Repeal of four ordinances: Did Parliament choose the wrong path?

The way the new parliament has repealed four ordinances has raised a simple, but important procedural question: Has the House overlooked the proper path of nullifying them?  

According to Article 93 (2) of the Constitution, Bangladesh's Parliament can scrap an ordinance only through passing a resolution disapproving of the ordinance. Its Rules of Procedure describe in detail the process to pass the statutory resolution. 

But the parliament has opted for an opposite path. It has cancelled the ordinances by passing four separate bills. The procedure for this legislative action is found nowhere, neither in the constitution nor in the Rules of Procedure of Jatiya Sangsad.

It rescinded the National Parliament Secretariat (Interim Special Provision) Ordinance on 6 April by passing a bill. And it passed three separate bills on 9 April repealing the Supreme Court Judges Appointment Ordinance, Supreme Court Secretariat Ordinance and National Human Rights Commission Ordinance.

Law Minister Md Asaduzzaman placed the four bills on two different dates, seeking to repeal the ordinances as recommended by a special parliamentary committee formed to review 133 ordinances promulgated by the past interim government.

It needs to be mentioned that parliament is not legally bound to act on every recommendation of any committee. The new parliament is also not legally bound to act to maintain continuity of every law made by the interim government through ordinances.

If it seeks the continuation of any law made by ordinances, it can pass bills replacing them within a 90-day deadline since the ordinances are placed before it. It cannot ratify any ordinance. Even if an ordinance ceases to be effective after expiry of the timeframe, parliament can make the same law by passing a bill.

The cancellation of the two ordinances on the appointment of the Supreme Court judges and setting up a secretariat under the apex court, empowering it to exercise control over the lower judiciary, sparked outcry. It is because it will restore the law ministry's powers to control the lower judiciary, which is against the spirit of the separation of powers as outlined in the constitution.

And if parliament seeks to repeal an ordinance immediately after it is placed before it or before it automatically ceases to have effect after expiry of the timeframe, it can pass a resolution disapproving of the ordinance according to Article 93 (2). This is one of the statutory resolutions based on the specific provision of the Constitution.  

A passed statutory resolution is binding on the government and has the force of law.

Take an example of another statutory resolution. If the parliament passes a motion expressing no confidence in the cabinet, the government will find no other option to survive, but to fall.

Take another example. If the parliament seeks to impeach either the Speaker or Deputy Speaker, it needs to pass a resolution seeking their removal from the offices. Once the resolution is passed by parliament, they will no longer be in office.

The Rules of Procedure describe in detail the process of passage of statutory resolutions.

Different types of ordinary resolutions are mentioned in the Rules of Procedure. Any of them, if passed by the parliament, do not have the force of law and are not binding on the government.

In the fifth and seventh parliaments, proposals for passing a statutory resolution to disapprove of around a dozen ordinances were moved and discussed in parliament. The article 93 (2) of the Constitution and section 144 of the Rules of Procedure were followed in all the cases.

But none of them was passed as all the proposals were placed by the opposition bench while the governments of the day were in favour of continuation of the laws made by the ordinances and therefore separate bills were placed to replace those ordinances, according to an authoritative book "Parliamentary Practice and Procedure by Khandaker Abdul Haque, an expert on parliamentary affairs. This book was published by the parliament secretariat more than two decades ago.

Instances of disapproval of ordinances by India's parliament through passing the statutory resolution are recorded in the authoritative book "Practice and Procedure of Parliament" written by M. N. Kaul and S. L. Shakdher, two experts on parliamentary affairs.

What's the constitutional provision

The article 93 (2) of the constitution says "An Ordinance made under clause (1) shall be laid before Parliament at its first meeting following the promulgation of the Ordinance and shall, unless it is earlier repealed, cease to have effect at the expiration of thirty days after it is so laid or, if a resolution disapproving of the Ordinance is passed by Parliament before such expiration, upon the passing of the resolution."

What do the rules of procedure say?

Under the headline of "Resolution for disapproval of Ordinance", section 144 of the Rules of Procedure of Parliament says "(1) After an Ordinance made under clause (1) of Article 93 of the Constitution has been laid before the House any member may move a resolution for disapproval of the Ordinance under clause (2) of Article 93 of the Constitution after giving three clear days' written notice of his intention to do so to the Secretary. 

(2) Where more than one such notice has been received in respect of the same Ordinance, the resolutions shall be taken up in the order in which the notices have been received, without resorting to ballot, on a day, being within thirty days of the laying of the Ordinance, to be fixed by the Speaker in consultation with the Leader of the House, and the provisions of Private Members' notices for resolutions shall not apply in respect of such resolutions: Provided that when one such resolution is passed by the House, within thirty days after the Ordinance is laid, all other such resolutions shall lapse. 

(3)No amendment shall be moved to any such resolution. 

(4) A resolution disapproving an Ordinance shall be confined to disapproval of the ordinance as a whole and not any individual clause or Schedule of the Ordinance."

Legislation at supersonic speed! 

Based on the above discussion, it may be concluded that parliament has not followed the proper procedure in repealing the four ordinances at a time when it has been making legislation at supersonic speed.

The parliamentary special committee formed to review 133 ordinances issued during the one-and-a-half-year tenure of the past interim government placed its report on 2 April in parliament. It recommended placing separate bills seeking to replace 98 ordinances unchanged. It recommended that parliament take no action on 20 ordinances, letting them cease to have effect after expiry of 30 days time frame. It also recommended the repeal of the four ordinances.

Now, parliament is racing against time. The 30-day timeframe that began on 12 March will end on 10 April. It needs to pass as many as 102 bills in just a week since the special committee placed the report.   

Parliament, therefore, is acting at supersonic speed. It passed as many as 68 bills in five days since 5 April -- two bills on April 5, seven bills on April 6, 14 each on April 7 and April 8, and 31 on April 9.

The cancellation of the two ordinances on the appointment of the Supreme Court judges and setting up a secretariat under the apex court, empowering it to exercise control over the lower judiciary, sparked outcry. It is because it will restore the law ministry's powers to control the lower judiciary, which is against the spirit of the separation of powers as outlined in the constitution.

The assurance made the law minister place the bill in this regard later, after thorough scrutiny of the repealed ordinances; however could not pacify the outcry due to the pervasive culture of politicisation of the judiciary by the past successive governments.

Since the special committee recommended that the four ordinances, including the two on the judiciary, be scrapped, the government has been facing criticism.  

Against the backdrop, some senior BNP leaders at a meeting of the party's national standing committee on 4 April, according to media reports, expressed disappointment with the way the repeal of several key ordinances was handled.