Certitude is the separation of functions, not powers

(Abridge of this was published under the title ‘It is the separation of functions, not powers’ in the daily Financial Express on 01 October 2012)

Factually and functionally, government is an organic entity, which has three wings to implement and ensure the overall activities aimed at the well-being of the population and developments therein and upholding the sovereignty internally and externally. These are named executive, legislative and judicial branches. These three wings do their respective functions being free and unencroached within their respective jurisdictions. This is in the continuing nomenclature called ‘separation of power’. Questions are (a) is it separation of power or division of power? (b) Should there be any branch to act as a bridge and provider of inputs to all the three wings or should each of them have its own source of inputs being isolated from each other or one another? (c) If it is decided that there should a branch to bridge and provide inputs then which branch is entitled to play such role since government is an organic whole? and (d) why the head of executive branch is called and recognized as head of government whether the title is Prime Minister, Chancellor etc. in a parliamentary system of government or President in a presidential model.

Firstly, if we consider a government as an organic entity then the question of separation of power is a misnomer. Rather it must be a kind of separation (division) of power based on the principle of distribution for smooth, distinct and useful functioning of a government. The concept of separation of power was first overtly put forward by the French political philosopher Baron de Montesquieu in his epoch-making book ‘The Spirit of the Laws’. He wrote this book after visiting United Kingdom where he saw unique functioning of the three wings of government within their respective jurisdictions without causing threat to each other and one another. He felt so because in France he experienced the rule of Luis the X1V who openly claimed ‘I am the State” connoting that all powers of state captivating executive, legislative and judicial branches were concentrated in the hands of him. But, to speak the truth, his seeing and realization were not based on the actual working of government in UK that was founded mostly on the reverse in true sense of the vocabulary. Thus his conclusion was a kind of reflections of the prevailing comparative studies of the two countries.

Ironically enough, while dwelling upon  his(Baron de Montesquieu) understanding of the matter as reflected in the ‘The Spirit of the Laws’  two razor-sharp contrasting interpretations developed as a resultant consequence. One group held it firmly that Montesquieu visioned absolute separation of power whilst the other shade adhered to the proposition that he spoke of maximum, harmonious and workable separation of power, which is, truly speaking, called ‘checks and balance’ (le pouvior artere le pouvoir meaning power halts power) between or among the three branches now available by and large in the government of USA under the presidential system of government. And very soon it was broadly accepted by the later political thinkers, philosophers and political scientists that Montesquieu did not necessarily talk complete separation of power rather his intention was to point out that each of the branches of government should enjoy independence within its jurisdiction and no one should interfere with other to foil the very theme of jurisdiction. He considered this ‘jurisdiction’ as unavoidable, undeniable for the smooth functioning of government. In stripe with this spirit Herman Finer affirmably concluded ‘absolute separation is neither possible nor desirable’ (The Theory and Practice of Modern Government) and Blackstone going one step further held in his book ‘Commentaries on the Laws of England’ that without such practicable and workable distribution no public liberty would be secured in action.

Consequently, there developed vehemently the concept of ‘cheeks and balances’ as a logical and scientific focus to reset the principle of distribution and the necessity of rephrasing the words ‘separation of power’ as ‘division of functions’ became a Hobson’s choice due to increasing complexities and multi-facet dimensions of the functions of government in local, national, regional and global contexts. This is called ‘functional approach to the working of a government’. It is both organically and functionally definitely an up to date, accommodative, logical and scientific approach to understand the overall activities of a government in a state. Let Montesquieu be congratulated on his attempt to understand and realize the necessity of separation of powers and we should at the same take it into account that he might have made a blunder, certainly, because of the limitations of time, space and dimension by not using the term ‘Functions’ appropriately; Today, his approach is respectfully considered as classical that carried germs for present and future.

Secondly, if it is taken as ‘division of functions’ then it is not fundamental in nature rather a part of the whole. It is to be sure conveniently ‘functional’ from the right point of view;

Thirdly, if it is recognized as a kind of functional arrangement for smooth functioning of different activities of government then there must be a centre for coordination between or among the three branches. From the time immemorial it has been being done by the executive branch, although the concept of separation or division of functions in the past was not acute and formidable due to the nature of administration and rule in those days;

Here crops up few pertinent asking say, why is there a head of government? Is it inevitable? What does it actually mean constitutionally and politically? If there is a head of government and if his or her order of precedence is maintained and uphold above the head of Parliament (speaker) and the head of judiciary {Chief Justice), it implies that he or she acts and carries more burden than those of  speaker and Chief justice. In a modern parliamentary democratic order PM acts as a bridge and coordinator of the three branches.

