Revisiting the Constitution

After the July Revolution and the fall of Awami League’s 15-year iron rule of Bangladesh, questions are now being raised about the effectiveness of the current constitutional arrangement of Bangladesh. In particular, some quarters have suggested abandoning the existing Constitution altogether and formulating a new one.

As I wrote in part one, the idea of a new constitution is easier said than done. The Canadian Supreme Court in the case of “Reference re Secession of Quebec” observed that every citizen has the right to participate in democratic governance and this right includes the right to participate in constitution making. This is a long and complex process involving “continuous process of discussion” and a duty to listen to “dissenting voices” and to seek “to acknowledge and address those voices.” Given the current status of the interim government, and keeping in mind the more pressing need of institutional reforms, such a mammoth task of a new constitution may not be feasible.

Whether or not Bangladesh requires a new constitution, it is widely acknowledged that the problems in Bangladesh’s political settlement and the rise of authoritarianism are fundamentally due to the existing constitutional structure. Therefore, surely something must be done to avoid events similar to the July Revolution. Part II deals with the powers of the prime minister under the Constitution and argues that, under the constitutional scheme, the prime ministerial power has been “presidentialized” to the extent that the democratic nature of the Republic has been morphed into an authoritarian character. This part also suggests some alterations to the Constitution to curb the excessive prime ministerial power.

The concept of presidentialization

The concept of presidentialzation means a “movement over time away from collective to personalized government” and a system where instead of governmental and electoral politics dominated by the political party, “the party leader becomes a more autonomous political force” (Anthony Mughan, Media and the Presidentialization of Parliamentary Elections, 2000). In other words, in a system of presidentialization, “the leader assumes a quasi-monarchical standing, making the political world go round according to his personal perspectives, values and beliefs” (Sturzu, The presidentialization of the Romanian political system: An interplay between structures and contingencies, 2011).

Presidentialization in practice in Bangladesh

Wholesale adulations towards Sheikh Hasina during her rule became the order of the day -- phrases such as “her supreme command of Bangladesh’s national stage,” “her party remains beholden to her,” “her cabinet colleagues are rendered wise through advice which flows from her,” etc were used to describe the authority and supremacy of Sheikh Hasina within Awami League and the government. Outside Bangladesh, Sheikh Hasina was described as the “Iron Lady of Bangladesh.”

Causes of presidentialization in Bangladesh

The root of presidentialization of prime ministerial power is the current status of the power source under the Constitution. The following examples illustrate this:

• Under Article 55(2) of the Constitution, the head of the executive branch of the Republic is the prime minister.
• Under Article 55(1) of the Constitution, the prime minister has the sole authority to form the cabinet.
• Under Article 58(3) of the Constitution, the prime minister may advise the president to terminate the appointment of a minister.
• Under Article 48(3) of the Constitution, except for appointing the Prime minister under Article 56(3) and the chief justice under Article 95(1), the president shall act in accordance with the advice of the prime minister in the exercise of all his functions.
• The above means that the exercise of the following powers of the president under the Constitution is subject to (and in accordance with) the advice of the prime minister –
• The exercise of powers of pardons, etc of any convict and remission of any sentence under Article 49
• The making of rules for the allocation and transaction of the business of the government under Article 55(6)
• The exercise of power under Article 62(2) on matters of recruitment, etc., of defense services that are not provided for by an act of Parliament
• The appointment of the attorney general under Article 64
• The exercise of power to authorize expenditure from the Consolidated Fund under Article 91
• The appointment of the judges of the Supreme Court (except the chief justice) under Article 95
• The appointment of persons to offices in the judicial service or magistrates exercising judicial functions under Article 115
• The appointment of the chief election commissioner and other election commissioners under Article 118
• The appointment of the auditor general under Article 127
• The appointment of the chairman and other members of each public service commission under Article 138

The above provisions show that the president’s powers under the Constitution are almost always subject to prime ministerial advice. In other words, under the Constitution, the president has a more ceremonial role acting upon (and in accordance with) the advice of the prime minister, and it is the prime minister who is clearly the centre of political power in Bangladesh.

