Legislation, Law and Policy Reform in Bangladesh: Constitutional and Parliamentary Procedure

- Barrister M. Aftab Uddin

legalawareness

Published On - October 9, 2015 [Vol. 3, Jul - Dec, 2015]

In Bangladesh, like most countries, legislation is the major medium through which social and economic changes are instituted. It is the mechanism by which Government and Parliament may respond to the emerging needs of the society. Typically, since it is enacted by elected representatives, it confers democratic authority for State action. It is usually seen as providing a settled framework within which individuals and firms can regulate their affairs with reasonable predictability. It is the source of the rules that define and aim to control conduct considered to conflict with community interests, thereby justifying intervention by State institutions.

Legislative Process in Bangladesh: the prevailing[1] procedure

Supremacy of the Constitution

The Constitution of the People’s Republic of Bangladesh is the supreme law of the land. Article 7(2) runs “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 the inconsistency, be void.”

The Constitution of the People’s Republic of Bangladesh which came into force on December 16, 1972, is the Supreme law of the Republic, the fundamental law from which all public authorities derive their powers, all laws their validity and all subjects their rights. The Constitution of the Republic is supplemented by laws enacted and adopted by the Legislature for regulating the exercise of powers through organs established by the Constitution.

Language of Legislation

Although according to Article 3 of the Constitution of Bangladesh, BangIa is the Official State language of the Republic. English was the principal language of legislative drafting before the enactment of BangIa Bhasha Prochalan Ain, 1987 (The BangIa Introduction Act, 1987) (Act No.2 of 1987). Section 3(1) of the said Act states that “BangIa must be used everywhere; that is, in government, semi­ government, autonomous organizations and law courts; and except in communi­cation with foreign countries, official notes and correspondence, cross-examina­tion in law courts, and other activities under the law must be written in BangIa”. Since this enactment, all bills have been prepared in BangIa. There is English language translation of laws drafted in BangIa and, for all intents and purposes, in some cases a bilingual system is recognized as a method for drafting and framing the laws. Under Article 153 of the Constitution, if there is an inconsistency between the two language versions, the BangIa one prevails.

Legislative Authority: Principal Legislation

Beside the Constitution, the principal source of the laws in Bangladesh is legislation. Legislation consists of law made by or under the authority of Parliament and may comprise statute law and statutory instruments, which are orders, rules and regulations made by the Government under authority of a statute or bye-laws made by local government or other authorities exercising powers conferred upon them by legislature.

The Parliament

As Parliament is the supreme law making body in Bangladesh, Acts of Parliament, subject to the Constitutional restrictions, are binding on all courts, taking precedence over all other sources of law. Under the Constitution, the responsibility of deciding whether the legislature has power to make a law is that of the Legislature itself and, unless a constitutional question is involved, the validity of law cannot be called in question on the ground that the legislature by which it was made had no power to make it. Under Article 26 of the Constitution, the courts have been empowered to declare law inconsistent with or made in derogation of the fundamental rights to be void.

The Parliament has inherent power to make laws. Article 65(1) of the Constitution conspicuously states that “there shall be a Parliament for Bangladesh (to be known as the House of the Nation) in which, subject to the provisions of this Constitution, shall be vested the legislative powers of the Republic: Provided that nothing in this clause shall prevent Parliament from delegating to any person or authority, by Act of Parliament, power to make orders, rules, regulations, bye-laws or other instruments having legislative effect”

The President

The Constitution has given ample power to the President of the Republic to make laws in the following circumstances:

  • Article 55(6) of the Constitution empowers the President to make rules for the allocation and transaction of the business of the Government;
  • Article 92(3) of the Constitution empowers the President to make Presidential Orders relating to the authorizations of the withdraw­al from the consolidated fund moneys necessary to meet expenditure;
  • Article 93 empowers the President to make Ordinances when Parliament stands dissolved or is not in session.

