How democratic are we, really?

There is a lack of checks and balances between the three organs of the government

The constitution of Bangladesh mentions democracy as one of the four pillars. But it is rather ironic how our constitution itself contains provisions that clearly discourage the practice of democratic governance.

This piece will discuss articles within the constitution that designed the executive, legislature, and the judiciary to be under the control and influence of one person and to what extent such a system can truly be considered to be democratic.

Legislature

The leader of the party to win a majority of seats in the parliament by practice will be our country’s prime minister. However, Article 70 of the constitution clearly states that a party nominated parliamentarian is to lose membership in the event that he votes against his party in the parliament.

This basically means that any ruling party MP must have to consent to the leader of the party’s decision in fear of losing his membership, even if it comes to a point when such a decision might be harmful or bring hardships for the constituents of his constituency.

Thus, the necessity to ignore or sideline the opinion of one's constituents in this circumstance is noticeably an undemocratic practice.

Executive

The one, who has full control over the parliament, meaning the prime minister, is also the head of the executive organ of the government. In accordance with Article 55(2) of the constitution: “The executive power of the Republic shall, in accordance with this Constitution, be exercised by or on the authority of the prime minister.”

Hence, the parliament in the real sense does not have the liberty to deviate from decisions of the head of the executive.

Judiciary

Whereas power is expected to be balanced between the three organs of the government, the constitution of Bangladesh hands over significant control of the judiciary to the prime minister as well.

Lower judiciary

In accordance with Article 116 of the constitution, the president of Bangladesh has the power of posting, promotion and granting of leave of the judges, upon consultation with the Supreme Court. As per Article 48 of the constitution, the president in all matters is required to act in accordance with the prime minister’s advice.

Hence, the president’s constitutional control over the lower courts in turn means that the prime minister has effective influence over such courts.

Supreme Court

Article 95(2) mentions that a Bangladeshi citizen shall be deemed qualified for appointment as a judge if he has at least 10 years of experience as a lawyer of the Supreme Court, or has at least ten years worth of experience in holding a judicial office in Bangladesh.

However, a sub-section of this article also states that a person shall not be qualified for appointment as a judge of the Supreme Court unless he has such qualifications as may be prescribed by law.

This law has not yet been created. Hence, in reality, here too, the president in accordance with the “advice” of the prime minister (with reference to Article 48 again) only checks the aforementioned first two qualifications of becoming a Supreme Court judge.

Thus, the prime minister by law is able to effectively oversee appointments to the higher judiciary.

Out of the PM’s hands

With reference to Article 48(3), the president requires no advice from the prime minister in appointing the prime minister, obviously, and also the chief justice of Bangladesh.

Also, the prime minister does not have a say in the removal of Supreme Court judges. This would not have been the case had the government not lost the legal battle to defend the controversial 16th constitutional amendment that restored the authority of parliament to remove judges.

Such authority on the part of the parliament, as per the previously discussed Article 70 would have been solely the prime minister’s power. 

Fortunately, the Supreme Court in 2016 ruled that the amendment was illegal and unconstitutional as it found the changes went against the principles of the separation of powers and the independence of the judiciary.

Conclusion

Although ensuring accountability to the citizens is a fundamental feature of democracy, maintaining accountability in the governance of our country is not only challenging but for all practical purposes impossible due to the non-existence of checks and balances between the three organs of the government.

Any prime minister of Bangladesh will be in complete control of the executive and the legislature, and will possess significant control over the judiciary too.

This was as true from 1991-1996 and 2001-2006 as it is today. It is not a question of who the prime minister or ruling party is, but of the system we have in place courtesy of our constitution.

It is therefore safe to say that the constitution of Bangladesh, while an ostensibly democratic document, in fact contains many provisions that render it antithetical to the practice of effective parliamentary democracy.

And even if we are inclined to make the necessary amendments to the constitution to make it more functionally democratic, consent of two-thirds of the parliamentarians is necessary.

The ruling party alone now enjoys much more than two-thirds majority in the parliament.

In fact, all ruling alliances in Bangladesh since 2001 have enjoyed such a super-majority and as these provisions are of advantage to whoever is governing the country, they are unlikely to be changed, whoever is at the helm.

Saquib Rahman is the International Affairs Secretary of the Jatiyo Party. He teaches law at North South University.

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