This particular piece is aimed at drawing the attention of the constitution reform commission. At the very outset, let me assert that I am not in favour of rewriting the constitution, I am in favour of reforms.
Many people have the misconception that Bangladesh has a very good constitution. I stand against such a belief and from way back have been strongly been asserting that certain grievous mistakes remain in the constitution, or have been added to it. These repeatedly make the state character autocratic and anti-people. I try to briefly highlight these mistakes in this column.
1. Article 70 is the biggest mistake of this constitution. This article allows the leader of a political party, whether ruling or opposition, to exert full control over the party's elected members of parliament, thus fully obliterating their freedom to express any divergent views. If an MP speaks against any decision of the party chief or votes against the decision, his or her membership to the parliament will be cancelled. This constitution has reduced the parliament to a forum of fawning sycophants. So Article 70 must be amended, only keeping the clause making it compulsory to support the party in a 'no-confidence motion'. The prohibitions on expressing views on other matters of enacting laws and expressing views, must be lifted.
2 (a). Another grievous blunder in the constitution is the provision that gives the prime minister the power of an all-powerful 'elected autocrat'. When the constitution was drawn up on 1972, Bangabandhu Sheikh Mujibur Rahman had been in the seat of power. When the committee formed to draw up the constitution prepared the draft and handed it over to Bangabandhu, he himself made changes to the party regarding powers of the prime minister, making the prime minister's power absolute and unchallenged, as compared to the president's power. This rendered the president powerless. A member of that committee, the late editor of the daily Azadi, respected Professor Khaled, told me about this. When the draft was send back to the committee with the changes, no one in the committee dared to say anything against the changes made by Bangabandhu himself.
(b) Then on January 1975 when the presidential form of government was introduced in place of parliamentary democracy by means of the Fourth Amendment, all the powers of the prime minister, and more, were given to the president, in order to strengthen the one-party BKSAL system, so that the president would not face any obstruction in establishing so-called socialism. So after Bangladesh and family were killed on 15 August 1975, the boundless authority of an all-powerful president was enjoyed from 1975 to 1990 by Khandakar Mushtaque who grabbed power illegally, then Ziaur Rahman and then the autocrat Ershad.
(c) When Khaleda Zia was elected prime minister through the 1991 national polls, her first preference was for the prevailing presidential form of government. For the first five months she did not take initiative to amend the constitution in keeping with the declaration of the three alliances that she herself had signed. But under pressure from the president of the interim government, Justice Shahabuddin Ahmed, and also under huge public demand, she was obliged in August 1991 to take the decision of reverting to parliamentary democracy.
The task of preparing the draft of the Twelfth Amendment was given to Barrister Moudud Ahmed, Barrister Salam Talukdar and Col. Oli Ahmed. The three of them, in a very astutely planned manner, constitutionally handed over all powers of the president to the prime minister by means of the Twelfth Amendment, with even some additional 'procedural powers' for Khaleda Zia to wield.
In order to ensure the independence of the judiciary, the appointments, transfers, salaries and allowances and dismissal of judges at all levels must be made by a judicial service commission
So these three leaders of BNP bear the liability of making the prime minister a 'constitutional autocrat'. Of the three, only Oli Ahmed is still alive. A year or so ago, Oli Ahmed admitted their mistake in a statement made to a newspaper.
In the span of 1996-2001, Sheikh Hasina may have adhered to several democratic norms, but after ascending to power in 2009, she was assailed with the deadly obsession of clinging on to power forever. When the justices of the Supreme Court's Appellate Division, with a three-fourth majority ruled that the caretaker government system unelected and hence unconstitutional, the ruling ended on the note that the next two elections could be held under the caretaker system if the parliament so wanted. But Hasina ignored that advice of the Appellate Division and completely on her own accord, by means of the Fifteenth Amendment, revoked Thirteenth Amendment that held provision for the caretaker government.
After being freed from the compulsion to hold elections under the caretaker government system, Hasina ventured ahead to fulfill her dream of life-long power by means three one-sided elections held in 2014, 2018 and 2024.
Unless reins are pulled on the boundless powers of the "world's most constitutionally powerful prime minister", will state reforms be possible at all? The French constitution has a balance between thee powers of the president and the prime minister, and this can give us direction.
3. Another constitutional amendment has become cardinally essential. And that is not to allow anyone to become prime minister more than two times. Another point can be added to this -- to hold the parliamentary election every four years instead of five.
4. The constitution keeps the judiciary heavily dependent on the executive. This must be changed immediately. In order to ensure the independence of the judiciary, the appointments, transfers, salaries and allowances and dismissal of judges at all levels must be made by a judicial service commission. The commission will be formed as per decision of the Appellate Division of the Supreme Court. Appointment of judges of the High Court and the Supreme Court's Appellate Division cannot be kept in the prime minister's power. Based on the recommendation of the Supreme Judicial Council, the president will make these appointments. The council will comprise the chief justice and two senior judges of the Appellate Division. The appointment of the chief justice must be on the sole decision of the president, but it is best if there can be no superseding of seniority of judges in the Appellate Division.
5. The system for the president to be elected by direct vote of the people must be put in place.
6. The system of proportional representation in the parliamentary election can be introduced. The parliament can have two Houses where, on the basis of proportional votes, provision can be made for 100 members of the Upper House to be nominated by the top policymakers of the political parties. The 300-seat of the Lower House will be elected in the existing manner. The constitutions of various countries around the world can guide a balance between the Upper House and Lower House in drawing up laws.
7. The provision for 50 reserved seats for women in parliament can be dropped and one-third of the seats reserved for women, where the women will be elected by direct votes of the people. On the basis of rotation, in every election there must be provision for only women to be able to contest in one-third of the seats in every district.
8. The election-time caretaker government system must be restored immediately. But the judiciary must not be drawn into the appointment process of the chief advisor and other advisors of the caretaker government.
9. There is also undeniably a need to hold a referendum to incorporate all the recommendations of commission in the constitution. Later, in the elected parliament, these amendments can be given legal basis by means of ratification by a two-thirds majority in parliament.
*Moinul Islam is an economist and former professor at the economics department of Chittagong University.
* This column appeared in the print and online edition of Prothom Alo and has been rewritten for the English edition by Ayesha Kabir