3. 99 Some urge for a women quota of 30–35 percent as a requirement for all political parties. See Begum (n 67) 190.

13 Justice as fairness and the Constitution of Bangladesh Tashmia Sabera and Naveed Mustahid Rahman

Introduction Socialism is one of the four founding principles of the Constitution of Bangladesh, enshrining the nation’s goal of attaining a ‘just and egalitarian society through the democratic process’. To understand what the Constitution means by ‘socialism’, we must begin by exploring its provisions relating to the distribution of resources, consisting of both property and opportunities. The qualified nature of the constitutional right to property in Bangladesh can be viewed as providing an avenue for state-imposed redistribution of property.1 However, as the state lacks any ofcial policy for a robust redistribution of property, it can be argued that its philosophy of social justice is not consonant with a Marxist or a similar conceptualisation of socialism. Even though socialism and related terms like ‘exploitation’ and ‘means of production’ may have found their way to the Constitution because of the influence of Marxist theories at the time of its adoption, it can be demonstrated that the framers were not committed to realising a Marxist redistribution of ownership.2 In this chapter, we argue that the form of equality or socialism envisioned by the Constitution is more consistent with John Rawls’ theory of justice. There is widespread agreement among political philosophers that John Rawls has been one of the most influential political thinkers of the last century, and his political theory has perhaps influenced contemporary liberalism more than any other theory.3 This theory, which Rawls calls ‘justice as fairness’, can be briefly discussed here. From a hypothetical original position, two principles of justice emerge according to Rawls. The first principle provides that every-

1 Article 42 of the Constitution of Bangladesh (hereafter ‘the Constitution’). 2 In his Constituent Assembly deliberations on the Constitution Bill on 10 April 1972, Sheikh Mujibur Rahman, the then prime minister, expressed his vision of a form of socialism that would be appropriate for the sociopolitical climate of Bangladesh as opposed to following any borrowed concept of socialism from foreign sources. See also Sumanta Banerji, ‘Bangladesh’s Marxist-Leninists – II’ (1982) 17(33) Economic and Political Weekly 1311. 3 Martha C Nussbaum, ‘Conversing with Tradition: John Rawls and the History of Ethics’ (1999) 109(2) Ethics 424. DOI: 10.4324/9781003276814-17

210

Tashmia Sabera and Naveed Mustahid Rahman

one beyond the veil of ignorance would share a fundamental interest in the protection of the fundamental freedoms or liberties (civil and political rights) of all. The second principle has two parts – first, fair equality of opportunity has to be ensured for all ofces and positions, and second, all financial policies and the basic structure of the state should work to benefit the least advantaged individuals or groups within the society. The latter is known as the ‘diference principle’ and is the crucial part of Rawls’ theory dealing with socioeconomic issues. The original position is a thought experiment in which everyone is placed behind a ‘veil of ignorance’ where they are unaware of their features like race, ethnicity, religion, gender, etc. but retain the capacities to reason and to plan for a good life. As no one can be sure that they would not end up in the least advantaged section of society owing to race, gender, etc. in the original position, they would all opt to maximise the benefits provided to these worstof groups by the basic structure or apparatus of the society. This theory is, hence, firmly situated within the social contractarian tradition, the same tradition of political philosophy to which constitutionalism also owes its origins. The compatibility of Bangladesh’s constitutional understanding of socialism with Rawlsian egalitarianism can be established if at least two requirements are met. The first condition is that the Constitution protects the fair equality of opportunity, limits rights to property, maximises benefits to all citizens, promotes progressive taxation, and provides a system of governance that is in terms with the framework of the theory. Second condition is that, the constitutional approach towards economic and social rights should be consistent with the Rawlsian approach. In this chapter we examine to what extent the Constitution of Bangladesh (hereafter ‘the Constitution’) is consonant with these criteria. We begin by discussing the definition of socialism and other key terms as adopted in the Constitution in the second section of the chapter. Following that, we argue that the non-justiciability of the economic and social rights found in the design of the Constitution is consistent with the requirements of Rawls’ theoretical framework, which does not require the realisation of basic necessities through judicial mechanisms. However, as a real commitment towards providing the material needs of the people protected by these rights are absent in the state practice of Bangladesh, we urge meaningful legislative and administrative actions on this front of economic and social rights, which would complement the Rawlsian framework of justice and also deliver on the fundamental constitutional goal of socialism. In the next section, we analyse the relevant constitutional provisions to show that the Constitution adopts Rawlsian fair equality of opportunity. We also discuss the diference principle in this section and demonstrate that although this principle is well incorporated in the Constitution, it has never been applied by other laws for benefiting the least advantaged groups of society. We explore the nature of the right to property in the constitutional framework and argue how limited property rights are compatible with the Rawlsian framework in the fifth section. Next, we argue that the absence of a redistributive mechanism in the Constitution and the presence of progressive

Justice as fairness and the Constitution of Bangladesh

211

taxation in legislation as well as constitutional jurisprudence provide scope for attaining Rawlsian egalitarianism. However, how far such legislative measures are adequately creating such a framework remains an open question, and we believe there is still ample room for the development of a progressive taxation system in Bangladesh. Finally, we compare the coexistence of socialism with democracy in the Constitution with the Rawlsian idea of justice. We claim that for the prioritisation of liberty in Rawls’ theory, this democratic socialism is the most suitable system of governance. Socialism as defined in the Constitution The framers of the Bangladeshi Constitution envisioned a version of socialism without major changes to the basic structure of the state inherited from British India, via Pakistan, to ‘progressively’ realise a more equal or socially just society. In other words, they put their faith in existing market institutions and processes, wishing by adhering to liberal principles and democratic practices, to attain the goal of an equal and just society. Political liberalism, which emphasises freedom, or civil and political rights, can thus be argued to be the guiding philosophy of the Constitution. Regarding the intention of the framers of the Constitution concerning the valence and status of socialism and distributive justice, recourse should be taken in the first place to the debates in the Constituent Assembly, where the issue of socialism was debated at some length. Sheikh Mujibur Rahman, the leader of the house, in his closing speech to the Assembly spoke about diferent versions of socialism chosen by diferent countries, mentioning the diverging paths undertaken by the former Union of Soviet Socialist Republics (USSR), the People’s Republic of China, and erstwhile Yugoslavia, and he emphasised the importance of a strong democracy and democratic institutions for gradual realisation of socialism in Bangladesh.4 We also know of his preference for ‘socialism’ from his observations on visiting Mao Tse Tung’s China, as discussed by Jahan.5 Mujib wrote about how the peasants in China were being emancipated and expressed his wish to emulate it for the peasants of his country. But Sheikh Mujib’s Awami League was not an out-and-out leftist party. On the whole, the Constituent Assembly was unevenly composed, with only one opposition member and a few independents elected in the provincial and national elections of 1970. These opposition and independent members mostly belonged to parties inclined to the left of the majority party Awami League. Opposition member Suranjit Sengupta pushed for more radical socialist provisions in the Constitution but had little

4 M Abdul Halim (ed), The Bangladesh Constituent Assembly Debate (Bangladesh Gonoporishod Bitorko) (CCB Foundation 2014) 962. 5 Rounaq Jahan, ‘Political Philosophy of Bangabandhu’, Dhaka Tribune (Dhaka, 10 June 2019).

212

Tashmia Sabera and Naveed Mustahid Rahman

traction in the Assembly dominated by the Awami League. The foundational history of the Constitution, thus, demonstrates that the framers intended socialism to mean the economic and social rights of the people being gradually implemented instead of radically redistributing ownership of property or nationalising the means of production. Article 8 and the preamble recognise socialism as one of the fundamental principles of the Constitution. The definition of socialism in article 10 provides three clarifications regarding its nature. First, it describes the end or aim of socialism as achieving an egalitarian society. Second, such an egalitarian society as conceptualised shall be ‘free from exploitation of man by man’. Third, as the preamble reinforces, the exploitation-free egalitarian society shall be realised through the democratic process. Although the term ‘exploitation’ has not been defined in the Constitution, article 14 provides that the state is duty-bound to emancipate the toiling mass, the peasants, workers, and backward sections of the people from all forms of exploitation. A literal or textual interpretation of the Constitution, thus, provides that the ultimate goal of socialism, which is a fundamental aim of the state, is to achieve egalitarianism, and the egalitarian society realised would be one free from exploitation of man by man. It can be reasonably assumed that the term ‘exploitation-free society’ is one inspired by Marxist ideas. Furthermore, the term ‘ownership of means of production’ in article 13 is inspired and influenced by Marxist literature. However, these terms are used only in a rhetorical sense and do not bear a commitment to the Marxist political ideology of state-controlled comprehensive redistribution of property, as can be understood from a plain reading of the property rights and regulations contained in the Constitution.6 Apart from providing private ownership of property along with state and cooperative ownership, the Constitution does not mandate redistribution of property to efect a radical transformation of class relations or the nature of the economic system based on capitalist market institutions in any significant way. Rawls does not engage with the concept of exploitation in his book, perhaps because the two principles of justice emanating from his original position would not permit the ‘exploitation of man by man’. The first and second principles would proscribe exploitation a priori, as it would severely violate the exploited individuals’ right to access the social bases of self-respect and victimise the underprivileged sections of the population. Exploitation fundamentally militates against equality and other liberal rights, and the diference principle would be meaningless if one class of individuals or the worst-of sections of the population were allowed to be exploited by the privileged classes. More generally, as the framers of the Constitution intended to protect the rights

6 Shahdeen Malik, ‘Liberation War and the History of Making and the Enactment of the Constitution of Bangladesh’ (in Bangla) in Ahmed Javed (ed), The Constitution of Bangladesh: Various Issues (in Bangla) (Anyaprokash 2020) 182.

