Does_Bangladesh_Need_a_Political_Questio
pdf
keyboard_arrow_up
School
TAFE NSW - Sydney Institute *
*We aren’t endorsed by this school
Course
411
Subject
Law
Date
Nov 24, 2024
Type
Pages
29
Uploaded by ChefAtomEchidna44
DATE DOWNLOADED: Mon Jul 6 02:14:01 2020
SOURCE: Content Downloaded from HeinOnline
Citations:
Bluebook 20th ed. Md. Zahirul Islam, Does Bangladesh Need the Political Question Doctrine, 7 Indian J.
Const. L. 127 (2017). ALWD 6th ed. Md. Zahirul Islam, Does Bangladesh Need the Political Question Doctrine, 7 Indian J.
Const. L. 127 (2017). APA 7th ed. Islam, M. (2017). Does Bangladesh Need the Political Question Doctrine. Indian
Journal of Constitutional Law, 7, 127-154. Chicago 7th ed. Md. Zahirul Islam, "Does Bangladesh Need the Political Question Doctrine," Indian
Journal of Constitutional Law 7 (2017): 127-154 McGill Guide 9th ed. Md Zahirul Islam, "Does Bangladesh Need the Political Question Doctrine" (2017) 7
Indian J of Constitutional L 127. MLA 8th ed. Islam, Md. Zahirul. "Does Bangladesh Need the Political Question Doctrine." Indian
Journal of Constitutional Law, 7, 2017, p. 127-154. HeinOnline. OSCOLA 4th ed. Md Zahirul Islam, 'Does Bangladesh Need the Political Question Doctrine' (2017) 7
Indian J Const L 127
-- Your use of this HeinOnline PDF indicates your acceptance of HeinOnline's Terms and Conditions of the license agreement available at https://heinonline.org/HOL/License
-- The search text of this PDF is generated from uncorrected OCR text.
-- To obtain permission to use this article beyond the scope of your license, please use:
Copyright Information
Does Bangladesh need the Political Question Doctrine?
Md. Zahirul Islam*
Abstract
In the era of judicial activism, the judiciay has become more
active and functional as opposed to its traditional "self-
restraint"_position. Application of the political question doctrine
somehow narrows the expanding scope of judicial review, and
therefore remains a crucial issue to be dealt with by the courts.
This article focuses on the various judical approaches to the
justicability of issues with political ramifications. This work
adopts a broader study of the oti gin, the evolution, the current
legal position and the future of the political question doctnne in
constitutional law discourse by anay'ng works of scholars and
courts across jurisdictions. Rejying on an extensive study of the
judicial works of Bangladeshi courts, this paper makes an
honest endeavor to see whether Bangladesh needs the political
question doctrine, while its judicia has progressed towards
achieving constitutionalism by widening the scope o its revie.
Introduction
The "political question doctrine"; the combination of these
three words seems innocuous on the face of it. Nevertheless, in
constitutional law discourse, this doctrine is often misused,
sometimes wrongly applied and shown to be problematic. At the
same time, this doctrine has managed to gather support and
LLM, LLB (honors), University of Dhaka, Bangladesh. Currently is a Senior
Legal Associate at National Center for State Courts, Dhaka Office, Bangladesh.
He can be reached at zahirulmusa@gmail.com.
Indian J. Const. L.
recognition from a few quarters. The "political question doctrine", an
American invention, states that some issues are inherently non-
justiciable due to their political nature. Philosophically, judicial
restraint over political issues seems to be a sound principle. But in
reality, this principle is most often misused. A large number of
"issues" have been kept outside judicial review for being "political".
The political question doctrine is closely linked to the concept of
justiciablity, i.e., the question of whether the judiciary is the
appropriate forum to judge a particular issue. While legal questions
are deemed to be justiciable, political questions are not. This is
despite constitutional law being a grey area, where legal issues often
have political overtones.
In Bangladesh, the existing socio-political realities require the
judiciary to adopt and evolve an active and operational jurisprudence
of its own to help gaining the promised constitutional democracy.
2
The judiciary has generally pursued a broader approach to the
justiciability of issues with political ramifications. Sometimes, it has
refused to go beyond the political question doctrine so as to
adjudicate "politics -inspired issues of constitutional importance",
3
sometimes avoided
4 and sometimes accepted
5 this doctrine. But a
clear stance has yet to be adopted by the judiciary. Therefore, the
1 MAHMUDUL ISLAM, CONSTITUTIONAL LAW OF BANGLADESH 444
(2003).
2 Ridwanul Hoque, On Coup D' Etat, ConstztutionaLsm, and the Need to Break the
Subtle Bondage wth Aien Legal Thought, THE DAILY STAR (Dhaka), October
29, 2005.
3 M A. Mannan v. Bangladesh (High Court Division's judgment in 2008)
(Unreported). This case was about the legality of delimitation of constituencies
by the Election Commission.
4 Constitutional Reference No 1 of 1995 (MPs' Resignation) III BLT (Spl.)
(1995) 159.
5 M/S Dulichand Omraolal v. Bangladesh, 1 BLD (1981) (AD) 1. Khondaker
Modarresh Elahi v. Bangladesh, 21 BLD (2001) (HCD) 352.
Your preview ends here
Eager to read complete document? Join bartleby learn and gain access to the full version
- Access to all documents
- Unlimited textbook solutions
- 24/7 expert homework help
Does Bangladesh need the PoticalQuesnion Do in ?
present study is the search for a clear stance that the Bangladesh
judiciary can consider appropriate for itself, where the judiciary has
begun playing an active role to promote constitutionalism. This paper
revolves around the question of whether Bangladesh needs the
political question doctrine. This paper analyses the political question
doctrine and its relationship with judicial activism. It is not my
argument that the judiciary should intervene in every political dispute.
Rather, it is that there is no reason to disempower the judiciary in the
name of the "political question doctrine".
Part I. Understanding the "Political Question Doctrine"
The "political question doctrine" is an American invention,
and has its roots in the historic U.S. Supreme Court case Marbugq v.
Madison.' In this case, Justice Marshal appears to have created two
major doctrines in constitutional law. The frst is the statement that it
is "emphatically the province and the duty of the judicial department
to say what the law is", which paved the way for modern judicial
review. The second is the assertion that recognized the existence of
certain questions that are wholly outside the purview of the courts by
use of the term "question in their nature political". The statements,
when read together, may reveal Marshall's fundamental conception of
the separation of powers, and highlight both the limits of judicial
authority and the interpretive role played by the political branches.
8
When these cases involving such political questions are presented, it
is the province and the duty of the legislature or the executive and
not the courts to clarify the legal position. These questions have
6 5 U.S. (1 Cranch) 137 (1803).
7 A. A. Shamrahayu & A. 0. Sambo, InternalAffairs of PolificalQuestions andJudidal
remew: An Exposiog Study of the Experience in Nigeria and Malaysia, 7(13) J. OF
APPLIED SCIENCE RESEARCH 2257-2265 (2011).