Sources of Instructions to be followed by Legislative Draftsman

Under Article 55(6) of the Constitution, the President has a power to make rules for the allocation and transaction of the business of the Government and by exercising that power several guiding documents have been made. These include Rules of Business, 1996 and the Allocation of Business among the Different Ministries and Divisions (Allocation) (Schedule 1 to the Rules of Business, 1996). Under the Allocation, specific subject areas are allocated to the appropriate Ministries and Divisions according to relevance.

Rule 14A of the Rules of Business, states that the Legislative and Parliamentary Affairs Division (LPAD), Ministry of Law, Justice and Parliamentary Affairs (MoLJPA) shall be consulted-

  • on all proposals for legislation;
  • on all legal questions arising out of any case;
  • on the preparation of important contracts, international agreements, international conventions pronouncing and modifying international law;
  • on the interpretation of any law; and
  • before the issue of or authorization of the issue of a rule, regulation or
  • bye- law, etc. in exercise of statutory power.

According to Allocation, the LPAD performs the following duties among the duties allotted to the Ministry of Law, Justice and Parliamentary Affairs:

  • Advice to all Ministries, Divisions and offices of all legal and constitutional questions arising out of any case and on the interpretation of the constitution and any law including international law.
  • Drafting, scrutiny and examination of Bills, Ordinances and constitutional Orders and other statutory order, rules, regulations, bye-laws, resolutions and notifications.
  • Drafting, scrutiny and examination of all contracts and agreements including international contracts and agreements and all other legal and other instruments.
  • International conventions and international legal affairs.
  • Dealings and agreements with other countries and International Organizations in legal matters.
  • Translation of laws and other statutory rules and orders.
  • Publication of Acts, Ordinances and Constitutional Orders and other Statutory Orders, rules and regulations.
  • Publication of authorized translation in Bengali of Acts, Ordinances and Constitutional Orders and other Statutory Orders, rules and regulations.
  • Compilation and publication of unrepealed Acts, Ordinances and Constitutional and President’s Orders and other Statutory Orders, rules and regulations.
  • Codification, consolidation, adaptation and technical amendment of laws.

Another instrument called the Secretariat Instructions, 1976 (originally made in pursuant to Rule 4(10) of the Rules of Business, 1975) is to ensure uniformity and efficiency in the observance of Secretariat practices and procedures. The Secretary in each ministry or division is responsible for the observance of the Instructions. The preparation and maintenance of the Instructions is the responsibility of the Cabinet Division. Instructions are supplemental to both the Rules and the Allocation. All businesses of Government are to be conducted in accordance with both the Rules and the Instructions.

Legislative Draftsman’s are legal advisers in the LPAD of the MoLJPA who provides legislative advice to all other Department and Agencies of the Government, Cabinet and develop a Bill according to the need of the sponsoring Ministry and Divisions and also assist the Parliamentary Standing Committees.

Legislative Procedure – Promulgations of Ordinance

In order to meet emergent situations, the executive has been given power to make law for short duration by promulgating Ordinance under Article 93. The Ordinance making power of the· President is provided for in Article 93 of the constitution. It also called the law making power of the President. The Ordinances made by the President have full status and force of Principal Legislation. So according to Constitution the Parliament as well as the President have the full authority to make laws. Ordinances are by nature temporary; emergency Ordinance too. Ordinances are short-lived, expiring after with 30 days of heir presentation before the Parliament. If Parliament stands dissolved or is not in session and the President is satisfied that circumstance exists which renders immediate action necessary, he may make and promulgate an Ordinance to meet the emergent situation. Two conditions must be fulfilled before an Ordinance can be promulgated: (i) Parliament stands dissolved or is not in session; and (ii) The President is satisfied that an emergent situation requires making of the law.

An Ordinance once made and promulgated has the force of law as an Act of Parliament. An Ordinance cannot make any provision which cannot be made by an Act of Parliament or, in other words, an Ordinance cannot make a provision which Parliament is not competent to enact. Nor can it make a provision for altering or repealing any provision of the Constitution or for continuing in force any provision of an Ordinance earlier made.