Justice as fairness and the Constitution of Bangladesh

213

to property in a market economy, while gradually working towards the goal of realising the economic and social rights of all citizens through democratic processes instead of a dictatorship of the proletariat, their vision of socialism resembles political liberalism – and one largely consonant with Rawls’ egalitarian philosophy, because both principles of justice are consistent with the constitutional design in Bangladesh, as the following sections will show more clearly. Status of economic and social rights The distinction in the normative and legal status between civil and political rights and the economic and social rights found in the Constitution, with the former granted lexical and normative priority, is more consonant with Rawlsian liberalism and discordant with Marxist socialism. The diference principle mandates that ‘social and economic inequalities should be evaluated in terms of how well of they leave the worst of’.7 Rawls’ theory takes no position on whether the economic and social rights have to be made judicially enforceable or not, but it does mandate that the economic and social institutions of the state, which is part of its basic structure, are arranged in a way to benefit the worst-of group of the society. As making these rights judicially enforceable would require courts to take significant budgetary decisions, which are plausibly best left to the legislature, it can be argued that the current status of economic and social rights in the Bangladeshi constitutional design is more reflective of Rawlsian philosophy. However, Bangladesh has done little to implement social and economic rights of the least advantaged sections of the population, either through legislative measures or otherwise.8 A better constitutional approach could have been the adoption of a specific provision making it compulsory for the state to provide welfare benefits to citizens, especially those who are disadvantaged, through regular policy interventions. Socialism, as one of four fundamental principles of the state, could perhaps be used to fill this constitutional gap. The four fundamental principles of the state including socialism are elaborated in Part II of the Constitution, which also contains most economic and social rights found in the International Covenant on Economic, Social, and

7 Philippe Van Parijs, ‘Diference Principles’ in Samuel Freeman (ed.), Cambridge Companion to John Rawls (CUP Press 2003) 200. 8 Haque has argued that economic and social rights are not positively but negatively enforceable in the Constitution of Bangladesh, as no laws can be made that are inconsistent with these rights. However, he notes that the present constitutional trend favours judicial enforceability of these rights, as this chapter will also show. See Muhammad E Haque, ‘Justiciability of Economic, Social and Cultural Rights under International Human Rights Law’ (2021) 32(1) Dhaka U Law J 39, 54; ‘Legal and Constitutional Status of the Fundamental Principles of State Policy as Embodied in the Constitution of Bangladesh’ (2005) 16(1) Dhaka U Law J 45, 80.

214

Tashmia Sabera and Naveed Mustahid Rahman

Cultural Rights 1966. Although articles 10, 13, 14, and 19 discussed before are not judicially enforceable per article 8(2), because they are only state policy principles, a strong constitutional case can be made for the provision of much stronger material support to the least advantaged groups in society than is currently the case. The legal status of these unenforceable policy provisions in the Constitution has been examined by the Supreme Court. There is established jurisprudence that supports the creative use of these principles as an aid to the interpretation of enforceable constitutional rights. For example, in Ain O Shalish Kendra v Bangladesh,9 the Court was moved with a petition regarding the forced eviction of slum-dwellers. The Court held that the eviction without making alternative arrangements violated the slum-dwellers’ right to livelihood. The right to livelihood relied upon by the Court in Ain O Shalish Kendra did not exist per se in the Constitution. The Court, therefore, used the enforceable rights to life and equality to uphold the dignity of slum-dwellers.10 Most issues of distributive justice can draw on the same enforceable provisions of the right to life and formal equality. In the same vein, in Abdul Awal v Bangladesh,11 the High Court Division of the Supreme Court ruled that a tax surcharge for income over a threshold was not violative of equality principles, but rather was necessary to realise the goal of an egalitarian society enshrined in article 10. Notably, the Court made several allusions to socialism as a fundamental state principle, in this case, to arrive at its ruling. In the Constituent Assembly, the opposition member Suranjit Sengupta was a vocal proponent of justiciable economic and social rights. Rawls’ second principle provides that financial matters in society must be arranged in a way that maximises the benefits to the least privileged sections of society. It can be argued that judicial enforcement of economic and social rights could work towards this goal of maximising benefits to the least privileged groups, as Sengupta seemed to have believed. However, this goal can also be achieved without the economic and social rights being made judicially enforceable, through administrative processes, specific legislative interventions, and other more creative ways. From the speech of Tajuddin Ahmad, the deputy leader of the Constituent Assembly, it appears that that position was indeed what the framers had intended.12 Therefore, the concept of socialism adopted in Bangladesh’s Constitution and the overall constitutional design is largely consistent with Rawls’ theory. To be consistent with Rawls’ approach, we think it is not necessary that these rights have to be made judicially enforceable, if other avenues are made for their implementation on a priority basis, either by judicial or administrative processes.

9 10 11 12

(1999) 19 BLD (HCD) 488. The Constitution, arts. 32 and 27. (2017) 69 DLR (HCD) 533. Halim (n 4) 421.

Justice as fairness and the Constitution of Bangladesh

215

Fair equality of opportunity under the constitutional framework One way to establish the compatibility of the constitutional idea of socialism with Rawlsian egalitarianism is to show that the principle of fair equality of opportunity has been accommodated in the Constitution. The Constitution guarantees equality of opportunity in two ways. First, it promises the citizens equal opportunity in employment or services of the republic.13 This general recognition comes with a non-discrimination clause that prohibits discrimination based on arbitrary grounds such as religion, race, caste, sex, or place of birth.14 Despite the prohibition of discrimination, special provisions can be made in favour of the ‘backward sections’ of citizens for their adequate representation in the service of the republic. This principle of positive discrimination is a constitutionally recognised right and can, therefore, be enforced by the Court.15 The Court justified the special provision clause on the ground that equal treatment of the unequals can result in further inequality.16 Therefore, as the Court observed, afrmative action in favour of certain classes of people should be based on ‘reasonable classifications’. Whether a classification meets the standard of reasonableness depends on a two-tier test developed by the Supreme Court. First, the classification must be based on an intelligible diferentia and, second, the diferentia must have a rational connection to the objectives sought to be achieved by the statute in question. Although the wide-ranging quota system in the recruitment of public sector employees, which existed from 1972 to 2018,17 was grounded on the special provision clause, how far the classes of people availing the quotas met the intelligible diferentia and could be considered to be members of ‘backward-sections’ is debatable. In Zainal Abedin v Bangladesh,18 the Court found the quota for freedom fighters’ family members to be beyond the scope of article 29. Critiquing the decision as a ‘bookish’ (positivist) approach to the constitutional provision supporting afrmative actions, Chowdhury defended this quota provision based on the contribution of freedom fighters to the country’s independence.19 However, he failed to show any nexus between backward sections of citizens

13 14 15 16 17

The Constitution, art. 29 (1). ibid art. 29 (2). The Constitution, arts. 44 and 102. Sheikh Abdus Sabur v Returning Ofcer (1989) 41 DLR (AD) 30. After independence, Bangladesh adopted its first recruitment policy of government services in 1972 (the Interim Recruitment Policy, 1972) with an afrmative action scheme that provided quotas for backward districts, freedom fighters, and war-afected women. The afrmative action scheme continued in civil service employment in the form of quotas for freedom fighters, women, indigenous people, and people with disabilities pursuant to diferent executive orders and rules. The quota system was abolished by a government notification dated 4 October 2018. 18 (1982) 34 DLR (HCD) 77. 19 M Jashim Ali Chowdhury, An Introduction to the Constitutional Law of Bangladesh (3rd edn, Northern University Bangladesh 2017) 187.

216

Tashmia Sabera and Naveed Mustahid Rahman

and freedom fighters, and it can be argued that the Court’s approach of being ‘bookish’ does not constitute a valid criticism in itself. The other quotas in government services in favour of women, indigenous peoples, and persons with disabilities seem reasonable and they arguably meet the constitutional criterion of ‘backward sections’. However, such quotas have never been reasonably distributed or allocated to exclude the ‘creamy layer’ within these groups, a doctrine introduced by the Indian Supreme Court as a safeguard against the overuse of quota provisions.20 Apart from equal opportunity in public service appointments, the unenforceable article 19 of the Constitution guarantees equal opportunity for all citizens more generally. At the same time, the state has a duty under article 19(2) to take efective measures to remove inequality and promote the egalitarian goal as stated in the preamble of the Constitution. Thus, the constitutional framework of equal opportunity largely corresponds to Rawls’ idea of fair equality of opportunity. Rawlsian equality does not allow discrimination based on arbitrary grounds as he argues that no reasonable person would condone such arbitrariness behind the veil of ignorance, being unaware of their position in society. Rawls further proposed his diference principle to allow discrimination, only if it results in delivering benefits to the least advantaged class in society. From a plain reading, the terms ‘backward’ in the Constitution and ‘least-advantaged’ in Rawls’ idea may appear to have similar meanings. However, a deeper consideration would suggest that there is a crucial diference between the two. While the term ‘backward’ focuses only on the position of a class of people in society, the term ‘least advantaged’ acknowledges the connection between such position and external factors, social or natural, for which the person is not responsible. In other words, the Rawlsian diference principle protects people from arbitrary disadvantages as no one deserves to be disadvantaged, be it social or natural. The Rawlsian fair equality of opportunity can provide a consistent philosophical basis for the equal opportunity clauses of the Bangladeshi Constitution. However, the diference principle becomes more complicated at the application level when the groups of least-advantaged people are to be distinguished. To make Bangladesh’s afrmative action regime more harmonious with the Rawlsian philosophy, the term ‘backward section’ needs to be defined clearly and precisely. Moreover, such backward sections of people should not be based on an arbitrary classification of people. At the same time, it should cover the least advantaged sections of the concerned society, economically and otherwise. Abolition of the quota system, as efected in 2018, in the services of the republic does not help attain a Rawlsian framework of distributive justice. Rather, allowing diferent measures for the least advantaged groups in society can play a vital role in the successful application of the notion of fair equality of opportunities. Finally, the fair equality of opportunity should also be expanded

20 The doctrine of ‘creamy layer’ was applied by the Indian Supreme Court in Indra Sawhney v Union of India (1993) AIR SC 477.

Justice as fairness and the Constitution of Bangladesh

217

beyond the services of the republic to include all ofces and positions in the country to comply with Rawlsian egalitarianism more fully. Ownership, right to property, and equal liberty Rawlsian fairness neither prescribes the right to private property in an absolute sense nor supports the curtailment of such right to the extent that it disregards basic human liberty. Instead, Rawls promotes an idea of the property where it is used as a means to achieve the end of rationality and reasonableness, which are essential moral powers of a just society.21 Moreover, Rawls argues for the widespread dispersal of property in productive resources such as capital assets, manufactured means of production, and natural resources for the sake of attaining equality by realising the diference principle.22 Overall, a combination of private and collective ownership is necessary for incorporating the principles of a just society. The Constitution of Bangladesh takes a similarly moderate approach to ownership and the right to property. Article 13 recognises a wide range of manners of ownership of the instruments and means of production. Firstly, the Constitution establishes the principle of state ownership on behalf of the people, through the nationalisation of key sectors of the economy. Secondly, it recognises co-operative ownership. Thirdly, it recognises private ownership. Recognition of these diverse forms of ownership in a purportedly socialist constitution gave occasions for wide criticism. Billah attacked this loose constitutional approach to ownership on the ground that it fails to appreciate essential diferences in the concepts of ownership in socialist and democratic systems.23 In his view, a socialist system focuses on state-controlled means of production whereas democracy prefers private ownership. However, this simplistic binary can be disputed as there exist many diferent conceptualisations of both socialism and democracy. The Constitution does not conform to either category in this binary. The Constituent Assembly justified the Bangladeshi approach by referring to constitutions of other states including the People’s Republic of China.24 Therefore, instead of providing a form of ownership that collectivises all private property, the Constitution aims to bring together different forms of ownership. This corresponds to the first principle, which neither requires absolute state ownership to create an egalitarian society nor promotes a libertarian form of private ownership. Ownership of property, like other issues of distributive justice, can be curtailed so far as it aims at the advantage of the worst-of groups

21 John Rawls, Political Liberalism (Columbia University Press 2005). 22 Quentin P Taylor, ‘An Original Omission? Property in Rawls’s Political Thought’ (2004) 8(3) Independent Rev 100. 23 SM Masum Billah, The Politics of Land Law: Poverty and Land Legislation in Bangladesh (PhD Thesis, Victoria University of Wellington 2017). 24 Halim (n 4) 430.