8 Id.
Indian J. Const. L.
come to form the substance of the so-called "political question
doctrine."
9
Louis Henkin and Aharon Barak are some of the leading
scholars who have argued against this doctrine. Henkin points out
that, in many cases, the "political question doctrine" merely restates
in a confusing manner the obvious principle that "the courts are
bound to accept decisions by the political branches within their
constitutional authority." 10 For Barak, "any act is liable to be
"caught" by the legal norm, and there is no act for which there is no
applicable legal norm. The law spans all actions."
11 Barak's view is
that the political nature of the act is irrelevant as every act necessarily
has legal implications. Barak also wrote: "the American doctrine
concerning political questions is particularly problematic. Its legal
"12
foundations are shaky and it is largely based on irrational reasons".
In Vieth v. Jubelirer, 13 the US Supreme Court observed,
"sometimes-the law is that the judicial department has no business
entertaining a claim of unlawfulness-because the question is
entrusted to one of the political branches or involves no judicially
enforceable rights. Such questions are said to be 'non-justiciable,' or
'political questions'."'
4 The political question doctrine "excludes from
judicial review those controversies which revolve around policy
9 R. E. Barkow, More Supreme than Court? The Fall of PotticalQuestion Doctr ne and the
Rise ofJuddalSupremagy, 102 COLUMBIA L. REV. 237 (2002).
10 Louis Henkin, Is There a 'Pottical Question' Doctine? 85 YALE L. J. 597-599
(1976).
11 Ressler v. Minister of Defense, 42 P.D. (2) 441 (1988)perBarakj.
12 AHARON BARAK, THEJUDGE IN A DEMOCRACY (2006).
13 541 U.S. 277 (2004). The Pennsylvania General Assembly (D) drew a map
delineating the districts for the congressional elections. The map was challenged
by Vieth (P) and others in court, on the basis that the creation of the districts
was for the improper purpose of obtaining political advantage, or
gerrymandering.
14 Id.
Does Bangladesh need the PoticalQuesnion Do in ?
choices and value determinations constitutionally committed for
resolution to the halls of Congress or the confines of the Executive
Branch." 15 Furthermore, "because political questions are non-
justiciable under Article III of the Constitution, 16 courts lack
jurisdiction to decide such cases." Correspondingly, in the American
context, the political question doctrine performs an important
function in ensuring separation of powers. Similarly, in Nigeria, the
Courts have created a dichotomy between matters that the
Constitution prescribed and other matters that concerned the affairs
of the legislature or the executive. For instance, in Ba/arabe Musa v
Auta Hamzat
, 17 the Nigerian Court of Appeal observed that a
question of impeachment of a state's governor was a political
question, and outside its jurisdiction.
8
In Canadian case of United States v. Burns, " the challenge
concerned an extradition request by the United States for two
accused individuals in Canada. Despite public outcry, Canada's
Minister of Justice refused to impose a condition that the United
States would not seek death penalty upon conviction. This was a
matter of foreign policy, clearly falling within the usual ambit of the
political question doctrine. Nevertheless, the Supreme Court of
Canada regarded the matter as justiciable, and mandated the "no
death penalty" condition. The Court observed death penalty to be a
matter concerning justice, and not outside its realm.
15 Lessin v. Kellogg Brown & Root, U.S. Dist. LEXIS 39403 (2006).
16 Article III of the United States Constitution establishes the judicial branch of
the federal government. The judicial branch comprises the Supreme Court of
the United States and lower courts as created by Congress.
17 3 NCLR 229 (1982)
18 See Ume Ezeoke v Makafi 3 NCLR 663 (1982); Okwu v Wayas 2 NCLR 522
(1981)
19 1 S.C.R. 283 (2001)
Your preview ends here
Eager to read complete document? Join bartleby learn and gain access to the full version
- Access to all documents
- Unlimited textbook solutions
- 24/7 expert homework help
Indian J. Const. L.
An analysis of these cases from different jurisdictions reveals
that the political question doctrine has no universally accepted
definition. Its recognition and application varies across jurisdictions.
Nonetheless, it is submitted that the doctrine constitutes a form of
judicial avoidance where courts defer matters without reviewing the
positions taken by the political branches of the government, and
refuse to comment on the lawfulness of the positions.
20
A. Development of the Political Question Doctrine
Although the doctrine's current analytical framework
originates from a handful of landmark U.S. Supreme Court
opinions,
2
' the political question doctrine arrived in America as a
component of common law. 2 Some scholars argue Alexander
Hamilton contemplated the basic principle behind the doctrine in The
Federalist Papers.
2
3 However, Justice John Marshall deserves much of
the credit for bringing the doctrine to the forefront of American
jurisprudence. Three years before Marshall discussed political
questions as a limit on judicial review in Marbugy v. Madison,
4 he
warned of the potential danger of a court without jurisdictional
limits.
2
5 Marshall cautioned, "if the judicial power extended to every
question under the constitution, it would involve almost every subject
20 F. W. Scharpf, Judidal Review and the PotticalQuestion: A FunctionalAalsis, 75(4)
YALE L. J. 517-535 (1966).
21 See, e.g., Baker v. Carr, 369 U.S. 186 (1963); Marbury v. Madison, 5 U.S. (1
Cranch) 137 (1803).
22 Edwin B. Firmage, The War Powers and the Potical Question Docrne, 49
UNIVERSITY OF COLORADO L. REV. 65,68-69 (1977).
23 Rachel E. Barkow, The Rise and Fall of the Pottical Question Doctrine in THE
POLITICAL QUESTION DOCTRINE AND THE SUPREME COURT OF
THE UNITED STATES 24 (Nada Mourtada-Sabbah & Bruce E. Cain eds.,
2007); See The Federalist No. 78 (Alexander Hamilton).
24 5 U.S. (1 Cranch) 137 (1803).
25 Barkow, supra note 9.
Does Bangladesh need the PoticalQuesnion Do in ?
proper for legislative discussion and decision." 26 This would
undermine the separation of powers and "the other departments
would be swallowed up by the judiciary."" Marshall carried these
notions of judicial restraint with him to the Supreme Court. Marbuy
v. Madison is the case in which judicial review was "firmly established
as a keystone of American constitutional jurisprudence."
8 Therefore,
Marbugy was quite significant in the development of the political
question doctrine.
The most important U.S. Supreme Court case regarding the
political question doctrine is a voting rights reapportionment case
from 1963, Baker v. Car: 29 In Baker, the Court held that the
determination of whether a matter has been committed to another
branch of the Federal Government "is itself a delicate exercise in
constitutional interpretation, and is a responsibility of this Court as
26 Barkow, supra note 9, (quoting Representative John Marshall, Speech on the
Floor of the House of Representatives Mar. 7, 1800, in 18 U.S. (5 Wheat.) app.
note I, 16-17, (1820).
