Legislative power of the Parliament
The parliament of Bangladesh is invested with the power of legislation by Article 65 of the Constitution of the People's Republic of Bangladesh. Very often question arises regarding the extent of this power and whether or not parliament can legislate or enact any Act it wishes. The answer to this question can be made by reference to some constitutional provisions and case laws.
The doctrine of legislative supremacy in the United Kingdom is not available in a written Constitution which contains a constitutional system of restrains by the superior court in the form of judicial review. Article 7(2) of the Constitution says that-“This 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 this Constitution that other law shall, to the extent of inconsistency be void.” By this Article it has been at least clear that parliament cannot enact any law which is inconsistent to this Constitution and if any such law is made that will not enjoy the status of legally enforceability in law.
Again, under Article 65 of the Constitution the legislative power to the parliament is vested subject to the provisions of the Constitution. This Article indicates that the framers of the Constitution contemplated that the members of the parliament, the representative of the people, may not essentially possess the legislative acumen required for enacting a good piece of legislation and as such the laws made by them should be subjected to review of a body having such acumen i.e. the supreme judiciary. In the case of Mofizur Rahman v. Bangladesh, 34 DLR (AD), 321 it was held that “Bangladesh parliament by virtue of Article 65 has plenary or supreme legislative power conferred upon it and this power is exercisable subject to the Constitution. The Constitution puts two bars on the legislative power of the parliament, one is that the Constitution being the supreme law of the state any other law inconsistent with it, shall to the extent of inconsistency be void and the second bar is set out by Article 26 that all laws made by parliament must be consistent with the fundamental principles of state policy.
In the case of Kudrat-i-Elahi Panir v. Bangladesh, 44 DLR (AD), 319 it was held that Articles 59 and 60 restrict the plenary legislative power of parliament to enact laws on local government to the extent that parliament cannot transgress, overlook and ignore the constitutional provisions prescribing the manner and method of establishing local government, its composition, powers and functions including the power of local taxation. Proviso to Article 65 authorizes parliament to delegate, to any person or authority by Act of parliament, power to make orders, rules, regulations, bye laws or other instruments having legislative effect.
However, the parliament cannot by virtue of this Article delegate its essential legislative powers, including power to repeal the parent law, to the subordinate authority. When the law declares a law to be invalid, parliament cannot pass an Act declaring that the judgment is invalid or that the action taken under the invalid statute shall be deemed to be valid retrospectively. Parliament cannot by law ask anyone to disregard or disobey the Court's decisions. In the case of Mofizur Rahman Khan v. Government of Bangladesh, 34 DLR (AD), 32 it was held that “the legislature cannot reverse or set aside the Court's judgment, order or decree…..” Chief Justice K. Hossain expressed that “Parliament has the power to validate a law declared by a Court illegal by removing the cause of illegality or infirmity.”
It is therefore incumbent that the supreme judiciary which is to some extent and in some respect endowed with the supremacy over the parliament so it should be kept in such a condition which will facilitate the judges to perform their functions properly and without any interference whatsoever from any government or non-governmental authorities.
The writer is student of Law, Dhaka University.