The case for overhaul of constitution in post-Hasina Bangladesh

The interim government, led by Prof. Yunus, has established more than half a dozen commissions, signaling an agenda that goes beyond merely organising free and fair elections. The government appears intent on initiating broad reforms across key sectors, including a potential overhaul of the nation's constitution.

The call for constitutional reform has gained momentum, especially among the leaders of the student-led movement that ousted Sheikh Hasina's autocratic regime. These leaders argue that the current constitution enables the concentration of power in the hands of a single individual, a concern echoed by many in civil society and the intelligentsia.

Unsurprisingly, various suggestions have emerged on how to reform the constitution to ensure a true separation of powers among the executive, legislative, and judicial branches, and to establish effective checks and balances to prevent future autocratic regimes.

Under the previous regime, power was largely concentrated in the hands of the prime minister, who selfishly manipulated the parliamentary system outlined in the country's original 1972 constitution. Though this system has been disrupted several times by martial laws and shifts to a presidential system, it remains the default framework of governance.

The constitution has already been amended 17 times in about five decades. In comparison, the U.S. Constitution has been amended 27 times in 250 years, India's 106 times since 1950, and Pakistan's 25 times.

Blaming the parliamentary system itself for Sheikh Hasina's excesses is however misguided. In theory, parliamentary systems offer mechanisms to ensure the executive is accountable to the legislature. The problem arises when, as in Bangladesh, the prime minister leads both branches, concentrating excessive power.

Moreover, outcomes of parliamentary systems have varied significantly. The system has functioned effectively in the UK, its birth place, for centuries. In India also it worked well, except during Indira Gandhi's emergency rule in the early 1970s. While some countries like Singapore and Malaysia have shown authoritarian tendencies, some countries, like Canada and Japan, have enjoyed stable governance under parliamentary rule.

Presidential systems are however more widespread, with over 100 countries using full or semi-presidential systems compared to only about three dozen countries with parliamentary systems. Many countries-such as the U.S., Brazil, Mexico, and Indonesia-have adopted full presidential systems, while others, like France and Russia, have adopted semi-presidential systems where power is shared between a president and a prime minister.

Given Bangladesh's troubled experience with parliamentary rule, some argue the country should switch to a presidential system to ensure a better separation of powers and prevent future autocracies. This commentator also believes that to modernize governance, strengthen democracy, and prevent the return of autocracy or dictatorship, Bangladesh must undergo some targeted constitutional reforms, as outlined below.

First, switch to a Presidential Form of government to ensure proper separation of powers and checks and balances between the executive, legislative, and judicial branches.

Second, adopt a Bicameral Legislature, under which an Upper House could provide a check on the Lower House, and approve top-level appointments, such as chairs and members of statutory commissions and agencies, the High Court, and Supreme Court judges, and so on.

Third, grant the president emergency powers so that in times of national crisis or other emergencies, or general elections, the head of state can dissolve parliament, and appoint interim or national government, without requiring consent of the prime minister.

Fourth, introduce a Federal structure by transforming the existing Divisions into Provinces, and placing the provinces under elected governors. This would result in massive decentralization and de-concentration of power, on top of bringing the government closer to the people.

Fifth, impose term limits for key positions such as the president, prime minister, members of parliament, and High Court and Supreme Court judges-this will prevent long-term entrenchment of power.

Sixth, make the Caretaker government system a permanent feature of the constitution to ensure free and fair elections for foreseeable future. The caretaker system has a proven record of conducting transparent elections-there was no fair and free election in the country since its discontinuation.

Seventh, ensure independence of judiciary by creating a legal framework. The existing constitution not only denies independence to the judiciary, it also does not provide a legal framework for its independent operation. The judiciary, however, must be subject to public scrutiny to ensure its accountability.

Finally, add a Due Process Clause into the constitution to ensure that no citizen can be deprived of life, liberty, or property without following proper legal procedures, following the Magna Carta in the UK and the Fifth Amendment of the U.S. Constitution. Such a clause would constitutionally prevent arrests from homes or properties without a court order. The police would only be allowed to make arrests when individuals are actively committing a crime. Additionally, the authority to file legal cases would be transferred from the police to state-appointed attorneys to ensure more objective legal process.

In conclusion, some observers have questioned in the press whether the interim government has the authority to reform or rewrite the constitution. However, as several retired Bangladesh Supreme Court judges have pointed out recently, any government that assumes power through mass uprising or revolution gains the legitimacy to enact sweeping reforms, and   even to abrogate the constitution. The 1971 Liberation War, for example, granted legitimacy to those who framed the original constitution of Bangladesh in 1972.

Therefore, there is little ground to debate the interim government's authority to pursue constitutional reforms. However, the government's approach to these reforms appears flawed. For instance, the Constitutional Reform Commission is led by a political scientist, when it should be chaired by a distinguished legal expert to ensure both expertise and public confidence in the process.

Dr. Dowlah is a retired Professor of Economics and Law in the United States. Currently, he serves as the Chairperson of the Bangladesh Institute of Policy Studies. (www.bipsglobal.org).