Professor M Rafiqul Islam
Recently a public debate has emerged on the sovereign status of Bangladesh Parliament. The debate is triggered by the decision of the Supreme Court not to allow its Registrar to appear before the Parliamentary Standing Committee on Law, Justice and Parliamentary Affairs despite a formal invitation for such appearance. The Chair of the Committee has argued that Parliament is sovereign and its standing committee is competent to issue such an invitation. Whether the Supreme Court should send its representative to parliamentary standing committees is not commented here. Instead, the central issue of the debate on the sovereign status of Parliament is briefly examined below.
Any parliament created by, and operative under, a written constitution cannot enjoy unfettered functional competence particularly in law-making. This is because the written constitution is the supreme law and parliament is made to operate within the set constitutional limits. Parliament under a written constitution does not possess any intrinsic law-making power, which actually comes from the constitution. This derived law-making power of parliament, however extensively and passionately one may construe, must be understood and exercised within, not beyond, the constitution. Such a parliament and its acts once defy and surpass the constitutional limit, they became unconstitutional and suffer from legitimacy crisis. This status of a parliament under a written constitution differs markedly from that of a parliament not created by, and functional under, a written constitution.
For example, Britain has no written constitution and its Parliament functions in the absence of any written constitutional limitations whatsoever. In other words, the British Parliament is a sovereign law-making body, whereas the US Congress, being operational under a written constitution, is not sovereign. The landmark decision of the US Supreme Court in Marbury v Madison (1803) declared an act passed by US Congress unconstitutional, thus establishing the judicial review power of the Supreme Court. The constitution vests Parliament with law-making power subject to its constitutionality. Whether a parliamentary act is constitutional is determined by the apex court by virtue of, and in exercising, its judicial review power. The apex court is the final arbitrator of the constitutional validity of any parliamentary act. Parliament under a written constitution therefore does not possess sovereign law-making power, which is contingent upon and subject to constitutionality.
Bangladesh has a written Constitution, which is the supreme law of the land. Bangladesh Parliament is a procreation of, and functions under, the Constitution. The Constitution imposes express limitations and specific conditions on the law-making functions of Parliament. Article 7 prevents parliament from making any law and/or amendment which is inconsistent with, or repugnant to, the Constitution. It is legally binding for Parliament to make law in compliance with the Constitution. A failure to comply would render such act/amendment of Parliament invalid to the extent of inconsistency or repugnancy. Parliament itself is not authorised to determine the constitutionality of its own act. The Judiciary, being the guardian and custodian of the Constitution, is entrusted to ascertain the constitutionality of any parliamentary act. The interpretation of all constitutional provisions is exclusively within the domain of the Judiciary. Any competent court, particularly the Supreme Court, is empowered to judge whether a particular act of Parliament is consistent or not with the Constitution. This constitutional arrangement is designed to ensure the separation of powers with appropriate checks and balances between the government organs to avoid excesses and abuses of powers and functions.
Bangladesh Parliament is a non-sovereign law-making body by virtue of the restriction in Article 7 of the Constitution. Nor is it immune from any judicial review of the constitutionality of its act by the apex judiciary. It is the exercise of judicial power that held the parliamentary eighth amendment to Article 100 of the Constitution creating six permanent branches of the High Court Division unconstitutional in Anwar Hossain Chowdhury v Bangladesh in 1989. The recent decisions of the Supreme Court proclaiming the unconstitutionality of the fifth and seventh amendments of Parliament are ample manifestation of the fact that Bangladesh Parliament is not mandated to enact any law that it deems appropriate but subject to an important condition of its constitutional validity, which is determined by the Judiciary by exercising its judicial review power. These parliamentary amendments surpassed the permissible law-making power under Article 7. By enacting these acts, Parliament had elevated itself to a status over and above the Constitution and ultimately suffered from legitimacy crisis. In view of the overt constitutional restriction on law-making and the judicial reviews of parliamentary acts referred to, any claim to sovereign parliament is misleading at its best and ignorant at its worst.
In a participatory democratic system, parliament ought to possess and exercise transcendent power for democratic governance pursuant to the constitutional rule of law. Historically, the situation in Bangladesh is somewhat different. Political power exercised by incumbent governments has steadily created a strong executive, which is inclined to enhance its stature by controlling parliament that more often than not toes to the executive-centric party line. It is imperative that Parliament performs its functions in compliance with the specified constitutional requirement. Parliament must understand the ethos and spirit of the constitutional rule of law. Unfortunately, Bangladesh has witnessed the enactment of many parliamentary acts not in response to genuine needs but for political ends. These acts have hamstrung the integrity of good governance and dignity constitutionalism in Bangladesh. Many past major political impasses with far reaching stultifying effect on constitutional development and responsible government may be attributable to many unconstitutional acts of Parliament.
Constitutionally all three organs executive, legislature, and judiciary are independent to each other but acting together in collaboration for good governance. They all must respect each other's constitutional role. This mutual respect generates self-restraint, which is in-built in the Constitution. Whilst Parliament is entitled to perform its constitutional role, it must also allow other two organs, particularly the Judiciary to scrutinise whether parliamentary acts are within the constitutionally prescribed legal bounds. The motivation to a judicious mind and due process in performing parliamentary functions would go a long way in establishing good governance.
Parliament is constituted on the basis of political power expressed through popular votes of the majority. Once constituted, Parliament becomes the law-making body of the entire Bangladesh and its functional legitimacy no longer comes from any political source. Such legitimacy comes from a legal source the Constitution. The Constitution is a sacred and authenticated norm setter for parliamentary functions to achieve and preserve an orderly Bangladesh. It is not a convenient tool to be used for the perpetuation of political power. Parliament is not a touchstone so that anything it touches or does becomes inviolable. In view of the principle of constitutional supremacy, separation of powers, and checks and balances embodied in the Constitution, it is pretentious to argue that Bangladesh Parliament is a sovereign law-making body like the British Parliament.
The writer is Professor of Law, Macquarie University, Sydney, Australia.