27 Barkow, supra note 9.
28 Henkin, supra note 10
29 369 U.S. 186 (1963); see Rogers v. Lodge, 458 U.S. 634 (1982) (contending Baker
"represents one of the great landmarks in the history of [the U.S. Supreme
Court's] jurisprudence"); Developments in the Law: Access to Courts, 122
HARVARD L. REV. 1195 (2009) (describing Baker as the case which
"announced [the political question] doctrine's modem contours'). Charles
Baker (P) was a resident of Shelby County, Tennessee. Baker filed suit against
Joe Carr, the Secretary of State of Tennessee. Baker's complaint alleged that the
Tennessee legislature had not redrawn its legislative districts since 1901, in
violation of the Tennessee State Constitution that required redistricting
according to the federal census every 10 years. Baker, who lived in an urban
part of the state, asserted that the demographics of the state had changed
shifting a greater proportion of the population to the cities, thereby diluting his
vote in violation of the Equal Protection Clause of the Fourteenth Amendment.
Baker sought an injunction prohibiting further elections, and sought the remedy
of reapportionment or at-large elections. The district court denied relief on the
grounds that the issue of redistricting posed a political question and would
therefore not be heard by the court.
Indian J. Const. L.
ultimate interpreter of the Constitution."
3 The Baker case delineated
six criteria
31 to be used in determining the existence of a political
question: "[1] a textually demonstrable constitutional commitment of
the issue to a coordinate political department; or [2] a lack of
judicially discoverable and manageable standards for resolving it; or
[3] the impossibility of deciding without an initial policy
determination of a kind clearly for non-judicial discretion; or [4] the
impossibility of a court's undertaking independent resolution without
expressing lack of respect due coordinate branches of government; or
[5] an unusual need for unquestioning adherence to a political
decision already made; or [6] the potentiality of embarrassment from
multifarious pronouncements by various departments on one
question."
32 These six Baker criteria serve as standards with which
political question cases are to be measured.
33 Unless one of the six
presents itself in a particular case, there should be no dismissal on
political question grounds.
34
Subsequent cases further clarified and refined the Baker
criteria. For example, in 2004, the Court held that the Baker criteria
30 Id, at 211.
31 See also, The Baker criteria are also described as formulations, tests, and indicia.
See id. 217 (describing the criteria as formulations); Vieth v. Jubelirer, 541 U.S.
267, 277 (2004) (describing the criteria as tests); McMahon v. Presidential
Airways, Inc., 502 F.3d 1357 (lith Cir. 2007) (describing the criteria as indicia).
However, the Baker criteria are not factors to be weighed against one another.
32 Supra note 29, 217.
33 Ibrahim v. Titan Corp., 391 F. Supp. 2d 10, 15 (D.D.C. 2005) ("The political
question doctrine may lack clarity, but it is not without standards.') (Citing
Comm. of U.S. Citizens Living in Nicar. v. Reagan, 859 F.2d 929, 933 D.C. Cir.
1988).
34 369 U.S. 217 ("Unless one of these formulations is inextricable from the case at
bar, there should be no dismissal for non-justiciability on the ground of a
political question's presence.'); See Occidental of Umm al Qaywayn, Inc. v. A
Certain Cargo of Petroleum, 577 F.2d 1196, 1203 (5th Cir. 1978) ("The
inextricable presence of one or more of these factors will render the case non-
justiciable under the Article III 'case or controversy' requirement.").
Your preview ends here
Eager to read complete document? Join bartleby learn and gain access to the full version
- Access to all documents
- Unlimited textbook solutions
- 24/7 expert homework help
Does Bangladesh need the PoticalQuesnion Do in ?
"are probably listed in descending order of both importance and
certainty."
35 Other cases suggested the six criteria could be viewed
together or combined into more succinct inquiries.
3
6 Despite these
suggestions, modern U.S. cases as well as courts in other countries
still prominently use the Baker criteria to identify political questions.
3
8
B. Theoretical approaches to the Political Question
Doctrine
Political Question doctrine is compounded with the various
theories, primarily with the classical and prudential theory. The
prudential theory further includes the opportunistic theory, cognitive
theory and normative theory. The classical theory conceives of
political question as a question of constitutional interpretation rather
than judicial discretion.
9 Wechsler appears to be the main proponent
of this classical school. He opined that the courts are called upon to
35 Vieth, 541 U.S. 278.
36 See, Goldwater v. Carter, 444 U.S. 996 (1979). In a concurring opinion, Justice
Powell contended a court's analysis of political question doctrine issues
"incorporates three inquiries: (i) Does the issue involve resolution of questions
committed by the text of the Constitution to a coordinate branch of
government? (ii) Would resolution of the question demand that a court move
beyond areas of judicial expertise? (iii) Do prudential considerations counsel
against judicial intervention?" See id. 998; see also, Nixon v. United States, 506
U.S. 224 (1993).
37 In Nigeria, the Court relied on Baker v Carr to decide in Onuoha v Okqfor, NSCC
494 (1983). The Supreme Court defined the political question doctrine in
Nigeria as consisting of two principles. One is that '[t]he lack of a satisfactory
criteria for judicial determination of a political question is one of the dominant
considerations in determining whether a question falls within the category of
political questions'. The other is '[t]he [appropriateness] of attributing finality to
the action of the political department and political parties under the Nigerian
Constitution and system of govemment'.
3 The Supreme Court cited Baker v
Carrin support of these two principles.
38 Lane v. Halliburton, 529 F.3d 548, 558 (5th Cir. 2008); McMahon v.
Presidential Airways, Inc., 502 F.3d 1331, 1358 (lith Cir. 2007).
39 See, Moyer v. Peabody, 212, U.S. 78 (1908). The court was of the view where
the constitution assigns a particular function wholly and indivisibly to another
department, the federal judiciary does not intervene.
Indian J. Const. L.
consider whether the constitution has committed to another agency
of government the autonomous determination of the issues raised, a
finding which itself requires an interpretation rather than discretion
to abstain or intervene.
40 The prudential theory evolved as a result of
the criticism levied on the classical theory. It is not based on
constitutional interpretation, rather on prudence. Finkelstein
described the prudential theory through certain cases that were
completely outside the sphere of judicial interference.
4
' Prudential
theory is further divided into opportunistic, cognitive and normative
theories. Finkelstein explained opportunistic theory in terms of
court's instinct for political survival that would persuade the court to
avoid the court from deciding "prickly issues" and "contentious
questions" which touch the hypersensitive nerve of "public
opinion.,
42 Courts cannot shy away from deciding a case properly
brought before it all on the ground that it is controversial and thus
could be hidden under the doctrine of political questions. Field
explains cognitive theory political question in terms of "a lack of legal
principles to apply to the questions presented".
43 If the danger of
clash with the political institution or political controversy about an
issue will not account for the court to use the doctrine, we may need
to analyze the legal nature of questions that the court has avoided.
44
Where there are no standards or rules, the court should create legal
principles that would be applicable in the circumstances of the case.