218

Tashmia Sabera and Naveed Mustahid Rahman

in society. Apart from this, people generally will enjoy equal liberty and no discrimination will be made based on any arbitrary grounds. Article 42, read with article 27, can be interpreted as a recognition of the property rights of all citizens. However, in our view, the Constitution implicitly excludes women from their equal right to inherit property by confining the interpretive scope of the equality clause to state and public life.25 In this way, the discriminatory inheritance laws in the realm of private law continue to prevail under various personal law regimes, resulting in diferent treatment of women based on the arbitrary ground of sex.26 However, while the conventional interpretation confines the application of article 28 to state and public life, a more creative and liberal interpretation may be possible.27 In the same way, indigenous peoples have been excluded from their property rights as article 13 implicitly excludes the traditional concept of native land (common property) of indigenous peoples.28 Non-recognition of the traditional concept of land, in general, is seen as a violation of the right to the land of the indigenous peoples.29 The constitutional approach to land in Bangladesh has resulted in the deprivation of the collective land rights of indigenous people. Interestingly, both women and indigenous peoples are groups that are regarded as backward sections in society. The quota system of government services, though now abolished, recognised these two groups as deserving quotas in government services. If the Rawlsian diference principle is applied to these two situations, a diferential treatment should be allowed only to give advantage to the least advantaged groups in society. Therefore, the exclusion of women or indigenous peoples from their right to property goes against the spirit of Rawlsian justice as fairness. For a more consistent approach to social justice, the legal and constitutional interpretations should recognise the equal right to property of women and indigenous peoples, among others. Progressive taxation Redistribution of income and wealth is one of the most important issues for realising egalitarianism in society. Rawlsian diference principle encourages redistribution by way of progressive taxation as opposed to radical redistribution

25 Article 28(2) of the Constitution provides that ‘[w]omen shall have equal rights with men in all spheres of the State and of public life’. 26 See generally M Mahbubar Rahman and Willem van Schendel, ‘Gender and Inheritance of Land: Living Law in Bangladesh’ in Jan Breman, Peter Kloos and Ashwani Saith (eds), The Village in Asia Revisited (OUP 1997) 237. 27 Psymhe Wadud, ‘Women and a National Imagery’ in Mohammad Shahabuddin (ed), Bangladesh and International Law (Routledge 2020) 261. 28 Farhad Mazhar, Constitution and Democracy (in Bangla) (Aagami Prakashani 2007) 369. 29 Cindy Holder, ‘Indigenous Rights to Land’ in Deen K Chatterjee (ed), Encyclopedia of Global Justice (Springer 2011) 534.

Justice as fairness and the Constitution of Bangladesh

219

by abolishing the right to private property.30 The Constitution of Bangladesh does not contain any express policy of redistribution. However, it does not approve of abolishing private property for materialising socialism in the country. Rather, the domestic laws and the constitutional jurisprudence permit a progressive taxation scheme and entrench a right to private property, including the means of production. Although the Constitution adopted socialism as a fundamental principle, it abstained from providing a framework for the redistribution of property. Article 19 provides that one of the goals of the Constitution is the removal of social and economic inequality and to ensure equitable distribution of wealth among citizens. Whether equitable distribution means redistribution of property is again debatable. However, neither the Constituent Assembly nor the Court has attempted to interpret the term ‘equitable distribution’. On the other hand, article 13 of the Constitution approves private ownership of property, which can be restricted under article 42, which provides scope for acquisition, nationalisation, and requisition of property by authority of law. Despite this scope, some members of the Constituent Assembly argued that private property is inconsistent with socialism and, therefore, should be removed. In response, Syed Nazrul Islam referred to the constitutions of the USSR and Yugoslavia which, despite being socialist, did not abolish private property.31 However, he assured that the limit to owning property by private individuals will be determined by parliament from time to time. Suranjit Sengupta objected to leaving the matter to parliament instead of setting limits at the time of making the Constitution. Citing the USSR example, he advocated for providing a ceiling of private ownership of immovable property.32 However, the Assembly did not accept such a proposal and left the matter to be decided by ordinary law.33 To substantiate the plausibility of the coexistence of private property and socialism, Prof Abu Sayeed referred to the erstwhile constitutions of Czechoslovakia and the German Democratic Republic.34 Dr Kamal Hossain, the chairman of the Constitution Drafting Committee, also defended the form of socialism incorporated in the draft Constitution by contrasting it with China.35 Unlike China, Bangladesh’s Constitution does not recognise capitalist ownership. Moreover, like other socialist systems, Bangladesh has the power to take away property upon the payment of compensation, the adequacy of which was, however, made unassailable in courts. Article 42 provided that the amount of compensation provided by that state for the acquisition and requisition of

John Rawls, A Theory of Justice (Harvard University Press 1999) 246. Halim (n 4) 106. ibid 499. Currently, a person can hold up to sixty bighas of land for personal use with scope for holding additional land in exceptional situations. See the Land Reforms Ordinance 1984, section 4. 34 Halim (n 4) 134. 35 ibid 499. 30 31 32 33

220

Tashmia Sabera and Naveed Mustahid Rahman

private property cannot be questioned in any court. However, the Assembly did not touch on the question of redistribution of property. However, one of the major obstacles to utilising the restriction of the right to property in the Bangladeshi Constitution in favour of creating an egalitarian society is its silence on the purpose of acquisition or requisition. Whether the acquisition and requisition of land should be done for a public purpose or not is unclear as article 42 does not establish any necessary connection between land acquisition or requisition and the end of public purpose.36 Along the same line, the doctrine of public purpose was not acknowledged by the constitutional jurisprudence to reflect land reform.37 Although the Constitution does not promote redistribution of property expressly or impliedly, it makes way for progressive taxation. In Abdul Awal, the Supreme Court interpreted the Constitution for justifying taxation measures by way of imposition of surcharges.38 In this case, the issue of imposition of surcharge was challenged. The plaintif questioned the validity of section 61 of the Finance Act 2011 on the ground that it violated the equality clause of the Constitution. It also challenged the validity of providing exemption to rich companies against the imposition of additional taxes by way of surcharge. The Court held that the imposition of additional taxes by way of surcharge, in general, is compatible with the constitutional framework that envisages an egalitarian society. The imposition of a surcharge on individuals whose net worth is more than 20 million takas is, therefore, constitutionally valid. On the other hand, why the rich companies are excluded from the mechanism is a matter of government policy on which the Court does not have jurisdiction. In sum, the constitutional framework allows the curtailment of private property rights but does not aim at the redistribution of property. On the other hand, a form of progressive taxation is found in the jurisprudence developed under the Constitution. Rawls’ philosophy, in the same way, does not advocate for redistribution of property to attain egalitarianism but prefers the imposition of progressive taxation for materialising the diference principle. In this way, the constitutional framework of Bangladesh falls more in line with the Rawlsian understanding of distributive justice, although in a limited way. Democratic socialism and Rawlsian fairness As stated in the introduction, the compatibility between the constitutional understanding of socialism and Rawlsian fairness depends not only on the provisions relating to equal distribution but also on its deep connection to

36 Mahmudul Islam, The Constitutional Law of Bangladesh (3rd edn, Mullick Brothers 2012) 378. 37 Billah (n 22). 38 (2017) 69 DLR (HCD) 533.

Justice as fairness and the Constitution of Bangladesh

221

the governance system prescribed by the Constitution. The Constitution commits to both democracy and socialism, listing them among its four fundamental principles. Whether or not a constitution should provide guiding philosophical principles for the governance or economic system of the state has been debated within academia and beyond.39 The Constitution Drafting Committee picked a side in this debate by providing the four fundamental principles as the guiding philosophy of the Constitution. Unsurprisingly, whether these principles deserve to be in the Constitution has subsequently generated criticism. For instance, Abul Mansur Ahmad criticised the inclusion of socialism as a fundamental principle in the Constitution as he believed it should rather be a principle of governance than a state policy.40 In his view, securing proper democracy in the Constitution would be sufcient to generate governance policies, which can include policies on redistribution. Moreover, he points out the dilemma political leaders of his time faced regarding the mutual exclusiveness of socialism and democracy. He describes how some leaders expressed their preference for democracy over socialism and vice versa. Most members of the Constituent Assembly agreed with the inclusion of both socialism and democracy in the Constitution as fundamental state principles. However, it can be noted here that the composition of the Constituent Assembly heavily favoured the ruling party the Bangladesh Awami League. Syed Nazrul Islam, a member of the Assembly, spoke of the long history of the socialist agenda in the programme of the Awami League as a reason for the inclusion of these two distinct principles together.41 He viewed democracy and socialism as compatible ideas and believed the Indian experience could be taken as a guiding example for the chosen approach. The coexistence of democracy and socialism was identified as the most significant feature of the Constitution by M Monsur Ali, another prominent leader of the Awami League.42 However, to mitigate the apparent inconsistency between the two principles, Syed Amjad Hussain in the Assembly suggested that the democracy in Bangladesh should be interpreted as a democracy of the exploited people.43 He expressed his faith in the ultimate success of the combination of socialism and democracy in Bangladesh because the representatives have positively established other unprecedented examples during and after the liberation war. The sole voice against combining socialism and democracy was that of Suranjit Sengupta. In his view, the relevant provisions for socialism do not represent socialism in a real sense. Moreover, the absence of guarantees for ‘true’ freedom of

39 KC Wheare, ‘What a Constitution Should Contain’ in Modern Constitutions (OUP 1975) 32. 40 Abul Mansur Ahmad, Fifty Years of Politics as I Saw It (in Bangla) (Khoshroj Kitab Mahal 1969) 619. 41 Halim (n 4) 99. 42 ibid 128. 43 ibid 138.

