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“All Citizens are Equal before Law and are Entitled to Equal Protection of Law”-Article 27 of the Constitution of the People’s Republic of Bangladesh

Issue No: 216
November 26, 2005

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Constitutionalism, parliamentary supremacy, and judicial review: A short rejoinder to Hoque

Imtiaz Omar and Md. Zakir Hossain

Interestingly, after a change in government in 1977, the right to property was taken out of the list on justiciable 'fundamental rights' in the Indian Constitution, and located elsewhere. The right to property is not only relatable to property proper, but impacts on such rights as the right to freedom of expression, since an appropriation of building and press would be a denial of the latter right. Various aspects of the right to property are recognised even in totalitarian and communist states.

Not in India now. And what has the Court done if not taken recourse to the political questions doctrine? Returning back to the basic features doctrine, since its adoption of the basic features doctrine, the Indian Supreme Court invoked this doctrine successfully in only five cases up until the judicial examination of the 1976 amendment relating to Indira Gandhi's election case. The Court might not have done so, had the amendment not been in the nature of a bill of attainder. Since 1980 (Minerva Mills case), the Court has totally refrained from invoking this doctrine. The government also has not made any attempt to overrule the case establishing the doctrine.

The doctrine therefore remains in limbo generating some heat and smoke at times. The doctrine has at times been cited in courts in Pakistan, Sri Lanka, Malaysia and Bangladesh. Only in one baffling instance in Bangladesh, relating to the 8th Amendment, was it successfully invoked.

Dworkin makes a fundamental distinction between policy and principle in the context of ensuring constitutionalism. In his jurisprudence, this mirrors the allocation of responsibilities between the appellate court entrusted with judicial review, and the parliament exercising legislative supremacy.

Arguments of principle, according to him, are directed to justify a political decision by showing that the decision respects or secures some individual or group right; this is what the judicial function is all about. Dworkin's approach thus is, the function of the court is to apply the principles of political morality to examine whether the legislature, or for that matter the executive, is encroaching on the political-moral rights and entitlements of individuals. He does never say, nor does he imply, that the court should rule on political policies of the legislature.

Since the article on which Hoque's rebuttal is based was an article in the popular media, references to commentators were not made. However, since Hoque likes it this way, and goes on to quote Henkin with the journal citation, it seems proper that readers of this current rejoinder should be alerted to later works of Henkin, and some other leading authorities on the justifiability of adopting the political questions doctrine. Henkin's later work, A New Birth of Constitution-alism (1994) is relevant. Alexander Bickel, whose persuasive work, The Least Dangerous Branch (1962), has been cited over and over again, advocates an approach along the lines of the political questions doctrine. Ely's Democracy and Distrust (1980) is also instructive.

The approach taken in our previous article, and what is being suggested now, is not directed to advocate a blind adoption of the political question doctrine upheld by the US Supreme Court, nor a judicial hands-off approach to questions concerning human rights, the proprieties of activities of the government concerning its citizens and the like.

What is being highlighted is that, within the scheme of constitutional government, the Court should not always assume power to rule on pure political questions, like, for example, attempting to invalidate the 1979 5th Amendment in 2005. Neither should the political agencies of government dump political question on the court for resolution. Nor should the political opposition take recourse to the court when the political questions are better resolved, or should be debated in the political and representative forums.

Because of its status partaking the nature of a counter-majoritarian institution, staffed by tenured non-elected personnel, the Court cannot be expected to reflect changing, social, moral and economic values. Nor would the Court always have all kinds of information to rule on every political question that may come its way. Members of the Court are appointed by the executive, and the court has to depend on the executive for compliance with its rulings. There must therefore, of necessity, be inter-agency co-operation, and respect of each other's domains.

Constitutionalism means limited government. In the arena of policies and legislation, limited government is achieved by ensuring political control through the mechanisms put into place by the Constitution. The Bangladesh Constitution establishes a parliamentary-executive type of government in which the executive is responsible for its actions to the elected legislature, comprising both of the majority party and the opposition.

Questions arising on proprieties or improprieties of governmental action can be litigated in court by private individuals, groups, and the opposition. However, the Supreme Court under the Bangladesh Constitution does not exist as a forum for partisan constitutiona-lism, nor should it, wittingly or unwittingly, permit itself to be a party to partisan constitutionalism.

Judicial review of legislation has been unknown in the common law world since the early 17th century. Writing in the tail end of the nineteenth century, and speaking about the position of the British Parliament, Dicey declared the absolute sovereignty of the British Parliament. Although a dogmatic explanation, and later contested, it might be applicable to the British situation.

With the empowerment of the Judicial Committee of Privy Council to engage in judicial review of legislation passed by the (inferior) colonial legislatures, judicial review made a comeback in the common law world. The basis of judicial review under the Constitutions of independent countries of Bangladesh and India is however different. This power has come to be exercised in the context of the mechanisms of constitutiona-lism established by the Constitution.

In this regard, there must be a balance between legislative supremacy and the so-called judicial supremacy. If the court assumes unbridled judicial supremacy, democratic government will be negated, and the representative and majoritarian institution of parliament will be reduced to a position of inferiority. This is not what constitutionalism means, much as Iyer or Hoque would like to argue for.

It is trite to say that the court is the guardian of the constitution, and that only the judiciary, by its activism, can ensure that the values and principles of the Constitution are upheld. Court activism by way of judicial review can be directed to both conservative and progressive ends. This expression can thus be pejorative. In the 1930s for example, the US Supreme Court that repeatedly rejected social welfare legislation until president Roosevelt was forced to threaten to pack the court with new additional appointees.

On the other hand, judicial activism of the US Supreme Court under the chief justiceship of Earl Warren and Warren Burger has been progressive. The Earl Warren and Warren Burger Courts were actively engaged in judicial review to enforce de-segregation policies and affirmative action.

The constitutional context of judicial review may be different in Western and new democracies, and the extent of its exercise may vary depending, to a certain extent, on the efficacy of constitutional government. What is however important to remember is that, institutionally, the court should not be dragged in to rule on pure political questions.

There is great danger if such a position is adopted. For one thing, it will erode the legitimacy of the court; secondly, it will expose the court and its members to manipulation by the political agencies of government. In Bangladesh, Justice Ahsanuddin Chowdhury and Chief Justice Kemaluddin Hossain, for varying reasons, have been victims of this. In India, senior judges have been superseded for chief justiceship of the Supreme Court, and there were threats of transfer of High Court judges at times. In Pakistan, two Chief Justices, and other judges were forced to retire prematurely for political reasons.

It is not suggested that the Supreme Court in Bangladesh should carry out its constitutional task according to the dictates of the ruling government, or be forced to occupy a subservient position in ensuring constitutionalism.

There are two things to remember though -- the Court must not allow itself to be a dumping ground for sorting out political questions that are better resolved in the political forums. This it can do by adopting variants of the political questions doctrine. Secondly, the Court must not allow itself to be drawn to oppositional political partisanship. In both cases, the Court must reflect on its sense of self-restraint, and judges should set examples of judicial statesmanship.

This is the concluding part of the write up. Law Desk will not publish any more article on this subject.

Dr Imtiaz Omar is a Constitutional Law academic currently based at the University of New England's Law School, Australia. Associate Professor Md. Zakir Hossain is Dean, Faculty of Law and Chairman Department of Law, University of Chittagong.


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