Bangladesh constitution, what's lacking?Part 2
- The constitution declares "the people of Bangladesh shall be known as Bangalees as a nation", which discriminates against the country's significant non-Bengali communities.
- The constitution describes non-Bengali communities as "tribes, minor races, ethnic sects and communities" instead of recognizing them as indigenous people as demanded by civil society groups
- According to Article 70, Members of Parliament do not have a free vote in the Jatiyo Sangsad. MPs will lose their seats if they vote against their party. This bars the Jatiyo Sangsad from removing a prime minister from office through no confidence motions. Critics argue that Bangladesh's parliament is a rubber stamp and a lame duck.
- The High Court cannot have branches other than in the capital. This has caused burdens for litigants and the judiciary across the country
- The 90-day deadline for MPs’ absence has been exploited by opposition parties to enforce opposition boycotts. MPs lose their seats if they are absent for more than 90 days. Opposition MPs often attend sessions only as the deadline nears. Proposals have called for the deadline to be reduced to 30 days or less.
- In Westminster systems, the dissolution of parliament takes place when a general election is called. The fifteenth amendment in 2011 allowed parliament to continue during an election period. Critics have questioned whether a free and fair election can be held with sitting MPs.
Article 33
This Article deals with “safeguard as to arrest and detention”. This Article provides one of the most debatable provisions so far Constitutional laws is concerned, because of some negative provisions as it contains.
This Article provides a provision for making law on preventive detention. And under this authority the Special Powers Act, 1974 was enacted which is the most draconian law. Every riling party abuses this Act to subjugate the oppositions.
Another thing is that this Article provides three Constitutional safeguards for a detention under preventive detention law-
a) Review by an Advisory Board.
b) Right to communicate of grounds of detention.
c) Right to representation against the order of detention
It is to mention here that the third right (right to make an effective representation) depends upon the second right (right to communicate of grounds). Because without knowing the grounds, information and particulars it is not sufficient for the person detained to make an effective representation against the detention order. But provision of Article 33(5) says that detaining authority may refuse to disclose facts which such authority considers to be against the public interest to disclose. Thus the second and third constitutional rights of the person detained become worthless.
These were the negative aspects of Article 33.
Article 93 provides for the Ordinance making power of the President. According to this Article the President can make Ordinance in the following two grounds- (i) when parliament is not in session and (ii) when Parliament is dissolved. In these two cases the President can promulgate Ordinance only when he is satisfied that circumstances exist which render immediate action necessary.
The backward aspects of this Provision are as follows-
· As far it is depends upon the subjective satisfaction of the President, it enables the executive to play an uncontrolled hand in abusing power.
· Not to meet any urgent situation but just with a view to by-passing the Parliament the executive makes a huge number of Ordinances during every recess of Parliament.
· It uproots the democratic norms as public opinion cannot get any chance to play its role through the members of the Parliament.
Article 115 provides that “appointments of persons to office in the judicial service or as Magistrates exercising judicial functions shall be made by the President in accordance with rules made by him in that behalf”.
So the executive organ has a clear hand to abuse this appointment procedure. It depends upon the sole wish of the executive organ of the State. And they can use this power in their favor.
Article 117 provides for the establishment of Administrative Tribunal, but it does not mention who will chair this tribunal, what will be their qualifications, what would be the conditions for their security of tenure. Again, this tribunal has been kept outside the writ jurisdiction of high Court Division under Article 102(5). Also it has been kept out of the supervisory jurisdiction of the High Court Division. This provision has, therefore, been contradictory to the concept of integrated judicial system and of independence of judiciary.
Under Article 141A the President can declare emergency if he is satisfied that there exists a grave emergency in which the security or economic life of Bangladesh, or any part thereof is threatened by war or external aggression or internal disturbance.
So the President can issue Proclamation of emergency on the aforesaid three grounds. Precisely speaking, there is no objection about the first and second ground as they are defined in the international law. But the question is about the third one. This term ‘internal disturbance’ is uncertain and vague. So the President can proclaim emergency in the peacetime to suppress the oppositions.
Again, the proviso of Article 141A (1) provides that the proclamation of emergency shall require for it validity the prior counter signature of the Prime Minister.
So, the point is that virtually it depends upon the wish of the Prime Minister. Whenever the Prime Minister advises the President to declare emergency, the President is bound to so. So it leads a great risk of abuse of power.