Although in the case of Baker v. Carr;
45 Justice Frankfurter showed
40 Herbert Wechsler, Towards Neutral Principles of Constitutional Law, 73 HARVARD
L. REV. 1-12 (1959).
41 Maurice Finkelstein, Judidal self Limitation, 37(3) HARVARD L. REV. 338-64
(1924).
42 Scharpf, supra note 20.
43 Oliver P. Field, 'The Doctrine of Political Questions in the Federal Cours", 8
Minnesota L. REV, 512 (1924).
44 Finkelstein, supra note 41.
45 Baker, supra note 3.
Does Bangladesh oeed the PoticalQuesnion Do in ?
"lack of judicially discoverable and manageable standards" as one of
the elements of political questions, it is difficult to justify on cognitive
grounds.
46 That is the reason why the 'minimum rationality test' has
been suggested.
4
Jaffe in light of normative theory of political question
doctrine sees some other matters flowing from the powers of the
political class apart from constitutional assignments as political
questions because there are no guiding rules for its operation or its
better done without rules. One is tempted to submit that the rationale
of the phrase 'that the job is better done without rules
'
4 8 is less
convincing.
Thus, above definitions and theories offered by various
authors do not perfectly define and delimit the scope of the term
political questions. All the definitions and theories have one flaw or
another. They are products of individual idiosyncrasies. The
definitions and theonries do not entirely capture the intention of
Marshall in Marburs case. This is perhaps the reason why an attempt
has been made to list the factors or consideration.
49 An attempt to
propose a definition that will incorporate the various definitions
offered does not solve this problem. This is because the
46 E.g., Field and Frankfurter's views are related in the sense tat both are saying
where there are no standards or rules to decide a particular situation, the court
will not interfere by regarding it as a political question. For instance, since there
are no guidelines, rules or standards to measure when emergency proclamation
is needed; it should be regarded as a political question.
47 Scharpf, supra note 20.
48 This phrase means that actions of political class do not have rules to be
followed in doing it or even if there are rules, they may not be complied with as
political processes often influence it. Thus, courts should not enforce the rules
of the House where it is not complied.
49 B.O. NWABUEZE, NIGERIA'S PRESIDENTIAL CONSTITUTION 1979-
1983: THE SECOND EXPERIMENT IN+CONSTITUTIONAL
DEMOCRACY (1985).
Your preview ends here
Eager to read complete document? Join bartleby learn and gain access to the full version
- Access to all documents
- Unlimited textbook solutions
- 24/7 expert homework help
Indian J. Const. L.
incorporation will be suffering from all the defects of the proposed
definitions. It is a constitutional law doctrine that was developed to
stop the court from deciding on the merit certain questions, which
may affect the powers or functions of other arms of government, or
questions relating to the affairs of the political parties. But this
doctrine has earned huge criticism as well through the all way of the
development. In recent times, some scholars see this doctrine as
almost dead one.
0
Part II. Judicial Review and the Political Questions Doctrine
The origin of the concept of judicial review is also linked with
Marbugy case, which is the origin of the concept political question too.
However, the practices of the English courts in the sixteenth and
seventeenth century are equally important. Montesquieu, the father of
the modern "separation of powers" doctrine, considered separation
of judiciary as the most vital part of the constitutional scheme
because it guards the government against its own lawlessness and
ensures rule of law by securing the liberties of the citizenry m's-a-b's
executive and legislative branches.
5
' Despite the absence of a uniform
practice, in function, there has emerged the theory of checks and
balances, which in fact is a manifestation of the separation doctrine
itself.
52 In this context, the judiciary exercises the power of judicial
review to enforce legal limits on the other branches.
The term judicial activism, despites its popularity amongst
legal experts, judges, scholars and politicians, has not until recently
been given an appropriate definition of what the term should mean
50 Barkow, supra note 9.
51 RIDWANUL HOQUE, JUDICIAL ACTIVISM IN BANGLADESH: A
GOLDEN MEAN APPROACH 33 (2011).
52 HOQUE, id. 33.
Does Bangladesh need the PoticalQuesnion Do in ?
so that it will not be subject to abuse.
3 The effect of this has been a
misconception about what the term is all about.
5 4 This therefore
creates a series of definitions about the concept. Paul Mahoney in
offering his own definition of the concept submits that judicial
activism exists where the judges modified the law from what was
previously stated to be the existing law that often leads to substituting
their own decisions from that of the elected representatives of the
people.
5 This definition would consider invalid actions or decisions
of the judges given for the purpose of seeking the justice in a
particular case or to interpret the law in the previous jurisprudence of
law."5 A contrary view has also been offered that judicial activism
becomes a valuable instrument when the legislative machinery comes
to a halt in a case.
5
7 It must be stated that other approaches to the
meaning of judicial activism has been largely focused on three main
issues.
58 One of the other approaches focuses on the willingness of
the judges to depart from the previous decisions thereby doing away
with the doctrine of stare decisis. Another approach sees judicial
activism as a departure from the original or ordinary meaning of the
53 Chad M. Oldfather, Defining Judicial Inactiusm: Models of Adjudication and the Duy
to Decide, 94 Geo. L.J. 121 (2005); RICHARD A. POSNER, THE SUPREME
COURT (2004); Term-Foreword, A Potical Court, 119 HARV. L. REV. 54
(2005); Stephen F. Smith, Activsm as Restraint- Lessons from Criminal Procedure, 80
TEX. L. REV. 1077 (2002); Ernest A. Young, Judicial Actiusm and Conservative
Pottics, 73 U. COLO. L. REV. 1141 (2002).
54 Keenan D. Kmiec, The Origin and Current Meanings of "Judicial Activsm", 92
CALIFORNIA L. REV. 1442 (2004); see also, Bradley C. Canon, A Framework
for the Analysis of Judicial Activism in SUPREME COURT ACTIVISM AND
RESTRAINT 386 (Stephen C. Halpem & Charles M. Lamb eds.1982).
55 Paul Mahoney, Judicial Activism and Judicial Self-Restrainft in the European Court of
Human Rights: Two Sides of the Same Coin, 11 HUMAN RIGHTS L. J. 58 (1990).
56 Dragoljub Popovic, Prevaiing Judicial Activism over Seff Restraint in the Juriprudence
of the European Cour of Human Rights, 42 CREIGHTON L. REV. 363 (2009).
57 Thijmen Koopmans, The Roots of Judicial Activism in Protecting Human Rights: The
European Dimension in STUDIES IN HONOR OF GERARD J. WIARDA 326
(F Matscher & H. Petzold Eds., 1988).
58 Mark Tushnet, The United States of America in JUDICIAL ACTIVISM IN
COMMON LAW SUPREME COURTS 416-17 (Brice Dickson Ed., 2007).
Indian J. Const. L.
constitutional text.
59 The last approach measures judicial activism in
the light of the numbers of judicial decisions that strike down
legislations." To quote Hoque:
"Iw e recognize that judicial activism is the creative and
assertive exercse of the aiming at activating the court in
overseeing legislative and executive inactiviy, its exercise seems
inevitable not only in case of excessive or illegal exercise of state
powers but also in cases of failure of the power-holders in
peorming constitutional/public duties.""
