A return to precarious governance must be prevented

The recommendations of the constitution reform commission are based on the good intentions to control authoritarianism. These call for a thorough analysis by means of detailed discussions with the political parties. Undoubtedly the proposals will not weaken democratic accountability, marginalise elected representatives or disrupt the balance of power between the executive, legislature and the judiciary. In light of global history and institutional reality, it is important to remain free from such apprehensions.

Everyone hopes that the proposed constitutional reforms will not contain any fundamental flaws that could endanger Bangladesh’s system of democratic governance. However, there is concern that the formation of a National Constitutional Council (NCC) and a Judicial Appointments Commission (JAC) could lead to the emergence of an unelected oligarchy. Given the present state of the recommendations, these bodies have the potential remain outside the scope of direct public accountability. These proposed institutions comprising judges, bureaucrats and others, could give rise to an elite group or oligarchy.

A precedent of this propensity can be seen in India's 2014 National Judicial Appointments Commission (NJAC). Even though India’s system allowed for a degree of political involvement in judicial appointments, the proposed structure here entirely excludes elected representation. Some may find a similarity to Iran’s Guardian Council, where unelected religious and legal experts exercise ultimate authority without any accountability to the people.

History shows that when a judicial-bureaucratic oligarchy develops without democratic oversight, it gradually becomes disconnected from the public and consolidates power to serve its own interests. Despite their flaws, institutions led by elected representatives offer checks and balances. Without this, alternative institutions may evolve into centres of power driven by self-interest, ultimately bypassing the democratic framework. If unchecked authority is given to unelected elites, even in the name of upholding democracy, there is the risk of an adverse outcome.

If such structurally flawed recommendations are adopted, this may lead to a degeneration of representative government. There will always be the fear that individuals who are never held accountable by voters will make decisions on elections, judicial appointments and such critical issues. Global experience says that such “self-preservation structures” tend to develop biased agendas in a short time. Ultimately, the system that was intended to replace the old political order might become equally unaccountable and non-transparent.

The reform proposals also have a worrisome trend of shrinking the necessary powers of elected leadership to run the government. Removing the prime minister from party leadership and imposing strict term limits could undermine the continuity and stability of governance. Who can guarantee there this will resemble the instability of Italy’s political history, marked by weak party discipline and frequent collapse of government?

The dominance of the bureaucracy may also grow, as seen in Mexico. Over there, the professional bureaucrats outlast presidents who have limited terms, and often hinder public welfare. The risk is even greater in the context of the colonial bureaucratic system inherited from the East India Company. Therefore, such reform proposals require meticulous scrutiny.

The proposed changes to Article 70 and their implications must be carefully analysed through various scenarios. For example, if the restriction on floor-crossing by members of parliament is lifted, the legislature could become a marketplace driven by personal gain. This would lead to vote trading based on self-interest rather than principle. As a result, democratic discipline could collapse, and governance might shift from electoral mandate to a system serving private interests. This issue calls for extensive debate and discussion.

There is no flawless or perfect system of checks and balances anywhere in the world. Every framework has its flaws. However, efforts can be made to design a system of checks and balances structure in alignment with the will of the people in a post-colonial, developing state. The proposed judicial appointment process, which does not require any parliamentary approval, could in effect grant judicial impunity.

According to the recommendations, making National Constitutional Council (NCC) approval mandatory for the president during emergencies could weaken the executive branch and create a dangerous situation. There could be serious delays in decision-making during times of national crisis. Such structural reform proposals might create more complex problems. An Upper House elected through proportional representation and the scope for floor crossing could also lead to a disruption in law making.

It is learnt from global experiences that total judicial autonomy is not safe; rather, a mixed system of elected representation is more effective. The judicial appointments commission in the UK may have reduced politicisation of the judiciary, but it couldn't evade allegations of elitism. Similarly, South Africa’s judicial service commission has shown that even well-balanced frameworks are not immune to political influence.
Experiences from technocratic governments of Italy and Greece (2011–15) in the European Union reveal that unelected rule eventually provokes significant public anger. The War Powers Act (1973) of the US also indicates that excessive constraints can paralyse the executive. These global examples warn that technocratic governance is not a model. Democratic accountability is the only sustainable solution.

In order to render Bangladesh’s constitutional reforms successful, a balance must be maintained between elected representation and upholding accountability. Democratic reforms cannot be achieved through technocratic governance.

It is essential to have public debate over parliamentary approval procedures. Undoubtedly, the US Senate’s consent process in appointments is considered a standard. The appointment process could include representation from judges, opposition leaders and different sectors of society. A crucial issue is defining the role of parliament in the judicial system.

In this context, checks and balances is the only standard. One can look to India’s Tenth Schedule regarding defections from the party. While allowing dissent, it is also necessary to curb unethical horse-trading. When it comes to executive power, the prime minister must have the scope to govern unhindered.

Germany has an advisory system for times of emergency, but the final authority lies with the parliament. These are examples, not necessarily definitive models for Bangladesh. The point is not to copy them blindly, but to learn from them and adapt prudently.

History shows that democracy cannot rely on any technocratic model of governance. From military juntas in Africa, Asia and Latin America to technocratic governments in Italy and Greece in Europe, systems of governance that exclude direct public participation have consistently led to widespread public outrage.

For Bangladesh, there is only one path: a strong democratic system rooted in the will of the people. Otherwise, there remains a persistent risk that one form of authoritarianism will simply be replaced by another.
A functional democracy requires strong elected leadership tightly bound by accountability, not merely well-intentioned technocrats. The strength of democracy lies in the will of the people. That will must never be surrendered to a technocratic model of governance.

*Dr. Rashed Al Mahmud Titumir is a professor at the Department of Development Studies, University of Dhaka
*This column appeared in the print and online edition of Prothom Alo and has been rewritten for the English edition by Ayesha Kabir