Among various theories applicable for law-making, the ideas of naturalism and positivism are often referred to. The concept of natural law is probably as ancient as 2500-year-old. According to the natural law theorists, there are certain objectives and absolute principles of morality and justice which should be the bases of laws. Moreover, both law and morality should coincide. In this modern sophisticated era of civilised nations encountered with two world wars, the natural law theorists are not given as much valor as was given basically during Renaissance and the period of Enlightenment.
On the other hand, in case of positivism, law is seen as an expression of volition. The legislature, being a legitimate source of authority in the State, is able to secure a readier and more unquestioning obedience than any other source of social or moral rules. But jurists raise questions against this theory due to its strong adherence to coercive orders irrespective of morality. Practically, none of the above theories is befitting in all situations. But their dilution with each other by the legislature while enacting laws is believed to be helpful in creating a balanced relationship between the ruler and the ruled of a concerned State. Quite a few countries of the world tend to enact laws keeping the aroma of these theories side by side. Developing countries like Bangladesh, Pakistan, Nigeria, Myanmar, etc. are the glaring examples of pendulum democracy where strong adherence to positivism in their laws can be easily found.
Except for a few reputed instances, most of the rulers have kept a deep confidence in positivism for the making of laws. Such instance of the one-sided adherence to positivism is poignant in the Constitution of Bangladesh. For example, Article 55(2) exhibits unbridled power of the Prime Minister, when it states that “the executive power of the Republic shall […] be exercised by or on the authority of the Prime Minister.” As per Article 48, the President despite being 'Head of the State' has to take advice in the exercise of all his functions from the Prime Minister who is basically Head of the government.
Article 70 enumerates a flouting psychological camouflage among the parliamentarians in depicting their representation in the fullest sense. The appointment of the Chief Justice along with other Judges in both Divisions of the Supreme Court under Article 95 and 98 respectively portrays the widespread exercise of positivistic executive-led approach. Article 123 stipulates questions on legitimacy and sustainability to Bangladeshi democracy by obscured election time and procedure. The judicial-executive led turmoil centering around the 16th amendment judgment also evinces the imbalance between two organs of the State. Surprisingly, the above provisions are justified by reference to the similar enactments in the strongest democracies like USA, India, Australia, etc.
Similarly, provisions of fundamental rights are blended with both positivism and naturalism. Under the shadow of “reasonable restrictions”, the positivistic attitude of the rulers is apparent. As a result, the essence of natural law within the spirit of fundamental rights gets lost somewhere due to the over indulgence of the autocratic inclination. Article 33 is self-explanatory, because of which a person cannot claim any fundamental rights, if and when he is detained following the provisions of the Special Powers Act,1974. Likewise, other subordinate legislations enacted since 1972 till to date have been alleged to have been passed following extreme positivistic ethos. For instance, section 11(c) of the Suppression of Oppression Against Women and Children Act, 2000 exposes positivistic leaning of the parliament in law-making. Here, the parliament has left no place for the judges to exercise their inherent powers based on the facts and circumstances of any specific case. Thus, following the necessity of applying the 'inherent power' principle, the High Court Division in BLAST and Another v Bangladesh (2011) 63 DLR (HCD)10 declared the mandatory punishment provisions to be invalid and unconstitutional. The Child Marriage Restraint Act, 2017 (specially section19) also depicts the positivistic outcome of the parliament even living within the realm of 'constitutionalism' and 'conventional democracy'.
There is no denying that the parliament makes laws and policies for the need of society and its people living in the State. The case of Bangladesh, however, suggests that there is an existence of sheer biasness to the idea of positivism in the process of law-making which is often devoid of people's participation and consultation. This happens mainly because of the authoritarian character of the State where the greater power is mostly centralised and monopolised in the hands of a few. From this perspective, it is to argue that a harmonious co-existence of naturalism and positivism is necessary during enacting new laws and amending or repealing old ones.
The writer is a Lecturer, Department of Law and Justice, North East University Bangladesh.