Working and Impact of Parliamentary Committees in the UK and Bangladesh: A Theoretical Analysis

There are four leading committee theories that explain how the parliamentary committees are organised across the congressional and parliamentary systems, why they behave in particular ways and how the political parties influence their formation and work. These theories are known as the “distributive or gains from trade theory”; “information, scrutiny and expertise supply”; “coalition”; and “partisan cartel” theories. Exponents of the distributive or gains from trade theory argue that parliament members take their committee assignments seriously because it provides them with a scope to distribute development and other material benefits to their constituents and thereby enhances their chance for re-election. They can also use their committee positions as leverage to gain from trade or bargain with fellow parliament members working in other committees. The information, expertise and scrutiny theory explains the institutional issues that support a strong committee system. Proponents of this theory argue that a strong committee system helps the Parliament by supplying information and expertise about public policies and ensuring detailed scrutiny of the governmental proposals. The coalition theory considers the impact of collation governments on the committee system. The partisan cartel theory deals with the partisan influence in the committee formation process. This paper aims to test each of the four committee theories on the UK House of Commons and Bangladesh's “Westminster Parliament”. It argues that while the UK parliamentary committees have been able to overcome most of the partisan barriers and amass great institutional strength to make sense of the system in terms of all of the four theoretical strains, the operation and impact of the Bangladeshi committee system has remained hostage to a pervasive “partisan cartelisation”

Judicial Review of “Internal Parliamentary Proceedings”: The Dialogic and Non-dialogic Approaches

This article compares the internal proceedings jurisprudence of the highest courts of the United Kingdom (UK), India, and Bangladesh. Though the Supreme Courts of Bangladesh and India have shown general deference to the debates in parliament, they have shown willingness to lift the veil of those “internal proceedings” that might have constitutional questions involved. It appears that the UK, India, and Bangladesh’s respective models of judicial review and parliament-judiciary relationship influence their internal proceedings jurisprudence. While the Indian and Bangladeshi Supreme Courts’ understandings of the internal proceedings doctrine are conditioned by their self aggrandised posture of guardianship over the Constitution, the British judiciary’s approach is largely dialogic and conciliatory. Indian and Bangladeshi Supreme Courts’ adversarial approach frequently places them in direct confrontation with the legislative and political branches. While the Indian Supreme Court does not shy away from such confrontation, Bangladesh Supreme Court usually tries to avoid it and, in the process, ends up taking fluctuating and self-contradictory positions in different cases. The author argues that the UK’s dialogic model of judicial review provides for a rather congenial basis for principled judicial consideration of the internal proceedings doctrine

Advocate Asaduzzaman Siddqui v. Bangladesh: Bangladesh's Dilemma with Judges' Impeachment

Like the major constitutional systems of the world, Bangladesh had a parliamentary removal process for the judges of the highest court. The system was however changed by the military rulers of late 1970s. Very recently, the parliament of Bangladesh attempted to revive the original system and the Sixteenth Amendment to the Constitution of Bangladesh, was passed in 2014. The case at hand, Asaduzzaman Siddiqui v. Bangladesh is a challenge to this Amendment. This casecomment analyzes the arguments and reasoning of the case and argues that the judges and counsels concerned have wasted a chance to analyze this Amendment from its proper perspective. Therefore, a very high profile constitutional litigation ended in adding virtually nothing to the constitutional jurisprudence of Bangladesh

Bangladesh’s inconsistency with the doctrine of prospective invalidation

This chapter argue that the position of the Supreme Court of Bangladesh is hardly based on any principled appreciation of the doctrine. It describes the prospective Invalidation is used in a specific sense to touch upon judicial decisions unsettling the validity, or a prevailing understanding, of statute or statutory laws. Bangladesh, a common law system, has formally endorsed the Prospective Invalidation doctrine in a one-line observation in the Thirteenth Amendment Case. Several decisions of the Supreme Court of Bangladesh indicate that Prospective Invalidation has been implicitly endorsed in the country even before it was formally endorsed. Maulvi Tamizuddin Khan presented a situation quite suitable for the introduction of Prospective Invalidation by the court in cases of necessity. Chief Justice ABM Khairul Hoque had to deal with the question of Prospective Invalidation of the Thirteenth Amendment. The Bangladesh Supreme Court thereby attained a Prospective Invalidation like outcome without expressly endorsing it

Antagonistic Judicial Review of Bangladesh: A good candidate for the Dialogic Model?

The Dialogic Model of judicial review famously curved out of the Canadian Charter of Rights and Freedoms, 1982, and later endorsed by the UK Human Rights Act 1998, has inspired many judicial review - strong or weak - systems worldwide. This paper argues that it has relevance for the “antagonistic” strong form judicial review system of Bangladesh as well. Building upon how the Parliament and judiciary in Bangladesh (un)relate each other, this paper argues that Dialogic Model could solve confusions in three particular areas of Bangladeshi judicial review – fundamental right based statute review, fundamental principles based collective rights review, and constitutional amendment review. It is shown that certain areas of judicial review in Bangladesh are subtly dialogic and hence could be potential breeding grounds for broader application of the Model. The Dialogic Model's own internal dilemmas and objection to its over generalisations also are noted in this paper and a case is made why those might not constitute a very big stumbling block on the way of its application in Bangladesh. This has been done through a special consideration of the comparative judicial review regimes of some of Bangladesh’s close commonwealth neighbours in south-east Asia

