owes an explanation why it is so slow in implementing separation of
judiciary' - Dr. Kamal Hossain
Kamal Hossain, Senior Advocate of the Supreme Court, has crossed
the national boundary on his professional achievement. He was the Minister
of Law in 1972, Minister of Foreign Affairs in 1973-75 and Minister
of Petroleum and Minerals in 1974-75 of the Government of Bangladesh.
Above all he was the Chairman of the Constitution Drafting Committee,
Constituent Assembly of Bangladesh, 1972. Mr. Hossain talks about parliamentary
democracy, the role of the judiciary and some other different issues
in an interview with Anisur Rahman of Law desk.
Rahman: What is the necessity of the constitution in a newly
Hossain: The Constitution is the fundamental law of the state
and it provides the basic legal framework which defines what will be
the institutions through which the state will perform its functions,
how power will be exercised by the sate, what will be the basic organs
of the state, which will be the legislative organ of the state, which
will be the executive organ, who will exercise the judicial power. In
each state where the people are the source of authority of the state
the question arises as to how people will be represented in the legislative
organ, how elections will be held, how the public service will function.
In a multiparty democracy the govt. may change but public servants are
intended to discharge their functions as persons in the service of the
state, not any party. All of these things are dealt with by the Constitution.
Above all the Constitution includes fundamental rights provisions, the
bill of rights. The fundamental rights, which are guaranteed by the
Constitution, are those recognised by the Universal Declaration of Human
Rights. These rights are protected by the Constitution. The Supreme
Court is the guarantor of those rights. So these are the basic provisions
which provide under the constitutional framework.
Rahman: Did you face any problem while drafting the Constitution?
Hossain: No. We did not face any problem. There was a general
consensus about the basic institutions of the state. What will be the
nature of the state, what will be the power of the different organs
of the state. You know we struggled against the oppression of an authoritarian
minority. So there was a huge consensus among the people against such
oppression, and the strongest possible sentiment in favour of democracy,
which was viewed as a government by elected representatives of the people.
Rahman: You mention that Bangladesh is a peoples republic.
Do you think that people are duly represented?
Hossain: You know we have formal institutions as envisaged
in the constitution are now functioning. For a number of years we observed
different types of interventions in the functioning of the Constitution.
Such "suspension" of the Constitution has had negative effects
not only in terms of the growth of a democratic culture and democratic
values, but also the formal institutions. There was presidential system
of govt. for number of years, which was replaced by a parliamentary
system. Now since from 1991 we have a formal parliamentary democracy,
which requires an active and effective parliament. Three elections have
been held under the caretaker govt. So in a formal sense we can say
that a democratic, representative legislature which provides under the
Constitution and has been constituted through election under the caretaker
But I know there
is wide spread concern that the legislature is not functioning effectively
because of the "confrontational" approach adopted by the govt
and the opposition in order to make the parliament an arena of effective
participation of all members in a way which it could make it effective,
its committees must be effective and Government and opposition must
both contribute to debate and be able to engage in dialogue on material
issues. We have seen the boycott in each of the parliament by the opposition.
The result of the boycott seriously affects the proper functioning of
the parliament. Multiparty parliamentary govt. is so designed that effective
participation is required both by the govt and opposition party. Both
the parties play an important role.
The opposition is
expected to point out the weakness and the deficiencies of the government
and to keep the govt under continuous scrutiny and pressure so that
the govt feels that it is subject to scrutiny and has to be answerable
for its performance, and for its failures. Equally in parliamentary
committees, if there is any failure of the part of the govt or there
is need thorough debate to resolve different problems of the country
or for alternative suggestions to be put forward, all these can be only
achieved when the govt and the opposition are both functioning effectively.
If one party is not functioning, if the opposition is not able to contribute,
if it is complaining that it is not given an opportunity to participate
in the parliamentary committees and so on, parliamentary democracy cannot
achieve its goal. Both parties when they have been in opposition have
resorted to boycott. The opposition has resorted to boycott, and played
a negative role. This is really why the representative govt has not
been able to function effectively as people had hoped. Democracy comes
to us after years of struggle. Democracy was restored in 1990 after
a united movement of the people where many people lost their lives and
many suffered a great deal. We, therefore, had a reason to hope that
parliamentary democracy which was restored through the sacrifice of
the lives of many people would now been functioning in a healthy way
to give the result to the desires of the people. But people feel today
that they had been denied.
Rahman: It is the constitutional duty of the govt to separate
the judiciary. Do you think that the govt is violating the constitution
by neglecting the directions of the Supreme Court effect?
Hossain: Yes. I feel certain something for which the govt owes
an explanation to the whole people of the country why it is so slow
in implementing the direction of the Supreme Court. The previous government
and the present government together taken sixteen extensions. Two years
have gone by since the present govt. assumed power. There is no justification
for such delay. India and Pakistan had inherited the same judicial system,
as we had from the British. Pakistan and India have by now separated
their judiciary from the executive. It has been effected in most of
the democratic countries. This is a colonial legacy to keep a very large
part of the judiciary under control of the executive. The British left
more than 50 years ago. So there is no justification for the delay in
implementing the separation of the judiciary.
Rahman: What will be the role of the Supreme Court while govt
itself violates the constitution?