A. Relationships between Judicial Review and Political
Questions
In many cases, the courts while exercising the power of
judicial review or of interpreting the constitution, may involve in
examining political power or policy activities. 62 Then, what is the
dividing line between political and legal questions? Western
scholarship has yet to answer this question.1
3 In practice, often a
political issue has legal/ constitutional dimensions. " A clear
distinction between "law" and "politics" in the framework of the
Parliament is impractical. Notably, in the constitutional states of
Europe, political activity is constitutionally regulated. As such it has a
"normative" character and is for the most part justiciable."
59 Tushnet, id.
60 Id.
61 HOQUE, supra note 51, at 35.
62 HOQUE, supra note 51, at 36.
63 Tushnet, supra note 58.
64 Hoque, supra note 51.
65 Suzie Navot, Poliical questions in the Court.- Is "Judidal self-restraint' a better alternative
than a "non jusidable" approach.
2
, July 14, 2007, available at
http://papers.ssm.com/sol3/papers.cfin?abstract id=1367596/ (Last visited
on August 12, 2015)
Your preview ends here
Eager to read complete document? Join bartleby learn and gain access to the full version
- Access to all documents
- Unlimited textbook solutions
- 24/7 expert homework help
Does Bangladesh need the PoticalQuesnion Do in ?
Those who oppose judicial review of political questions
criticize that the Supreme Court of Nigeria frequently dwells into
matters specifically delineated to elected representatives; and thereby
infringes on the prerogatives of the political institutions.
6 Here, I
agree with the comment of Hoque: "If the court's job is to dispense
justice to the claimants, then every issue involving interpretation of
the constitutional provisions or determination of a serious legal issue
giving rise to public duties upon which depends the realization of
justice for all, however political or policy-oriented that question
might be, is verily within the judicial competence, although
institutional comity demands a cautious approach."
6
Aharon Barak argues, "the mere fact that an issue is
'political'- that is, holding political ramifications and predominant
political elements-does not mean that it cannot be resolved by a
court. Everything can be resolved by a court, in the sense that law
can take a view as to its legality." 68 He comes up with a
jurisprudential argument: "although not everything is law, there is law
in everything."
69 Lon Fuller's concept of polycentricity and the limits
of adjudication " also become relevant here. Fuller argued that
polycentric issues are nonjusticiable.] Where conventional political
66 Nwosu, supra note 18.
67 HOQUE, supra note 51.
68 AHARON BARAK, THE JUDGE IN A DEMOCRACY (2006).
69 Id.
0 Lon Fuller, The Forms and Limits of Adjudication, 92 HARVARD L. REV. 353
(1978-1979).
71 See, Jeff A King, The Perasiveness of Pojycentriw, PUBLIC LAW 101-124 (2008).
To Fuller, a polycentric problem is one that comprises a large and complicated
web of interdependent relationships, such that a change to one factor produces
an incalculable series of changes to other factors. The perfect example of a
polycentric task is how to set an appropriate price or wage. Setting the price of
a commodity or the wage of an employee can affect supply or demand for the
commodity or employment, which in turn affects a multitude of other costs and
relationships. And each of the separate consequential effects of the price
Indian J. Const. L.
activism may take years or may not happen at all, necessitating the
need to "effect socio-economic and political transformation from
outside the conventional political arena"," or where constitutional
mandates are unjustifiably twisted, judicial engagement with policy
issues may be a constitutional imperative."
B. Political Question Doctrine in Bangladesh
On constitutional issues of wider importance, the Court has
generally pursued a broader approach to the justiciablity issues of
political ramifications. " It seems that apart from some unsustainable
failure of the past, the court has, on balance, avoided being eluded by
the so-called American doctrine of political question," remaining at
times essentially passive on complex political issues such as the
legality of hartal (political strike). The following are some cases
determination (e.g., lay off, decreased demand for the commodity), in turn
affects networks of relationships associated with that factor (e.g., production,
transport, insurance, advertising), and so on.
72 See, Ahmed (1999: 75), considering PIL in South Asia as such an alternative
device to realize social transformation (Cited in HOQUE, supra note 51).
73 Minister of Health v. Treatment Action Campaign, (5) SA 721 (CC); (2002) 5
LRC 216, 99. In this case the South African Court emphatically rejected an
argument that an injunction to enforce the government to fulfill the socio-
economic rights of AIDS patients would breach separation of powers as it
would eventually require the government to pursue a particular policy (Cited in
HOQUE, supra note 51).
74 See, Najmul Huda, MP v. Secretary, Cabinet Division, 2 BLC (1997) (HCD)
414; Rafique Hossain v. Speaker, Bangladesh Parliament, 54 DLR (2002)
(HCD) 42.
75 HOQUE, supra note 51.
6 E.g, In K hondaker Modarresh Elahi v. Bangladesh, 21 BLD (2001) (HCD) 375,
the Court decided, "this political issue should in all fairness be decided by the
politicians". It earlier rejected another hartal -challenging case, Abu Bakar
Siddique v. Sheikh Hasina, WP No 2057 of 1995 (Unreported). In Abdul
Mannan Bhuiyan v. State, 60 DLR (2008) (HCD) 49, the Appellate Division
held that hat al or strike, unaccompanied by force or violence, is a democratic
right of the citizens.
Doe Baizgladesh 17 d the Po2rzalQuif foi D, , 2,
where the Bangladesh judiciary has invoked the "political question
doctrine".
1. M/S Dulichand Omraolal vs. Bangladesh
77 (1981)
M/S Duchand Omraolal v. Bangladesh was the first famous case
in Bangladesh, in which the court applied the political question
doctrine. The writ was an unsuccessful challenge of declaring the
applicant firm's property as "enemy property". One of the applicant's
contentions was that "President Ayub Khan in violation of his own
Constitution" and "Yahya Khan without any legal or constitution
authority abrogated the constitution of the then Pakistan." 8 The
Apex Court held that the determining the constitutional legitimacy of
Yahya Khan's military rule was a political question from which courts
ought to refrain. The highest court of Bangladesh showed no
interest in engaging with this important issue despite an earlier
decision of the Pakistani Supreme Court having held General Yahya
Khan's military rule to be unconstitutional."
0 The Supreme Court
avoided the issue of legitimacy of Yahya Khan's regime terming it a
"political question".
2. Constitutional Reference No. 181 (1995)
In Constitutional Reference No 1, the court discussed a detail
about the political question doctrine. This case is also known as MPs'
Resignation case. ATM Afzal, C.J. held: "there is no magic in the phrase
"political question". While maintaining judicial restraint the Court is
77 1 BLD (1981) (AD) 1.
78 Id.
79 Supra note 77.
80 AsmaJilani v. Punjb, PLD (1972) SC 139.
81 Constitutional Reference No 1 of 1995 (MPs' Resignation) III BLT (Sp1.)
(1995) 159.