222

Tashmia Sabera and Naveed Mustahid Rahman

expression would not let democracy flourish either. Hence, according to him, the Constitution failed to establish either democracy or socialism.44 If there can be doubts regarding the compatibility of a democratic system with Marxist ideas, Rawls’ theory is built upon democratic consent and its compatibility with principles of distributive justice. Certainly, democracy, if understood in an absolute majoritarian sense, can work against provisions that protect the socioeconomic rights of democratic minorities, but constitutionalism itself is inimical to such absolute majoritarianism. The Constitution provides limits to the absolute nature of property rights to advance the causes of socioeconomic equality for people. Thus, the constitutional scheme of socioeconomic justice is aligned with Rawls’ justice as fairness. Moreover, the coexistence of democracy and socialism, as manifested in the Constitution, is suitable with the Rawlsian idea of property-owning democracy, where a certain arrangement of property fosters democracy.45 Conclusions The fifty-year constitutional journey of Bangladesh suggests that the terms used in the original Constitution such as socialism, egalitarianism, and exploitationfree society are, in efect, a constitutional rhetoric. Although these terms were drawn from Marxist theory, they were not intended to bind the state into a strict Marxist socio-politico-economic system. The actual vision of distributive justice is more consonant with Rawls’ theory of justice as fairness. In this chapter, we substantiated this claim by analysing the Constituent Assembly debates as well as the relevant constitutional provisions. We have elaborately scrutinised socialism as conceptualised and defined in the Constitution and found no real connection between it and any Marxist ideas of socialism. The non-justiciability of economic and social rights per se does not disturb the Rawlsian theory of justice. However, provisions for securing the primary goods for the least advantaged groups in society should have been incorporated by the legislature to attain egalitarianism. We have also shown that the Constitution largely incorporates the concept of fair equality of opportunity, recognises a qualified concept of the right to property, and accommodates progressive taxation. All these analyses if taken together indicate a commitment towards a Rawlsian vision of justice. Furthermore, the Constitution expressly mandates a combination of democracy and socialism, which is compatible with Rawls’ theory too. However, a comprehensive adoption and application of such principles within the formal legal framework of Bangladesh is still a task to be completed. The Court can and is encouraged to take recourse to them to construct constitutional arguments in support of distributive justice.

44 ibid 229. 45 Tilo Wesche, ‘The Concept of Property in Rawls’s Property-Owning Democracy’ (2013) 35(1) Analyse and Kritik 99.

Justice as fairness and the Constitution of Bangladesh

223

We conclude that there is a room for a more robust juridical reading of the social-welfare system in Bangladesh than the one that exists in the text of the Constitution. The provisions found in the preamble and Part II on fundamental principles of state policy regarding socialism, exploitation, and the creation of an egalitarian society can be used to enforce a much stronger distribution of resources. The interpretive scope for a more creative use of fundamental state principles already exists in Bangladesh’s constitutional jurisprudence. If the argument that the distributive justice envisioned by the framers is consistent with Rawls’ theory of justice, which is the core argument of this chapter, it would automatically be incumbent upon the Court to provide much stronger protection of socioeconomic rights to benefit the least advantaged people in society.

14 Constitutionalism interrupted or constitutionalism absent? The divergence of Constitution and politics in Bangladesh Ali Riaz Introduction Bangladesh adopted the Constitution on 4 November 1972, less than a year after the country emerged as an independent nation through a bloody war of nine months. The Constitution came into efect on 16 December 1972. This was a remarkable achievement considering that a constituent assembly took less than a year to frame the Constitution. This was particularly important taking into account the experience of Pakistan of which the country was a part until it proclaimed independence on 26 March 1971. Pakistan took more than nine years to frame its first constitution after it was established in 1947. The backdrop of the framing of the Bangladeshi Constitution notwithstanding, the text laid out the state principles and adopted a Westminster-style parliamentary system. A unicameral parliament was placed at the helm of the system of governance. While the Constitution had some limitations such as the parliament’s ability to impose reasonable restrictions on some fundamental rights, two points are worth mentioning: first, overall, it reflected the aspirations of the people of Bangladesh who fought for a democratic system of governance within Pakistan; second, it promised to make the Constitution the supreme instrument in protecting the rights of the people. Ostensibly, this was an auspicious beginning of constitutionalism in a newborn country. Fifty years have passed since, and the country has undergone several changes in the system of governance including two long episodes of military rule, the Constitution was suspended (and later revived) on two occasions, and seventeen amendments have been made to the Constitution. Importantly, during this past half a century a divergence between the Constitution and governance and politics has become easily discernable. Besides, there is a growing concern that the country is heading towards electoral hegemonic authoritarianism,1 as the 2022 report of Bertelsmann Stiftung has described the country as a ‘moderate autocracy’.2

1 Ali Riaz, ‘The Pathway of Democratic Backsliding in Bangladesh’ (2021) 28(1) Democratization 179. 2 Bertelsmann Stiftung, Bertelsmann Transformation Index 2022 accessed 15 March 2022. DOI: 10.4324/9781003276814-18

Constitutionalism interrupted or constitutionalism absent?

225

Premised on the understanding that having a constitution is a necessary condition but not sufcient to practise constitutionalism, this chapter delves into the practice of constitutionalism in Bangladesh. It discusses the divergences between practice and the text of the Constitution and asks the question of whether constitutionalism had been practised in Bangladesh since its independence. There have been several instances of suspension of the Constitution and digression from the letter and spirit of the text, including amendments that were made to fit individual’s and the executive branch’s power grabs. As such, the question is whether the periodic regression is a reversal of constitutionalism or, alternatively, whether constitutionalism remained absent throughout the history of the nation. Cognisant of the fact that despite the term “constitutionalism” having a long antecedent in political theory, there is no agreement on a precise definition, this chapter considers constitutionalism in the minimalist sense. Constitutionalism is not only having a constitution that “consists of a set of norms (rules, principles or values) creating, structuring, and possibly defining the limits of, government power or authority”3 but also a combination of “norms creating legislative, executive and judicial powers” as well as “impos[ing] significant limits on those powers”.4 In this vein, constitutionalism is viewed as a doctrine that governs the legitimacy of the actions of the government, but its purview is broader than the domain of legality of these actions.5 The central notion of constitutionalism is the idea that the government is not free to do anything it wishes or desires, but instead, government authority is derived from the people and should be limited by a constitution that clearly expresses what the government can and can’t do. Despite the expansive nature of the definition of the term, there are a few elements that constitute the basics of constitutionalism. According to Henkin, these are: popular sovereignty, rule of law, limited government, separation of powers (checks and balances), civilian control of the military, police governed by law and judicial control, an independent judiciary, and respect for individual rights and the right to self-determination.6 Barnett, on the other hand, ofers three criteria of constitutionalism: limitation of power (limited government), separation of powers (checks and balances), and responsible and accountable government.7 Drawing on these elements, this chapter will assess

3 Wil Waluchow, ‘Constitutionalism’ in The Stanford Encyclopedia of Philosophy (Spring 2018 edn, Edward N Zalta ed.), accessed 22 February 2022. 4 Waluchow (n 3). 5 Hilaire Barnett, Constitutional and Administrative Law 5 (3rd edn, Cavendish Publishing Limited 2000). 6 Louis Henkin, ‘A New Birth of Constitutionalism: Genetic Influences and Genetic Defects’ in Michael Rosenfield (ed), Constitutionalism, Identity, Diference, and Legitimacy: Theoretical Perspectives (Duke University Press 1994). 7 Barnett (n 5).

226

Ali Riaz

the state of constitutionalism in Bangladesh and its pathway based on four criteria – popular sovereignty, separation of powers, independence of the judiciary, and the rule of law. However, before employing these criteria we need to briefly discuss the political and constitutional history of the country. Constitutional developments in Bangladesh: an overview Bangladesh’s Constitution promised a liberal democracy; consequently, institutional arrangements were devised accordingly. These included the fundamental elements of a democratic republic – a multi-party system and supremacy of the legislative branch. The Constitution also promised an independent judiciary. The country’s first departure from constitutional promises came as the 2nd Amendment in 1973. This provided the power to the executive to declare an emergency, suspend some of the fundamental rights of the citizens during an emergency, and order preventive detention without trial on state security grounds. In January 1975, the country moved away from a parliamentary system to a presidential system and turned into a one-party state through the 4th Amendment of the Constitution. Several other provisions, added to the Constitution by the 4th Amendment, created an enormous powerful executive branch. The separation of the judiciary and the executive, a cornerstone of democracy, was done away with as the amendment empowered the president to appoint all judges and determine their tenure without any consultation with the chief justice. The president was provided with the authority to remove a judge, including the chief justice, simply by an order on the grounds of misbehavior or incapacity. The power and authority of the Supreme Court were severely curtailed. The Supreme Court’s authority of appointments to, and control and discipline of, subordinate courts was withdrawn and vested in the president (articles 115 and 116 of the Constitution). The power of the High Court Division of the Supreme Court in respect to the enforcement of fundamental rights and to issue specific orders (writs) and directions was circumscribed. The incumbent didn’t seek ratification from the citizens of such fundamental changes to the Constitution. Instead, the government made these changes arbitrarily, getting the 4th Amendment Bill past the parliament in less than thirty minutes. The 1973 election manifesto of the ruling Bangladesh Awami League (BAL) of the time didn’t even hint at such drastic measures. Constitution was suspended after a military coup in August 1975, which also saw the killings of then President Sheikh Mujibur and his family members and associates. Instability, coups, and counter-coups followed until November 1975. The Constitution remained suspended while the country was ruled by decrees issued under the executive authority of the martial law administrator between 1975 and 1979. While there was a de facto restoration of various parts of the Constitution during this period, for example, allowing multi-party limited political activities, the Constitution as a whole was not restored until 6 April 1979. The 5th Amendment of the Constitution incorporated and

Constitutionalism interrupted or constitutionalism absent?

