Curtailment of ACC power to sue public officials: A law to legalise corruption?

THE ninth Parliament enacted on 10 November 2013 an amendment to the Anti-Corruption Commission (ACC) Act 2004 inserting section 32A that curved the independent authority of the ACC to initiate investigations and judicial proceedings against any public officials for corruption and to do so the prior approval of the government was mandatory. This amendment became law following the Presidential assent on 20 November 2013 amid widespread criticisms and opposition. In response to a public interest writ, the High Court Division on 30 January 2014 held this amendment illegal, unconstitutional, and without the force of law. This amendment was found not only to be inconsistent with the constitutional guarantee but also undermined the independence of the ACC.
Prior to this decision, the High Court Division on 26 September 2013 also held certain provisions of the Contempt of Court Act 2013 exempting government officials (and journalists) from any contempt of court action invalid and unconstitutional. On both occasions, the Court reasoned that such exemption was discriminatory as it treated a particular group of citizens more equal than others in violation of Article 27 of the Constitution guaranteeing the equality of all citizens before the law. Seemingly the judicial message went unheeded by Parliament while amending the ACC law.
The Constitution is the supreme law of Bangladesh. Yet the history of constitutional defiance is being repeated in Parliament. Does Parliament have law-making freedom? The answer is absolutely negative. Parliament is the creation of a written Constitution which sets the legislative functional limits. Parliament under our written Constitution does not possess any intrinsic law-making power, which actually comes from the Constitution. This conferred law-making power, however extensively and passionately parliamentarians may assert, must remain within the given constitutional limitation. In an unequivocal recognition of the supremacy of the Constitution, its Articles 7(2) and 26(2) require all law-making bodies and government to be mindful of the constitutionality of their legislative acts, which would be void to the extent of their inconsistency with the Constitution. When Parliament goes beyond this set constitutional limit, its acts suffer from legitimacy crisis and cease to be the law.
Parliament must understand its non-sovereign law-making power to be exercised under a written Constitution. Parliament is therefore legally obliged to make law in compliance with the Constitution. Pursuant to the constitutional separation of powers, Parliament itself is not authorised to determine the constitutionality of its own act. The Judiciary, being the guardian and custodian of the Constitution, is entrusted to ascertain the constitutionality of any parliamentary acts. The interpretation of all constitutional provisions is exclusively within the domain of the Judiciary. The Supreme Court is empowered to judge whether a particular parliamentary act is consistent or not with the Constitution by virtue of, and in exercising, its judicial review power. The apex court is the final arbitrator of the constitutional validity of any parliamentary act.
Thus Parliament is not immune from any judicial review of the constitutionality of its act by the apex judiciary. This is what has precisely happened in the above two judicial decisions. By enacting these amendments, Parliament had elevated itself to a status not found or available in the Constitution and as such their illegality and unconstitutionality became a foregone conclusion. These controversial legislative acts defy certain fundamental human rights enshrined in innumerable international human rights instruments and national constitutions creating a jus cogens (peremptory) obligation for compliance. The legal position in favour of these two judicial decisions is so overwhelming that appealing against them is likely to be a losing battle and waste of public resources.   
Another controversial amendment of the ninth Parliament with constitutional and corruption implications is the local government law entitling parliamentarians to be involved as advisers in Upazila development activities of local governments in their respective constituency. Local government administrators regard this as interference in the running of the local government system and have demonstrated their protests and resentments. This arrangement of inter-mingling national law-makers in the executive administration of the local government system compromises law-makers' full-time engagement in law-making, dilutes the constitutional separation of power, and goes against the basic structure of the Constitution. These local government development projects often serve as fertile sources of power abuses and financial corruption. Parliamentarian of the ninth Parliament also attempted to introduce an outrageous quota system in educational institutions to be reserved for the education of their children, which was abandoned on the face of mounting public criticisms.
