Bangladesh’s official response to the coronavirus pandemic started on 22 January by putting the airport authorities on alert and initiating screening processes at Dhaka and Chittagong Airport. This took place long before the confirmation of the first case of COVID-19 on 8 March. Full lockdown measures were then put in place on 26 March to suspend all water, rail, and air travel, though some goods-carrying methods of transport were still allowed to operate. Even before the lockdown, more than 650,000 people on land, at sea, and at airports have been screened and many people were required to quarantine. However, nationwide lockdown measures were ended recently on 30 May.
To deal with the challenging situation, all three branches of the Bangladeshi Government have taken a wide range of measures, from the declaration of a general holiday, to the announcement of several economic stimulus packages. Surprisingly, in a deeply politically polarised nation like Bangladesh, the policy proposals on stimulus packages attracted bipartisan appreciation. Meanwhile, a few civil society members argued for the issuance of emergency proclamations to deal with the COVID-19 situation. This article, through the lens of comparative constitutional law and politics, shall analyse the rationale of the Government of Bangladesh’s decision to restrict fundamental rights through a legislative model rather than a total suspension of fundamental rights via the constitutional emergency, the legal dimension of the Government’s stimulus packages, and how the Bangladeshi Parliament could have performed.
Monopoly of Executive Authority in times of Crises
The COVID-19 pandemic has been met with myriad reactions – considered unusual in normal circumstances – from different countries around the world due to a bespoke set of reasons. Adam Oliver observes that during this crisis, policymakers have sought to strike a balance between a range of concerns: the mortality rate caused by the virus; the economic implications of lockdown; the long-term health issues; the resolve of the public to adhere to strict lockdown measures; the underlying values and norms of society, and, finally, public opinion. Comparative constitutionalists like Tom Ginsburg and Mila Versteeg identified three primary approaches around the world taken to deal with the COVID-19 crisis: first, a declaration of emergency under a nation’s constitutional framework; second, the use of pre-existing legislation related to public health emergencies or natural disasters, otherwise known as the “legislative model”, and third, the passing of new emergency legislation. Generally though, governments around the world have not wasted this crisis to monopolise executive authority. For example, the Norwegian Government was partially successful when it asked its Parliament to empower it to “complement, supplement or derogate from any applicable legislation as far as is necessary to safeguard” the citizens from the coronavirus. Prime Minister Viktor Orban of Hungary was granted the authority – by the Hungarian Parliament – to rule by decree, sidelining the Parliament for an indefinite period into the future. Ghana’s Imposition of Restriction Act 2020 empowers the executive, without a sunset clause, to restrict rights, and it does not even mention that it has been introduced for the sole purpose of dealing with COVID-19. Even Canadian Prime Minister Justin Trudeau’s liberal government is only required to face a light version of parliamentary accountability.
In the context of pressure to issue emergency measures, the pragmatic executive branch of the Government of Bangladesh seems to have preferred the option of restricting a few rights over entirely suspending most of them through a hybrid form of both second and third approach. At the same time, the Government also issued notifications under constitutional instruments. For example, the Rules of Business 1996. Such a hybrid approach was taken to ensure that liberal constitutionalism in Bangladesh did not become a casualty in the ‘war’ against the coronavirus.
Bangladesh preferring restriction of fundamental rights over a total suspension
The emergency provisions in Bangladesh have been shaped and reshaped four times through the second, fourth, twelfth and fifteenth amendments to the Constitution, prescribing two particular conditions to be met for restrictions to be put in place. These are: threats posed to the security and economic life of the state by means of warfare or external military aggression, and internal disturbance. M. Ehteshamul Bari argues that the absence of a precise definition of the term “internal disturbance” allowed the ruling governments of succeeding generations to abuse this leeway in tackling situations which could have been easily dealt with by the legislative model. However, Kawser Ahmed rightly argues that the term “internal disturbance” must be understood in its ordinary and original meaning, as envisaged at the time of incorporation in the Constitution. Accordingly, the phrase had a specific meaning under the then existing international humanitarian law, purporting to indicate a situation of internal riot or law, but not a public health crisis. In spite of its plain meaning, Professor Ridwanul Haque argues that since all five Emergency Proclamations in Bangladesh have been issued on the ground of “internal disturbance”, another proclamation of emergency can be issued on the same ground to deal with coronavirus. In reality, there has been no single attempt even to justify the proclamations, save for the first one, not to mention the fact that the last four proclamations were issued by governments without electoral mandate, i.e., military governments or military-backed caretaker government.
