FOLLOWING an unprecedented surge of violent law and order problem since its assumption of power in October 2001, the incumbent coalition government of Bangladesh resorted to a number of measures to combat the problem. One of such measures was the deployment of armed forces to launch the "operation clean heart" designed to restore law and order. The armed personnel, along with the other law enforcing agencies of the country, conducted this operation continuously for 85 days between 16 October 2002 and 9 January 2003. During this anticrime crackdown, the army made large-scale arrests (over 10,000), perpetrated brutal torture, inhuman and degrading treatment and cruel punishments that allegedly resulted in 42 deaths in custody and rendered many victims mentally and physically incapacitated. In most case though, the army sources attributed these custodial deaths to their heart failures. Disgruntled relatives of the victims disputed the army side of the story and some of them opted for legal action by instituting criminal proceedings. The government withdrew the army from the operation on 9 January 2003, followed by the promulgation of the Joint Drive Indemnity Ordinance 2003, exonerating all army actions arising out of and in course of the operation.

The Promulgation of the ordinance

The President promulgated the Ordinance pursuant to his ordinancemaking power under Article 93 of the Constitution. This presidential power is not unassailable, but subject to explicit restrictions. Article 93 prevents the President from enacting any ordinance with provisions (a) "which could not lawfully be made under this Constitution by Act of Parliament" and (b) "for altering or repealing any provision of this Constitution". The aim of the Ordinance not only abrogates the constitutional law, but also goes beyond it and encroaches onto other areas of law and justice. The Ordinance indemnifies those allegedly responsible for custodial deaths during the "operation clean heart" from facing the criminal charge. These deaths, if caused by others, would have normally triggered criminal proceedings and their perpetrators would have faced the full force of law. The assurance of immunity to certain individuals solely on basis that they acted on behalf of the state sets a double standard at its best and is blatantly discriminatory at its worse in providing justice to the people. This act of discrimination and double standard clearly infringed the principle of non-discrimination under Article 28 of the Constitution. The Ordinance has elevated those allegedly responsible persons to above the law in defiance of Article 27 of the Constitution. It artificially deprives the aggrieved relatives of the victims from invoking the available legal remedies, due process of law and natural justice, which are otherwise available to all citizens of Bangladesh. This intent of the Ordinance clearly violates constitutional right to equal protection of law (Art. 31) and protection of right to life (Art. 32). It coercively subjects the relatives of the victims to suffer grave injustices without any right to redress.

All extra-judicial killings are punishable offence under the criminal law of Bangladesh, which draws no distinction whatsoever between perpetrators. This position is quite consistent with the individual criminal accountability regime in international law. One can prepare an endless list of international instruments recognising the individual accountability of criminal offences committed by armed personnel even under superior orders. The 1945 Nuremberg judgement, the 1948 Genocide Convention, the 1949 Geneva Conventions on the Laws of War, the 1984 Torture Convention, the UN Ad Hoc Criminal Tribunals for the former Yugoslavia (1993) and Rwanda (1994), and the 1998 Rome Statute of the International Criminal Court testify to this posture. That the act of state or official act serves no defence against individual criminal responsibility has been established beyond doubt by the British House of Lords in Pinochet case (no. 3, per Lord Millett) in 1999.

The President is empowered to waive or reduce the punishment of an offender after facing trial according to the constitution. The President has no power to de-criminalise the recognised criminal acts of murders, rapes and tortures or exempt its perpetrators from their individual criminal responsibil-

ity and the full force of law. The President cannot supersede, take away or abridge the right of the relatives of the victims to get justice. The President simply cannot create by ordinance a right of impunity for those responsible persons merely because it contradicts the existing organic law of the land. Nor can he usurp the legal rights of the relatives of the victims beyond the authorisation of law. Instead of trying and punishing the offenders, the Ordinance has created a right of security and immunity for the alleged offenders from the court of law. In so doing, the Ordinance is violative of a number of fundamental rights of the citizens guaranteed in chapter 3 of the Constitution. In exercising his ordinance-making power under Article 93, the President is duty-bound not to promulgate any ordinance inconsistent with, and/or repugnant to any provision of the Constitution.

The Power of Parliament to Provide indemnity

The power of Parliament to grant indemnity by enacting law under Articles 46 of the Constitution must be construed and understood both contextually and objectively. It must be read and interpreted in conjunction with other related constitutional provisions, notably Article 150 and clause 3 of the Fourth Schedule.

