No scope for questioning laws constitutes a crisis

by Abu Jar M Akkas | Published: 01:59, Nov 29,2018

 
 

LAWS govern people. Laws govern society that people live in. Laws govern the country that society is part of. Citizens, in a democracy, therefore, elect their leaders to make and unmake laws, under the dictates of the state’s constitution, that govern them and all — country and society. The constitution of any country is, therefore, often referred to as the mother of all laws and the constitution properly formulated and approved by the people at large reflects the collective will of the people in a way that no other laws can override the constitution. The constitution is, in fact, the reasons the laws exist.
In a remote manner which is very much roundabout, people have a say in the making of laws for them — they elect their representatives to make laws for them. This is remote and roundabout as there are many steps in between, from the election of the representatives to the representatives voting a bill into a law in the parliament in a process that may not have the say of the electorates, that could go awry and that may not smack a bit of people’s will.
In practice, representatives that the people elect might end up passing a law that might not be needed, that might not protect, or rather harm, the rights of citizens, that might be too weak to have any impact on society, or that might have the impact more than required. When the law is just but weak, it often becomes futile, defeating the purpose of its existence. When the law is unjust, with punishment graver than the offences, it becomes repressive. But all laws need to be in force. When weak laws are enforced, nothing happens and when strong laws are enforced, they cause concerns for the citizens.
Laws, before they are made, are drafted by people in the executive. They are experts in laying out laws, in deciding which section goes after which one and in writing the words in a way that should not lead to ambiguity. Drafts may be, and most probably always are, technically legal and legally technical. They almost always are because they are written and crafted by people well versed in the trade.
When drafts of the laws are vetted, they are so done by people who have expertise in the job. They weigh the sections and provisions, compare them with sections and provisions in other laws, find out if anything in the drafts is out of synch with sections in other laws and set them right. Even if there could be mismatches, it is jurisprudentially evident that laws coming into force after any other laws would override the laws that precede them.
But who decides if certain laws are at all needed? Who weighs the value of the laws that need to be made? And who debates the value of the laws? The members of the public have the laws in talks but they are often not considered. In most cases, it is not even the people who make, or pass, the law in the parliament. In a situation like this, laws can be made without the consent of the people. Laws can be passed amidst opposition by the people. Laws can be made that may not protect the interest of the people the laws mean to or are made to mean to.
It is true that it is said, in the making of all laws, that stakeholders are consulted, opinions of the stakeholders are elicited so that the drafts of the laws could be made more meaningful, worthy of protecting the interest of the people the laws are made for or preventing wrongdoings that the laws are supposed to safeguard people from.
A recent case of laws being made amidst opposition by the stakeholders is at hand. The Digital Security Act 2018, which nullifies the previous Information and Communications Technology Act 2016, was passed in the parliament on September 19. The law was forwarded, on October 4, to the president and it was signed into a law on October 8. While the law retains the infamous Article 57 of the Information and Communications Technology Act 2016 that it has replaced, it also has provisions for punishment for offences as categorised under the Official Secrets Act 1923.
But the journalists have, rightly, opposed nine sections of the law that could practically threaten the freedom of expression and of the media as they are opposed to the basic practice of democracy and the fundamental principles of journalism. A few ministers met the editors on April 19 and the editors and leaders of journalists on September 30, just before the law was passed, where the editors and journalists voiced their concern about the sections that might harm journalism. Opinions of stakeholders were, of course, elicited. But the law was passed, with the opinions of journalists having left no impact on the law.
The parliament on September 19 passed the Road Transport Act 2018. The draft was put online to elicit public opinions in late January. The draft was built on the draft Road Transport Act 2015, which has been carried from the Road Transport and Traffic Act draft prepared in 2011. But when it was passed, experts were of the opinion that significant issues needed to deal with road transport management, which were in the earlier drafts, were dropped. The gravity of punishment was also lessened to a degree that is highly likely to act as deterrent for offences in the road transport sector.
Allegations were galore that the law was made to protect the interest of transport owners rather than of passengers. As some serious issues were left out, said to be dealt with in rules to be framed later, experts seek to think the law could not stop reckless driving, which is thought to be a major reason for fatal road accidents. People largely felt that the issues of their safety and security were compromised in the making of the law.
The Public Service Act 2018, which was passed in the parliament on October 24, subsumes important aspects of six laws and the passage of the new law nullified them. While the law rightly provisions for weighing the merit, competence, seniority, training and services of public servants in their promotion, it also provisions for the arrest of public servants, before a court frames charges in any criminal case, only after the sanction of the higher authorities concerned.
The Public Service Act 2018 affords public servants protection of a sort, by some degree, from being arrested. But the Digital Security Act 2018 allows the law enforcement agencies to search any place, seize anything being about digital and arrest anyone on suspicion without any sanctions of the court of law. The Digital Security Act provision seems to be meddling with the constitutional conferment of the freedom of expression and the freedom of the press on the citizens.
Although the citizens elect their representatives to make laws that govern them, it is not axiomatic that laws are always made in the interest of people and society and people’s opinions are considered in the making of the laws. Laws are also made to add to the power of the ruling quarters, which often could be constraining for the citizens. Besides, the elected representatives passing laws in the parliament hardly have any hands in the making of the laws. What is more restrictive is that Article 70 of the constitution restricts voting freedom of lawmakers in the parliament. No one can vote against the party and no one can abstain from voting.
The article in question says: ‘A person elected as a Member of Parliament at an election at which he was nominated as a candidate by a political party shall vacate his seat, if he resigns from that party or votes in Parliament against the party.’ The article contradicts in spirit with Article 39 which confers on citizens the indefeasible right to the freedom of thought and conscience and of speech. Article 70 was meant to stop floor-crossing in the parliament, but it also restricts the right of a group of people just for being members of the parliament.
This meddles with the checks and balances within the incumbents as no member of parliament can independently express opinions in cases of voting a bill into law for which citizens elect them, even in the interest of the people. The curb on the lawmaker’s freedom of expression and conscience is often countervailed with a sub-clause of Article 39, which refers to being ‘subject to any reasonable restrictions.’ But then, what the phrase ‘reasonable restrictions’ means is left to varying interpretations, making the situation complicated.
In the law making process that is adhered to in Bangladesh, at least for now, the expression of people’s will is not always reflected, neither directly through them nor indirectly through their representatives that they elect. They hardly get to question the making of the law — the reason, the width and the breadth. People need to be able to question both why there exists no law to govern certain spheres of society and why there exist certain laws to do so. Being able to question the law may not sound exigent to many when there are so many issues of the democratic dispensation that are often ignored and poorly handled or taken for granted. Such issues may have greater exigency, but not being able to question the law also appears to be a crisis of democracy at hand.

Abu Jar M Akkas is deputy editor at New Age.

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