The New Nation - Internet Edition

Keep Khatib above controversy

THE Jumma prayer at the Baitul Mukarram National Mosque on Friday was partially marred by clashes between two groups of devotees reportedly over the appointment of a new Khatib. According to reports, the two groups of devotees taking sides had assembled at the area since morning. As the senior pesh imam, reportedly under the instruction of the mosque authorities, stood up to lead the prayer a section of the devotees protested. It led to the scuffle that continued till after the prayer.

The post of the Khatib of the national mosque had remained vacant since the death of the previous Khatib Moulana Ubaidul Haque in October 2007. The senior pesh imam had since then been leading prayers as Acting Khatib. The caretaker government, at the fag end of its tenure, appointed a new Khatib triggering controversies. The Khatib of the national mosque is highly respected by all. The Khatib is expected to give religious interpretation and guidelines on different occasions. Khatib Ubaidul Haque had termed the activities of the Jamaatul Mujahideen Bangladesh as against Islam and had given guidance on other issues for more than a decade remaining above controversy. Appointment to such a post should have been done on the basis of consensus from all quarters. It is not understandable why the people in charge of the religious affairs felt the urge to go for such a hasty decision that eventually led to the untoward incident.

The Khatib of the national mosque is an institution. Appointment to this post should be handled with all seriousness and care and kept above controversies. The concerned authorities should follow a procedure for consultation of religious leaders and scholars. The matter should be resolved at the fastest.

Promoting local aviation sector

EXPECTATIONS did run high in the recent past about the growth of the aviation sector, but these have not been met. Much of the four billion dollar aviation market in Bangladesh is controlled by international airlines. Rough estimates show, the state-run Biman accounts for around 28 per cent of the total market while the private airlines together control only seven percent and the rest go to foreign airlines. People involved in private sector airlines state that unfriendly policies and government regulations create the major roadblocks to the growth of the sector.

The sector has good potentials the realisation of which requires government support in the form of taking decisions to promote the local aviation sector. Some steps have to be taken to encourage the local airlines without violating the open air policy. The government can, if it wants, reduce the frequency of international airline flights without unduly affecting others. Such an initiative would provide space for the local airlines to grow. Bangladesh Biman enjoys monopoly in some domestic and international routes.

This policy should be amended to promote competition between Biman and the private airlines. There is scope for concession also in the area of imposing tax on the import of aircraft parts. The sector also suffers from poor access to bank loans. The new government should formulate quickly a policy on the aviation sector that would make Biman as well as the tiny private airlines to stay in business and make progress through healthy competition. Some stimulus may be considered in view of the difficult time that both Biman and the private airlines passed through in the last few years.

How to convert the ordinances into Acts of Parliament

Barrister Md. Abdul Halim

One of the most important politico-legal issues at the moment is the fate of 110 Ordinances issued by the out-going Caretaker Government. Generally the supreme law making power of the nation is reposed on the Parliament. However, Article 93 of the Constitution provides for law making by the President in some situations by way of promulgating ordinances. Under Article 93(1) of the Constitution the President may make ordinances in following two situations: (i) when the parliament is not in session; or (ii) when the parliament stands dissolved. Under these two situations the President can promulgate ordinance only when he is satisfied that circumstances exist which render immediate action necessary. On 27th October 2006 the 4 Party led Alliance government handed over power as it completed its five years rule. However, because of huge political unrest, partisan role of the then Chief Election Commissioner MA Aziz and the President, the military interference into politics led the President to go for declaration of state of emergency on 11th January 2007 with a fresh Caretaker Government headed by the present Chief Adviser Dr. Fakhruddin Ahmed. This Caretaker Government took necessary steps to give the Election Commission neutral and acceptable shape and finally almost uncertain and long awaited 9th parliamentary election was held under this government on 29th December, 2008 paving way for democracy. However, during this period of two years the caretaker government made as many as 117 ordinances covering the issues not only of election and day to day matters but of policies on different national aspects.

Legal status of an ordinance: As to the legal status of an ordinance article 93(1) says that an ordinance shall, from its promulgation, have the same force and effect as an Act of parliament. This is because the power to issue an ordinance is not an executive power of the president; it is his legislative power which is devised to meet urgent situations and necessary for peace and good government in the country. The only difference between an Act and Ordinance is with regard to the duration. Like an Act of parliament an ordinance may repeal parliamentary enactments or an earlier ordinance or may give retrospective effect to its provisions.

Conditions subsequent to an ordinance: Every ordinance made during the recess of parliament must be laid before parliament at its first meeting following the promulgation of it, if it is not repealed earlier.

Once the ordinance is placed in parliament, a corresponding Bill must be introduced within 30 days; otherwise it will cease to have any effect at the expiration of 30 days.