Government is one of the four undying components of a state whether its nature is dictatorial or oligarchic or democratic. It remains in its position all the time without a change until and unless the state loses its statehood in full anyhow. From this basic stance the current notion of a change of government through any means such as election or coup d’état is indeed a misnomer. What actually happens and changes is the leadership of government for a period of time, constitutional or unconstitutional. Then the most applicable and imperative asking are (a) wherefrom this leadership does come or speaking more specifically which branch of the government does take such leadership? and (b) How is this leadership determined in a modern state under a presidential or parliamentary system?

Replies in plain words are such leadership under presidential model or parliamentary system comes from the executive branch. In the former President himself is elected by the people and thus maintains a ‘safe distance’ from the legislative branch only on point of fall of government through the process of a motion of non-confidence by the majority Members of legislative body whereas in the latter the Council of Ministers headed by Prime Minister is elected by the Majority party in Parliament and thus its life and longevity depends on Parliament.

In fact, there are two-fold challenges before the executive branch in a modern state. One is to convert it into a welfare state and the other is to ensure maximum freedom. In doing so, it has to handle the means of internal and external sovereignty to reach at the targets. Mobilization of resources from home and abroad, making contracts, making budgets and providing financial allocations etc. to all the three branches necessarily falls within its jurisdictions. Organization of civil service and emergence of political parties further expanded the ambits of functions of the executive branch implausibly. Furthermore, even appointment to the offices of the Chief Justice and other Judges of the Appellate and High Court Divisions of the Supreme Court are virtually made by the head of state upon recommendation from the head of government (In some states such appointments are subject to the approval of legislative body say, its judicial committee). Considering all these multi-dimensional functions together, head of the executive branch is called head of government and as such is honored with befitting protocol everywhere inside and outside the country. Her or his voice is the voice of the government as a whole , not the executive branch determinedly, which never takes place in case of a Speaker or Chief Justice who pointedly represent their respective zones in particular.

Judiciary, from the distinctive point of view of the separation of powers, is entrusted with the tasks of interpretations of laws made by parliament and by-laws (delegated legislation) made by relevant statutory bodies. Such interpretations are made using different rules of interpretations such as literal rule, golden rule, mischief rule and teleological approach. In doing so, it enjoys a kind of privilege to make law in certain circumstances in the mode and manner of ‘fill in the gap’, which is an addition in a positive sense, not a deviation from the spirit of law concerned. Thus ‘judge-made law’ is a helping hand to the law proper and here a judge is a rescuer because the same would have been done by the law-makers had the similar situation arrived in their mind or before them during the time of making law in Parliament. Mounting role of Judiciary under the cover of interpreter and judicial review in meticulous has become an object of attention and focus.

To speak the truth, Judicial Review, which is not a creation of constitution or parliament, grew and developed astonishingly over the last few decades and Judges avowedly affirmed it as ‘Inherent power of the Courts’. It was John Marshall, then Chief Justice of USA, who first devised and applied it in Marbury Vs Madison case in 1803 and thus it otherwise set a precedent noting that ‘a legislative body cannot make a law, which goes against the very spirit of the basic structures of the constitution concerned upon which rests the foundation of the state’. Today it is one of the leading tools in the hands of the courts to decide the validity of laws in pursuance with the fundamentals of the constitution of the state concerned. Reality also tells that application of judicial review’ should also be judicious in tune with the state of standing of a political system in a state so that the very purpose of it is not misused by the Courts as well as is not misunderstood by the Parliament or the Executive branch.

In our perspective in Bangladesh, separation (division) of functions all the time being used in the name of separation of power appears to be in a big puzzle. Here Parliament has been virtually made subservient to the Executive branch at least for three eye-catching reasons which are (a) leader of the Majority party and all most all the senior leaders and MPs in parliament constitute the council of ministers. The system of government is seemingly a parliamentary one but in reality it is a Prime Ministerial system of government having its propensity towards Prime Ministerial dictatorship. So-called sovereignty and supremacy of parliament has been grasped by the executive branch blurring the line of demarcation between the two.

However, the independence of the judiciary is in the process of getting strengthened following the famous Masdar Hossain's case. But the matter as a whole is still incomprehensible in many a case. As a result, judiciary is getting strength day by day in its own mode and manner through the routes of interpretations of the laws of parliament and by-laws made by various statutory bodies from time to time. The hemisphere of the exercise of such interpretations now reached at such a point wherefrom lot of debates are arising expectedly or unexpectedly and relevantly or irrelevantly.