Hossain: The Supreme Court under the constitution is the guardian
of the Constitution. I want to say that there are checks and balances
upon the executive and the legislature so that they don not violate
the constitution. If they do so you can go to the court. That's why
independence of judiciary is so critically important. As in the case
of the 8th amendment, which had undermined the strong and united judiciary;
but the court itself was able to declare it as unconstitutional later,
the Public Safety Act was declared unconstitutional by the Supreme Court.
So far the govts have respected the decisions of the court, but the
delay with regard to implementing the separation of judiciary if it
continues may be construed as disrespect. Constitution itself declares
in Article 112 that all authority shall act in aid of the Supreme Court
and the Supreme Court's decision is binding. So respect of the Constitution
requires respect to judgements of the highest court.
Rahman: What will be your comment on Non party Caretaker Government?
Is it a permanent solution? Is it undermining the Election Commission?
Hossain: No it should not. It is intended to, and does, supplement
the election commission and make it possible to the election commission
to perform its role more effectively without interference by a partisan
govt. In 1990 the caretaker govt was devised to provide for transition
to a parliamentary democracy. We had the president who was there before
but no election could be held under him. When he resigned all the parties
in the movement agreed that they would have a caretaker govt and it
would be provided by the amendment to the Constitution. In 1990 Chief
Justice Shahabuddin Ahmed headed the caretaker govt and an election
was held under the presidential system. In 1996, an election was held
under normal party govt, but the result of the election was so controversial,
protests led to a demand for a fresh election under a caretaker government.
The concept of the caretaker govt was then incorporated in the Constitution
by an amendment. It was the generally held view that a caretaker govt.
would ensure a fair election. The election commission would be more
effective, since a caretaker government would not interfere in the electoral
process through its administration and police and the official of the
election commission would not be influenced, as was likely to be the
case if there was a party government in power
Now a caretaker
govt has on the whole been seen to be a useful arrangement for the election
period. There has been growing apprehension that a party government
would misuse power to favour its candidates, and the over-all election
result. For a fair election, it is essential for administration to ensure
the equality before law. The supporters of the govt party should not
get preferential treatment.
Rahman: Caretaker govt shall be collectively responsible to
the president under Article 58B(2). Art 58E also gives president an
unfettered power. Do you think that our Constitution provides dual system
Hossain: This is way, which it is expected to be work. The
caretaker govt is an innovative arrangement. In 1996 it was incorporated
in the Constitution. The president is seen as a constitutional office,
which is above party, and that he will not be a partisan person. Therefore
it was thought that during the election period he is the person under
whose umbrella the head of the administration, would be called "the
Chief Adviser" would run the country. For this period, president
is given a certain special status and special powers. He is not the
head of the caretaker govt. He is constitutional head of the state,
with certain defined responsibilities during the election period.
Rahman: Do you think that the position of the Chief Justice
as the Chief Adviser of the caretaker govt. encourages the superseding
practice in the Supreme Court?
Hossain: These are the matters about which questions certainly
raised whether the fact that the immediate past Chief Justice is intended
to be the head of the caretaker govt may begin to affect on appointment
of Chief Justice. You know by and large we had followed in the past
the convention that the senior most judge of the Appellate Division
of the Supreme Court was appointed as the Chief Justice. If this practice
is strictly followed there will be less chance of manipulation in the
appointment of Chief Justice. I would like to hope that the appointment
of Chief Justice will remain above political manipulation and the principle
of seniority should be respected.
Rahman: You were the leading lawyer of the 8th amendment case.
Is not the 8th amendment gave people the opportunity of access to justice?
Hossain: In a country like ours the highest court, the Supreme
Court, should really be a national institution. Distances are not so
great from the capital to any part of the country. Jamuna Bridge is
here and it is five or six hours journey to reach Dhaka from most of
the parts of the north. The benefit you get from an integrated national
court in terms of higher standards, both of bar and bench, would not
be possible to ensure in divisional courts. To give an example from
other sector: a postgraduate hospital in Dhaka results in great distances
having to be travelled by patients in need of specailised treatment.
Putting up a signboard of "post graduate hospital" in hospitals,
which can neither be staffed nor equipped as the one in Dhaka, would
mean that patients would still not get the same specialised treatment
as from a single national institution, having the highest standard.
A national institution, we strive for the highest attainable levels
of excellence to set a standard. One must strive for access to justice
to be made available. But the highest court of the country must play
important role to interpret the constitution, protect the constitution
and fundamental rights and be an appellate court for decisions of the
lower courts. There is a provision in the Constitution that circuit
benches of the High Court Division can sit outside Dhaka. So if there
are a number of cases to dispose of in different divisions the Chief
Justice can direct circuit benches to sit in the divisional headquarters
for the disposal of the cases, if circumstances so require.
Rahman: Constitution gives Member of Parliament an absolute
immunity from the court to say anything during the session of the parliament.
Do you think that this right should be restricted?
Hossain: Yes MPs are given some immunity. But parliament itself
should oversee that this immunity does not lead to abuse of rights of
the parliament member. The concept behind the immunity is that the members
of the parliament discuss all the matters on behalf of the people without
fear or favour. If they are not be immune from the legal proceeding
or the court case, their freedom of expression would be restricted.
The idea is that they are representatives of the people dealing with
national issues they must enjoy "unrestricted" freedom but
the parliament has the responsibility to oversee that whether they misuse