Before the expiration of 30 days parliament may pass a resolution disapproving the ordinance and if such a resolution is passed, the ordinance will cease to have any effect upon the passing of the resolution.

If a corresponding bill is introduced from ordinance into the first parliamentary session, the bill will proceed to all stages of a normal procedure of legislation. That means once bill is introduced it may not be passed in the same session and in such a case it will remain as an unresolved bill to be considered by the next session of the parliament. For instance, a bill via ordinance was introduced in the 7th session of the first parliament but remained unresolved and was later passed in the 8th session of the first parliament. Likewise, 3 ordinances were introduced as Bills in the second session of third parliament but they were not passed i.e. they remained as unresolved/ immatured Bills before the session ended. 2 of them were passed in the 3rd session of it.

How an ordinance becomes an Act of Parliament: All ordinances promulgated before the session starts must be, by operation of law i.e. under the authority of Article 93 of the Constitution, laid before parliament at its first meeting of the session. 'Lay before parliament' means to inform parliament i.e. to distribute the copies of ordinances to all members of parliament. This is the first stage (i.e. laying before parliament). After so laying the minister-in-charge (here the Minister of Law and Parliamentary Affairs) must give notice to the Secretary of Parliament of his intention to move for leave to introduce Bill relating to any or all of those ordinances. In the mean time the Government will prepare bills on the basis of those ordinances. On the basis of the notice the motion for leave to introduce the Bill or Bills shall be entered in the orders of the Day for a day meant for government business. When the item is called, the minister-in-charge shall move for leave to introduce the Bill or Bills. The leave being granted by the Speaker, the minister shall introduce the Bill. After this introduction the Bill shall follow the regular procedure of an ordinary Bill. Article 93(2) of the Constitution speaks for 'laying before parliament' and not passing the same within 30 days.

Comparative study of ordinances approved by different parliaments:

Auto-legality to ordinances: The 8th session of the First Parliament ended on 17th July, 1975. From this 17th July to 15th August, 1975 President Sheikh Mujib promulgated 9 ordinances. Later before the start of the 2nd Parliament President Mustaq promulgated 9 ordinances. President Sayem promulgated 123 and President Zia promulgated 127 ordinances. Of these 268 ordinances 159 (excluding 9 ordinances promulgated by Mujib before his death) were given auto-legality by the 5th Amendment to the Constitution of Bangladesh. These ordinances were not formally introduced as Bill in parliament and as a result, they were not transformed into Acts of Parliament; they exist till today as valid law in the name of ordinances so far as they are not repealed or otherwise amended by parliament or by any subsequent ordinance.

Martial Law was re-imposed on 24th March, 1982. Article 93 of the Constitution was revived under the Martial Law Proclamation and before the start of the 3rd Parliament President Ershad promulgated 307 ordinances. None of these ordinances was introduced in the 1st session of the 3rd Parliament as Bill and they could not become Acts of Parliament. But all of them were given auto-legality by the Constitution 7th Amendment Act and till now they exist as valid laws in the name of ordinances.

Fate of 120 ordinances: This will be a policy choice by the newly formed cabinet. If the cabinet decides to introduce them all as bills in the first session of parliament, then they will follow the normal process of law making. But there is no condition at all that all these bills are to be passed within the first session; some of them might be sent to any committee and in that case they would be passed in some later sessions following the reports of the committee. However, if some bills from ordinances are not passed within 30 days, there might appear some practical problems of legal vacuums in the administration of government. For example, the Caretaker Government has made some ordinances on local government like, Upzilla Parishad Ordinance, Gram Sarkar Ordinance and the election on local governmet is under way on 22nd of January. If ordinances on local government are not passed within 30 days as Acts, those ordinances will lapse after 30 days and it will be impossible for the Election Commission to conduct election.

(Barrister Md. Abdul Halim is a practising advocate in the Supreme Court.)

We'll all pay for Gaza

Seumas Milne

Over the last 12 days, Israel has inflicted a bloodbath on the Gaza Strip that matches the darkest days of the Iraq war.

Backed to the hilt by the US author of that catastrophe, it has killed more than 650 people in less than a fortnight, including at least 200 children, and wounded three thousand. On Tuesday, after killing 50 civilians in UN schools sheltering refugees - "C'est la guerre", the Israeli minister Meir Shitreet told the BBC when asked about the atrocities - the Israeli government agreed a three-hour daily lull in the carnage for "humanitarian purposes", as diplomatic manoeuvring intensified over a possible ceasefire deal. All this at the cost of only 10 Israeli dead, six of them soldiers.