Line of demarcation between or among the three branches is ambiguous, hazy, overlapping, confusing and conflicting in many an area. Increase of ‘Writs petitions’ in today’s Bangladesh is also an interesting phenomena and there is no denying the fact ‘Judicial Review’ in its zone has emerged in  a very formidable scale and manner. Recent happenings centering the speeches of the Speaker of Parliament of the current 9^th Parliament Advocate Abdul Hameed Chowdhury and the sayings of a Judge of the High Court Division of Supreme Court, among others, bear testimony that necessary steps pursuant to the spirit of division of functions in place of separation of powers should be taken and ensured in this regard without a delay. There must be constitutional provisions to deal with the Judges if the independence of parliament is to be upheld properly. Making the acts of parliament null and void one after another in line with a particular goal of defending and upholding the basic structures of the constitution---determination and fixation of which should indeed not be the sole domain of judiciary alone---is not becoming enough for the growth of parliamentary democracy and its jurisdictional sovereignty. One must be respectful to the underlying truth of the sovereignty of the people that denotes ‘popular sovereignty lies in people but legal sovereignty is held and carried by parliament’ (Hillary Barnett in Constitutional & Administrative Law).

Amazingly enough, Speaker again and again is referring such matters to the Chief Justice for harmonious solution. Being speaker of parliament should he follow such course all the time instead of going for striking a line of demarcation constitutionally in the most practicable and logical manner that was sounded and seconded by almost all the MPs in Parliament (opposition MPs also supported it despite their chronic boycotting of the sessions of Parliament)? Should not our Parliament make it crystal clear to all that the very recent remark of the former Prime Minister of Pakistan Mr. Gilani that ‘Bangladesh is following the model of today’s Pakistan (apparently fingering at the role of Judiciary in Bangladesh perspective’ since in his analysis Judiciary in Bangladesh is also getting upper hand, necessarily or unnecessarily, because of the absence of proper response of Parliament)’ is not a correct reflection of reality in Bangladesh context?

Another thorny issue is the Contempt of Court because Bangladesh has been carrying the legacy of the Contempt of Court Act 1926(only three sections is still effective in Bangladesh) wherein the very definition of Contempt of court remains undefined and, consequently, it unquestionably continues to be the sole discretion of the courts to decide and determine the meaning of contempt of court depending on the merit and gravity of the issue concerned. Both India and Pakistan have replaced the CCA, 1926 much earlier, saying that it was not a comprehensive piece of legislation.

Therefore, in the face of a longstanding demand from a cross section of the society including the media, the immediate past BNP-led alliance government initiated the move for enactment of a new and comprehensive law on contempt of court replacing the CCA 1926. The BNP government tabled the Contempt of Court Bill, 2006 in the House on May 2, 2006 in the 21st session of the eighth Parliament. The parliamentary committee on law ministry was tasked with the responsibility of scrutinizing the bill and making recommendations. It could not be known why the bill was not placed in the House for enactment as law in the next few months of BNP rule.

It was during the period of the last caretaker government that the president promulgated the Contempt of Court Ordinance (Ordinance No 21 dated May 21, 2008). On July 24, 2008 the High Court Division declared the ordinance illegal, void and ultra-vires of the Constitution. The government preferred an appeal before the Appellate Division. Further development on the case in the apex court was not known. However, the ordinance ceased to exist when the ninth Parliament declined to ratify it.

Then again on 13 June 2011 Law and Parliamentary Affairs Minister Barrister Shafique Ahmed placed Contempt of Court Bill-2011 in the 9^th Parliament. The speaker sent it to the parliamentary committee on law ministry for its opinion The Bill is comprehensive in its entirety that rested for the most part on the recommendations made by Bangladesh Law Commission. According to the bill, the power to judge contempt of court will be limited to the High Court. The bill also seeks to specify the definition of court contempt. The court may pass a sentence up to a six-month imprisonment or Tk 2,000 fine or both. However, it also says that the accused may be relieved by asking for unconditional pardon by presenting himself before the court.

It principally resembles the CCA, 1971of India and the CCA, 1976 of Pakistan as socio-economic and politico-cultural landscapes of Bangladesh, India and Pakistan are same to an extensive amount. It is hoped that if it is duly passed by the Parliament then ambiguities and restlessness centering ‘Contempt of Court’ will be over helping remove the suspicions and fears existing in the mind of the people in a broad-spectrum, and the public servants and journalists in particular, on the subject of offences that amount to contempt of court. Let us hope for the best, although nothing is known till the date on the final fate of the bill.