227

ratified all the actions of the government since 15 August 1975 and brought a significant change to the nature of governance. Although the one-party system was abolished soon after the coup in 1975, the presidential form of the government continued allowing the concentration of power in the hands of the executive branch, especially the president. Subsequent measures of the first military ruler of this period General Ziaur Rahman civilianised the military regime, but democratic institutions were either absent or severely weak. The assassination of Ziaur Rahman in May 1981 in an abortive coup was followed by a brief interregnum. Vice President Abdus Sattar became the acting president. However, his eligibility to run for the presidency in November 1981 election required a constitutional amendment. The parliament adopted the 6th Amendment, precisely to cater to an individual. His short-lived government was ousted through a military coup on 24 March 1982. General HM Ershad declared martial law and suspended the Constitution. While he followed his predecessor Ziaur Rahman and held several elections (e.g., referendum, presidential election), the Constitution remained suspended until parliament, elected through a controversial election, amended the Constitution on 10 November 1986. The 7th Amendment, like the 5th Amendment under Ziaur Rahman, provided legitimacy to the executive decrees and indemnified the actions taken since the second military takeover. Two years later, another amendment, the 8th Amendment, brought changes to the Constitution including the inclusion of Islam as the state religion. A part of the 8th Amendment that decentralised the High Court Division was struck down by the Supreme Court’s Appellate Division in 1989, but the state religion clause remained. In December 1990, in the wake of a popular uprising against the military regime of HM Ershad, then Chief Justice Shahabuddin Ahmed was appointed the vice president of the Ershad government. Upon Ershad’s immediate resignation, Justice Ahmed assumed the presidency on 6 December 1990. This appointment contravened the letter of the constitutional provision which prevents Supreme Court judges from accepting any “Ofce of Profit”. His appointment was validated with retrospective efect by the 11th Amendment later in the year 1991 after an election delivered victory to the Bangladesh Nationalist Party (BNP). The 11th Amendment also allowed Justice Ahmed to return to the post of chief justice. The country made amends to its turn to executive supremacy in 1991 through the 12th Amendment, which reintroduced the parliamentary system. Bangladesh’s journey towards democracy ensued. During the following years, the supremacy of the Constitution was undermined as parliament was boycotted by the opposition, irrespective of the party, while the incumbent used its majority to railroad its agenda. The demand for the inclusion of a caretaker government system to hold elections, like the interim measure in 1991, gained support when the opposition BAL mounted street agitation in 1994–1995. The intransigent attitude of the incumbent BNP to bring about any changes in the Constitution to mitigate

228

Ali Riaz

electoral fraud, while the BAL insisted on a constitutional amendment, led to a political stalemate. The resignation of 147 opposition members of the parliament in December 1994 made it impossible to take any significant measure to incorporate the demands of the opposition within the Constitution. The BNP government, led by Khaleda Zia, completed its term and arranged a general election in February 1996. Boycotted by all opposition and marred by widespread rigging, the newly elected parliament became a one-party show. The parliament, which lasted only 12 days (19 March – 30 March), passed the 13th Amendment incorporating the provision that national elections will be held under a non-partisan caretaker government (CTG). Following two relatively fair and inclusive general elections held under the auspices of CTG, the BNP brought an amendment in 2004 to the Constitution to ensure that the election-time government is headed by a former chief justice who is sympathetic to the party. The stealthy way of such machination, incorporated in the 14th Amendment, engendered violent reactions from the opposition. Consequently, the election was cancelled, and a military-backed caretaker government was installed, which was not quite the same as the constitutional CTG. It assumed power in 2007. After two years of hiatus, an election was held, and BAL secured a landslide victory. Using the 2010 Supreme Court verdict on the legality of the caretaker system as a pretext, the BAL scrapped the system through the 15th Amendment in 2011. This only guardrail against the potential of widespread fraud in elections was eliminated with the change in the Constitution. One of the key elements of the 15th Amendment was the inclusion of article 7B. The newly added article, called the eternity clause, has protected parts of the Constitution from any future amendments. Some provisions of the Constitution are now determined as the “basic structure” of the Constitution by article 7B, in addition to what was already considered basic structure pursuant to the Supreme Court’s verdict on the legality of the 8th Amendment. As analysts have noted, the paradox is that this amendment was “introduced by an exercise of simple amending power, as opposed to an exercise of constituent power”8 and the legality of article 7B is open to question.9 Following the 15th Amendment, opposition parties’ demand for the restoration of the caretaker system was ignored. An election in 2014 was held, participated in only by the incumbent and its allies. In efect, a oneparty parliament came into being and ruled the country. In 2014, the 16th

8 Lima Aktar, ‘Article 7B and the Paradox of Eternalising the Constitution of Bangladesh’, IACLAIDC Blog, 11 May 2021, accessed 23 February 2022. 9 Ridwanul Hoque, ‘Eternal Provisions in the Constitution of Bangladesh: A Constitution Once and For All?’ in R Albert and BE Oder (eds), An Unconstitutional Constitution?: Unamendability in Constitutional Democracies (Springer 2018).

Constitutionalism interrupted or constitutionalism absent?

229

Amendment passed by the parliament brought back the power to impeach judges for “misconduct or incapacity” to the parliament, as it was in the 1972 Constitution. This shift of power from the existing system of the Supreme Judicial Council is composed of peers to the parliament provided an impression that the authority is being brought to the legislative branch, but it essentially subjected the judiciary to the political whims of partisan members, especially considering that the members of the parliament have no independence due to the anti-defection clause of the Constitution (article 70). The Appellate Division of the Supreme Court nullified the amendment on 5 May 2016.10 The decision is currently under review in the Appellate Division. Four criteria of constitutionalism Popular sovereignty

Popular sovereignty is the key to constitutionalism. Popular sovereignty means that government is created by and subject to the will of the people. This notion rejects despotic power or oligarchic rule. Sovereignty is inalienable and, therefore, cannot be appropriated in the name of divine power, development, national security, or a political ideology. Representation is a way of providing consent by the governed to those who govern. The US Constitution, for example, afrms that life, liberty, and the pursuit of happiness are inalienable rights and that “to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed”.11 The consent of the governed provides legitimacy to the government and the moral right to govern. In the words of English poet John Milton: The power of kings and magistrates is nothing else, but what is only derivative, transferred and committed to them in trust from the people, to the common good of them all, in whom the power yet remains fundamentally, and cannot be taken from them, without a violation of their natural birthright.12 Popular sovereignty is reflected through elections of the executive and legislative bodies. Bangladesh’s Constitution espouses popular sovereignty and articulates it in article 7(1): “All powers in the Republic belong to the people, and their exercise on behalf of the people shall be efected only under, and by

10 See Bangladesh v Asaduzzaman Siddiqui (2017) CLR (AD) (Spl) 1. 11 See the Thomas Jeferson, Declaration of Independence of the United States of America (1776). 12 Quoted in Danièle Frison, ‘Rights and Liberties in John Milton’s The Tenure of Kings and Magistrates’ in Christophe Tournu and Neil Forsyth (eds), Milton, Rights and Liberties (Peter Lang 2005) 171.

230

Ali Riaz

the authority of, this Constitution”. Popular sovereignty is further entrenched in article 11 which states: The Republic shall be a democracy in which fundamental human rights and freedoms and respect for the dignity and worth of the human person shall be guaranteed, and in which efective participation by the people through their elected representatives in administration at all levels shall be ensured. However, besides being ruled by military regimes for almost fifteen years between 1975 and 1990, the 4th Amendment of the Constitution breached popular sovereignty and, without the consent of the citizens, circumscribed the popular participation. As for the eleven parliamentary elections held until 2018, only four have been considered reflective of the popular will and relatively fair. These are: 1991, 1996 (June), 2001, and 2008. The 1973 election, the first one since the introduction of the Constitution, remained controversial, although the overall result may have been consistent with popular expectations. Highly manipulated elections delivering victory to the incumbent became the norm between 1979 and 1990. After the country’s democratic transition in 1990, the situation of elections improved but the 1996 February election was a one-party show. This election was viewed as an exception as subsequent elections were participated by all parties. But the 2014 election became a replication of the 1996 February election. The CTG provision, enacted through the 13th Amendment, ensured a way for the peaceful transfer of power but that collapsed after the debacle of 2006. One can argue against the CTG provision,13 but constitutionalism is not only the letter of the constitution but also the spirit of it. The political culture, especially the trust deficit among the political parties, and ensuring the fairness of the electoral system requires a governance system that will ofer opportunities for the participation of the people. Unfortunately, the 2014 and 2018 elections have clearly demonstrated that such an arrangement is still required. The elections in 2014 and 2018 have also demonstrated that the Constitution has failed to install a system of a free and fair election and a peaceful transition of power. Election, however, is not the only way to explore and ensure popular sovereignty. Another indicator can be the extent of the opportunities for the citizens to participate in the political processes. Data on voice and accountability of the World Governance Indicators (WGI) shows the precipitous erosion of the voices of the citizens, a key element of popular sovereignty (Figure 14.1). It is in this regard that we need to explore the notion of accountability further. Accountability, a concept that has evolved and continues to evolve,

13 M Jashim Ali Chowdhury, ‘Elections in “Democratic” Bangladesh’ in Mark Tushnet and Madhav Khosla (eds), Unstable Constitutionalism: Law and Politics in South Asia (Cambridge University Press 2015) 192.

Constitutionalism interrupted or constitutionalism absent?

231

0.00 -0.10 -0.20 -0.30 -0.40 -0.50 -0.60 -0.70 -0.80 -0.90

Figure 14.1 Voice and Accountability Score of Bangladesh, 1996–2020 Source: World Bank, World Governance Indicators (WGI) (https://databank.worldbank.org/ source/worldwide-governance-indicators)

is the basis of checks and balances on the branches of the government, on the one hand, while ensuring the role of citizens in the daily functioning of government, on the other. Accountability should not be considered as a vertical mechanism only; for a viable and functioning democracy, accountability means vertical, horizontal, and societal. Vertical accountability is the election system, while horizontal accountability of the government comes from a network of relatively autonomous powers, which are often the constitutionally mandated organisations, such as the anti-corruption and the human rights bodies and the electoral commission. Societal accountability is to the citizens’ associations. These have remained elusive in the past fifty years, as the lack of autonomy of these constitutional bodies testifies. Separation of powers

The concept of separation of powers, underscored in the 18th century by French political philosopher Montesquieu, has clearly laid out that the political authority of the state is required to be divided into legislative, executive, and judicial powers. Montesquieu’s assertion that to promote liberty, these three powers must be separate and act independently remains equally important today. In fact, on the one hand, other political theorists have built on this notion, while, on the other hand, it has become one of the defining features of a democratic republic. The division of power into three branches is intended to limit any one branch from exercising the core functions of another, prevent the concentration of power in any branch, and provide for checks and balances on the powers of all branches.