Furthermore, the existing legal framework of Bangladesh is capable of dealing with the coronavirus situation through the presence of a comprehensive law related to pandemics. For example, there is the Communicable Diseases (Prevention, Control, and Eradication) Act 2018 which repealed the colonial Epidemic Diseases Act 1897 – a piece of legislation that allows for lock-down and quarantine measures when necessary.
Comparative Constitutional Law scholars Tom Ginsburg and Mila Versteeg prefer the “legislative model” to the declaration of an emergency model. This is principally because the former model safeguards the status quo of the constitutional framework, maintaining options for judicial review when fundamental rights are curtailed beyond their permissible proportional limit. This observation has found judicial support in the Constitutional Court of Kosovo when the Court observed that limiting fundamental rights within the permissible limit is preferable to a total suspension of them. In addition, if we take a look into how other countries have constitutionally approached the crisis, the governments in Austria, Denmark, Burkina Faso, Germany, Norway, Netherlands, Taiwan, Japan, India, and Switzerland have all utilised existing legislation which is in par with Sheikh Hasina’s approaches. Since Parliament is not in session, with the advice of the Prime Minister, the President of Bangladesh promulgated the ‘Usage of Information and Communication Technology in Court’ Ordinance 2020, enabling the Bangladeshi courts to resume functioning virtually. The introduction of this technology has allowed Bangladesh to pragmatically take a hybrid method of using both pre-existing and new law in its effort to deal with coronavirus.
Economic Stimulus Packages and Parliamentary Accountability in Bangladesh
Governments around the world are bringing forward numerous economic stimulus packages. Notably, with the exception of Malaysia, most governments are not facing any barrier from opposition parties in their respective parliaments in getting approval of these stimulus packages. In Bangladesh, Professor Ridwanul Haque raises a doubt as to the legality of the financial stimulus packages in the absence of an express parliamentary approval. It is true that the stimulus packages declared by the Government of Bangladesh do not yet have express parliamentary approval. Nevertheless, these expenditures can readily be remedied by a Supplementary Budget Bill in the next parliamentary session. In the Parliamentary Convention of Bangladesh, the draft supplementary budgets in the name of the Appropriation (Supplementary) Act are usually passed by Parliament between the middle and the last week of June, immediately before the conclusion of the existing fiscal year. Therefore, it is indeed possible to give these expenditures ex post factoratification, while the Constitution of Bangladesh does not allow the judiciary to interfere in money bills. As such, the concern of Professor Haque as to the legality of the stimulus packages is not something to worry about at all.
While the government showed itself to be constitutionally responsive and pragmatic, the Bangladeshi Parliament played constitutional hardballs in its response to COVID-19 crisis. Members of the Parliament played a significant role in relief management, collaborating with local administration; however, due to the pre-existing legislations like the Communicable Diseases (Prevention, Control, and Eradication) Act 2018 and the Disaster Management Act 2012, the Parliament of Bangladesh did not feel the need to do very much as an institution. Although a brief parliamentary session took place on 18 April, no immediate response was contemplated due to the extraordinary situation of the crisis.
Whilst there are limited complaints about the constitutional responsiveness of the executive, the Westminster model prescribes that in crisis moments like this, a parliament must scrutinise the government’s actions. The House of Commons in the United Kingdom has taken a landmark step to introduce a hybrid model of parliamentary session, combining both virtual presence and actual presence of members in the Westminster Parliament under strict social distancing rules. Other examples around the world include the Chamber of Deputies in Argentina facilitating the participation of Members of Parliament in committees via video conferencing and, going even further, the South African Parliament has decided to transform themselves into an e-Parliament. Even in Bangladesh, there have been regular national live-casts of meetings between the Prime Minister and local frontline workers. This has made it feasible for the Bangladeshi Parliament to continue sessions virtually. If an entire virtual parliament becomes impractical then it can also follow the British hybrid model of Parliament. In any case, the Parliament must meet, debate, discuss, and maintain the parliamentary accountability of the Executive Government.
Concluding remarks
The Government of Bangladesh rightly opted to restrict a number of rights rather than endorse their total suspension. The pragmatic attitude of the Government is illustrated by the fact that it did not wait for parliamentary approval to bring forward economic stimulus packages; in the knowledge that it not only has the majority necessary to pass a supplementary budget, but there are also no constitutional limitations to it pursuing this course of action. During the COVID-19 crisis, the Bangladeshi Parliament has been not been able to perform as much as expected to ensure parliamentary accountability of the executives due to their indifference towards the use of technology. The policy stance of Bangladesh regarding stimulus packages and relief distribution was met with concerns over a successful implementation amid incidents of corruption at grassroots level. However, the Government has shown admirable commitment towards its effort to ensure effective management of relief distribution by enabling immediate suspension from their office, irrespective of their political affiliation.