Parliamentary Democracy Undermined: The Evaluation of Ordinance Practices in Bangladesh
Faijul Islam : Ordinance making power is in the hands of the President. The President is getting absolute independence to make laws whenever the parliament is not in session or when a national crisis is at its peak. But in the name of emergency, validating conceptualized activities and making new laws against the core principles of the Constitution is actually pathetic. For your kind convenience, in a parliamentary-followed country there are some rules and regulations that must follow parliamentary attribution or custom in the practice of parliamentary legacy.
But the scenario has been difficult in Bangladesh since the mid-90s, when democracy-based parliament started its journey towards an appeased society full of parliamentary legacy. The procedure has been dominated by the stakeholders of parliamentary attribution, and the custom has already been established in Bangladesh without any kind of social dilemma. Sometimes we have seen the government initiate ordinances without any reason or ground. At last, the ordinances gradually lost their credibility, as these were not passed by constitutional mandate and resolution.
Having this problem in ordinance-making power, unelected governments used to pass ordinances to show the people that they are in favor of the rule of law and judicial credibility. In fact, ordinance-making power is the special duty of the existing government whenever the parliament is not in power or not in session. Before that, you have to remember that ordinance-making power is not in the hands of a special government who are not elected by the people or the people’s voice. On that point, most ordinances lost their credibility in previous times in history.
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The practice of democracy and parliamentary democracy is that parliamentarians and the concerned authorities will make laws for the welfare of the people. In Bangladesh, the practice and practical concept have been violated most of the time due to a lack of knowledge among different stakeholders. As it was not the true path, other people who have no right to make laws should not make laws. For the welfare of parliamentary democracy, we have to stop these activities for the sake of justice.
Even sophisticated democratic countries totally depend on parliamentarians to make new and effective laws for their own benefit and circumstantial measurement. The practice in Bangladesh is not within the common criteria. Bangladeshi unelected governments have established an unprecedented overview in the name of parliamentary democracy, as the practice was directly non-parliamentary in nature.
Before making laws, the body that has the right to make laws must follow some legal principles and regulations. Without these principles, no law can be implemented. But sometimes we have failed to follow the rules. Ordinance is a path needed for problem-solving for a shorter period of time. If you are talking about a longer period, then ordinances have no qualitative or sensitive impact on the matter. Taking initiative to solve problems is not an easy task; it is a special circumstance where the law-making procedure has been changed. Political thinkers used to say that ordinance-making power ultimately is not a customary way of solving emergency problems in our country.
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If you look at our glorious political history, we mostly see the failure of the historical aspect of ordinance-making power. Though unelected governments took decisions to change the law-making procedure, in the long run the ordinances never saw the light of codified laws and regulations.
Very recently, the Yunus government passed more than 136 ordinances in a very short time. Most of them are unconstitutional according to the existing Constitution and legal codification. The question may arise: who will declare whether a law is constitutional or not? In Bangladesh, there is no clear concept of judicial review in the management of making ordinances. But in reality, the power is in the hands of parliament. So parliament is the sole stakeholder to convert ordinances into law.
As far as I know, the present parliament has passed around 120 of the previous ordinances. The remaining ordinances have not been passed by parliament. But I think this is not a customary or sophisticated way to pass laws in parliament. The parliamentarians have to be much more conscious about the legality and illegality of passed ordinances, because not all passed ordinances will later become Acts.
Writer : Faijul Islam; Lecturer, Department of Law, Prime University; M.Phil Researcher, University of Chittagong. E-mail :Faijul.law@primeuniversity.edu.bd