But despite this gruesome demonstration of its overwhelming power, Israel once again faces the threat of political and military failure, just as it did in Lebanon in 2006. After its most pulverising assault ever on the blockaded territory, Hamas remains standing, its administration intact, its rockets reaching ever further into Israel proper.

Far from turning the Gazan population against the Islamist movement, the signs are that Israel's onslaught is cementing its support.

From what has emerged so far, the deal touted by President Sarkozy and Egypt would trade a full ceasefire for the opening of Gaza's border crossings - which reflects Hamas's own terms - combined with an international force on the Egyptian border to police arms-smuggling tunnels. So long as that didn't challenge Hamas's authority or involve stationing foreign troops inside Gaza, the Palestinian movement could clearly live with such an arrangement.

The Israeli government yesterday declared it accepted the principles of the plan, while the details had yet to be agreed. But it's hard to see how a deal that could have been struck without war would be seen as anything other than a Hamas victory.

And the domestic electoral boost won by Tzipi Livni and Ehud Barak as a result of the firestorm they have unleashed would then be lost.

That's why the logic of what they have started is likely to push the Israeli government to set impossible conditions, blame Hamas for a breakdown and intensify its onslaught still further.

If Israel's leaders are going to be able to declare the victory they failed to achieve in Lebanon, they can hardly be seen to leave the power and appeal of Hamas intact, let alone strengthened. At the very least, they would want to arrest or kill key Hamas leaders and stage a humiliating parade of captured fighters - combined perhaps with a buffer zone in the north of the Strip.

But that would require Israeli troops to take their land invasion into the heart of the strip's cities and refugee camps, at a certain cost of heavy casualties and public support.

They would then face the choice of whether to drive Hamas underground and re-impose a full-blown occupation - or face intensified guerrilla war against sitting targets in a security zone, as happened in Lebanon in the 1990s.

No wonder Livni and Barak are divided about what to do.

Whichever choice they make, the war is already cutting the ground from beneath Israeli and western policy across the region. Among Palestinians, it is undermining Mahmoud Abbas - and his Fatah movement, while increasing support for Hamas in the West Bank, where US-trained and EU-financed security forces have now arrested hundreds of activists and banned Hamas demonstrations.

It is also strengthening those inside Fatah who want to break with the western-enforced schism between the two wings of Palestinian politics. Hussam Khader, a West Bank "Young Guard" Fatah leader, is one of those now demanding direct unity negotiations with Hamas, and for the Fatah-linked Al-Aqsa Brigades to fight alongside Hamas against Israel's onslaught.

"Israel has made a big mistake," he told me this week, "because Hamas will become stronger and Fatah weaker as a result of the war, even if Israel re-occupies the Gaza Strip."

Comparing Hamas's resistance in Gaza to the battle of Karameh that secured Yasser Arafat's leadership of the Palestinians in 1968, Khader predicted: "After this war, Hamas will lead the PLO."

The same trend can be seen in the wider Middle East, where Hamas has won powerful new supporters, including democratic Turkey, while western allies, such as the Egyptian and Saudi dictatorships, have lost more credibility by being seen to have tacitly supported Israel's attempt to crush Hamas at the expense of the Palestinians of Gaza.

Most of those Palestinians are in fact refugees or the families of refugees from the towns of southern Israel, including Ashkelon and Ashdod, which have been targeted by Hamas - and from which they were ethnically cleansed when Israel was established in 1948.

But the bulk of the western media would have us believe that the cause of this war is Hamas's firing of mostly home-made rockets into Israel - which no state could tolerate without retaliation. In this myopic fantasy land, there is no 61-year national dispossession, no refugee camps, no occupations, no siege, no multiple Israeli violations of UN security council resolutions and the Geneva conventions, no illegal wall, no routine assassinations, no prisoners and no West Bank.

Nor would you have much sense that - as Akiva Eldar, the Israeli Ha'aretz columnist, wrote this week - "Gaza is still, practically and according to international law, occupied territory", and part of one political entity with the occupied West Bank. Or that the US, Britain and the EU, while paying lip service to ceasefire calls, prepared the ground for this barbarity with money, arms and diplomatic support as hope of a viable two-state solution has disintegrated before our eyes.

Pressure now has to be brought to bear not only on Israel, but on those governments that support it - including Britain's. That's why the call by Nick Clegg, the Liberal Democrat leader, for an arms embargo on Israel and the suspension of the EU's new cooperation agreement with Israel - the first mainstream party leader to do so - is so significant.

David Miliband, the foreign secretary, calls it naive.

In reality, the naivety lies in imagining that the west can continue to underwrite the injustice and bloodshed inflicted with no respite on the Palestinian people, without paying a price for it.

(Seumas Milne is Associate Editor and columnist of The Guardian. This article first appeared in The Guardian)