The accountability of the representative to the people is the most important element of democratic practice. After all, the people are the actual owners who are to run the country. They elect their representatives to run the country on their behalf. Democratic practice means that the representatives are accountable to the owners, that is, the people, in all instances and at all times. The constitution also speaks about nationalism, socialism and secularism. Though these matters are mentioned, there is no scope for us to practice democracy in keeping with the constitution.
Democracy means rule of the people. Autocracy means the rule of one. Autocracy has been constitutionally molded in our constitution. The party which wins in the majority of seats goes to power. Then again, the leader of the party that goes to power generally becomes the prime minister of the country, the leader of the parliament and the head of the ruling party's parliamentary party.
Due to Article 70, there is no provision to go outside of the party in the parliament. If anyone deviates from the head of government in parliament, then according to Article 70, that member of the ruling party will lose his or her seat. The head of the ruling party which wins majority in parliament (who is also the prime minister) can pass or reject all proposed bills at will. When no parliamentarian of the ruling party can move away from the directives of the prime minister, then reality is that the entire parliament runs according to the prime minister's wishes.
That means the president will act in accordance to the prime minister's directives. In other words, the lower courts running in accordance to the president's orders means these are running in accordance to the orders of the prime minister. That means the lower courts will function under the prime minister's control
The fundamental pillars of a state are the executive, the legislature and the judiciary. These three pillars ensure each other's accountability and thus maintain a balance in power. The head of the executive holds full power over the executive and is also, at the same time, the controller of the legislature, that is, the parliament. So, there is no provision in our constitution for any decision to be taken in parliament outside of whatever the head of the executive says.
That leaves the judiciary. In our country, the lower courts run on the directives of the higher courts (as enunciated in Article 109 of the constitution). Then again, the salary and allowances, appointments, promotions and transfers will all be done by the president (Article 116 mentions this). So Articles 109 and 116 are contradictory, and Article 116 is in effect. Again, Article 116 is contradictory to Article 22 which says, "The State shall ensure the separation of the judiciary from the executive organs of the State."
Article 48 says the president has two duties, to appoint the prime minister and the chief justice, and will carry out all other duties in accordance to the prime minister's advice. That means the president will act in accordance to the prime minister's directives. In other words, the lower courts running in accordance to the president's orders means these are running in accordance to the orders of the prime minister. That means the lower courts will function under the prime minister's control.
Concerning the Supreme Court, Article 95 of the constitution says, "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." Article 95 (2) says that persons shall not be qualified for appointment as a Judge unless he is a citizen or Bangladesh and (a) has, for not 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.
In reality, the law detailed in clause (c) has not been drawn up till now. So the president will make the appointment. Again, due to Article 48, the president can't do this without the prime minister's advice. So while the president is appointing judges to the Supreme Court, actually this is being done in accordance to the prime minister's advice. In other words, the prime minister can appoint the Supreme Court judges as she wishes, though adhering to clauses (a) and (b).
The Supreme Judicial Council had been given the power to impeach judges of the Supreme Court. This power was then handed over to the parliament by means of an amendment. Under the present circumstances, giving it to the parliament means placing it under the prime minister.
This decision was cancelled by a ruling of the Supreme Court, for which the prime minister is unable to impeach judges of the Supreme Court. But she can appoint them. That means the executive and the legislature are fully, and 95 per cent of the judiciary is, under a single person. In other words, the present system being termed as democracy can actually be called nothing other than autocracy. There is no system to balance power or ensure accountability. So it would not be an exaggeration to say that in accordance to the constitution of Bangladesh, there is no scope to practice democracy.
* Ghulam Muhammed Quader is a former minister and chairman of Jatiya Party (JaPa) and also deputy leader of the opposition in parliament