Governance in Bangladesh follows a Westminster type parliamentary system. In this system, Parliament plays a major role and all decisions of the state are taken in parliament after thorough scrutiny by representatives, who are elected by the people. All actions of the government are to be made accountable to the Parliament.
There could have been some checks and balances in the absolute control of the Parliament by the PM in case the party chief of the governing party (CGP) and the PM elect would be two different individuals. Traditionally this never happened. So far, the CGP has always taken up the position of PM, whenever opportunity arose. In that context, the following are some recommendations for how the Constitution can be reformed in line with our goals of retaining our democracy.
1. The first recommendation for reform of the Constitution is that the CGP and the PM should not be the same person.
2. 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 factions become at least one-third in number of total MPs of that party. Article 70 of the Constitution is to be amended accordingly.
For the above suggestion on anti-defection, “Tenth Schedule, Paragraph 3 of the constitution of India” has been followed.
3. 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.
4. Before going to further reform proposals, we would like to suggest that the Fifteenth Amendment of the Constitution be repealed. On repeal of the 15th amendment, the provisions for forming a Caretaker Government (CG) for conducting elections would be reintroduced.
5. In case the President can be made a consensus candidate as is proposed by electing with three-fourth majority votes in the parliament, the President could head the caretaker government. Article 58B, after repeal of the 15th amendment, can be altered accordingly.
Repeal of the 15th amendment will also exclude Article 7A, which is not considered rational under the existing circumstances, and 7B, which binds the hands of future parliament and makes almost one-third of the Constitution unamendable.
6. Repeal of the 15th amendment will also make freedom of association as per Article 38 from the anti-people restrictive conditions imposed to achieve a tighter grip by the government on fundamental rights.
7. Appointment of the President should be not on a simple majority but with three-fourth majority vote of Parliament members. That would allow a consensus candidate to become the President. Article 48A is to be amended to include three-fourth majority votes for appointment of President.
8. Impeachment of the President should also be made difficult to lessen his vulnerability by introducing the provision for three-fourth majority vote of Parliament for that. Article 52 of the Constitution is to be amended accordingly.
9. We would like to propose an amendment of Article 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 procedure exist.”
10. There should be provision for two deputy speakers, one must be nominated/selected from opposition. Article 74(1) should be amended to include those two deputy speakers to be appointed one each from the governing party and the opposition.
11. The 16th amendment restoring the 1972 original provision of impeachment of judges of the Supreme Court by Parliament has already been nullified by the Appellate Division and the "Supreme Judicial Council" can be formed for the removal of Supreme Court Judges and Election Commissioners. It is proposed that the same Supreme Judicial Council be utilized for the removal of members of all other constructional bodies,
12. There shall be a self-sufficient "Supreme Court Secretariat" to assist the Supreme Court to administer the functions as vested under Article 109 of the Constitution. The same secretariat should also handle the functions of the Supreme Court.
The above arrangement needs to be included in the Constitution.
13. Article 116 of the Constitution is contradictory to Article 109 and as such may be considered superfluous and be omitted.
14. 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 the CJ. The CJ should then pass on the same to the President for finalizing the appointment with his (CJ’s) recommendation.
15. Keeping Article 65(3), that is “keeping provisions for 50 seats reserved for women to be filled exclusively by female candidates through proportional representation voting system intact,” we would like to propose that every political party contesting the election must ensure filing of nominations and have valid women candidates for at least 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.
16. The President should be allowed to appoint Election Commissioners without the advice of the 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.
17. Article 126 of the Constitution must incorporate that if any official does not obey the directives of the EC during election, it shall have the authority to take appropriate action as deemed fit.
18. Comptroller and auditor general, Public Service Commission must be appointed by a selection process independent from the 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 (one man and another female), Total of seven.
The above body may be given the responsibility to finalize the nominations of candidates and forward that to the President with their recommendation.
19. 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; (2) from parliament, MPs two (one from government party another from opposition); (3) from bureaucracy (retired government official) one; (4) from civil society, two. A total of seven “may be followed for all the other constitutional bodies, like Anti-corruption Commission, Human Rights Commission, Right to Information Commission, etc.
In the above we forwarded our views and suggestions on how the Constitution can be shaped in a way to make it more pro-people and to lessen the centralized control of a single person, the PM. Our proposals aim at making parliament flexible enough to act free from absolute control of the PM.
Also, we have tried to make a power-sharing arrangement between the President and the PM in order 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 state functionaries and thereby possesses the scope of becoming an authoritarian ruler or autocrat.
GM Quader is Chairman, Jatiyo party.
