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The Constitution of Bangladesh has become a joke. The Interim Government can try to fix it through the Constitutional Commission but unless we address the key issue, all these changes and reforms (including all the legal and the administrative ones) will be for naught.
For example, consider the Constitutional provisions for the Caretaker Government. It was one of the most innovative and forward-thinking provisions of the Constitution, but it was dismantled by the Executive at the first opportunity. Some key benefits ensured by the Caretaker Government were that elections were relatively free and fair, and there was a peaceful transition of power. It also meant that the leadership changed hands, which was not seen very favourably by our leaders. I am positive that if anyone else were in the shoes of our leaders, she would have ditched those provisions in the blink of an eye because it challenged her authority and forced her to be vulnerable by forsaking her power.
The July Revolution that forced Hasina to abdicate her position and flee the country was completely unexpected. Had the army not stood by the side of the people, Bangladesh could have so easily turned into the Syria of the subcontinent. That would have been an unmitigated disaster for everyone in Bangladesh, except for the Awami League and its supporters. For better or worse, the Government fell, and we have a new Interim Government.
There are lots of things on the Interim Government’s plate. They have done commendable work stabilising the economy and improving law and order. They have also instituted some laudable reforms. My only concern is that all their hard work will be for naught if they are unable to create structures and systems which would prevent these reforms from being whittled away by the wave of the proverbial wand by the next Government in power. So, what can the Interim Government do to ensure that the blood of our young ones is not spilt in vain?
First, there is no rush. If history has taught us anything there is no need to rush into an election. Bangladesh has been independent for over 50 years. There is no existential threat to Bangladesh, so why the rush? The corruption and degeneracy of the previous Government were like a fungus, we only see the rotting fruits – the caps and the gills. The mycelial network of partisanship and cronyism permeates through every level of state and non-state institutions. These networks need to be identified and neutralised, which could take some time. If these are left untreated, it is only a matter of time before they grow back and reestablish the infestation.
Secondly, we need to think about creating a legal framework for the country that would make it enormously difficult for any Government to co-opt all organs of state and treat the country like their “baaper property”. This is crucial because, without such protections, any reform that is introduced by the Interim Government will not survive the next election. As soon as a new Government comes to power, they will dismantle all the reforms and pass laws that would confer unchecked power to them. History will repeat itself.
So how can we prevent the next Government, or any Government in the future, from becoming a leviathan that could eviscerate our country? The fundamental issue at the heart of this debate is the question of power. Power is critical for a government to do their job. But too much power in the hands of few people is dangerous for all, as “power tends to corrupt”. For example, look at what happened in 1973. The Awami League had absolute power in Bangladesh, yet it would not satisfy their power lust. They wanted more.
To protect the people from the rise of fascists in the future – one thing that this Government must ensure is Separation of Power.
Right now, power is too concentrated in the hands of the Prime Minister. In fact, if you look at the debates of the Constituent Assembly – the concentration of power was a major cause of friction. In fact, Dr Kamal Hossain argued that the “context” of 1972 was different from 1956 (Ayub Government) and that Bangabandhu would never abuse the power that was granted to the position of the Prime Minister. If Dr Hossain only had a crystal ball.
Time and time again, history has proven that power tends to corrupt – even the best of us. Our history over the last 50 years is a testament to the depravity that can arise when too much power rests in the hands of few people. If we can ensure that power is distributed across a range of people and institutions, it will be much harder for any Government in the future to entertain any hidden fascist fantasies.
There are several options that are available to us, each with its pros and cons. We need to assess the implications of the path we take because that can shape the course that Bangladesh takes over the next 100 years.
Option 1: Bicameral Parliament
We can break the Parliament into an upper house and a lower house. We can opt for the US system – whereby we have both the houses elected. The elections are staggered, and you need to ensure that some staggered process to maintain continuity. We could also opt for the UK model, or the Indian model. Each option has its advantages and disadvantages.
This might not be practical for Bangladesh because we don’t really have a landed gentry or federal structure of states. If we opt for this, then federalism might be a course that we have to consider, which would involve revamping the entire governmental framework. To be honest, the cost and complexity associated with introducing a bicameral system may be prohibitive for Bangladesh. Furthermore, if the Executive continues as members of the Parliament – this would not really solve the power issue because the Parliament would remain an extension of the Executive. We need to extricate the Executive from the Parliament, to enable Parliament to be free from the direct influence of the Executive.