Your preview ends here
Eager to read complete document? Join bartleby learn and gain access to the full version
- Access to all documents
- Unlimited textbook solutions
- 24/7 expert homework help
Indian J. Const. L.
the ultimate arbiter in deciding whether it is appropriate in a
particular case to take upon itself the task of undertaking a
pronouncement on an issue which may be dubbed as a political
question." 2 The President asked the Supreme Court to advise
whether a continuous boycott of Parliament by Opposition Party
MPs for a period of 90 days would render their seats vacant for being
"absent" for the constitutionally mandated period under Article
67(1)(b).
s
3 The Court advised the President that boycotting of the
Parliament by opposition members for a consecutive period of ninety
days rendered their seats vacant.
3. Nazmul Huda vs. Secretary, Cabinet Division
8
4 (1997)
A non-member of the Parliament, who was in charge of
Ministry of Planning as a State Minister, answered questions relating
to the Cabinet Division, the Prime Minister's Secretariat and
President's Secretariat during a session of the parliament. The
opposition party claimed that such a Minister could not answer
questions unrelated to his portfolio. But the Speaker issued a memo
ruling in favour of the Minister. Consequently, the opposition party
challenged the constitutionality of this ruling. Although the court
recognized its lack of jurisdiction to scrutinize internal proceedings of
parliament, it held that the Speaker's rulings on a constitutional
matter and the issue of the legality of a technocrat minister's speech
unrelated to his portfolio were justiciable. The court engaged into the
matter, analyzed the fact, and finally held that "the contention that a
non-member of the Parliament being in charge of Ministry of
82 Id, 31.
83 Article 67(1)(b) of the Constitution of Bangladesh provides that if any member
of parliament remains 'absent' from parliament for such a period his or her seat
would become vacant.
84 2 BLC (1997) 414.
Does Bangladesh need the PoticalQuesnion Do in ?
Planning as a State Minister will not be entrusted to speak or to give
answer unrelated to his portfolio in violation of the provisions of
Article 73A
85 of the Constitution is negatived.
86
M
4. Khondaker Modarresh Elahi vs. Government of the
People's Republic of Bangladesh
8
7 (2002)
In this case, the legality of a hartal (political strike) was
challenged. The Court remained passive in such a complex political
issue. Mainur Reza Chowdhury J, Syed JR Mudassir Hussain J and
M.A. Aziz J delivered the judgment. The judgment stated: "Call for
hartal per se is not illegal but where any call for hartal is accompanied
by threat it would amount to intimidation and the caller of hartal or
strike would be liable under the ordinary law of the land'.
88 Syed JR
Mudassir Hussain J. observed: "hartal cannot be declared illegal. It is,
democratic right to call hartal but is should be observed peacefully
without resorting to any illegal activities by the pro-hartal activists but
at the same time hartal should also be allowed to be observed
peacefully without any provocation, instigation, intervention and
aggression of any kind by anti-hartal activists.
8
9
M.A. Aziz J. termed a hartal to be a "political issue" and
found "burden" to adjudicate by the court. He observed, "The
determination whether hartal is good or bad depends on the position
held by the political parties. As such, this political issue should in all
fairness be decided by the politicians themselves without
85 Article 73A of Bangladesh Constitution states, Every Minister shall have the
right to speak in, and otherwise to take part in the proceedings of, Parliament,
but shall not be entitled to vote or to speak on any matter not related to his
Ministry unless he is a member of Parliament also.
86 Id.
87 54 DLR (HCD) (2002) 47.
88 Id.perMainur Reza ChowdhuryJ. 16.
89 Supra note 87, 30.
Indian J. Const. L.
unnecessarily burdening this Court to adjudicate something it is not
empowered to."
9
0 He also ruled that only the Government would be
capable of dealing with the issues arising out of a hartal.
91
5. Bangladesh Italian Marble Works Ltd. v. Bangladesh
92
(2005)
Popularly known as the 5' Amendment case, the High Court
Division held unconstitutional the 5
th Amendment that validated the
first martial law regime (15 August 1975 -9 April 1979). The case in
appeal, the Appellate Division in 2010 stood in defense of the
supremacy of the constitution. " In the case Siddique Ahmed v.
Bangladesh,
94 High Court Division in its verdict held 7
t
± Amendment
to the constitution unconstitutional that validated the second martial
law regime (24 March 1982 to 10 November 1986). The Appellate
Division of the Supreme Court on May 14, 2011 upheld the High
Court Division's verdict.
6. Mohammad Badiuzzaman v. Bangladesh
9 (2010)
In this case, the constitutionality of some provisions of the
Rangamati, Khagrachari and Bandarban Hill District Local
Government Council (Amendment) Acts 199896 and the Chittagong
Hill Tracts Regional Council Act, 199891 was challenged. The specific
challenge was that the relevant peace accords were entered into in
violation of the Bangladeshi Constitution. The division bench of the
90 Supra note 87, 51.
91 Supra note 87, 52.
92 BLT (Special) (2006) (HCD) 1.
93 62 DLR (2010) (AD) 298.
94 39 CLC (2010) (HCD).
95 7 Law Guardian (2010) (HCD) 208.
96 Acts Nos. IX, X and XI of (1998).
97 Act No. XII of (1998).
Your preview ends here
Eager to read complete document? Join bartleby learn and gain access to the full version
- Access to all documents
- Unlimited textbook solutions
- 24/7 expert homework help
Doe Baizgladesh 17 d the Po2rzalQuif foi D, , 2,
High Court Division comprising with Justice Syed Refaat Ahmed and
Justice Moyeenul Islam Chowdhury took the petition as justiciable.
The court found certain provisions the Regional Council Act ultra
mires the constitution. The Court was disinclined to interfere with the
Peace Accord.98 The Court also stated: "It is inevitable that the
sustainability of the peace process will depend on innovation and
progressive development of ideas and measures that shall, however,
always need measuring against the Constitution. Should, in this
regard, any kind of exigency demand action not strictly envisaged in
the Constitution, lawmakers shall prudently henceforth allow for the
Constitutional entrenchment of the same."
99
Part III. Does Bangladesh need a political question doctrine?
The Bangladeshi judiciary, especially in recent decades, has
started playing an active role to establish constitutionalism. The
winds of judicial activism'
00 to establish constitutionalism and public
interest started since the Supreme Court's historic ruling in Anwar
Hossain Chowdhuy v. Bangladesh, 101 which invalidated the 8'
Amendment to the Constitution. The court was seemingly motivated
to uphold the greater public interest,"
2 and this case arguably created
a conceptual framework for public interest litigation (PIL)'
03 that later
emerged. Bangladesh has a transformative constitution, aimed at a
just social order based on certain core values such as justice (social,
98 Supra note 95, guideline (a).
99 Supra note 95, guideline (t.
100 HOQUE, supra note 51, at 112.
101 BLD (spl) (1989) 1.
102 HOQUE, supra note 51, at 113.
103 Naim Ahmed, Liztigatzion in the name of people: Stress and Strain of the development of
pubic iznterest Rizgatzion in Bangladesh, (February 1998) (Ph.D. Thesis, Department
of Law, SOAS, University of London); See also, N. Ahmed, Pubic Inteest
Lzgatzion: Constztutzional Issued and Remedies (BLAST, Dhaka 1999) (cited in
Hoque)
Your preview ends here
Eager to read complete document? Join bartleby learn and gain access to the full version
- Access to all documents
- Unlimited textbook solutions
- 24/7 expert homework help
Indian J. Const. L.
economic and political), human dignity, and rights -and-duty-based
democracy, and hence judicial review here has its own unique
indigenous instrumentality.
