The power of the government is to be divided among three separate branches, ie: the legislative, the executive, and the judiciary. Each branch is independent, has a separate function, and may not usurp the functions of another branch.
However, the branches are interrelated. They cooperate with one another, and also prevent one another from attempting to assume too much power. This relationship is called the doctrine of “checks and balances,” where the functions of one branch serve to contain and modify the power of another. Through this mechanism, the framers of the constitution seek to protect the nation against tyranny.
A close scrutiny of the provisions of the Bangladesh constitution shall make it clear that in reality, the doctrine of check and balance has been disregarded in the constitution. This, in its present form, simply ensures the “dominance” (instead of “check and balance”) of the executive over the legislature and the judiciary.
Let us now see how the constitution of Bangladesh deals with the concept of check and balance.
First, the cabinet, comprising the most powerful members of the political party, enjoys majority in the parliament. This collection of big shots is led by an almost invincible prime minister. Members of the ruling party is nothing but helpless against such a panel of big bosses. Article 70 says that any member of parliament going against the decision of his political leadership runs the risk of losing his seat in the parliament. As a result, the legislature and the executive get virtually converged in one hand. Gone with these are the practical utility of the provisions mentioned above.
Second, even the parliamentary standing committees fail to make the executive behave. A minister, may not be the chairman of a parliamentary standing committee, yet may still be a member of the committee which seriously affect the supervising role of the committee over that ministry. Surprisingly, the ghost of Article 70 haunts the MPs even when they sit in the standing committees. Parliamentary standing committees enjoy little independence in determining its agenda.
Third, the president’s power being subject to the prime minister’s advice (as per Article 48(3) of the constitution, and his advice being immune from judicial scrutiny), the last and final say in appointing and removal of Supreme Court judges – the defacto authority remains strictly in the hands of the executive. As the number of judges in the Supreme Court is not constitutionally fixed, the practice of appointment of additional judges proves to be a political weapon in the hands of the prime minister to tame an adverse Supreme Court.
In the original constitution, at least the task of the removal of judges was entrusted with the parliament. A Supreme Court judge could be impeached or removed through a resolution passed by two-third majority in the parliament. This, however, was transferred to the president through the fourth amendment of the constitution to strengthen the presidential prerogative. Later, the authority of investigating complaints against the judges of the Supreme Court was granted to the supreme judicial council (a body comprising the chief justice and two other most senior judges of the apex court) under the fifth amendment of the constitution. The result is that in the check and balance scheme we have no role attributed to the parliament in checking the judiciary.
In case of lower judiciary, the grip is tighter. Pursuant to Articles 114, 115, and 116, the president, and from behind, the government has vast power to control the appointment, transfer, leave, terms, and conditions etc of the judicial officers in the lower judiciary. Though there is a requirement of consultation with the Supreme Court, it is not very effective since there is no express provision giving primacy to the Supreme Court’s opinion over that of the executive. Without bringing necessary amendment in Article 116, even the Masder Hossain verdict cannot ensure complete independence of judiciary.
Finally, the end result of any separation-of-power-talk in Bangladesh shall obviously be that there is no separation of power in our country. What prevails here in the name of check and balance is simply the absolute dominance of the prime minister and cabinet over both the parliament and the judiciary. This executive dominance over parliament and other organs of the government has taken the shape of “elective dictatorship” in Bangladesh where the winner of the election takes it all, and parliament acts merely as the rubber stamp of the executive. The judiciary is grossly and shamelessly politicised. Objectively speaking, no one can ever dare to think of becoming a judge in the Supreme Court if he does not have a link with any one of the two major political parties.
So, it is apparent that in Bangladesh we have a mere paper separation. Thus the goal of our constitution has not been accomplished.