232

Ali Riaz

The Bangladesh Constitution incorporated this fundamental aspect of a democratic republic. Articles 22, 26, 55, 65, 94(4), 102, 107, 109 and 116A of the Constitution reflect the state’s adoption of the doctrine of separation of powers.14 However, in Bangladesh, such separation remains elusive. I will discuss the judicial independence issue as a separate element later. Bangladesh’s past fifty years’ experience shows that executive aggrandisement has taken place through constitutional and extraconstitutional measures. The 4th Amendment, which introduced the presidential system, also provided unbridled power to the presidency, including control over the judiciary. The subservience of the legislature continued during military rule. Although the reintroduction of the parliamentary system in 1991, through the 12th Amendment, created the opportunity to separate the legislative and executive powers and create a balance between these two, not to mention establish checks and balances, it rather amalgamated these two powers. The amendment shifted the presidential powers, in lock, stock, and barrel, to the prime minister (PM), in addition to the powers the PM obtains by virtue of the parliamentary system. Subsequently, enormous power has concentrated in the hands of the PM and an all-powerful “prime ministerial system” emerged. The PM remained beyond any scrutiny and accountability because she holds several ofces. In addition to being the PM, she is also the leader of the House, the leader of the parliamentary party of the majority party, and the chief of the party. Article 70 of the Constitution, as amended in 2011, stipulates that a member of parliament will lose their membership if they vote against the party that nominated them as a candidate. This provision has provided complete control of the parliamentary party to the respective leader(s). Any kind of dissent will result in the dissenter losing the membership of the parliament and membership of the party. Such a harsh penalty will bring an end to the political career of any member of the parliament. Thus, there has not been any dissension. In the case of the PM, it allows her to exercise unrestrained power. The concentration of power in one ofce created the opportunity for the emergence of a constitutionally allowed authoritarian leader. Individual behaviour notwithstanding, it betrayed one of the fundamental elements of constitutionalism, the separation of powers. The concentration of power in one ofce has reached the zenith since 2011. There seems to be complete reliance on the PM for any kind of solution. The repeated insistence by the party leaders15 and pro-government journalists16

14 On separation of powers in Bangladesh, see esp. Chapter 8 in this volume. 15 Prothom Alo, ‘No alternative to Hasina: Kamal’, 17 April 2016 accessed 11 February 2022 and The New Nation, ‘AL Has No Alternative to Hasina, Says Quader,’ 17 February 2019 accessed 11 February 2022. 16 Peer Habibur Rahman, ‘No Alternative to Hasina in Running the Country’, The Daily Sun (Dhaka, 21 November 2019) accessed 13 February 2022.

Constitutionalism interrupted or constitutionalism absent?

233

that there is no alternative to the current prime minister Sheikh Hasina not only shows the personalistic nature of her leadership but also shows how the separation of power is not even considered a necessity of governance. The demands for her intervention in solving any problems, from the capital market17 to protecting “innocent” children,18 to school-level examinations,19 only reaffirm that there is no other power center in the country while the constitutional text suggests otherwise. Independence of judiciary

Judicial independence, variously conceptualised by political philosophers and jurists, has one common element in the context of constitutionalism; the constitution must unequivocally assert that the judiciary cannot be subservient to any of the two other branches. Bangladesh’s Constitution has various articles where the commitment to judicial independence is made. For example, article 22 provides that “the State shall ensure the separation of the judiciary from the executive organs of the State” while article 94(4) states that “the Chief Justice and the other judges of the Supreme Court of Bangladesh shall be independent in the exercise of their judicial functions”. The same view is also reflected in article 116A regarding the judges and magistrates of the subordinate courts. Despite these commitments and articulations in the Constitution and despite the separation of magistrates exercising judicial functions from the executive branch since November 2007, the separation of judiciary and executive in the sense of full judicial autonomy has remained unfulfilled to date. The 4th Amendment, as mentioned earlier, dealt a serious blow to the concept of judicial independence as it brought the judiciary under the president’s purview and established firm control of the executive on the appointment and dismissal of judges of all tiers. Despite the change in the political situation and annulment of many parts of the 4th Amendment after 1975, the executive’s influence appears writ large on the judiciary. Several attempts have been made between 1976 and 1999 when the Supreme Court issued twelve-point instructions to the government to take steps to ensure the separation. For example, in 1976 a law reform committee recommended20

17 Sujan Mia, ‘PM’s Intervention Sought to Save Capital Market’, The Asian Age (16 January 2020) accessed 12 February 2022. 18 Bangladesh Post, ‘PM’s Intervention Sought to Protect Innocent Children’ (Dhaka, 17 October 2020) accessed 12 February 2022. 19 The Daily Sun, ‘PM’s Intervention Sought to Cancel O, A-Level Exams’ (24 September 2020) accessed 11 February 2022. 20 M M Hossain, ‘Separation of Judiciary in Bangladesh-Constitutional Mandates and Masdar Hossain Case’s Directions: A Post Separation Evaluation’ (2020) 11(2) International J for Court Administration, DOI: http://doi.org/10.36745/ijca.310.

234

Ali Riaz

the separation of the executive and judiciary. A private members’ Bill was introduced in 1987 to this efect, but it didn’t see the light of the day after being sent to the relevant parliamentary committee. However, a court case filed in 1995 by Masdar Hossain, a district judge along with another 441 judicial ofcers, resulted in the issue of the twelve-point directions by the Supreme Court when the process reached its conclusion.21 Despite such a clear and unequivocal verdict of the Supreme Court reafrming the constitutional commitment and the way forward, subsequent governments – irrespective of the political parties – took no initiative in this regard. In 2007, however, the caretaker government made necessary laws and paved the way for the separation of the executive from the judiciary. However, this step is yet to result in an independent judiciary. As reported in the press in late 2021: “independent judiciary is still a far cry”.22 One chief justice and one Appellate Division judge, ten years apart, ABM Khairul Haque in 201123 and Mirza Hossain Haider in 2021,24 immediately before their retirements said that the independent judiciary has remained a dream. Although the Constitution has stated the commitment to the separation of the judiciary and the executive, it has provisions that are contrary to this commitment. Two articles – 115 and 116 – contravene the principle of separation and contradict article 109. Article 109 stipulates that the High Court Division “shall have superintendence and control over all courts and tribunals subordinate to it”. Articles 11525 and 116 provide power to the president regarding the appointments of persons in the judicial service and their “control” and “discipline”. Article 116, in particular, states that: the control (including the of leave) and discipline of and magistrates exercising dent and shall be exercised Court.

power of posting, promotion, and grant persons employed in the judicial service judicial functions shall vest in the Presiby him in consultation with the Supreme

These provisions have maintained the executive’s control over the judiciary. Interestingly, the 1972 Constitution did not have article 116 in its current

21 id. See also Secretary, Ministry of Finance v Md Masdar Hossain (2000) 52 DLR (AD) 82. 22 M Moneruzzaman, ‘Independent Judiciary Still a Far Cry’, The New Age (Dhaka, 31 October 2021) accessed 12 December 2021. 23 Bangla News 24, ‘The Independence of Judiciary Is Illusive: Outgoing Chief Justice’ (Dhaka 17 May 2011) accessed 4 January 2022. 24 Manab Zamin, ‘We All Know How Much Independent the Judiciary Is in Reality’ (28 February 2021) accessed 4 January 2021. 25 Article 115 states: “Appointments of persons to ofces 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.”

Constitutionalism interrupted or constitutionalism absent?

235

state. The original provision of article 116 provided the authority of judges’ posting, promotion, and leave to the Supreme Court. And, under the 1972 Constitution (article 115), the president was required to appoint district judges only on the Supreme Court’s recommendation. The current provisions of these two articles were inserted by two amendments – the 4th Amendment of 1975 and the 15th Amendment in 2011. Then Chief Justice SK Sinha, in 2016, urged the government to abolish article 116 to make the judiciary truly independent of the government.26 The fate of Chief Justice Sinha is worth recalling. After the Supreme Court nullified the 16th Amendment, he was allegedly forced to resign from his post, and exiled in 2017.27 This episode also revealed how the appointment and removal of the Supreme Court judges have remained a means to curtail the independence of the judiciary. Although article 95(2)(c) of the Constitution requires the appointment of judges to be based on “qualifications as may be prescribed by law”, no such law has been legislated to date. The reference to “law” in article 95(2) was inserted in 1978. The Court has repeatedly drawn this requirement to the attention of the government but in vain.

Rule of law

Rule of law as an integral factor of constitutionalism requires no elucidation. There is a long tradition of the discussion of rule of law in political philosophy and, subsequently, in the legal tradition. For example, there are discussions of some form of rule of law in the works of Aristotle (c.350 bc). Political theorists such as Locke (1632–1704) and Montesquieu (1689–1755) have vigorously deliberated on the topic. Montesquieu’s works (including, notably, his The Spirit of Laws (1748)) have underscored the necessity of the separation of powers, which has strongly shaped the subsequent discussions. As for policy implications, particularly in determining the relationships between the citizens/subjects and the rulers, the most important document has been the Magna Carta (1215). It curbed the arbitrary power of the British king and also laid out four fundamental principles – that no one is above the law, not

26 New Age, ‘Abolish Articles 116, 116A of Constitution to Establish Rule of Law: CJ’ (Dhaka, 10 December 2016) accessed 5 January 2022. 27 See, Ali Riaz, ‘16th Amendment Struck Down: More Than a Verdict’, The Daily Star (Dhaka, 2 August 2017) accessed 21 December 2021; Ali Riaz, ‘Sinha Saga: More Questions Than Answers’, The Daily Star (Dhaka, 19 October 2017) accessed 21 December 2021; David Bergman, ‘Bangladesh: Ex-Chief Justice Alleges He Was “Forced” to Resign’, Al Jazeera English (28 September 2018) accessed 21 December 2021.

236

Ali Riaz

even the monarch; that no one can be detained without cause or evidence; that everyone has a right to trial by jury; and that a widow cannot be forced to marry and give up her property. In the context of constitutionalism, these discussions and the Magna Carta principles have been instrumental in various ways. They had influenced the framers of the US Constitution as reflected in The Federalist Papers (October 1787 – May 1788). Contemporary discussions and working definitions of the rule of law have emerged out of the work of constitutionalist A V Dicey (1885).28 There are three aspects to Dicey’s conceptualisation of the rule of law: absence of arbitrary power (the supremacy of law); equality before the law; and constitution as the result of the ordinary law of the land. Based on these three principles, institutions around the world have elaborated the meaning and the modus operandi of the rule of law. According to the American Bar Association: the rule of law is a set of principles, or ideals, for ensuring an orderly and just society. Many countries throughout the world strive to uphold the rule of law where no one is above the law, everyone is treated equally under the law, everyone is held accountable to the same laws, there are clear and fair processes for enforcing laws, there is an independent judiciary, and human rights are guaranteed for all.29 In a similar vein, the United Nations (UN) defines the concept as follows:

the rule of law is a principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards. It requires measures to ensure adherence to the principles of supremacy of the law, equality before the law, accountability to the law, fairness in the application of the law, separation of powers, participation in decision-making, legal certainty, avoidance of arbitrariness, and procedural and legal transparency.30 In the Constitution of Bangladesh, the state promises to uphold the rule of law as a fundamental aim. The preamble of the Constitution states: It shall be a fundamental aim of the state to realize through the democratic process a socialist society, free from exploitation – a society in

28 Albert Venn Dicey, Introduction to the Study of the Law of the Constitution (Liberty Fund 1982). 29 American Bar Association, ‘What Is the Rule of Law?’ (n.d.) (accessed 15 March 2022). 30 United Nations, ‘What Is the Rule of Law?’ .

Constitutionalism interrupted or constitutionalism absent?