Option 2: Separate all three organs of Power
This option would involve separating the Parliament, the Executive and the Judiciary – as much as possible. The function of the Parliament is to debate laws and make laws. Members of Parliament should be entitled to discuss and debate the pros and cons of laws, and then they can decide to vote on bills to make them into laws. Our laws are hopelessly out of date. We still have valid laws from the nineteenth century that were used by the British to extract resources from us. It is high time that we update these laws and try to come up with better laws that are more suitable for a growing economy in the twenty-first century. To ensure that the Parliament does not go overboard, we need to ensure that they need the consent of the Executive to enact laws.
The Executive must be extricated from the Parliament. Bangladesh is a LDC with a lot of challenges, the Executive needs a lot of resources and time to develop creative solutions for these challenges. They do not have to worry about attending the Parliament and debating the nuances of law. They can focus on implementing the laws. They can go to their ministries and work with the administration to develop Bangladesh within the legal framework created by the Parliament. They can produce by-laws and orders but those would be limited in scope and people could challenge their validity if anyone suspects that the Executive was acting ultra vires. The Ministers are men/women of action. They are concerned with the development of Bangladesh and helping their constituency when possible. They should not have to be tied up in a climate-controlled room discussing the implications of new laws and regulations or rubber-stamping laws along party lines.
The Judiciary needs only focus on interpreting the laws. They should not have to worry about upsetting any party or waiting for the Ministry of Law to write legal opinions for them. Their selection procedure – particularly, for the Supreme Court – can probably be handled by the Parliament and the Executive, jointly. There are a few things that need to be incorporated in managing the judiciary – such as independence from interference by the executive in relation to the selection, promotion, transfer and resignation of judges. The process needs to be clarified, codified and transparent. Judges should seek to be impartial arbiters of disputes. They need not coddle the Executive or the administration. Their job is to ensure that the rights of the governed and the Government are protected and that everyone gets a fair hearing. Otherwise, they will be seen as the tamed tiger of the Government, unleashed on people to serve the will of the leviathan.
Finally, to strengthen independence and reduce opportunities for abuse by all branches of the Government, we should also introduce some extra obligations on everyone in the Government. These could include: a legally binding code of ethics; an obligation to publicly disclose tax submissions and their asset holding; implementing concrete guidance for anyone in power to recuse from any positions or issues if there is a conflict of interest; etc. We also need to figure out how these provisions can be implemented and the implications of non-adherence. If members of the branches of the Government can ignore these provisions with impunity, it will only encourage them to abuse their positions and undermine the rights of the People.
The objective here is to distribute the power for governing Bangladesh and make sure that improprieties are more difficult to hide for people in positions of power. By distributing power among all branches of the Government, it would be extremely difficult for one branch to steam-roll its decisions over the others. Obligations to disclose one’s financial holdings would make them very cautious about amassing wealth, especially under their names or the names of connected persons, because it would raise awkward questions about the source of the newfound wealth. There are only so many rich family members around from whom you can inherit wealth. Separation of power could have two consequences: deadlock or cooperation. Neither of these is bad per se.
If there is a deadlock, the Executive could still function through orders and by-laws. However, people in power would be unlikely to overtly abuse their positions because they would always be mindful that they might not be in power after the next election cycle.
Since laws would not be enacted without the agreement of the Parliament and the Executive, they might choose to work together and come up with better laws. Since the leader of the Executive would need the support of the leader of the Parliament, the collaboration could keep each other in check.
To ensure that a single party does not co-opt both branches of the Government, it may be useful to have two sets of elections. One for the President – and the Executive. The other is for the Parliament. One can be the President for a four-year term and a Member of Parliament for a four-year term. However, by staggering the election you can ensure no single party can control both the branches for more than 2 years. If any party decides to abuse their position, the people can kick them out from the Legislature or the Executive (depending on the election cycle) significantly curtailing the power of the ruling party.
There is a possibility that they can collude and lead to the creation of a new fascist regime – but that would be much harder than under the current framework. Plus, it would be for two years max. If we can manage to create an independent judiciary, they could hold the fort until the next election cycle. Further details need to be worked out, but if we do not address these issues properly then we will have to pour out on the streets again against a new fascist regime in 20 years.
There are many reforms that we need to consider. But if we want to make any of them last, we must reform the issue of how power is distributed among the different branches of the Government. As I have said, there are pros and cons to this approach, but one undeniable advantage of this is that it will make it nigh impossible for future leaders to lean into their fascist tendencies. These reforms are just the beginning.
For Bangladesh to grow and prosper in the future we may have to consider curtailing the Government’s influence over institutions such as the Bangladesh Bank and make them independent. But that is a discussion for another day. Right now, we need to have a commission to figure out how we can break the monopoly on power.
The author is Business and Entrepreneurship Expert. He is currently working with CaST Network Ltd. He can be reached at [email protected]