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Exploring agenda: Review of law-making process

Published : Wednesday, 19 January, 2022 at 12:00 AM  Count : 934

Exploring agenda: Review of law-making process

Exploring agenda: Review of law-making process

The scenario of law-making process in Bangladesh is structured in such a manner that, the principle of separation of power seems very vague, even nonexistent according to some people. It is because the executive is heavily involved in law-making process in Bangladesh.

In order to give the law-making process a more democratic flavour, central planning for legislative actions must be inaugurated in Bangladesh. The planning of legislative actions must be initiated way before the sessions of parliament takes place. The practice of United Kingdom, Canada can be a glaring example in this regard. A legislative calendar must be formalized. If different ministries wish to propose bill simultaneously, there lies a probable chance of mismanagement, as there is no correlation between the ministries. Bills are brought forward on a casual basis as and when found necessary, with the administrative or sponsoring ministry initiate the process. So, this must be brought in a well-organized manner.

In accordance with the Secretariat Instructions, 2014 a ministry or division will be responsible for the formulation of policies of the government within its jurisdiction and also for the execution and review of those policies. Here, the task of policy formulation, execution and review is confined in one concerned ministry. The theory of separation of power dictates not all the powers will be restricted in one particular wing. So, a huge inconsistency between the theory and practice is there. Although the primary purpose of the secretariat instructions is to ensure uniformity and efficiency in the observance of administrative practices and procedures, due to the confinement of power within a ministry or division, the Secretariat Instructions, 2014 is not able to play a purposeful role in Bangladesh.

After the bill has been drafted, inter-ministerial consultations are usually held and legislative drafters from the ministry of law, justice and parliamentary affairs are invited to attend to provide feedback and suggestions on the draft bills. Here we do not notice the widespread public consultation or scrutiny. As we postulate ourselves as the people of democratic country, the opinion of people and their feedback must be taken into account. In the Westminster system, they have a separate wing of parliament who works for drafting laws. They are not responsible to the executive while drafting the laws.

For example, in the United Kingdom, the laws are drafted by the Office of Parliamentary Council (OPC). A minister can ask the OPC to draft the law, but he cannot intervene or suggest OPC how they will do so. After the drafting, a debate at best takes place on the aptness of the draft, but nothing more. These offices are purposefully kept out of the control of the executives. The concerned officers do not disclose their identities. To maintain this sort of strict separation of power, a parliamentary wing is of very important in Bangladesh.

There lacks sufficient check and balance while making a law. From the practical point of view, the members of parliament do not remain interested to read the draft once, if the draft is bit lengthy then they do not bother to go through a full read and check whether any corrections needed or not. Sometimes, they are busy with other stuffs, but mostly it is the deficiency of bona fide intention and sheer negligence.

One notable thing is, the ministry of law, justice and parliamentary affairs is inextricably connected with the law-making process. It is seen that while or after completing the formalities, the drafts are gathered to the esteemed ministry. So the workload and dependency both are high on this ministry. This over reliance on ministry of law, justice and parliamentary affairs is a matter of concern and a barrier in functional law-making process.

According to Article 93 of the constitution, President can promulgate ordinance when the parliament is not in session and when the parliament is dissolved in addition thinks that circumstances demand immediate interference. The ordinance making power depends absolutely on the subjective satisfaction of the president. This subjective satisfaction of the President opened the door to play an uninterrupted role in abusing this power by the executives.

In reality, in order to bypass the parliament, but not to encounter any unforeseen or emergency situation, a huge number of ordinances are made by the executives during every recess of parliament. To create a strong political stance, the Government makes all black laws through ordinances. These ordinances become law after being signed and gazetted by the president with immediate effect. There is no scope of public scrutiny, legal legitimacy, they are passed by the cabinet without any public exposure and framed in the privacy of the ministries.

The drafters generally draft the laws whimsically, as to their own wishes. An example can be the Digital Security Act, 2018. In this act, they allocated severe punishments compared to less grave offenses. Most of the cases we observe huge disharmony and disparity between the punishment and offense. The executives are getting a huge scope to abuse their power in this regard. Some of the countries follow their sentencing acts and set the punishment of a particular offense accordingly. But in Bangladesh, there is no such act. It is high time Bangladesh enacted appropriate sentencing act and fix the proper punishment for a particular offence. Otherwise, the arbitrary law making process of the executive will toil people of Bangladesh badly.

It is also unclear how the legislature determines the severity of punishment while drafting any law. There does not appear to be a clear process in place by which the legislature distinguishes certain types of offences as being more serious in nature than others and punishes them more seriously. In ensuring proper and proportionate punishment this creates a chasm of anomaly, uncertainty and unpredictability.

Due to the lack of a sentencing guideline the sentencing realm can be dominated by the judge's personal philosophy and intuition. In the Rokia Begum Vs the State, 13 ADC (2016) the apex court held that, in Bangladesh there is no specific authority to issue any sentencing guideline. As a result, judges are guided only by the sentences provided in the penal code and other special laws. As a result, in most cases, sentencing is arbitrary with no opportunity for the accused to plead for a lesser sentence or for a trial judge to consider any mitigating circumstances because none were presented to him.
Nadim Zawad Akil, Student of Law, North South University (NSU)








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