Nevertheless, concerning the role of Judiciary particularly the Judges of the higher courts MPs’ roaring in parliament off and often, emotionally or agitatedly, and then go on keeping mum mysteriously for the reasons known or unknown is also a sort of awarding concessions to Judiciary voluntarily or involuntarily or recklessly. What a nation can expect of the MPs if they play in such mode and mood even on such vital issue?

So, the possible suggestions are:

a. Let there be a broad-based threadbare discussions on the separation (division) of functions, currently called separation of powers between and among  the three branches of government in parliament,  where all the parties in parliament should take part without fail for the greater interest of the nation;

b. Let the leader of the house feel free to constitute a parliamentary committee, preferably headed by the leader of the opposition or by a senior member of parliament from the opposition, to prepare a draft on this. The committee shall hold meeting with various professional bodies, NGOs, think-tanks, experts and persons of legal background: and

c. Let the speaker, the leader of the house, who is also holding the office of the head of government in our ongoing context in Bangladesh, leader of the opposition in Parliament and the chief justice of Bangladesh sit together to deal with the recommendations contained in the said draft so that a broad-based, far-reaching, accommodative, harmonious and workable line of demarcation may be devised and formulated in the end; and

d. Let there be a ’constitutional court’ following the spirit of the democratic countries in West Europe and in those countries in Asia, Africa and other parts on the globe  in particular where this system exists and continues. It is to be noted here relevantly that at present the system is working well in the one-third of 194 member states of UN. These are all the states in the West Europe, Thailand, Indonesia, Iran, Egypt, South Korea, South Africa, Uzbekistan, Tajikistan, Chile, Republic of China, Mongolia, Myanmar etc.

In Indian perspective the then Chief Justice of India KG Balakrishnan in an interview to the Hindu on 09 January 2010 on the occasion of marking the completion of three years in office on January 13, proposed the creation of a new ‘constitutional court’ to deal exclusively with matters relating to the Constitution, inter-State water disputes, and disputes and crimes of a ‘federal’ nature. He also held the proposed court could be the country’s third appellate one and pointed out that in South Africa there is a separate constitutional court with nine judges. Similarly the government could consider, though not in the immediate future, creation of an exclusive constitutional court here.

In Pakistan the issue of creation of a constitutional court is now almost on the top of the burning issues of the day where both the ruling and opposition political parties appear to be of the same mind and thought. Accordingly, PPP is believed to be contemplating a constitutional amendment to curtail the Supreme Court’s powers to interpret constitutional issues, and set up a new federal judicial body to deal with such matters. The proposed judicial body is likely to have the same powers as the Supreme Court when it comes to hearing constitutional petitions, like the one that caused the disqualification of Yousaf Raza Gilani.

Information Minister Qamar Zaman Kaira noted recently that establishing such a body was part of the Charter of Democracy (CoD)—a political deal between the PPP and opposition Pakistan Muslim League-Nawaz (PML-N) back in 2006 when the top leadership of both parties was in exile.

The PML-N, however, understood that while it recognized its commitment to favor the establishment of a constitutional judicial body, it would not support it at present for two reasons.

First, PML-N Information Secretary Senator Mushahidullah Khan said, the PPP must have done this at the beginning of its tenure four years ago.

“The timing makes it suspicious and not acceptable to us,” Khan said.

Second, the senator added, the move appears to have mala fide intent since it comes at a time when the executive-judiciary confrontation is at its peak.

Of the four major allied parties, at least two appear to be reluctant to endorse the government’s plan.

Therefore, the matter is still in a process of getting shape of policy between or among the political parties who have representations in National Assembly.Furhermore, the move to establish a separate Federal Constitutional Court (FCC), however, may exacerbate the executive-judiciary tussle.

Convincingly speaking, if the relationships between and among the three branches of government can be put on a formidable footing after ‘Bangladesh model’, it would then definitely be a daring and far-reaching step on all accounts. It is not so easy a task indeed. To our utter surprise, nobody dares to touch it pragmatically and constitutionally. Everybody prefers to follow an evasive policy. If so is the case then the hunting question is who will bell the cat? Yes, it is parliament on which depend the life of the executive branch and the law-making of the land and then depending on these laws Judiciary takes and performs its role as interpreter in their entirety.