Reforming the Constitution

A balance of power is needed in the constitution

Governance system of Bangladesh is a Westminster type Parliamentary form of government. In this system Parliament is to play a major role in governing the country. All decisions of the state are taken in parliament after thorough scrutiny by representatives, elected by the people. All actions of the government are to be made accountable to the Parliament.

In Bangladesh the Constitution and Rules of Procedure of Parliament were initially drafted almost in line with the same. But, in that also Prime Minister (PM) or the Chief Executive of the government was given an overriding power to have absolute control over Parliament. This has been done through inducting an article in the constitution (Article 70). This provision denied party members elected by people, known as Member of Parliament (MP), the right to differ with the party decision or whipping, during voting in parliament. That provides the PM guaranteed support of MPs of the party in decision making process. The government is formed by a majority of votes of MPs in Parliament. All other decisions of the Parliament are also based generally on simple majority votes, excepting amendments of the constitution, which needs two third majority. So, PM has the leverage of taking any decision unilaterally and getting it passed in Parliament.

There could have been some checks and balance in the absolute control of Parliament by PM in case Party Chief, of the government party (CGP) and the PM elect would have been two different persons. Traditionally it never happened. So far, the party chief (CGP) always takes up the position of PM, whenever opportunity comes.

In that context, The first recommendation for reform of the Constitution is, Chief of Government Party (CGP) and Prime Minister (PM) should not be the same person.

Political Party as defined in the constitution

Another scope of creating a balance of power may emerge in case of a hung parliament where no party gets a majority. In that case a coalition government with participation of more than one party is formed. But that can be a rare coincidence. No system should be developed based on chance.

The logic behind inclusion of Article 70 in the constitution was to provide stability to a government. It is argued that socio-economic situation in Bangladesh is not like United Kingdom (UK). In Bangladesh most of the MPs do not have sound financial or educational background. As such, they may not be able to hold high ethical standards needed to refrain themselves from the greed for money or power. Horse treading of MPs, which means taking them in support or against any resolution while voting in Parliament, is assumed possible, by giving bribe either in terms of money or lucrative position in government whatever suits the situation. That can make the functioning of the government very difficult. Also, the government remains vulnerable all the time as it may lose its majority in Parliament at any moment. Nobody can deny that the above consequences are quite possible in Bangladesh. Many countries having similar situations developed a compromise between total rigidity and complete flexibility.

We would like to propose that MPs should be allowed to cross the floor, meaning that they be allowed to vote against the party decision or whipping (as is called officially) only whenever there is split in the party on any issue and split faction become at least one third in number of total MPs of that party.

Article 70 of the constitution

This article should be amended accordingly. It will make horse treading a bit difficult and Parliament could be more functional. For the above suggestion on anti-defection, “Tenth Schedule, Paragraph 3. Of the constitution of India” has been followed.

Experience in history shows, in case one person holds the topmost position for a considerably long period of time that person tends to centralise power and becomes autocratic. As such, the constitution of many countries of the world restricts holding the top office by any person to a maximum of two.

We like to suggest that no Head of Government (PM) can hold the office for more than two terms. This provision can be included in our reformed constitution.

Before going to further reform proposals, we would like to suggest that the Fifteenth Amendment of the constitution should be repealed.

This amendment introduced some provisions which were found not suitable, like elections to be held under the existing government. It has restricted many of the fundamental rights of people by imposing anti-people conditionalities and thereby increasing the control of the government. It also made unamendable almost a third of the constitution which is irrational.

On repeal of the Fifteenth Amendment, the provisions for forming Caretaker Government (CG) for conducting elections would be reintroduced.

The caretaker Government needs to be restored. Chief Adviser better not to be from judiciary as it hinders the independence and neutrality of the judiciary and could become an undesirable example of mixing of judiciary into politics and executive.

In case the President can be made a consensus candidate as is proposed by electing with three fourth majority votes in the parliament, President could head the caretaker government. Art.58B, after repeal of 15th amendment can be altered accordingly.

Repeal of the Fifteenth Amendment will also exclude art. 7A, which is not considered rational under the existing circumstances, and 7B, which binds the hands of future parliament and made almost one third of the constitution unamendable.

Repeal of the Fifteenth Amendment will also make free the freedom of association as per art. 38 from the anti-people restrictive conditions imposed to achieve a more grip of government on fundamental rights.

In support of repeal logic is, no present Parliament can restrict the authority of any future Parliament which has been done with the 15th amendment. Moreover, this amendment was passed by only an absolute or two third majority. Before the 15th amendment, there was a provision for a referendum too for acceptance. That step was by passed. This is a procedural mistake. Those could be strong ground for repeal of the said amendment.

As per our present constitution, President play only ceremonial role. His appointment and removal in most cases are at the mercy of PM. He needs to work as per the dictates of the PM almost in all matters. Whatever independence he has been allowed as per the constitution is useless as his position is too vulnerable to stand beyond the desire of the PM. The urge now is to amend constitution to strike a golden means to achieve effective balance and sharing of constitutional powers between Prime Minister and President.

Under present constitution President can be elected by a simple majority and can be impeached only by two third majority. Election of president as well as impeachment if the government party has two third majority vest in the whim of Prime Minister. We, propose President be elected by three fourth majority and can be impeached only by three fourth majority of member of parliament. This will include a wider role of Parliament in electing President and will ensure empowerment and stability of president as impeachment will be more difficult.