An Ordinance authorizing expenditure from the Consolidated Fund can be made only when Parliament stands dissolved. Such an Ordinance shall have to be placed before Parliament as soon as may be and the provisions of Articles 87, 89 and 90 shall, with necessary adaptation, have to be complied with within 30 days of the reconstitution of Parliament. All Ordinances other than one authorizing expenditure from Consolidated Fund shall have to be laid before Parliament at its first meeting following the promulgation of the Ordinances and, unless earlier repealed, shall cease to have effect at the expiration of 30 days after it is so laid, or if a resolution disapproving the Ordinance is passed by Parliament before such expiration, upon passing of such resolution. The constitutional scheme of Article 93 shows that if an Ordinance is intended to be continued it must be placed before Parliament for approval.

Procedure for Promulgation of Ordinance

The procedure described in the foregoing paragraphs (except in so far as it relates to anything to be done in Parliament) applies also, generally speaking, to the drafting of Ordinances which may be promulgated by the President under Article 93 of the Constitution of the People’s Republic of Bangladesh. Once the draft of the Ordinance is settled, a printed copy thereof is obtained. The MoLJPA then submits it to the President for his signature through the Minister in charge of the administrative Ministry. The President’s Secretariat returns the signed copy of the Ordinance to the MoLJPA for promulgation and the Ordinance is then promulgated and published in the Gazette of Bangladesh. Every Ordinance promulgated shall be laid before Parliament as soon as may be, and the provisions of Articles 87 and 90 shall, with necessary adaptations, be complied with in respect thereof within thirty days of the reconstitution of Parliament.

Subordinate Legislation

Subordinate legislation refers to a situation in which the Legislature lays down the policy in more or less wide terms and gives to some external authority the power to carry out, by framing rules and regulations, the legislative policy so specified in the Act. This is always a section technically called ‘Rule making Power Provision’ in the Act passed by the Legislature that says generally that some extraneous authority, charged with the duty of administering the Act, should frame rules and regulations not inconsistent with the provisions of the Act for the purpose of carrying out objects of the Act. The only requirement of law in such situations is to insist that the authority or body charged with the duty of making rules and regulations must strictly confine itself within the sphere of its authority for the exercise of the delegated legislative power.

Article 65(1) of the Constitution of Bangladesh empowers the 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. This system of Subordinate legislation empowers Ministers and other authority to regulate administrative details under the authority of a particular Act of Parliament. The powers conferred in this way are normally delegated to the authorities directly responsible to the Parliament, that is, Ministers, Government Departments for which Ministers are responsible or to organizations whose regulations are subject to confirmation or approval by Ministers who thereby become responsible to the Parliament for them.

Legislative procedure: preparation of a Bill

Constitutional provisions[2]

Every proposal in Parliament for making a law shall be made in the form of a Bill. When a Bill is passed by Parliament it shall be presented to the President for assent. The President, within fifteen days after a Bill is presented to him, shall assent to the Bill or, in the case of a Bill other than a Money Bill, may return it to Parliament with a message requesting that the Bill or any particular provisions thereof be reconsidered, and that any amendments specified by him in the message be considered; and if he fails so to do he shall be deemed to have assented to the Bill at the expiration of that period. If the President so returns the Bill Parliament shall consider it together with President’s message, and if the Bill is again passed by Parliament with or without amendments by the votes of a majority of the total number of members of Parliament, it shall be presented to the President for his assent, whereupon the President shall assent to the Bill within the Period of seven days after it has been presented to him, and if he fails to do so he shall deemed to have assented to the Bill on the expiration of that period. When the President has assented or is deemed to have assented to a Bill passed by the Parliament it shall become law and shall be called an Act of Parliament.

