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Reforming the republic

  • Published at 06:55 pm May 23rd, 2017
Reforming the republic

Bangladesh was born out of a struggle for parliamentary democracy. It was the denial of the people’s mandate for parliamentary government which spurred the Liberation War in 1971.

During the war, the provisional government issued the country’s first constitution which declared equality, human dignity, and social justice as the fundamental principles of the republic.

The three principles proclaimed in the midst of a political revolution evoke a sense of deja vu with similar republican movements. The American War of Independence was fought on the premise of securing life, liberty, and the pursuit of happiness. The French Revolution declared the values of liberty, equality, and fraternity as the basis of its new state.

Bangladesh has undergone many political upheavals since its founding. As a 20th century republic, the nation endured one-party socialism and military coups, as did many other republics in Asia, Latin America, and Europe.

It is worth remembering that the US underwent a civil war and the injustice of slavery; while republican France saw Napoleonic imperialism, colonialism, and German occupation.

But history has shown that countries are able to move on from their authoritarian past and transform into democracies with a strong rule of law.

South Korea, Italy, Brazil, and Spain are examples of such transformations. In the Muslim world, Tunisia and Indonesia have significantly advanced their democratic credentials, including in terms of free and fair elections, independent media, and accountability.

Where is the democracy?

The current Bangladeshi constitution has inherent flaws which undermine democracy. To begin with, the socialist influence in the preamble and the name of the country -- the People’s Republic -- can be argued to be at odds with a significant section of the population.

This is because many Bangladeshis support and vote for political parties which oppose socialism, including two parties which enjoyed a majority in the Jatiyo Sangshad in the past.

Another paradox is the presence of religious clauses, including the state religion. The separation of religion and state has been a doctrine of governance for ages, pioneered by a Muslim thinker, Ibn Rushd, who influenced the Enlightenment. We must bear in mind that among our population, 13% are non-Muslim and 2% are non-Bengali.

The emphasis on nationalism is also ironic, given that the author of our national anthem, Rabindranath Tagore, was an ardent critic of nationalism. Instead, we should promote civic patriotism centred on the values of democracy.

Aside from controversial ideological and national identity provisions, the current constitution guarantees a rubber stamp parliament.

MPs do not have independent voting rights. Parliament cannot impeach a prime minister through “no confidence” motions. Bangladeshi democracy would have been in a much better position if these essential features were present.

The doctrine of parliamentary supremacy should be the basis of our republican thought. The constitution gives sovereignty to the people and hence the people’s representatives should be empowered.

Parliament supremacy is also a heritage of our membership in the Commonwealth of Nations. Our parliamentary tradition can be traced to the British Raj, when AK Fazlul Huq, Sir Khawaja Nazimuddin, and HS Suhrawardy served as the prime ministers of Bengal.

Separation of powers

The doctrine of separation of powers is another vital requisite for republican reform.

While the executive branch in Bangladesh holds many prerogative powers, it must withdraw its influence on the judiciary and support the independence of our judges.

Bangladesh must have a judiciary that is reflective of its demographics. Women, who make up half the population, should have greater representation, as should minority religious and ethnic groups.

One of the most important components of the judiciary is the civil justice system.

The doctrine of parliamentary supremacy should be the basis of our republican thought

The purpose of civil justice is to provide dispute resolution for companies, citizens, and public bodies; a legal framework for economic activity in which business can be done; and the means for citizens to hold the government accountable.

An efficient civil justice system modeled on the Civil Procedure Rules (CPR) in the United Kingdom can be established. The CPR allows for fixed timetables and allocates cases to courts according to their financial value.

There should be sufficient scope for alternative dispute resolution (ADR), allowing for greater out-of-court settlements.

The Bangladesh International Arbitration Center and the office of the Ombudsman in BRAC are examples of progress in this field, albeit in the private sector.

The strength of the rule of law rests on its neutrality

Lord Bingham, a former president of the British Supreme Court, outlined eight aspects of a modern and neutral system of rule of law. The law must be clear, accessible, and predictable. A good example is to make all laws available on the internet.

Legal rights and liabilities must be settled through the application of law, such as the civil justice system. The law must provide means for resolving civil disputes without undue cost or delay. The state’s adjudication processes must be fair. The law must provide equal protection for all citizens.

The law must protect fundamental rights.

Ministers and civil servants must act in good faith and in accordance with the law. This includes the doctrine of collective ministerial responsibility, which implies that ministers should resign if they disagree with the cabinet or if they oversee failures in their ministries.

Lastly, the law must be in compliance with international law. This last aspect, given by Lord Bingham, raises a particularly interesting issue: Should Bangladesh enforce United Nations conventions in domestic courts? This author would argue that our judges should take into account UN laws while deciding cases.

The law must be in step with universal values and expectations. We can take lessons from the application of the Human Rights Act 1998 in the UK, which allows for the interpretation of European human rights law in British courts.

According to the World Justice Project, Bangladesh ranked 103rd on the Rule of Law Index in 2016.

We have a long way to go.

We may have to consider a new republic -- not necessarily a People’s Republic, but perhaps a simple republic which upholds the rule of law.

Umran Chowdhury is a law student of the University of London International Program.