These provisions were embodied to cater for certain transitional and extraordinary situations occurred during the 1971 war of national liberation and immediately after the liberation of Bangladesh leading up to the adoption of the Constitution.. In order to maintain continuity of Bangladesh as an independent state and its governmental authority from the date of its proclamation and to avoid any legal vacuum, all interim measures and arrangements of the government during the pre-constitutional period were regularised retrospectively as validly executed by the lawful authority. An intent-based contextual interpretation of these constitutional indemnity provisions suggests that there is no room for indemnity to any unconstitutional act in the post-constitutional period. The Constitution, being in force as the supreme law of the land, takes precedence over all other law to be made in compliance with the Constitution

Parliament is empowered to enact and amend law for Bangladesh. This empowerment is not unassailable. The Parliament is the creation of a written Constitution, which has expressly imposed certain restrictions on Parliament's law-making competence. Parliament does not exist in the absence of the Constitution. Parliament lacks any intrinsic law-making power, which legally comes from, and is operative under, the Constitution. It is therefore pretentious to argue that the Parliament is a sovereign law-

making body like the British Parliament. The UK, unlike Bangladesh, does not possess a written constitution, which makes the difference. The Bangladesh Parliament is non-sovereign in that the range of its law-making power, however widely and passionately asserted, must reside within the limits of the Constitution. Any parliamentary act enacted beyond the set limit is deemed to be ultra vires due to the lack of constitutional legitimacy. The test of such legitimacy is Article 7 of the Constitution, which overtly prevents Parliament from making any law or amendment, which is inconsistent with, and/or repugnant to, the Constitution. Any such law, if enacted, should be invalid to the extent of its inconsistency to the Constitution. For good governance, it is imperative that Parliament performs its law-making functions in compliance with the specified constitutional order.

The present Ordinance contains a saving clause in that it can not be challenged in or before any court, tribunal and authority on any ground whatsoever. As a necessary mechanism to ensure proper cheeks and balances between government organs and to avoid abusive exercise of their separate powers, the Constitution has conferred the judicial review power and jurisdiction on the Supreme Court to ascertain the constitutionality of acts of Parliament. This precisely happened in Anwar Hossain Chowdhury and Others v Bangladesh (vol. IX, BLD 1989), where the Supreme Court exercised its judicial review power to assess the constitutionality of the Eighth Amendment and the authority of Parliament to enact it.

The legal issue is whether Parliament possesses unlimited legislative competence. Parliament, whose authority to legislate is subject to the constitutionality of its legislation under Article 7 of the Constitution, cannot change an unconstitutional act constitutional. It cannot operate beyond the constitutional arrangement of checks and balances to remain immune from the jurisdiction of the judiciary. Nonetheless, the incumbent Minister for Law and Parliamentary Affairs said that the Ordinance would duly be approved in the ensuing session of Parliament. Through the endorsement of the saving clause in the Ordinance, Parliament will reverse its constitutional status by elevating itself over and above the judiciary and by rendering the Constitution subservient to its will. Parliament will thus invent a legislative power not available in, rather expressly forbidden by, the Constitution. This tendency of parliamentary arrogance in total disregard of the organic law militates against good governance.

The culture of parliamentary unconstitutional acts may be attributable to a number of factors. Due to widespread familiarity with the British sovereign parliamentary system, there is a misunderstanding among the Bangladeshi MPs and people in general that the Bangladesh Parliament, like its British counterpart, is sovereign enough to enact any law it deems appropriate. In so doing, they tend to ignore the fact that, unlike Bangladesh, the UK has no written constitution to follow. The due process of parliamentary democracy was inoperative in almost half of the life of Bangladesh between 1975 and 1990, when military dictatorships camouflaged in democratic outfit dictated the law-making process through subservient and rubber-stamp parliaments. The effect of historic legacy of undue influence on Parliament has not been dissipated with the reintroduction of multi-party parliamentary system in 1991. Such influence now comes from political parties in government, which seek to legalise their selfish power politics. By generating a climate of political polarisation in Parliament, the executive takes policy decisions on critical issues of public interests by using Parliament as a legalising tool. The parliamentary approval of the Ordinance will be yet another instance of such practice. This practice dilutes the constitutional separation of powers and interrupts the checks and balances between the organs of the government, the fundamental corner stone of the Constitution.

M Rafiqul Islam is Associate Professor of Law and the head of International Law Studies at Macquarie University, Sydney, Australia. In the next episode the writer will further analyse the issue.