During the Constituent Assembly Debates of 1972, it was argued that the curtailment of the president’s powers stemmed from the pre-1971 Pakistani experiences of 1956 and 1962, where the presidential power concentration gave rise to autocracy. In this regard, Muhammad Zahirul Islam, one of the members of the Constituent Assembly, observed (translated from Bengali by the author) that the draft 1972 Constitution “did not give the President any special and exclusive powers -- all the special powers that were given in the ’56 and ’62 Constitution” and “without the nomination of the prime minister, no special and sole power of the President is kept in this Constitution.” Muhammad Zahirul Islam also observed (translated from Bengali by the author) that in preparing the draft 1972 Constitution, the Constituent Assembly relied on its “past experiences” and the draft 1972 Constitution inserted “provisions to prevent the President from becoming a dictator.”

It should be remembered that the above observation was made at a time when Bangladeshi politicians suffered the brunt of the presidential authoritarian rule of the Pakistani regime during the pre-1971 era. However, the very authoritarianism that forced Bangladesh to secede from Pakistan was structurally built in the Constitution through excessive prime ministerial powers. Indeed, Suranjit Sengupta, the lone opposition member in the Constituent Assembly, observed (Constituent Assembly Debates at p. 557, translated from Bengali by the author): “Just as the 1962 Constitution of Pakistan was framed around Ayub Khan, today our 1972 Constitution of Bangladesh is framed around the Prime Minister.”

Suranjit Sengupta’s above prediction proved to be correct. Under the garb of democracy, Awami League’s political culture and ruling of Bangladesh turned out to be what I call an “autocratic democracy”, where proverbially, the buck stopped with the former Prime Minister Sheikh Hasina. In an interview in December 2008 (before the 2009 election), Sheikh Hasina unequivocally said she wanted absolute power. Thus, the prime minister under the Constitution became “presidentialized” through increasing leadership power resources and autonomy within Awami League and the political executive of the government (Poguntke and Webb, The Presidentialization of Politics, A Comparative Study of Modern Democracies, 2005).

Ways to get out of the presidentialization

There should be some constitutional amendments to curb the existing presidentialization within the prime ministerial role. Some of the suggestions are as follows:

• Article 48(3) should be amended to enlarge and strengthen the presidential power of appointment by attributing to him or her powers to act without the advice of the prime m Excessive prime ministerial power was also prevalent in the Constitution of Malta and this suggestion was made by the Venice Commission in its Opinion in 2018 on Malta’s constitutional arrangements and separation of powers. In Bangladesh’s case, this must include at the least, without the advice of the prime minister, the powers of pardons, suspension, or remission of sentences etc under Article 49, the power to appoint the attorney general under Article 64, the power to appoint judges of the Supreme Court under Article 95, and the appointment of the election commissioners (including the chief election commissioner) under Article 118 of the Constitution.
• Article 55(1) should be amended to reflect that some of the members of the cabinet shall be appointed by the president and the prime minister through co-decision procedures. These appointments should be subject to legislative approval. An example of legislative approval of the cabinet can be found in the Constitution of Poland (Article 154). The co-decision mechanism would lower the risks of prime ministerial power consolidation, since the prime minister cannot act unilaterally and must engage (and negotiate with) the p To avoid deadlock and “palace politics” involving the prime minister and the president, it is recommended that the co-decision mechanism is used only for cabinet appointments that are closely related to the president’s functions as the Head of State and the supreme commander, such as defense and foreign affairs powers.
• The appointment of persons to offices in the judicial service or magistrates exercising judicial functions under Article 115 must come under the sole authority of the chief j This will capture the Appellate Division’s holding in the Masdar Hossain case to the effect that for separation of the subordinate judiciary from the executive, the Parliament can amend the constitution if necessary to make the separation more meaningful, pronounced, effective and complete (Secretary, Ministry of Finance v Md Masdar Hossain 52 DLR (AD) 82). Indeed, the recent speech by the Honourable Chief Justice Syed Refaat Ahmed has echoed this by urging the government to give full effect of the judgment of Masdar Hossain case and has announced a plan to set up a separate secretariat under the Supreme Court for the independence of the judiciary.

In a political society such as Bangladesh, leadership tends to be “individualistic,” which is also reflected in our constitutional structure, where the prime minister is the chief protagonist. In other words, the political shift is towards domination (or presidentialization) by a leader, rather than partisan control. This trend has the tendency to become authoritarian, as the last fifteen year Awami League (rather Sheikh Hasina’s) rule has shown us. Only a meaningful structural overhaul and power realignment within the Constitution can change this trend of presidentialized mode of operation.

Junayed Chowdhury is an Advocate, Supreme Court of Bangladesh.