Let's start with the issue of autocracy. 'Pallibandhu' Ershad ran the country under a presidential system of government. Executive powers lay with the president. There was, at the same time, a prime minister and a parliament. There was scope to ensure a balance of power, though admittedly, it may not have been fully in effect. But I am now analysing the system of government and the stance of the chief executive since 1990 after Ershad resigned till the present.
According to the preamble of our constitution, the spirit of the liberation war and the fundamental principles of the constitution were to be as following.
The second paragraph says we the people of Bangladesh are "pledging that the high ideals of nationalism, socialism, democracy and secularism, which inspired our heroic people to dedicate themselves to, and our brave martyrs to sacrifice their lives in, the national liberation struggle, shall be the fundamental principles of the Constitution."
One of the main and most important principles mentioned here is 'democracy'. The country's system of governance is elaborated extensively in the rest of the constitution. A closer study reveals that the present constitution does not include the scope to practice democracy. Quite to the contrary, it is noted that there is an attempt to place all power of the country with one individual.
I quote from Article 55 (2) of the constitution: "The executive power of the Republic shall, in accordance with this Constitution, be exercised by or on the authority of the Prime Minister."
I also quote from Article 56 (3) of the constitution: "The President shall appoint as Prime Minister the member of Parliament who appears to him to command the support of the majority of the members of Parliament."
In our country, generally speaking, the head of the party that wins majority in the national parliamentary election is appointed as prime minister. The prime minister is bestowed with all executive powers.
Article 70 states: "A person elected as a member of Parliament at an election at which he was nominated as a candidate by a political party shall vacate his seat if he-
(a) resigns from the party: or
(b) votes in Parliament against that party;
but shall not be disqualified for subsequent election as member of Parliament."
Due to Article 70, a parliament member of any party cannot freely exercise his intelligence, views, conscience or the views of the people of his constituency. That is why in context of our country, the parliament members of the ruling party are obliged to uphold the views and decisions of the ruling party chief or the prime minister.
The decisions made in parliament are based on majority, or by two thirds majority (Article 142 a), which most ruling parties of our country hold in parliament. The present government has this majority too. So whatever decision is taken by the head of government or the prime minister, it wins the support of the majority and is passed by the parliament. That is the reality. The Bangladesh Jatiya Sangsad (Bangladesh National Parliament) is therefore completely under the control of the chief executive or the prime minister.
In context of the prevailing realties in our country, when any issue is raised to be settled in in the parliament, that means it has been placed before the prime minister for her decision.
Now let's come to the judiciary, another pillar outside of the executive or the legislative, to maintain the balance of power. Article 109 of the constitution states, "The High Court Division shall have superintendence and control over all courts and tribunals subordinate to it." That means the lower courts will remain under supervision or control of the High Court.
Then again, Article 116 says, "The control (including the power of posting, promotion and grant of leave) and discipline of persons employed in the judicial service and magistrates exercising judicial functions shall vest in the President and shall be exercised by him in consultation with the Supreme Court.
Article 109 is contradictory to Article 116. Article 48 (3) reads, "In the exercise of all his functions, save only that of appointing the Prime Minister pursuant to clause (3) of article 56 and the Chief Justice pursuant to clause (1) of article 95, the President shall act in accordance with the advice of the Prime Minister."
In other words, other than appointing the chief justice and the prime minister, the president is obliged to carry out all work in accordance to the advice of the prime minister. That means other than these two issues, handing over any matter to the president means placing it in the prime minister's control. In that context, the lower court, through the president, is under control of the prime minister.
In Part 2 of the constitution concerning fundamental principles of state policy, Article 22 states, "The State shall ensure separation of the judiciary from the executive organs of the State." Article 116 is clearly contrary to Article 22 regarding the fundamental principles of state policy. Then again, it can be said that Article 109 is congruent with Article 22. Even so, in reality we follow Article 116 in place of Article 109.
The Supreme Court
According to Article 95 (1), "The Chief Justice shall be appointed by the President, and the other Judges shall be appointed by the President after consultation with the Chief Justice." According to this rule, the appointment of all Supreme Court judges is in the hands of the president. Then in 95 (2) it is written, "A person shall not be qualified for appoint as Judge unless he is a citizen of Bangladesh and (a) has not for less than ten years, been an advocate of the Supreme Court, or (b) has, for not less than ten years, held judicial office in the territory of Bangladesh, or (c) has such qualifications as may be prescribed by law for appointment as a Judge of the Supreme Court."
At present the president is appointing judges to the Supreme Court in keeping with Article 92(2)(a) and (b). Article 95(2)(c) has the clause regarding qualifications set by the law for appointment as Supreme Court judge. According to Article 22, the chief justice and, overall, the judiciary, must have priority in appointing judges to the Supreme Court. The law should be enacted accordingly as in 95(2)(c), but till date no law has been drawn up on this issue. Because of this ambiguity, even the appointment of judges to the Supreme Court at present is directly in the hands of the prime minister through the president.
At present, dictatorship prevails in Bangladesh and there is no scope to practice democracy
Under the initiative that had been taken to provide the parliament with the power to impeach judges of the Supreme Court, the prime minister would have indirectly had the authority to impeach the judges of the Supreme Court. As that attempt was rejected in a ruling by the Supreme Court, the power to impeach Supreme Court judges is not in the hands of the prime minister. But other than this, all other control over the lower and higher courts of the judiciary is indirectly in the hands of the prime minister by means of the president.
When all three pillars -- the executive, the legislative and the judiciary -- formed to maintain balance of power in the state, are under the control of one person, then this system is called dictatorship. Dictatorship is a form of governance contradictory to democracy.
At present, dictatorship prevails in Bangladesh and there is no scope to practice democracy. There is need to amend these matters in the constitution in order to uphold the fundamental principles of the constitution and the spirit of the liberation war.
* Ghulam Muhammed Quader is chairman of Jatiya Party and deputy leader of the opposition in parliament.