0 4 Hoque writes that after the restoration
of democratic government in 1991, the Supreme Court of
Bangladesh began to engage hearing increasing number of people
with diverse causes. 105 In the meantime, Public Interest Litigation-
based judicial activism also started. 106 Though at the early states, the
Court was reluctant'
0
7 to constant engagement in policy issues, but
with time, the scope of judicial review has been expanding. '08 In the
meantime, suo moto judicial intervention has become a common
feature of the judicial engagements on different issues. 109 Public
104 Hoque, supra note 3.
105 HOQUE, supra note 51, at 118.
106 Dr. Mohiuddin Farooque v. Bangladesh 17 BLD (1997) (AD) 1 is the country's
first true PIL case that relaxed the conventional locus standi.
107 HOQUE, supra note 51, at 126.
108 E.g., in Abdul Gafur v. Ministry of Foreign Affairs 17 BLD (1997) (HCD) 453,
the court, in pursuance of the right to life and legal protection of a girl-victim of
human trafficking interned in Kolkata, directed a diplomatic assistance for her
rescue. It is also directed actions to bring back other women victims of human
trafficking. (Cited in HOQUE, Id, at 127)
109 See, State v. Secretary, Ministry of Law, Justice & Parliamentary Affairs and
Others, Suo Motu Rule No. 5621 of 2009, High Court Division, Bangladesh
(judgment on 3 Sept. 2009) (A 7 year-old girl was allegedly raped by her
neighbour and distant relative. The police recorded the girl's case and sent her
to the Magistrate Court. The Magistrate ordered the girl to be kept in a safe
home managed by the Department of Social Welfare. The girl's parents were
denied access to the safe home. The Court found that the Magistrate had acted
illegally in ordering the girl to be kept in state custody. The Court also made a
number of recommendations, calling for, among other things, the establishment
of child-specific courts in every district, specialized training for police and other
members of the criminal justice system who deal with children (including
training for lawyers and judges on the CRC and other international instruments)
and new laws implementing Bangladesh's obligations under international
treaties and covenants (such as the CRC)); See also, Labu Mia v. State 53 DLR
(2001) (HCD) 218, Daily Star v. State 53 DLR (2001) (HCD) 155 (Cited in
HOQUE, Id.).
Your preview ends here
Eager to read complete document? Join bartleby learn and gain access to the full version
- Access to all documents
- Unlimited textbook solutions
- 24/7 expert homework help
Does Bangladesh oeed the PoticalQuesnion Do in ?
interest constitutional litigations have also been contributing to
achieve constitutionalism."'
Academic debate over any judgment in Bangladesh is rare. In
2005, the judgment in the 5th Amendment case led to serious academic
debates. Imtiaz Omar and Zakir Hossain criticized the judgment.
They opined that the Bangladesh Supreme Court should adopt an
approach along the lines of the 'political questions doctrine' invoked
by the Supreme Court of the USA on questions such as the
invalidation of the 5th Amendment, or the legality of an Amendment
to the Constitution."' They claimed that the Court could not define
the limits of the exercise of power that relates to these 'political
questions'. 112 In his reply Hoque identified "political question
doctrine" as a trap for the Court and advocated that the Court should
avoid that trap. He also made a reference to Parliament Boycott case
(advisory opinion, 1995), where the "trap" had been beautifully
avoided.""
' 3 Omar and Hossain replied to Hoque via another article
and hold that political questions should be debated and resolved in
political or representative forums."
1
Bangladesh judiciary has started its activism to achieve
constitutionalism and already entered into an era of judicial activism.
This judiciary has been passing a "threshold" to achieve its goal.
Therefore, at this juncture, the application of the political question
110 See, BLAST v. Bangladesh, 55 DLR (2003) (HCD) 363, Ekushe Television
Limited v. Chowdhury Mahmud Hasan, 54 DLR (2002) (AD) 130, BNWLA v.
Bangladesh, 14 BLC (2009) (HCD) 694.
Imtiaz Omar and Zakir Hossain, Coup D' Ea, Constitution and Legal Continuiy,
THE DAILY STAR (Dhaka) September 24, 2005.
112 Id.
113 Hoque, supra note 3.
114 Imtiaz Omar and Md. Zakir Hossain, Constitutionaism, parkamentay supremag and
judical review: A shot rejoinder to Hoque, THE DAILY STAR (Dhaka) November
26, 2005.
Your preview ends here
Eager to read complete document? Join bartleby learn and gain access to the full version
- Access to all documents
- Unlimited textbook solutions
- 24/7 expert homework help
Indian J. Const. L.
doctrine can be harmful to the emerging judicial role. Bangladesh has
witnessed a bad use of this doctrine in 1981 by MIS Dulichand
Omraolal v. Bangladesh -, where court showed no interest to declare
Yahya Khan's martial law regime unconstitutional, perhaps which led
Bangladesh judiciary to take another 24 years to declare a martial law
unconstitutional in 2005 by the 5' Amendment case. To achieve
promised constitutionalism, it is time to take a clear stand on the
application of this doctrine.
Some scholars have already opposed the application of
political question doctrine in Bangladesh. Mahmudul Islam writes, "in
our constitutional system there is no justification for the application
of the doctrine of political question." 116 Hoque argues, "it is
jurisprudentially dangerous to induce it [the Court] to permanently
adopt such a doctrine (political question), as it would then become
permanently disempowered to deal with peculiarly Bangladeshi
(constitutional) issues such as, e.g., legality of martial law
regimes /regulations.
Bangladesh Judiciary has yet to rule on important
constitutional issues with political ramifications such as emergency
powers,"' the President's unchallenged prerogative powers,"' etc. In
115 1 BLD (1981) (AD) 1.
116 ISLAM, supra note 2, at 446.
117 Hoque, supra note 3.
118 See, M. Saleem Ullah and Others v. Bangladesh, W.P. No. 5033 of 2008
(Pending) and M Asafuddowla and Others v. Bangladesh, W.P. No. of 24
November 2008. (Pending) (It now remains to be seen how the Court responds
to this fundamental constitutional issue brought before it 35 years after the
provisions for Emergency have been declared constitutional.)
