4 November marks 50 years of the constitution of Bangladesh. Different quarters are demanding constitutional amendment. Question also arises over the 17 amendments in the constitution. Under these circumstances, Prothom Alo’s Sohrab Hassan has spoken with Chittagong University’s law faculty dean Abdullah Al Faruque over many issues related to the constitution.
4 November marks 50 years of Bangladesh constitution. We nowadays hear a call for constitutional amendment. What is the main problem, constitution itself or the people who run the constitution?
Constitution is the main legal document and a manifestation of people’s will. Constitution is not static and it gets amended under changed circumstances. After many ups and downs, the constitution has got back its original nature of 1972 through the fifteenth amendment. Constitution can be amended in keeping with the will of majority of the people. But controversy cannot arise over the matters which are settled through the apex court of the country and the demand to amend constitution over these matters is absurd. The three branches of the government—the executive, the legislative and the judiciary—are vested with running the constitution. The executive branch enforces and upholds the constitution. The legislative branch will enact laws in keeping with the constitution. The judiciary expounds the constitution as guardian. The people’s duty to the constitution is honoring and abiding by it.
Where is the main weakness of our constitution? Many are of the opinion that person took precedence over the system at the drafting of constitution. What is your opinion as a teacher of law?
The constitution of 1972 was one of the best and better than other countries at the time. The prologue of Bangladesh’s constitution and fundamental principles testify that the people’s sovereignty were given importance in forming it. Human rights, democracy and establishing a society free of oppression were stressed in the constitution to establish rule of law. The constitution was formulated through a 34-member 'draft constitution formulating committee'. This committee formed the constitution through a democratic process upon consultation with experts and debate in Gana Parishad.
The constitution has been amended 17 times so far. How many times it was amended for the people and how many times for advantage of the ruling party? What is/are the most dangerous amendments in your view?
The military rulers amended the constitution many times for their own advantage. They tainted the main character and essence of the constitution. But the constitution was changed for people several times i.e. first, second, third, eleventh, twelfth, fifteenth, sixteenth and seventeenth amendments. Fifth, seventh and eighth amendments are among the most dangerous which basically gave legitimacy to the military rulers. Fifth amendment is the worst one since it gave indemnity to the killers of Bangabandhu and his family members.
Q :
There is a call to repeal article 70 of the constitution. Do you think that the main spirit of the democracy has been scotched by this article?
As per the article 70, members of parliament cannot cross floor or desert their own party. This article should not be repealed fully as it can damage the stability of the government. There are instances of defecting in exchange of money in Pakistan era. India too has this problem. Moreover, the article 70 has to some degree got back its original form through the fifteenth amendment. The political reality in Bangladesh is not same as in western countries. Considering all these, the article 70 should not be repealed.
Q :
The fundamental tenet of the parliamentary democracy is collective responsibility. That means the cabinet would be responsible to the national parliament. What is the reality here?
According to article 55 of our constitution, the cabinet is responsible to the parliament. But it does not exist in Bangladesh in principle. Sometimes, reports of parliamentary committees censure the works of ministers. The parliamentary committees should be made more powerful.
Q :
The constitution of 1972 did not recognize any other ethnicities other than Bangalees. Later they were termed as ethnic minority. Is it not insulting to them?
Fifteenth amendment has given constitutional recognition to the ethnic minorities and ethnic groups. This is a big achievement for them. Moreover, as per articles 28 and 29, the ethnic groups are considered backward section of society and thus they are provided quotas in recruitment of government jobs and university admission. But the constitutional recognition is not enough for them. Everything cannot be inducted in the constitution. Enactment of law is sometimes required for implementation of constitutional obligation. A special act is needed for safeguarding the land ownership right of ethnic groups of plain land.
Q :
One of our previous presidents said he has nothing more to do except offering Milad. Do you think there should have a balance of power between the president and the prime minister?
The power of president is very limited and ceremonial as the 1972 constitution was formed following British parliamentary system. Not only in Bangladesh, this is the reality in countries with parliamentary system such as UK, Germany, India and Italy where the president’s executive power is nominal. As per article 48 (3) of the constitution, president works in consultation with the prime minister in every aspect except in appointing prime minister and chief justice. However, the president’s consent is required for enacting any bill passed by the parliament. The president can request reconsideration or amendment of any section of the bill. This power of the president can work as deterrence against enactment of any bill which is undemocratic or against the public interest. This power of the president can help maintaining balance of power. Alongside balance, accountability is also important. Prime minister has liability and accountability to the people as he/she is elected by people's votes but the president has no such liability. Other than the legal authority, president is a symbol of national unity. The president gives people guidelines through parliament. President plays a pivotal role in times of any national crisis.
Q :
Due to dominance of two parties here in our country, many demand proportional representation system so that smaller parties can share power. Many western countries have proportional representation system.
Proportional representation is not so well established system and it is yet to get acknowledged universally as a democratic system. This is only in place in some European countries. This system has both positive and negative sides. The negative aspect is many small parties might be in a position of control during formation of government and the political stability might get disrupted if small parities withdraw support from a government. Although it has some positivity, the proportional representation system is a complex one.
Q :
Thank you
Thank you