A contentious practice entailing ample scope for corruption is the withdrawal of the so-called 'politically motivated' cases upon the recommendation of the national inter-ministerial review body. The government that came to power in 2008 inherited it, which was practiced and abused during the BNP-led coalition government that withdrew 5,888 cases and released 73,541 accused during its tenure 2002-2006 (Daily Star 23 February 2010). During 2009-2013, the inter-ministerial body recommended for the withdrawal of over 7000 cases including many cases concerning murder and torturous deaths in police custody (Daily Star, 6 August 2013).
These withdrawn cases included even privately lodged specific complaints of torture leading to custodial death (Home Ministry withdrawal order No 5/2010/2563 of 29 April 2010). Code of Criminal Procedure in force already provides a judicial approach to the withdrawal of names of any accused by public prosecutors with the consent of the court during trials and before the judgement (s 494). No case can be withdrawn by prosecutorial executive order without the permission of the court. Withdrawal should be sought on a fair and genuine ground in the interest of, not extraneous to, the administration of justice.
The withdrawal of cases and release of accused by executive, particularly the Home Ministry, recommendation as political expediency to free supporters and allies on the pretext of politically motivated cases without judicial determination and permission is preposterous at its best and an interference in the independent functioning of the judiciary at its worst. Let the court decides the matter. The executive policy of withdrawing trivial and politically motivated cases to reduce excessive case loads amounts to curing headache by chopping off the head instead of using paracetamol. The executive job is to address the systemic problem of delaying tactics and endemic corruption that justice-seekers face every day. The constitutional separation of power is premised on the presumption that the executive is not meant to be competent to take decisions in judicial matters. Therefore the executive should be barred from withdrawing cases involving the inalienable constitutional guarantees, including the right to life, which has violently been denied in custody by the state apparatus through inhumane torture, prohibited in both national law and international law. These withdrawals inflict irreparable harm not only to victims and their relatives, but also deny the constitutional right of citizens to the protection of law guaranteed in Article 31 of the Constitution.
These kind of parliamentary acts and executive actions are susceptible to legal challenge and judicial review in the Supreme Court. It would not come to the wonderment of those apologists who see these avenues vulnerable to corruption if ACC investigations find some ministers and MPs' alleged undue wealth has been obtained from these sources. Any governments accountable to the public are better-off and can augment their clean image of good governance if steps are taken to reduce the possible sources of potential corruption.
 Media reports are littered with corruptions in the form of power abuse, embezzlement, and enrichment by individuals in position of power during the immediately passed government. These reports also highlight the resolve of the new government to enhance its image tarnished by some of its previous ministers, state-ministers, and MPs who have been excluded from the new ministry and that the ACC is investigating some of them for their alleged corruption.
This is a welcoming new political wisdom and initiative that deserve congratulations. Obviously if these individuals are precluded from the ministry for their past questionable conducts surely they deserve to face the full force of law, which should have been brought to bear during their tenure but allowed to continue. It is difficult to appreciate how these ministers and MPs could have served their full term with such questionable conducts in a responsible government. However, late is better than never and the new government must extend its full cooperation with the ACC to investigate independently all ministers and MPs, past and present alike, who have allegedly accumulated undue wealth through corruption.
For good and responsible governance, it is imperative for Parliament to perform its legislative functions in compliance with due regard to constitutionalism. Regrettably, the history of parliamentary law-making is littered with unconstitutional enactments to immunise self-serving agenda. Parliament is a sacred and authenticated norm setter for legislative functions to achieve a sustained orderly regulatory regime expected of a good government. Parliamentarians must understand and appreciate the ethos and spirit of the constitutional rule of law.
The utility of holding periodic educational workshops for MPs to improve their constitutional knowledge and role in a responsible parliamentary form of government may not be gainsaid. New parliamentarians must learn lessons from the past arrogant mistakes of using Parliament as a tool to deny constitutional guarantees and legalise corruption with impunity. They must not see Parliament as a touchstone that touches anything, however discriminatory, unwarranted and prohibited, becomes inviolable law. Be aware of the Supreme Court, the Constitution, and the holder of 'All powers' – the people.

THE WRITER IS PROFESSOR OF LAW, MACQUARIE UNIVERSITY, SYDNEY, AUSTRALIA.