Doctrine of Political Question in Constitutional Litigation of Bangladesh: A Quest for Theoretical Framework

Abstract

Judicial review is an essential attribute of the exercise of judicial power by the Supreme Court. As opposed to express limit, this Study holds that there may be also interpretive limit on the Court’s power of judicial review. And ‘political question’ is a mean to give expression to the interpretive limit of Court’s power of judicial review. Political question refers to a certain category of constitutional issues entrusted to the special responsibility of elected branches of government. As to these issues, the Court should refrain from exercising the power of judicial review for doing otherwise would be to encroach upon the powers and responsibilities of the co-ordinate branches of government. In other words, judicial intrusion into these areas of elected branches’ responsibility would simply invade ‘separation of powers’ as maintained in the Constitution. The term ‘political question’ is the creation of the US Supreme Court. In US Supreme Court’s view, judicial intrusion into matters of substantive political judgment amounts to encroaching into elected branches’ responsibility and thereby violating ‘separation of powers’ as maintained in the Constitution. The Bangladesh Supreme Court has simply failed to grasp this meaning of political question as obtained in the US jurisdiction. This results into two-fold problems. First, the Court may decline to exercise jurisdiction wrongly terming an issue as ‘political question’ which is not truly a political question. Second, the Court assumes (or might assume) jurisdiction into areas of elected branches’ responsibility which are really susceptible of being ‘political questions’ and thereby invading ‘separation of powers’ as observed in the Constitution. In this backdrop, the Study has in view the objective of constructing a theoretical framework regarding the application of the doctrine of political question in the adjudication of constitutional matters. As part of conceptual clarity, the Study distinguishes political question from other grounds of refusal, such as, the grounds of locus standi, ripeness and mootness; relates political question with the concept of ‘justiciability’; and identifies also the other distinguishing features of political question. The Study identifies some apparently seeming issues and distinguishes them from a true political question to avoid confusion and uncertainty. 6 So far the theoretical framework of the doctrine itself is concerned, the Study needed a workable basis to construct it. The Study finds that basis in unbounded discretion of the elected branches of government. A political question arises out of the elected branches’ exercise of power under the Constitution. And Constitution often confers power upon the elected branches without imposing any limitation for exercise of the power. Question may then be raised: is judicial review of elected branches’ decision permissible when the power has been conferred without imposing any limitation? If the answer is (or may be) no, it may then be said that elected branches’ action in relation to those powers rest with their unbounded discretion. This is how political question based on the principle of ‘separation of powers’ is ultimately related to unbounded discretion. Based on this understanding, the Study defines political question as “constitutional issues committed to the unbounded discretion of the elected branches of government” and constructs the theoretical framework of the doctrine on that basis. In so constructing the theoretical framework, the Study adopts a four faceted interrelated themes or inquiries: the discretionary powers of government; differentiating unbounded from bounded discretion; complying unbounded discretion with ‘rule of law’; and, justifying political accountability of elected branches for political questions. The Study identifies the following issues as susceptible of political question analysis under the Bangladesh Constitution: executive’s power of promulgation of Ordinance and proclamation of emergency, appointment powers of the executive, political branches’ power in relation to war, foreign relations powers of the executive, directing the legislature to enact law, and parliament’s authority to amend the Constitution. The Study’s significance lies, inter alia, in three main aspects. First, the theoretical framework it presents would accomplish the broader task of guiding the Supreme Court in appreciating its proper role and scope of power vis-a-vis the other co-ordinate branches of government. Second, the Study would be of guidance for the Court not only to ensure proper application but also to avoid misapplication of the doctrine in a given case. Third, all including the Judges, academicians and political branches would now be conscious that some issues of the Constitution are indeed political questions and the Court would be transgressing its limit when decides to adjudicate a political question.