237

which the rule of law, fundamental human rights and freedom, equality and justice, political economic and social, will be secured for all citizens. Consequently, several provisions ensuring the guarantee of the rule of law have been included in the Constitution. These provisions are: article 27 (guaranteeing that all citizens are equal before the law and are entitled to equal protection of the law); article 31 (declaring citizens’ right to enjoy the protection of the law, and to be treated in accordance with law as an inalienable right); article 32 (guaranteeing the right to life and liberty); article 44 (the citizens’ right to seek remedies for the enforcement of the fundamental rights); and article 102 (the Court’s jurisdiction to ensure the enforcement of fundamental rights). Importantly, the Constitution proclaims that any law that is inconsistent with the fundamental rights or with the Constitution generally will be void (articles 26 and 7) and that “the State shall not make any law inconsistent with” the fundamental rights provisions (article 26(2)). These provisions provide the impression that the Bangladeshi state ofers strong protection to its citizens. But Bangladesh’s scores in the rule of law category on a scale between −2.5 (weak) to +2.5 (strong) have remained negative between 1996 and 2020, according to the World Governance Indicators (WGI) (Figure 14.2) because of frequent violations and systemic weaknesses. According to the World Justice Project, in 2021, Bangladesh ranked 124th among 139 countries.31 Incidents of extrajudicial killings, euphemistically described as “crossfire/encounter/gunfight” by the law enforcement agencies, reportedly 4,044 between 2001 and 2021,32 and enforced disappearances, allegedly perpetrated by state actors, reportedly 593, between 2009 and 202133 show that the state is neither protecting the lives of the citizens nor providing the right to have a trial in a court. Worst yet, the government continues to deny the existence of such phenomena. Furthermore, in the past decades, various governments have resorted to legislating laws to indemnify the law enforcement agencies’ violations of fundamental rights and involvement in extrajudicial killings. For example, on 9 January 2003, the BNP-led parliament passed an indemnity law that provided legal protection to the members of the law enforcement agencies who were engaged in an “anti-crime” drive between 16 October 2002 and 9 January

31 World Justice Project (WJP), ‘WJP Rule of Law Index: Bangladesh’ accessed 16 March 2022. 32 Ali Riaz, ‘Executions at Will? Extrajudicial Killings by State Actors in Bangladesh’ (Centre for Governance Studies 2022) accessed 29 March 2022. 33 Ali Riaz, ‘Where Are They? Enforced Disappearances in Bangladesh’ (Centre for Governance Studies 2022) accessed 29 March 2022.

-0.57

-0.64

-0.64

-0.66

-0.67

-0.75

-0.78

-0.87

-0.93

-0.73

-0.80

-0.79

-0.75

-0.83

-0.90

-0.98

-1.02

-1.05

-0.90

-0.89

Ali Riaz

-0.91

-0.93

238

Figure 14.2 Rule of Law Scores of Bangladesh, 1996–2020 Source: World Bank, World Governance Indicators (WGI) (https://databank.worldbank.org/ source/worldwide-governance-indicators)

2003. During the drive, at least forty-four people died in custody.34 Besides, laws have been created to provide unlimited power to the law enforcement agencies to arrest people without a warrant, even on a suspicion that a crime may be committed in future. Preventive detention of individuals as well as the seizure and search of premises allowed under the Special Powers Act 1974 is a case in point.35 Similarly, the Digital Security Act 2018 (DSA) gives law enforcement agencies the power to arrest anyone, search any premises, and seize any equipment without a warrant, requiring only the existence of suspicion that a crime has been committed using social media. Legislating laws that deprive the citizens of their inalienable rights and protection from the excesses of the state actors is the classic case of “rule by law” instead of “rule of law”. Rule by law, as Waldron has explained: connotes the instrumental use of law as a tool of political power. It means that the state uses the law to control its citizens but tries never to allow

34 The Daily Star, ‘Operation Clean Heart indemnity law illegal: HC’ (Dhaka, 13 September 2015) accessed 15 March 2022. 35 Government of Bangladesh, Legislative and Parliamentary Afairs Division, ‘Laws of Bangladesh: Special Powers Act 1974’ ; for the abuse of this power, see, Immigration and Refugee Board of Canada, ‘Responses to Information Request’, BGD104943.E (9 September 2014) accessed 27 March 2022.

Constitutionalism interrupted or constitutionalism absent?

239

the law to be used to control the state. Rule by law is associated with the debasement of legality by authoritarian regimes.36 In the case of Bangladesh, both military and civilian regimes have resorted to this means, which is far away from the practice of constitutionalism.37 Conclusions Discussions on constitution and constitutionalism in Bangladesh often argue that there have been certain times in its history when the country veered away from constitutionalism. Such interpretations insist that constitutionalism was interrupted, either by military regimes or as an aberration of civilian regimes, and subsequently, it has returned to the path.38 This chapter challenged this conventional wisdom and demonstrated that constitutionalism has remained elusive in the country since its inception. The history of constitutional developments in Bangladesh shows that there have been instances of suspension of the Constitution by the military regimes, while in other instances constitutional amendments have been made in contravention of fundamental elements of constitutionalism. The Constitution limits the expansive power of the state, ensures the participation of the people, and guarantees the inalienable rights of the citizens. Individualisation or politicisation of constitutional amendments, that is, making amendments to cater to any particular individual or party, is a blot on the Constitution and constitutionalism in Bangladesh. Representation of people was circumscribed as the electoral process has been manipulated on various occasions, and accountability mechanisms have been either not created or weakened. Although the Constitution expressed its commitment to popular sovereignty, it has been denied through various means. The absence of a fair electoral system acceptable to all is a testimony to that denial. Power had been concentrated in the hands of the president for more than a decade and a half, but the reintroduction of the parliamentary system didn’t make the situation better. Instead, the prime ministerial system has been used to create the opportunity for the emergence and practice of authoritarianism by way of abusing the Constitution. The checks and balances

36 Jeremy Waldron, ‘The Rule of Law’, The Stanford Encyclopedia of Philosophy (Summer 2020 edn, Edward N. Zalta ed.) accessed 27 March 2022. 37 On the rule of law in Bangladesh, see Chapter 5 in this volume, and Ridwanul Hoque, ‘Rule of Law in Bangladesh: The Good, the Bad, and the Ugly?’ in Chowdhury Ishrak A. Siddiky (ed), The Rule of Law in Developing Countries: The Case of Bangladesh (Routledge 2018) 18. 38 See, for example, Gowher Rizvi, ‘Democracy & Constitutionalism in South Asia: The Bangladesh Experience’ (Harvard University Ash Center 2005), accessed 27 March 2022.

240

Ali Riaz

on the executive have been done away with through the manipulation of constitutional provisions, creating pliant legislature and practice in politics. The absence of judicial independence and the prevalence of the rule by law, instead of the rule of law, have left the citizens dispossessed. The use of arbitrary power has become the norm, rather than an aberration, thus betraying the foundational element of constitutionalism.

Index

Note: Page numbers in italic indicate a figure on the corresponding page. abdication see role abdication abolition of caretaker government 174–176 accountability of executive power 129–130, 143–144; American and British models 132–134; cosmetic design of separation of powers 135–136; demarcation of powers 134–135; fundamental rights as a limit to the executive power 141–143; judiciary and check on executive and legislative powers 140–141; omnipotent prime minister 136–140; separation of powers as a method for limiting the state 131–132 achievements, constitutional 12–19 Ahmad, Tajuddin 59, 130, 184–187, 214 Al Jazeera 107–111 all-powerful executive 138–140 amendability of FPSPs 191–192 amending see constitution-amending Amendments 103–107 American constitutionalism 132–134 anti-coexistence justifications 70–72 Anwar Hossain Chowdhury v Bangladesh 16, 29–30, 113, 119–120, 186 Appellate Division (AD) 13–14, 19, 29–32; divergence of Constitution and politics 227–229, 234; economic and social human rights 183–184; international law 46, 51–54; judicial review 79–81, 96, 103–105, 110, 113–114, 120–124; political parties 176; women 201 aspirational value 81–84

autochthonous 21, 29–30, 35, 38 Awami League (AL) 4–5, 8–11, 39–41, 59, 147, 226; justice as fairness 211–212, 221; political parties 165–168; Supreme Court 103–104, 108; women 204–205 Bangabandhu 1n2, 4–10, 40–42, 59–65, 142–149, 152 Bangladesh Krishak Sramik Awami League (BAKSAL) 168–169 Bangladesh Nationalist Party (BNP) 9–11, 61, 147–152, 157–158, 169–175, 205, 227–228 Bangladesh’s legal system (BLS) 29–30; emergence of 38–43; flaws of the Kelsenian model 34–35; Hart’s rule of recognition 35–38; Kelsen on revolutionary legality 30–34 Bano, Begum Razia 7n29, 196n21, 197 basic structure doctrine (BSD) 13, 16–19, 21, 102, 191–192 bipartisanship 157–158 BLS see Bangladesh’s legal system (BLS) British constitutionalism 132–134 broadcasting 107–111 caretaker government system see nonparty caretaker government challenges, constitutional 19–20 change in the grundnorm 33–34 Chittagong Hill Tracts 14, 71, 87 civil and political (CP) 9, 181, 210–213 civil and poll rights (CP rights/CPR) 173 coexistence 58–62, 72–73; anticoexistence 70–72; debates over

242

Index

the meaning of secularism 62–64; justifications and critiques 64–70; new discourse 72 community see majority religious community compromise see political compromise constituent assembly 6–7 constitutional developments 226–229 constitutional future 24–25 constitutionalism 224–229, 239–240; independence of judiciary 233–235; popular sovereignty 229–231, 231; rule of law 235–239, 238; separation of powers 231–233 constitutional journey 1–3, 7–12; achievements and innovations 12–19; failures and challenges 19–21; war of independence 3–6 constitutional protection 181–182; basic structure of the Constitution 191–192 constitution-amending 161–163, 176–177; democratic development 169–174; parliamentary system 166–169; parties 163–166, 169–174 Constitution Drafting Committee (CDC) 7, 63, 114, 138–139, 165–166, 176, 182, 1188, 197, 219–221 constitution-making 161–163, 176–177, 181–182; democratic development 169–174; judicial enforcement 186–191; parliamentary system 166–169; parties 163–166, 169–174 Constitution of Bangladesh 44–45, 209–211, 222–223, 224–229, 239–240; debates over the making of 45–47; democratic socialism and Rawlsian fairness 220–222; fair equality of opportunity under the constitutional framework 215–217; and FPSPs 191–192; independence of judiciary 233–235; judicial invocation of international law 53–57; making of 3–7; modalities of domestic implementation of international law 51–53; ownership, right to property, and equal liberty 217–218; and parties 163–165; popular sovereignty 229–231, 231;

progressive taxation 218–220; rule of law 235–239, 238; separation of powers 231–233; socialism as defined in the Constitution 211–213; status of economic and social rights 213–214; status of international law in 47–51; and women 193–208 Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) 56 cosmetic design 134–136 cultural rights 186–191 customary international law (CIL) 48–51, 54; see also international law demarcation of powers 134–135 democracy 12–13; democratic development 169–174; and women 206–207; see also undemocratic party system democratic socialism 220–222 de-secularisation argument 71–72 “deviations” see “Five Eastminster Deviations” dictatorship 9, 22, 137, 213; “selective” 150–154 discourse of secularism 72 discrimination: in the private realm 201–202; sex-based 198–200 domestic implementation of international law 51–53 Dr Mohiuddin Farooque v Bangladesh 13, 122 economic human rights 181–182; constitutional nature and functions of FPSPs 182–186; judicial enforcement 186–191; status of 213–214 economic, social, and cultural (ESC) rights 181, 186, 192 Election Commission (EC) 79–81, 117, 155, 164, 169–170, 173 Enforcement: human rights 123–124; judicial 186–191 equality 195–196, 206–207; fair equality of opportunity 215–217 equal liberty 217–218 equal respect argument 68–69 Ershad, General Hossain M. 9, 61, 66–67, 103, 116–117, 147–148, 152, 163, 169–170, 174, 227