119 Sarwar Kamal v. State, 64 DLR 2012 (HCD) 331 (A Division Bench of the
High Court Division expressed that the powers of the president and the
government to pardon, suspend or remit sentences of any convict should be
exercised fairly and on unbiased relevant principles. If a fugitive from law is
given pardon knowing his status then the exercise of power under Article 49 of
Your preview ends here
Eager to read complete document? Join bartleby learn and gain access to the full version
- Access to all documents
- Unlimited textbook solutions
- 24/7 expert homework help
Does Bangladesh oeed the PoticalQuesnion Do in ?
this regards, the Bangladeshi judiciary may take Barak's view that the
judiciary assesses the "legal aspect of politics" and not its wisdom.
Thus, when a judge has to examine the legality of a political
determination, he will only determine the question according to legal
standards, which is an essential judicial function.' Power oriented
politics have led political parties to a focus on acquiring state power,
where the interests of the people and the future of the nation bear no
consequence at all.' Though, it seems sound that judiciary is not
going to interfere in pure political issues, but in reality, it vests
unfettered powers followed large scale of immunities to politicians.
Until the political institutions of this state are fully democratized, no
other branches of the state but the judiciary is the most reliable.'
The public still regards the judiciary as the "last resort" for protection
123
against any injustice or excesses.
On the other hand, if Bangladesh judiciary applies this
doctrine, it would certainly hamper its progress towards establishing
constitutionalism. Such an action would not inspire the Bangladeshi
people's confidence in their judiciary. Meanwhile, judiciary needs its
development continued in transparency and accountability to
constitution and people. In the prevalent socio-political context in
Bangladesh, the need for judicial vigilance for the protection of
the Constitution or section 401 (1) of the Code certainly be arbitrary, malafide,
unreasonable, irrational and improper and such exercise of power is against the
principle of the rule of law and an abuse of power)
120 BARAK, supra note 12.
121 Sayed Javed Ahmad, Good Governance in Bangladesh: A Quest for a Non-Potical
Party Approach, 2 J. of Politics and Law, 144 (December 2009).
122 In Bangladesh, the most trusted institution is the Judiciary. See,
GOVERNANCE IN SOUTH, SOUTHEAST, AND EAST ASIA: TRENDS,
ISSUES AND CHALLENGES, (Ishtiaq Jamil, Salahuddin M. Aminuzzaman,
SK. Tawfique M. Haque eds.), (Springer International Publishing 2015).
123 Ridwanul Hoque, Courrs and the Adjudication System in Bangladesh: In Quest of Viable
Reorms', in ASIAN COURTS IN CONTEXT, 447-486, (J. Yeh and Wen-Chen
Chang eds. Cambridge: Cambridge University Press, 2014).
Your preview ends here
Eager to read complete document? Join bartleby learn and gain access to the full version
- Access to all documents
- Unlimited textbook solutions
- 24/7 expert homework help
Indian J. Const. L.
justice and good governance is an ever-present one. Moreover,
judiciary needs its own initiatives to achieve and maintain public trust
and confidence. Therefore, the Bangladeshi judiciary should take a
clear stance to not use the "political question doctrine".
Part IV. Political Question Doctrine: Experience from India
and Pakistan
In India, the doctrine stands on somewhat flimsy grounds.
The question has been discussed only in a string of President's Rule
cases, in the context of limits on the power of the Governor under
Article 356. First discussed in cases such as State of Rajasthan v. Union
of India
24 and State of Karnataka v. Union of India,' the doctrine has
since been eroded by what Baxi aptly terms "expansion of the
frontiers of judicial power". However, after the authoritative
exposition of the law in S.A. Bommai v. Union o(India 26, the position
seems to be settled on the "sufficiency of materials" test alone. The
judicial position has at all times been cognizant of the fact that what
is followed as a "strict separation of powers" in the United States
does not apply in India, where checks and balances are preferred to
watertight compartmentalization
l2
.
However, Justices Bhagwati and
Chandrachud have spoken of the "political thicket" that judges
should "scrupulously" keep away from.
In Pakistan, the Supreme Court has been very clear in dealing
the issues of political questions. In Pakistan Lawyers Forum v. Federation
of Pakistan and Others, the Supreme Court ruled against adopting the
"political question doctrine" as a means of keeping away from
124 AIR (1977) 1361.
125 AIR (1978) 68.
126 AIR (1994) SC 1918.
127 See Ram Jawaya Kapurv. State ofPunyab AIR (1955) SC 549
Your preview ends here
Eager to read complete document? Join bartleby learn and gain access to the full version
- Access to all documents
- Unlimited textbook solutions
- 24/7 expert homework help
Does Bangladesh need the Po/ticalQuestion Do in ?
difficult legal questions with political undertones. The Court
observed that applying the doctrine would amount to abdication of
judicial power.'
28 In Watan Party and others v. Federation of Pakistan and
others, the Pakistani Supreme Court observed that the existence of a
political question did not suffice to oust the court of its jurisdiction.
Whether there existed a non-justiciable political question was to be
determined on a case-by-case basis.'
29
Conclusion
Tracing its origin to American constitutional law, the
"political question doctrine" was a measure to keep the judiciary away
from matters that were within the scope of other sovereign bodies.
Nevertheless, today, the political question doctrine seems to have
disappeared from American case law.
30 This paper does not advocate
that the judiciary should resolve every political dispute. Instead, I
argue against disempowering the judiciary to in the name of the
"political question doctrine". For this purpose, I argue so by relying
on Bangladeshi constitutional jurisprudence, and case laws and
scholarly opinions from the United States, Israel, India and Pakistan,
amongst others.
Constitutional law involves difficult questions of government
power and politics. However, that does not mean that the judiciary
can completely avoid such questions. It is submitted that the
128 P L D (2003) LAHORE 371
129 Watan Party and others v. Federation of Pakistan and others PLD (2012) SC
292 [Constitution Petition under Article 184(3) of the Constitution regarding
alleged Memorandum to Admiral Mike Mullen by Mr. Husain Haqqani, former
Ambassador of Pakistan to the United States of America]
130 Symposium, Baker V. Car" A Commemorative Symposium: Panel I: Jusfiabiiy and
the Poiical Thicket: Law and Prudence in the Law of Justiaakiy: The Transformation
and Disappearance of the Poitical Question Doctrine, 80 NORTH CAROLINA L.
REV. 1203 (2002).
Your preview ends here
Eager to read complete document? Join bartleby learn and gain access to the full version
- Access to all documents
- Unlimited textbook solutions
- 24/7 expert homework help
154 Indian J. Const. L.
judiciary should determine its own criteria for judicial intervention on
a case-by-case basis. The judiciary should not abdicate its role of
adjudication by applying the "political question doctrine". In the
context of Bangladesh, there are no distinct advantages to be gained
by applying this doctrine, as the judiciary marches towards
strengthening the Bangladeshi democracy and constitutionalism.
Your preview ends here
Eager to read complete document? Join bartleby learn and gain access to the full version
- Access to all documents
- Unlimited textbook solutions
- 24/7 expert homework help