Claiming a Fundamental Right to Basic Necessities of Life: Problems and Prospects of Adjudication in Bangladesh

The debate on whether socio-economic rights can or should be adjudicated upon and enforced by courts is ongoing since the 1960s, when the rights in the Universal Declaration of Human Rights (UDHR) were separated into two covenants. Though the International Covenant on Civil and Political Rights (ICCPR) 1966 and the International Covenant on Economic Social and Cultural Rights (ICESCR) 1966 differ from each other in many respects, the key point which makes the ICESCR drastically weaker than and subservient to the ICCPR1 is Article 2(1), which stipulates that State parties are required to work towards the progressive realization of socio-economic rights subject to the availability of resources. On the other hand, Article 2 of the ICCPR imposes an immediate and justiciable obligation upon the State.Since civil political rights figured prominently in the west while socioeconomic rights were propagated by the socialist block, ideological cleavages between socialism and capitalism shadowed the necessity of integration of socio-economic rights among justiciable fundamental rights and they were thereby avoided practically.2 After the World War II most of the third world countries emerging free from capitalist colonial legacy adopted this formula of segregating the human rights and hence socio-economic rights remained the poor cousins of their civil and political counterparts. In the sub-continent, Indian (1950) and Pakistani (1973) constitutions adopted this model and later so did the Constitution of Bangladesh in 1972

Making and Unmaking the Constitution of Bangladesh

Bangladesh ’ s Constitution of 1972 was largely modelled on a UK-styled parliamentary system with a ‘ half-hearted ’ combination of a US-styled judiciary. Th e framers choose a Westminster-like arrangement between the executive and legislative branches. Th e judicial branch was given a semblance of independence (through the judges ’ appointment, removal, and discipline processes) and the power of judicial review. Th e choice of parliamentary system was influenced, among others, by the post-colonial political elites ’ general appreciation of it as a convenient institutional model for the former British colonies (Sri Lanka (1948), India (1950), Pakistan (1956), and Malaysia (1957) for example). 2 In the newly independent Bangladesh, a desire to avoid the painful tragedy of Pakistan’s authoritarian presidentialism also provided strong motivation. The independence of the judiciary and its judicial review powers were necessary for enforcing the country ’s constitutional supremacy (as opposed to the UK ’ s parliamentary sovereignty) and fundamental rights. Ideologically, the sponsors of the 1972 Constitution showed a strong commitment to a social democratic republic based on four foundational principles – democracy, socialism, nationalism, and secularism. Now, 50 years into its constitutional beginning, Bangladesh seems to have mishandled the original design and forgotten the original ideals. Since 1972, the country has undergone different political experiments involving one-party presidentialism, several direct or indirect military regimes, several election-time caretaker governments, competitive bi-partisan authoritarian governments, and the ongoing round of one-party authoritarianism. During this tortuous constitutional journey, Bangladesh ’ s parliamentary system has transformed into a crude version of the prime minister ’s ‘elective dictatorship’. Th e judiciary has been marginalised, and its check-and-balance potential is mostly gone. On the ideological front, the country has either walked away from some of its foundational principles (socialism, for example) or substantially tempered with the others (democracy, nationalism and secularism, for example).Some pundits have blamed the framers ’ lack of institutional imagination for this constitutional debacle. While the lack of institutional imagination may be a valid argument in several areas of constitutional design (executive legislature relations and the electoral system, for example), this chapter argues that Bangladesh ’ s constitution-making process carried with it some other inherent and inevitable dilemmas on political participation, leadership style, and civil-military relations. Total exclusion of the religious-conservative political elements from the constitution-making process (how logical it appeared then) had partially weakened (if not dislodged) the 1972 Constitution ’ s political foundation. Second, a socially resonant tendency to personalise public power inhibited the Constitution-drafters ’ ability to prioritise institutional considerations over their leader ’ s personal preferences. Resultantly, a seismic constitutional change in 1975 led to direct military intervention into politics and the revival of the ultra-religious conservatives. Bangladesh ’ s constitutional unmaking has been rapid and consistent since then

Fifty Years of Electioneering in Bangladesh: The Collapse of a Constitutional Design

The orderly transfer of power through regular, participatory, free, fair, and credible election is the most fundamental, though not the only, requirement of democratic constitutionalism. Bangladesh’s 50 years-long electioneering experience represents a constitutional design spoiled by a culturally illiberal value system. This chapter argues that the problems of elections in Bangladesh are twofold. First, Bangladesh’s formal institutional design of electioneering is undermined by its purposeful abuse at the hands of its personalised, clientelist and competitively illiberal ‘Eastminster’ political system. The power-perpetuating tendency of the system prefers elections that could prevent the people from choosing their representatives – elections of ‘Preventive Representation’. Secondly, the reform initiatives undertaken at different stages of Bangladesh’s political history show a visible lack of ‘Democratic-instrumental Vision’, which would ask for institutional imagination on the reformers’ part. Bangladesh’s ‘independent’ Election Commission has been successfully co-opted. Later, an unusual structure of caretaker government was established, tempered and lastly, done away with as a matter of elite preference devoid of public participation