Law making process – Sohrab Hussain
The functionality of a state basically depends on how much the laws are enforced effectively for the welfare of its citizens not how many laws are enacted. Whenever a new crisis like the absence of safety on roads arises, enactment of law becomes imperative. Bangladesh is one of the worst countries when the question of road safety comes to. In last 14 years 49,847 road accidents took place in the country claiming 42,526 lives. Relatives of road toll are calling for justice for a long time but after the death of two students — Dia Khanam Meem and Abdul Karim Rajib along with the Nirapad Sarak Chai like organization turn into pressure group or lobbyist. It seems like a package involving law enforcing agencies, judiciary, government employees and government and autonomous institutions by which it will be enforced. So the effectiveness of these laws will also depend on an effective and developed system of these governmental institutions. Laws (Act of Parliament, Court Decisions) can be enforced subject to fulfilling some conditions enshrined in the constitution i.e. supremacy of the constitution under article 7 and consistency of the laws under article 26 of the People’s Republic of Bangladesh. Article 65 of the constitution empowers the parliament to make orders, rules, regulations, bye-laws or other instruments having legislative effect which cannot be called in question unless inconsistency with the constitution is found under article 26. Article 80 as well as 82 of the Constitution encompasses the law making process in detail. It states that every proposal for making a law must be in the form of a Bill.
Following pre legislative phase i.e. submission of proposal from administrative ministry to cabinet for approval, legislative phase and post- legislative phase, a law comes to existence. In pre legislative phase, the law making process is initiated in the form of a Bill made by executive [Ministry?] or individual (a person in the parliament or is it MP?) in the parliament house. After approval of the proposal of making new law by cabinet, the concern ministry makes a draft of such approved Bill in accordance with the Rules of Business and Secretariat instructions. After scrutinizing in the inter-ministerial consultation meetings, a summary of draft Bill will be submitted to the cabinet for approval. After cabinet meeting, cabinet secretary or joint secretary prepares a brief record of the discussions and decisions taken in the discussion. Then this brief record is submitted to the prime minister for approval. Once prime minister approves the record, it goes to the cabinet ministers to take necessary actions. Then such approved file shall be sent to the Drafting Wing of Ministry of Law, Justice and Parliamentary Affairs for making a draft Bill subject to the consistency with the constitution. In case of any anomaly, the Drafting Wing will return the Bill for necessary amendments. Once amendments are made, they will redraft the Bill. After submitting to the secretary, Ministry of Law, Justice and Parliamentary Affairs and once approved by him, the draft Bill shall be referred to law minister and state minister for political support. Then it will be sent again to the ministry concerned and ministry shall approve the draft bill subject to ensuring the proposed recommendations and guidelines mentioned in the bill. Then it will be submitted to the cabinet for final approval as an official bill of government. Once it is approved by cabinet, the sponsoring ministry will forward it to the parliament secretary for legislative process.
In second phase, the member-in-charge shall submit a written notice to parliament secretary for leave to introduce a bill in the parliament before seven days for Government Bill and fifteen days for Private Bill. The Bill which is required prior permission of the president shall contain a certificate of such prior permission for introduction in the Parliament. Any Member of Parliament may oppose the Bill when it is introduced in Parliament for consideration. Subject to the prior permission of the Speaker, the Member-in-charge may move a motion introducing the Bill. This process is called ‘First Reading Stage’. The Second Reading Stage’ begins with the introduction of a Bill in the Parliament. The proposed Bill may be submitted to the Parliament for consideration or may referred to a standing or select committee or be circulated for eliciting public opinion. After motion and counter motion as to Bill proposed, the speaker shall call for vote whether it will be forwarded for consideration in parliament or to standing or select committee. If decision is taken for consideration, the speaker shall fix a date for discussion and necessary amendments on vote. If the Bill is decided to send to standing or select committee the committee shall return the Bill with a report with or without proposed amendments. After returning for consideration, the discussion will be limited to report only. Then speaker shall, with additional necessary amendments if proposed by any member of parliament, call for vote clause by clause or as a whole to the House.