Policy development and initial drafting Process[3]

  • Under Article 55(6) of the Bangladesh Constitution, the President has made rules for the allocation and transaction of the business of the Government;
  • According to the Secretariat Instructions, a Ministry or Division is responsible for the formulation of policies of the government within its jurisdiction, and also for the execution and review of those policies. The Rules of Business find Secretariat Instructions also require that any legislative proposal shall be initiated at the administrative Ministry to which the law or a subject matter is assigned, generally prepare policy papers. Experts within the Ministry or, in some cases, outside lawyers usually draft a preliminary Bill, interdepartmental consultation is often done while drafting the Bill, but widespread public consultation is currently not the norm;
  • Rule 16(i) of the Rules of Business provides, cases involving legislation, including the promulgation of ordinances, are to be brought before the Cabinet for consideration. Furthermore, by Rule 4(ii) of the Rules of Business, no important policy decision shall be taken without Cabinet approval;
  • Therefore, the administrative Ministry will initiate the legislative process by preparing a Summary to the Cabinet. Rule 19 of the Rules of Business prescribes the format of the summary. The secretary of the Ministry concerned transmits to the Cabinet secretary a concise and clear memorandum that gives the background and relevant facts, the points for discussion and the recommendations of the sponsoring minister. The summary shall be self- contained as far as possible and shall include as appendices such relevant papers as may be necessary for proper identification of the case. The number of copies of the summary to be supplied for cabinet consideration will be specified by the Cabinet Division;
  • In cases of proposals involving expenditure or abatement of revenue, the views of the Finance Division must also be obtained and recorded in the summary. Where a matter concerns more contain the recommen­dations of all Ministries. At least four clear days are normally needed in advance of the Cabinet meeting for a summary to be placed on the agenda. No matter will generally be discussed unless the summary relating to it has been circulated;
  • The summary is strictly confidential. The preliminary draft Bill generally accompanies the summary. The draft Bill facilitates easier understanding of the summary by the Cabinet;
  • Cabinet in its meetings considers each and every Bill. But if it appears to the Cabinet that a Bill involves some important and complicated issues it may form a Cabinet Committee headed by a Minister along with a few other members who are also Ministers;
  • If the Cabinet Committee approves the proposal, it will prepare a report for consideration of the Cabinet. The Cabinet after consideration of the report may approve the Bill on principle. The Law Secretary is asked to attend all Cabinet meetings where proposed Legislation is discussed;
  • After approval of the proposal, the Cabinet Secretary prepares a brief record of the discussions and records the decision taken. This file is then submitted to the Prime Minister for ultimate approval;
  • Once approval is obtained, it is then circulated to Cabinet Ministers. Relevant extracts of the decisions are provided to the sponsoring Minister and ministerial Secretary for necessary action;
  • At this point the administrative/ sponsoring Ministry, also called the Ministry-in-Charge, is authorized to go ahead with the preparation of a final draft Bill for Cabinet consideration.

Preparation of a draft by the LPAD[4]

(i) Initiation of Legislation

Every proposal involving legislation will be placed before the Cabinet by the administrative Ministry/ Division concerned for approval and, if it receives such approval, will be referred to the LPAD in the MoLJPA, with the request to give the proposal a legislative shape in the form of a Bill or an Ordinance, as the case may be. No legislative Bill will ordinarily be referred to the LPAD and nor the LPAD will under take the preparation of a draft of the legislative measure unless the proposal has been approved by the Cabinet.

(ii) Reference to the LPAD

Every reference of legislative proposal to the LPAD for preparation of a draft legislative measure will be accompanied by all the papers connected with the proposal including the precise or summary placed before the Cabinet and also by a separate memorandum of instructions indicating with sufficient precision the contents of the proposal as approved by the Cabinet and setting out clearly in the form of a series of propositions all matters of substances which are to be included in the draft legislation.