The Presidential Election and other things

Appointment of President should be not on a simple majority but with three fourth majority vote of the Parliament Members. That would allow a consensus candidate to become the President. Art.48A is to be amended to include three fourth majority votes for appointment of President.

Impeachment of President should also be made difficult to lessen his vulnerability by introducing the provision for three fourth majority vote of Parliament for that. Art. 52 of the constitution is to be amended accordingly.

The root crisis of power sharing between President and Prime Minister is article 48 (3) where except 2 (two) powers, i.e., appointment of Prime Minister and appointment of Chief Justice, all other functions, President must do on advice of Prime Minister.

We would like to propose amendment of the said art. 48(3). This should be “In the exercise of all his functions, like appointing the Prime Minister pursuant to clause (3) of article 56 and the Chief justice pursuant to clause (1) of article 95 and any other act as prescribed in the constitution, the President shall act in accordance with the laid procedure if any, or on his own judgement, in case no such procedures exist. “

There should be provision for two deputy speakers one must be nominated/selected from opposition. Art.74 (1) should be amended to include those two deputy speakers to be appointed one each from Government party and opposition.

The 16th amendment restoring 1972 original provision of impeachment of judges of Supreme Court by Parliament has already been nullified by Appellate Division and "Supreme Judicial Council" can be formed for removal of Supreme Court Judges and Election Commissioners. It is proposed that the same “Supreme Judicial Council’ be utilized for removal of members of all other constructional bodies,

There shall be a self-sufficient "Supreme Court Secretariat" to assist the supreme court to administer the functions as vested under Art.109 of the constitution. The same secretariat should also handle the functions of the Supreme Court. The arrangement needs to be included in the constitution.

Article116 of the constitution is contradictory to Article 109 and as such may be considered superfluous and be omitted. As regards appointment of judges of the Supreme Court, Art.95 (2) (c) calls for making a law on the issue.

We propose the law for appointment of Judges of the Supreme Court as Article 95 (2) (c) should include a panel of senior supreme court judges selected by Chief Justice (CJ)to work as a search committee for forwarding recommendations to Chief Justice. The CJ should then pass on the same to the President for finalizing the appointment with his (CJ’s) recommendation.

In respect of reserve seats for women in the Parliament, Art. 65. (3) of the constitution provides provision for fifty (50) seats to be filled exclusively by female candidates through proportional representation voting system through single transferable vote.

Keeping Art 65 (3), that is ‘keeping provisions for fifty (50) seats reserved for women to be filled exclusively by female candidates through proportional representation voting system intact’, we would like to propose, every political party contesting the election must ensure filing of nominations and have valid women candidates for at least ten percent (10%) of total candidates from that party. These women candidates will contest the election along with male candidates of other parties. While selecting candidates against seats exclusively reserved for women, those female candidates of the party who fought direct election but failed to win are to be given priority. This provision should be incorporated in the constitution.

The above arrangement would exert pressure on the political parties to allow more women candidates for direct election with party nomination. At the same time, it would provide scope and incentive to women candidates for contesting direct election against normal seats. Hopefully, this arrangement will gradually reduce the necessity of reserved seats exclusively for women.

President should be allowed to appoint election commissioners without advice of Prime Minister. A "search committee" should be formed by the President to prepare a Panel for EC members. In the search committee one third of the members must be nominated from the opposition.

Election Commission (EC) must have full control over the Civil and Police administration during election and there must be 'default consequence’ i.e., if any public servant does not comply with EC command EC will have own authority to suspend, transfer, dismiss, convict the perpetrator. All service rules must incorporate it.

Article126 of the constitution must incorporate that if any official does not obey the directives of EC during election, it shall have the authority to take appropriate action as deemed fit.

Comptroller and auditor general, Public Service Commission must be appointed by a selection process independent from Prime Minister.

A ‘high-profile Committee’ can be formed by the President consisting of representatives, (1) from judiciary, Supreme Court Judges, (retired or serving) two, (2) from parliament, MPs two (one from government party and another from opposition), (3) from bureaucracy (retired government official) one, (4) from civil society, two. Total of seven (7).

The above body may be given the responsibility to finalise the nominations of candidates and forward that to the President with their recommendation.

The said appointment process that “ a high-profile committee can be formed by the President consisting of representatives , (1) from judiciary, Supreme Court Judges, (retired or serving) two, from parliament , MPs two (one from government party another from opposition) , (3) from bureaucracy (retired government official) one, (4) from civil society, two. Total seven (7), “ may be followed for all the other constitutional bodies, like, Anti-corruption Commission, Human Rights Commission, Right to Information Commission, etc.

In addition to the above we have a few more proposals for reforms to make the Standing Committees of Parliament more effective, and proposals on budget approval process. But that would require amendment of ‘Rules of Procedure of Parliament.’ For that we do not think this is the proper forum to raise those issues. The attention now is on the constitution and the proposal for reform on that.

In the above we forwarded our views and suggestions on what should be done now to the constitution to make it more pro-people and to lessen the centralized control of a single person, PM. Our proposals aim at making parliament flexible enough to act free from absolute control of the PM.

Also, we tried to make a power sharing arrangement between the President and the Prime Minister. This we did to strike a balance of state authority between the President and PM and thereby avoiding a situation where one person, the PM holds the sole authority on all the state functionaries, and thereby possess the scope of becoming an authoritarian ruler or autocrat.

GM Quader is the Chairman of Jatiyo Party