Constitution musings of a legally inexpert

When I got admitted to Dhaka University back in 1974, I began studying in the department of law. There was a famine in the country at the time. My father had a job, but our family was sunk in poverty. Most of the time we would stay in the village to tide over expenses. I would attend classes for a week, then drop for two. The lectures started becoming too difficult for me to comprehend. I changed my subject and joined the department of history instead, thus drawing an end to my formal education in law. But after joining public service, I did have to study international law to an extent. So in my thoughts on the constitution, I do not have any specialised knowledge on something as complicated as law, but I deliberate more on the lines of a layman.

It was Constitution Day on 4 November. The president and the prime minister delivered messages. Knowledgeable law experts gave their opinions. I will simply discuss two or three laws and issues which trouble me as a common citizen.

If I face any dilemma over issues pertaining to the law, I invariably turn to Dr Shahdeen Malik. A few years ago at a social event, I had remarked to him that if any amendment was to be made in the constitution, it would have to be done in light of the prevailing system. Before the 15th amendment, Article 142 of the constitution had provision for a referendum for such amendments, but that was removed by the 15th amendment. A referendum would have been required for that removal, wouldn't it? But that was not done. So isn't this amendment null and void? Dr Malik said, yes, there is a lot to be said about this.

Recently Badiul Alam Majumdar raised this issue in several of his writings, clearly stating that his amendment was unconstitutional and the 15th amendment could be nullified by the court. He, however, also realised that such a resolution would hardly be feasible in the present circumstances.

Article 7B of the constitution, after the 15th amendment, had rendered a large section of the constitution non-amendable. The members of parliament draw up the constitution or amend it, that theoretically speaking is a manifestation of people's will. In other words, the laws in the constitution are a reflection of the people's  wisdom and perception at the time. How can we be certain that the persons who created this system are the brightest and wisest and that no one more intelligent than them will ever be born in Bangladesh?

In 50 years, the world will be an absolutely different place, where certain laws will have to be changed in public interest. What will happen then? That is why, in my opinion, this Article 7B should be abolished. But if the 15th amendment can be abolished, then nothing separate would be required.

a. In the 52 years of Bangladesh's history, no election under any partisan government has been free and impartial, and even the most optimistic among us has no reason to believe it will be so in the future. In fact, over the past 25 years all the political conflicts and clashes that have taken place have been rooted in the system of election. Many lives have been lost, much property has been damaged, economic potential has been dented and scope has been crated for foreign intervention. Given the political realities, in order to break away from this vicious cycle it is essential for the constitution to have provision for elections under a caretaker government. The ongoing debate over an 'unelected government' is meaningless. We have to choose between a three-month unelected government, or a five-year one.

b. Let us take a look at the statistics (percentage of votes/seats) concerning the four fair elections that have taken place in Bangladesh. In the 1991 election, Awami League secured 30.80 per cent of the votes, BNP 30.81 per cent, Jamaat-e-Islami 12.13 per cent and Jatiya Party 11.92 per cent. In that election, Awami League won 88 seats, BNP 140, Jamaat 18 and Jatiya Party 35.

In the 1996 election, Awami League secured 37.44 per cent of the votes, BNP 33.61 per cent, Jamaat-e-Islami 8.61 and Jatiya Party 16.40 per cent. In that election Awami League won 146 seats, BNP 116, Jamaat 3 and Jatiya Party 32 seats.

In the 2001 election, Awami League secured 40.13 per cent of the votes, BNP 40.97 per cent, Jamaat 4.28 and Jatiya Party 1.12 per cent. In that election, Awami League won 62 seats, BNP 193 seats, Jamaat 17 seats and Jatiya Party 4 seats.

In the 2008 election, Awami League clinched 48.04 per cent  of the votes, BNP 32.50, Jamaat 4.70 and Jatiya Party 7.14 per cent. In that election Awami League secured 230 seats, BNP 30, Jamaat 2 and Jatiya Party 27.

These figures make certain issues clear.

1. There are two major parties in Bangladesh who have huge public support. And there are two parties that have public support to a certain extent.

2. No matter what the results may be, both Awami League and BNP have committed voters of around one-third each. Outside of this, the votes come from people unhappy or irate with the incumbent government for valid reasons. These voters are not loyal to any particular party and they want change.

3. No party winning the election has secured half or more than half the votes. Even in Awami League's landslide victory of 2008, it secured less than half the votes. In other words, we have always been ruled by a government representing less than half the votes. This shouldn't be a problem in the Westminster system, because in a democratic system the country is to be run on a sort of consensus. But in our country, the winning party take themselves as the sole rulers with the right to do as they please for five years. Not only that, even though they win less than half the votes, they rip and tear the constitution at will. Also, the two major political parties consider each other foes and consider any leeway to the opposition as a weakness, even defeat.

It is important to consider the proportional representation system in the national parliament in order to overcome this unwarranted situation. Under this system, no party can behave in an arbitrary manner after winning the majority. Various experts at various times have recommended proportional representation so as to avoid brute majority. This will require the support of small parties to form the government. This may give scope to some unethical horse trading, but at least it will banish that arrogant attitude of inheritance for five years. It will also require the cooperation of the opposition to amend the constitution. This is possible in the interests of the country as was proven in the cooperation between two sides in 1991 to revert from the presidential system to the parliamentary one.

The incumbent government can now summon a special session in parliament and pass a bill for proportional representation. Whether it is in January 2024 or at any later date, an impartial, free election will surely be held in our country where the people will be able to exert their voting rights. In that election too, Awami League or BNP will get the votes of their committed voters, that is, one third of the votes. But in the present 'first past the post' system, a party even securing one third of the votes, becomes a small opposition party with 30 to 40 seats. If the proportional representation system was in place, they would be a big opposition party with 100 seats.

Above all, no matter whether Awami League or BNP went to power, they would not be able to grab absolute power as they would have to be allied with a small party or parties. The people and the major political parties of the country would benefit from this.

There are other ruminations on the constitution, such as creating provinces in this country of 180 million people and decentralising power, actual empowerment of local government, readjusting the president and prime minister's power, ensuring excellence of the judiciary, etc. But let's stop here for today.                                       

* Md Touhid Hossain is former foreign secretary

* This column appeared in the print and online edition of Prothom Alo and has been rewritten for the English edition by Ayesha Kabir