(iii) Preparation of drafting of a Bill

Upon a reference to it of a legislative proposal, the LPAD will examine it and if it finds that the proposal contains no measure which is ultra-vires of the Constitution or inconsis­tent with the Fundamental Principles of State Policy, it will prepare draft to fully reflect the proposal. If upon examination of the proposal, the LPAD, finds that it contains measure which is ultra-vires of Constitution or inconsistent with the Fundamental Principles of State Policy, it will return the case to the administrative Ministry/Division concerned fully recording its opinion with the advice: (a) in the case of any measure being ultra-vires of the Constitution, to modify the proposal omitting those measures; and (b) in the case of inconsistency with the Fundamental Principles of State Policy, to reconsider the measure for bringing the proposal in conformity with those principles.

After the case has been received back from the LPAD the administrative Ministry/ Division concerned will re-examine and modified the proposal in the light advice of the LPAD and refer the proposal as so modified to the LPAD for preparation of a draft of the legislative measure; and the LPAD will prepare the draft to reflect the proposal as modified. The LPAD will, while returning a case with a draft of a Bill, also record whether the Bill will require the previous recommendation of the President under Article 82 of the Constitution.

(iv) Examination of the draft Bill by the administrative Ministry/ Division

The draft Bill will then be examined by the administrative Ministry/ Division which will satisfy itself that the draft Bill correctly represents their legislative proposals.

(v) Approval of the Bill by the Cabinet for introduction in the Parliament

When the draft Bill as settled by the LPAD has been finally approved by the administrative Ministry/Division concerned, it will be submitted to the Council of Ministers for approving the introduction of the Bill in the Parliament.

(vi) Recommendation of the President

If any Bill or amendment of a Bill requires the recommendation of the President under Article 82 of the Constitution, the administrative Ministry/Division concerned will obtain the recommendation of the President through the Finance Division to the introduction of the Bill or, as the case may be, the moving of the amendment in the Parliament; and

After the recommendation of the President has been obtained it will be communicated to the Parliament in the notice of the motion for leave to introduce the Bill or where no motion for introduction is necessary, before the date on which the Bill is introduced, or in case of amendment before the date of moving the amendment.

(vii) Preparation of Statement of Objects and Reasons and Notes on Clauses

After completing action under the preceding Instruction, the administrative Ministry/Division concerned, in consultation with the Ministry of Law where necessary, will prepare a Statement of Objects and Reasons and such notes on the clauses of the Bill as may be considered desirable so as to explain the substance and origin of the clauses of the Bill.

The administrative Ministry/Division concerned will formulate the line of action to be adopted in regard to the Bill, and prepare a brief for the use of the Minister-in-Charge to assist the substance and origin of the clauses of the Bill.

(viii) Amendments of Bill

After a Bill has been introduced in the Parliament, the Government contemplates any amendment therein the administrative Ministry/Division concerned will, in consultation with the MoLJPA, prepare a draft of the amendment contemplated and cause necessary notices to the Parliament to be given after obtaining, where required, the recommendation of the President in the manner laid down in the Rules of Procedure of the Parliament.

Where any Private Member proposes any amendment to a Bill introduced in the Parliament, the Parliament Secretariat will forward copies of the amendments to the administrative Ministry/ Division concerned as well as the Ministry of Law; and the administrative Ministry / Division concerned will, after examining the amendments in consultation with the Law Ministry, submit the same to the Minister-in-Charge with its observations and the comments of the Ministry of Law, if any.

Any amendment proposed in a Bill is of such a nature as to affect or likely to affect the principle of the Bill or the expenditure of Government, the Minster in Charge will not commit himself to the acceptance of the amendment before seeking and obtaining the concurrence of the Cabinet.

(ix) Supply of List of Individuals and Associations to be consulted

When a motion is carried for circulation of a Bill for the purpose of eliciting opinion, the administrative Ministry/ Division concerned will, on request, supply to the Parliament after consultation with the Government Whip a list of individuals, associations and public bodies whose opinion should be invited.

(x) Custody of signed copy of Ordinance

Where an Ordinance is made and promulgated, the original copy of the Ordinance signed by the President will remain in the custody of the MoLJPA and will not pass out of the Ministry without permission of the Secretary.

