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November 1, 2003 

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'Govt owes an explanation why it is so slow in implementing separation of judiciary' - Dr. Kamal Hossain

Dr. 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.

A Rahman: What is the necessity of the constitution in a newly emerged state?

K 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.

A Rahman: Did you face any problem while drafting the Constitution?

K 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.

A Rahman: You mention that Bangladesh is a peoples republic. Do you think that people are duly represented?

K 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 govt.

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.

A 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?

K 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.

A Rahman: What will be the role of the Supreme Court while govt itself violates the constitution?

K 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.

A Rahman: What will be your comment on Non party Caretaker Government? Is it a permanent solution? Is it undermining the Election Commission?

K 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.

A 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 of govt?

K 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.

A 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?

K 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.

A Rahman: You were the leading lawyer of the 8th amendment case. Is not the 8th amendment gave people the opportunity of access to justice?

K 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.

A 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?

K 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 their freedom.

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