Index executive power 129–130, 143–144; American and British models 132–134; cosmetic design of separation of powers 135–136; demarcation of powers 134–135; fundamental rights as a limit to 141–143; judiciary and check on 140–141; omnipotent prime minister 136–140; separation of powers as a method for limiting the state 131–132 failures, constitutional 19–21 fair equality of opportunity 215–217 fairness 209–211, 222–223; democratic socialism and Rawlsian fairness 220–222; fair equality of opportunity under the constitutional framework 215–217; ownership, right to property, and equal liberty 217–218; progressive taxation 218–220; socialism as defined in the Constitution 211–213 “Five Eastminster Deviations” 146, 150–152 Fuller, Lon 91 Fundamental Principles of State Policy (FPSPs) 182–186; amendability 191–192; status of 186–191 fundamental rights 141–143 future, constitutional 24–25 grundnorm 30–33, 35, 37, 43; change in 33–34 Hart, HLA 21, 30, 34–38, 40, 43, 77, 91 Hasina, Sheikh 63, 65–69, 72, 149, 152, 175, 233 High Court Division (HCD) 13–15; constitutionalism 226–227, 234; economic and social human rights 183–184, 190; executive power 143; international law 52–54; justice as fairness 214; judicial policy-making (and the HCD) 104, 107–110; judicial review 113, 116, 120–124; rule of law 79–81, 87; women 198–201 history/historical justification: anticoexistence 70–71; Constitution 226–229; parliament 146–150 Hossain, Dr Kamal 7, 90, 114, 139, 141, 165–166, 182, 188–189, 219

243

human rights 181–182; basic structure of the Constitution 191–192; constitutional nature and functions of FPSPs 182–186; enforcement 123–124, 186–191 illiberal bipartisanship 157–158 ILO Convention 92 implementation see domestic implementation of international law inclusive secularism 64–65 independence of judiciary see judicial independence innovations, constitutional 12–19 intention of framers 181–182; basic structure of the Constitution 191–192; constitutional nature and functions of FPSPs 182–186; judicial enforcement 186–191 International Covenant on Civil and Political Rights (ICCPR) international law 44–45; customary international law (CIL) 48–51, 54; and debates over the making of the Constitution 45–47; judicial invocation of 53–57; modalities of domestic implementation of 51–53; status in the Constitution 47–51 Islam 58–62, 72–73; anti-coexistence 70–72; debates over the meaning of secularism 62–64; justifications and critiques 64–70; new discourse of secularism and state religion debate 72 Jamaat-e-Islami Bangladesh 15, 62, 149, 170 Jatiya Party (JP) 9, 11–12, 147–152, 158, 169–172 judicial enforcement 186–191 judicial independence 233–235; and rule of law 94–99 judicial interpretations 181–182; basic structure of the Constitution 191–192; constitutional nature and functions of FPSPs 182–186; judicial enforcement 186–191 judicial invocation 53–56 judicial perspective 77–81; judicial independence 94–99; morality 81–84; moral reading of the law 85–94

244

Index

judicial policy-making 100–102; Al Jazeera Documentary Broadcast Case 107–1111; political policy-making 102–103; 13th amendment judgment 103–107 judicial review 112–114, 125–126; and the enforcement of human rights 123–124; judicial review of constitutional amendments (JRCA) 119–121; principle of legality 124–125; of public functions of private entities 123; public interest litigation (PIL) 121–123; separation of powers and the judiciary 114–119 Judicial Review of Constitutional Amendments (JRCA) 119–121 justice 209–211, 222–223; democratic socialism and Rawlsian fairness 220–222; fair equality of opportunity under the constitutional framework 215–217; ownership, right to property, and equal liberty 217–218; progressive taxation 218–220; socialism as defined in the Constitution 211–213 Kazi Mukhlesur Rahman v Bangladesh 46 Kelsen, Hans 37, 43; flaws of the model 34–35; on revolutionary legality 30–34 Khandaker Mustaque Ahmad 63 Larma, Manabendra Narayan 182, 197–198 Laws Continuance Enforcement Order 1971 47 Legal Framework Order (LFO) 5, 59 legality 124–125; see also revolutionary legality legal system see Bangladesh’s legal system (BLS) legislative powers 140–141 legislature: and women 202–207 liberty see equal liberty limits of executive power 129–130, 143–144; American and British models 132–134; cosmetic design of separation of powers 135–136; demarcation of powers 134–135; fundamental rights as a limit to the executive power 141–143;

judiciary and check on executive and legislative powers 140–141; omnipotent prime minister 136–140; separation of power as a method for limiting the state 131–132 localisation of MPs 154–157 majority religious community 67–68 Martial Law Proclamation 121, 126 martial law regulation 24, 120, 126 ministerial responsibility 152–154 modalities: domestic implementation of international law 51–53 modus vivendi (MV) 67 morality 81–84; moral reading of the law 85–94 MPs 154–157 multi-party politics 161–166, 169–174, 176–177; abolition of caretaker government 174–176; democratic development 169–174; parliamentary system 166–169 nationalism 71 non-party caretaker government (NPCTG)/CTG 10–13, 18–20, 23, 103, 117; abolition of 174–176; Parliament of Bangladesh 148–149; and political parties 164, 173–174 non-separatist secularism 64–65 omnipotence 19, 129, 136–138, 140, 144, 175 one-party politics 161–166, 169–174, 176–177; abolition of caretaker government 174–176; democratic development 169–174; parliamentary system 166–169 opportunity see fair equality of opportunity opposition, suppression of 157–158 ownership 217–218 parliamentary system 166–169 Parliament of Bangladesh 145–146, 158–160; brief history 146–150; “Five Eastminster Deviations” 150–152; “selective dictatorship” 152–154; suppression of

Index parliamentary opposition 157–158; undemocratic party system 154–157 Parliament’s Rules of Procedure (RoP) 7, 110, 139, 159 party system 154–157; see also political parties pluralism see religious pluralism policy see judicial policy-making; political policy-making ‘political,’ the: women in 202–207 political compromise 66–67 political parties 161–166, 169–174, 176–177; abolition of caretaker government 174–176; democratic development 169–174; parliamentary system 166–169 political policy-making 102–103 politics 224–229, 239–240; independence of judiciary 233–235; popular sovereignty 229–231, 231; rule of law 235–239, 238; separation of powers 231–233 popular sovereignty 229–231, 231 prime minister 136–138 private entities see public functions of private entities; public-private dichotomy Proclamation of Independence 1, 6, 39–43, 59, 146, 188 progressive taxation 218–220 property see right to property Provisional Constitution of Bangladesh Order (PCO) 6–7, 42–43 public functions of private entities 123 Public Interest Litigation (PIL) 13–16, 121–123 public-private dichotomy 123, 200–202 Rahman, General Ziaur 9, 60, 147, 227 Rahman, Sheikh Mujibur 4, 9, 40, 144, 146, 166, 168–169 Rawls, John 209–211, 222–223; and democratic socialism 220–222; and economic and social rights 213–214; and fair equality of opportunity 215–217; ownership, right to property, and equal liberty 217–218; and progressive taxation 218–221; and socialism 211–213

245

reading of the law see moral reading of the law recognition see symbolic recognition religious pluralism 69–70 representation of women 206–207 Representation of People Order (RPO) 1972 163–165 reservation 203–206 responsibility see ministerial responsibility revolutionary legality 30–34, 43 rights see fundamental rights; human rights; right to property right to property 217–218 role abdication 154–157 rule of law 77–78, 235–239, 238; judicial independence 94–99; judicial role 78–81; morality 81–84; moral reading of the law 85–94 rule of recognition 29–30; emergence of BLS 38–43; flaws of the Kelsenian model 34–35; Hart’s rule of recognition 35–38; Kelsen on revolutionary legality 30–34 Rules of Procedure (of Parliament) 7, 110, 139, 159 secularism 58–62, 72–73; anticoexistence 70–72; debates over the meaning of 62–64; justifications and critiques 64–70; new discourse 72 “selective dictatorship” 150–154 Sengupta, Suranjit 46, 137–139, 142, 165, 185–186, 198, 211–212, 214, 219, 221 separation of powers 112–114, 125–126, 231–233; judicial review of constitutional amendments (JRCA) 119–121; judicial review and the enforcement of human rights 123–124; judicial review of public functions of private entities 123; and the judiciary 114–119; limiting the state 131–132; principle of legality 124–125; public interest litigation (PIL) 121–123 sex-based discrimination 198–200 single-dominant party system 174–176 social human rights 181–182; basic structure of the Constitution 191–192; constitutional nature

246

Index

and functions of FPSPs 182–186; judicial enforcement 186–191; status of 213–214 socialism 211–213; democratic 220–222 social reality 65–66 sovereignty see popular sovereignty Special Powers Act 1974 55, 238 ‘state and public life’ 195, 197–200, 218 state religion 58–62, 72–73; anticoexistence 70–72; debates over the meaning of secularism 62–64; justifications and critiques 64–70; new discourse 72 strategic political compromise 66–67 suppression of parliamentary opposition 157–158 Supreme Court of Bangladesh 100–102; Al Jazeera Documentary Broadcast Case 107–1111; political policy-making 102–103; 13th amendment judgment 103–107; and women 198–202; see also Appellate Division symbolic recognition 67–68

taxation see progressive taxation 13th Amendment 103–107 two-party system 169–174 undemocratic party system 154–157 under-representation of women 206–207 United Kingdom see British constitutionalism United States see American constitutionalism Universal Declaration of Human Rights (UDHR) 55, 142 value see aspirational value war of independence 3–6 Westminster parliamentary system 150–152 women 193–194, 207–208; and the Constitution of 1972 194–198; and the legislature 202–207; and the Supreme Court 198–202 Zia, Khaleda 79, 173, 228