Quest for transparency on treaties
Treaties signed between two or more states create rights and obligations for sovereign states and in the process also have impact on citizens who pay their allegiance to those states. Any observer would probably agree that there is a serious lack of transparency in the process of negotiating, signing, and ratification of treaties by Bangladesh. In Bangladesh, generally only the diplomats and government agencies directly engaged in the negotiation process of treaties, or at best some well connected public think tanks or stakeholders, are genuinely conversant with the process of negotiation for or signing of treaties. In most cases, a researcher or an interested member of the public would have to gather information on Bangladesh's signing of treaties not from any national agency but from international agencies or other party/parties to the treaty. The general lack of information or probably sometimes even a deliberate shroud of secrecy involving treaties signed by Bangladesh may not serve the public interest.
In an era in which there is increasing emphasis on transparency globally, the scarcity of public information and the very limited or non-existent room for public engagement in the treaty making process is abominable. In some cases, modern treaty provisions may be so in-depth they could impact citizens' day-to-day lives just as national laws do. It is almost accepted in modern democracies that for a law to have moral force it should not only be devised in a legally acceptable process but should also be the outcome of a participatory process where citizens would have their say in the process of its making. It is this desire for public engagement that often drives the Parliament, executive or Law Commission to seek public inputs on proposed laws. In a similar manner, particularly in case of those treaties which would directly impinge on people's lives, members of the public should be apprised of the status of the negotiation process. Such involvement of the public is only the first step and the role of the public should go much beyond just being informed of the process.
Before the signing of a treaty, the executive agencies sometimes conduct some sort of feasibility study to assess the case for the treaty and fix their negotiating position. As states represent a very wide array of interest groups and their interests would not often coincide with each other, it is important that various groups can present their position on the different aspects of a proposed treaty. This gives the executive a better chance to take into account the interests of a diverse group of stakeholders. On the other hand, the whole environment of a non-transparent negotiation process of a treaty nurtures a rumour-mongering culture where uninformed and emotive voices become aplenty, making reasoned debate very difficult. For example, the Trade and Investment Cooperation Framework Agreement signed with the United States of America often evoked arguments from both its advocates and detractors, which were embellished and driven by ideological orthodoxies. In such an environment, the quality of public debate and discourse on important matters of public interest suffers.
The absence of scope for engagement is not just an issue for members of the public; apparently even the Parliament is seldom seen to play the role that it could or should play in this sphere. Although Article 145A of the Constitution requires that all treaties with foreign countries (except those which are connected with national security) must be laid before the Parliament, very little discussion is held in the Parliament about treaties signed by the executive. Even in case of those treaties which are connected with national security, the Constitution provides that they be placed in a secret session of the Parliament.
In Major (Retd.) Akhtaruzzaman v Bangladesh, (Writ Petition No. 3774 of 1999), this constitutional provision of laying treaties before the Parliament was subject to interpretation before the High Court Division (HCD) of the Supreme Court. The HCD took the view that although there is an obligation to lay a treaty before the Parliament, it would remain valid even if it is not so laid. This reading of the provision begs a question whether or not it makes Article 145A of the Constitution superfluous. Having said that, the Constitution is silent on the consequence of not laying a treaty before the Parliament, and hence, the restrictive view taken by the HCD is comprehensible. Since there is a persistent movement for greater transparency in public matters, it would be intriguing to see if in any future case the HCD takes a different approach and compels the executive to lay treaties before the Parliament and in the process ensures greater transparency on treaties signed by Bangladesh.
It may be mentioned here that the Prime Minister's Office with support from the United Nations Development Programme and United States Agency for International Development is working on a programme entitled 'Access to Information (a2i) Programme,' and the government has promised to build a digital nation. It would befit the government's commitment to build a digital nation if it could ensure greater participation of citizens of Bangladesh in the process of negotiation of treaties by providing more information and seeking as much public input as is possible. At a bare minimum, it would be a very good initiative if the government prepared a database with the full text and other relevant pieces of information such as the date of signing, ratification etc. on treaties signed by Bangladesh. This may greatly contribute to the enhancement of the quality of public discourse on various treaties signed by Bangladesh.
The writer is an Assistant Professor at School of Law, BRAC University.