Legislative Procedure: From a Bill to an Act

Introduction of Government (Public) Bills[5]

A Minister may move for leave to introduce a Bill after giving to the Secretary (to the Parliament) seven day’s written notice of his intention to do so, unless the Speaker for sufficient reasons suspends this rule and allows the motion to be made at a shorter notice. The notice shall be accompanied by two copies of the Bill together with a statement of objects and reasons, and if the Bill is one that under the Constitution requires the previous recommendation of the President for its introduction, the notice shall contain a certificate by the Minister that the Bill has been recommended by the President for introduction. The motion for leave to introduce the Bill shall be entered in the Orders of the Day, meant for Government business. When the item is called, the Member-in-Charge shall move for leave to introduce the Bill.

Private Member’s Bills

Notice of Private Member’s Bill[6]

Any member, other than a Minister, desiring to move for leave, to introduce a Bill, shall give to the Secretary to the Parliament fifteen days written notice of his intention to do so and shall together with the notice submit three copies of the Bill along with an explanatory statement of objects and reasons which shall not contain arguments. If the Bill is one which under the Constitution requires the previous recommendation of the President for its introduction, the notice shall also be accompanied by a copy of such recommendation conveyed through the Minister concerned, and the notice shall not be valid until this requirement is complied with. If the Bill is one which involves expenditure from public moneys, it shall be accompanied by a financial memorandum which shall invite particular attention to the clauses involving expenditure and shall also give an estimate of the recurring and non- recurring expenditure involved in case the Bill is passed into law.

Mode of obtaining and communicating recommendation of the President for Private Member’s Bill[7]

A member other than a Minister, desiring to obtain the previous recommendation of the President for introduction of a Bill shall arrange to obtain it through the Minister concerned. If the member cannot obtain the recommendation, he may send or deliver a copy of the Bill to the Secretary to the Parliament, along with a request in writing that action for obtaining such recommendation be taken, and the Secretary shall cause a copy of the same to be transmitted to the Minister concerned for obtaining President’s Order thereon. The Order of the President granting or withholding recommendation to the introduction of a Bill shall be communicated to the Secretary (to the Parliament) by the Minister concerned in writing, and on receipt of the President’s Orders, the Secretary shall intimate the decision of the President to the member concerned. If any question arises whether a Bill does or does not require the previous recommendation of the President, the question shall be decided by the Speaker.

Introduction of Private Member’s Bills[8]

Motions for leave to introduce Private Member’s Bills shall be set down in the Orders of the Day, meant for Private Members’ business. If a motion for leave to introduce a Bill is opposed, the Speaker, after permitting, if he thinks fit, a brief explanatory statement by the member moving for leave and by the member opposing it, may without further debate put the question. If leave is granted, the Member-in-Charge, when called, shall formally move forthwith to introduce the Bill, and on the motion being made, the Bill shall stand introduced.

Publication of Bills[9]

The Secretary to the Parliament shall cause every Bill that has been introduced to be published in the Gazette as early as possible together with the statement of objects and reasons and the financial memorandum, if any, accompanying it.

[1] Legislative Deskbook of Bangladesh, Legislative and Parliamentary Affairs Division, Ministry of Law, Justice and Parliamentary Affairs.

[2] Article 80 of the Constitution.

[3] Legislative Deskbook of Bangladesh, Legislative and Parliamentary Affairs Division, Ministry of Law, Justice and Parliamentary Affairs. P.11.

[4] Legislative Deskbook of Bangladesh, Legislative and Parliamentary Affairs Division, Ministry of Law, Justice and Parliamentary Affairs. P.12.

[5] Rule 75 of Rules of Procedure of Parliament.

[6] Rule 72, ibid.

[7] Rule 73, ibid.

[8] Rule 74, ibid.

[9] Rule 76, ibid.

About The Writer

Article Author Image

Barrister M. Aftab Uddin

Barrister-at-Law Advocate, Supreme Court of Bangladesh, Former Adviser, UNDP Bangladesh

Email Address: aftabtapan@gmail.com

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