In ‘Third Reading State’, the speaker calls for vote on Bill and the Bill is passed by the assent of majority of members of Parliament. After being passed and presented to the president by parliament, president shall, only Ordinary and Finance Bill since president are not permitted to return Money Bill for reconsideration, assent or request for reconsideration of any amendment within fifteen days. If he fails so to do he shall be deemed to have assented to the Bill. If president returns the Bill the parliament shall reconsider it. After presented again with or without amendment to the president, he shall assent within seven days. In case of any failure, he shall be deemed to have assented the Bill and then it shall become a law and shall be called an Act of Parliament. After completion of these procedures, the secretary of Parliament shall publish the Bill as an act of Parliament in the official gazette.
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 as to withdrawal of money from the Consolidated Fund moneys necessary to meet expenditure. Under article 93 of the constitution when parliament is dissolved or not in session, president may make or promulgate such Ordinance as circumstances require or may authorize expenditure from the Consolidated Fund and such Ordinance shall have the same effect of an Act of Parliament. When a draft of Ordinance is made, the Ministry of Law, Justice and Parliamentary Affairs shall submit it to the President for approval. Once the draft is signed, President’s Secretariat shall return the signed copy to the concerned Ministry for promulgation and then Ordinance shall be promulgated and published in the official Gazette of Bangladesh. After the expiration of the emergency situation, Ordinance made regarding the required circumstances shall be laid before the first session of the Parliament and its effectiveness shall, if not approved, cease to exist at the expiration of thirty days or parliament may pass a resolution disapproving the ordinance. Ordinance promulgated as to authorizing expenditure from the Consolidated Fund shall be submitted to Parliament as soon as may be, and article 87, 89 and 90 shall be complied with in respect of expenditure from the Consolidated Fund within thirty days of the reconstitution of the Parliament. Article 89 of the constitution states that the approval of expenditure as to annual financial statement taken from Consolidated Fund granted may be discussed but shall not be referred to the vote of Parliament. Other expenditure submitted to Parliament may be granted, refused or reduced the amount by the Parliament. Under article 90, if demands are granted under article 89 there shall be introduced a Bill to ensure the appropriation of expenditure from Consolidated Fund. So all expenditure made under Ordinance except which is taken from Consolidated Fund shall be complied with within thirty days of the reconstitution of Parliament. It is worthy to mention that no demand shall be granted except the recommendation of the president.
For the first time the term ‘Judiciary Law’ was used by Jeremy Bentham. It seems clearly that the scope of Judiciary Law has undergone an enormous expansion since Bentham’s day. In Bangladesh under article 111 of the constitution, the law declared by the Appellate Division and High Court Division is binding on High Court Division and on all other courts subordinate to them respectively. So any court’s decision shall be binding on all subordinate courts under the constitution. Similarly, article 107 of the constitution empowers the Supreme Court to make rules to regulate the practice and procedure of each division of the Supreme Court and any other subordinate to it subject to the law made by parliament and in accordance with the approval of the President. In 16th Amendment case, Supreme Court declared the amendment as to impeachment of the judges as void for the inconsistency with the constitution, which has thus become a law. This is the process how Judiciary can make laws.
The Subordinate Legislation refers to a process in which the Legislature gives some power to external authority to make rules and regulations to govern its internal management in accordance with the provisions laid down in the Act. Article 65(1) of the constitution bestows the power to the Parliament to formulate any Act of Parliament in order to empower any person or authority to make orders, rules, regulations, bye-laws or any other legal instruments having legislative effect. For instance, section 122 of the Code of Civil Procedure 1908 empowers the Supreme Court to make rules in order to regulate each Division of the Supreme Court and the procedure of Civil Courts. Another instance is article 40 of the Order of 1972 which empowers the Bangladesh Bar Council to make rules without prejudice to the generality of the foregoing power to carry out the purposes of the Order of 1972. Autonomous bodies of the government may make rules and regulations for internal management subject to the Act by which they are governed. Suppose, Dhaka University Ordinance 1973 under which the University are governed and the University itself can formulate rules and regulations for its internal management not inconsistent with the Act under which it is governed. n