Another important and most debating matter in the recent time is the Sub-Clause (c) of Clause 2 of this Article. It says that, a proclamation of emergency “shall cease to operate at the expiration of one hundred and twenty days, unless before the expiration of that period it has been approved by a resolution of Parliament:
Provided that if any such Proclamation is issued at the time when Parliament stands dissolved or the dissolution of Parliament takes place during the period of one hundred and twenty days referred to in sub-clause (c), the Proclamation shall cease to operate at the expiration of thirty days from the date on which Parliament first meets after its reconstitution, unless before that expiration of the said period of thirty days a resolution approving the Proclamation has been passed by Parliament.”
This is a vague provision and that is why the Fakhruddins’ Caretaker Government lasted almost 2 years.
Article 118(4) of the Constitution dictates that the Election Commission is independent in the exercise of its functions and subject only to the Constitution and any other law. The provision has not yet been implemented. In fact the issue of an independent Election Commission has become a political rhetoric. After years of independence, the Election Commission is still dependent on other ministries including the Ministry of Establishment and the Prime Minister’s Secretariat for any vital appointment.
The posts of Election Commission Secretary, Additional Secretary, and Joint Secretary are routinely filled up routinely according to the dictates of the Prime Minister’s Secretariat even without any consultation with the Chief Election Commissioner. Recently the Parliament enacted the Upazila Parishad (Amendment) Act 2001, which abruptly took away the power of the Election Commission to fix a date for the Upazila Parishad Election.
Human rights and the constitution
Despite constitutional guarantees of fundamental human rights, Bangladesh's government and security forces are accused of many human rights abuses.
Free speech
According to Amnesty International, the government of Bangladesh has sought to trample its citizens' right to free speech on the internet through the Information and Communications Technology Act. The law can be argued to be in violation of Article 39 of the constitution. The Foreign Donations (Voluntary Activities) Regulation Act which imposed the government's restrictions over the work of non governmental organizations. The law has also been argued to be against the spirit of the constitution.
Torture and enforced disappearances
In 2017, Radio Sweden ran an investigative report which alleged torture and secret killings by the Rapid Action Battalion (RAB). RAB has been described by Human Rights Watch as a "death squad". Torture and other ill-treatment in custody was widespread; however, complaints were rarely investigated. The 2013 Torture and Custodial Death (Prevention) Act was poorly enforced due to a lack of political will and awareness among law enforcement agencies. Human rights groups accused several security force branches – including police and the Rapid Action Battalion – of torture and other ill-treatment. Torture was carried out to extract “confessions”, for extortion or to punish political opponents of the government.
These activities of Bangladeshi security forces contravenes Article 32 of the constitution which concerns the right to life and personal liberty.
Chittagong Hill Tracts
The government is yet to fully implement the Chittagong Hill Tracts Peace Accord. There have been legal challenges which question the accord's place in the unitary structure of the Bangladeshi state. Regional political parties have demanded constitutional recognition for the indigenous people of the region.
Recommendations for Strong Constitutional Jurisprudence
Constitution is the parent of all laws. So, it is not desirable that there will be some flaws in it. But the Constitution of Bangladesh contains some backwardness. For the existence of those weaknesses in the Constitution of Bangladesh, the democracy turned into a far reaching substance like moon that the common people cannot achieve it.
Hence, there will be some propounds from me but all of these will be based on the abolishment of certain erroneous provisions, on insertion certain new provisions to aid the existing provisions and on modification or alteration of certain existing provisions of the Constitution of Bangladesh. The intimations from me are specified as under:
Provision relating to anti-defection laws
The provision of floor-crossing is for the stability of the government. The stability of government is tested only by a motion of no-confidence or confidence. The application of the provision of 70 must, therefore, be restricted to a vote on a no-confidence or confidence motion only. A normal or general bill is not necessarily connected with the stability of the government. The government may fail to pass a bill, be it a money bill or cut-motion or any other bill. But failure of passing this bill or even defeat in a cut-motion does not mean the fall of the government. The government has to face a no-confidence motion and lose before it falls.
If the anti-defection law is applied only to motions to no-confidence or confidence, MPs will have freedom to oppose an undemocratic bill, be it money bill or approval of an ordinance. As a result, rule of law and the spirit of responsible Parliamentary government will not be so hampered.
So, the Article 70 should be reformed and modified in this way that the anti-defection law will be applicable in motion of no-confidence or confidence, but not in any other matter.
No provision for motion of censure
There is no provision for ‘motion of censure’ in the Constitution of Bangladesh. No motion of censure, therefore, can be made against a minister for any corruption in his ministry. The Constitution of Greece specifically provides for vote of censure. So a provision of vote of censure must be included in the Constitution of Bangladesh to ensure the ministerial responsibility.
Uncertain Fundamental principles for the State
Article 8 provides some uncertain Fundamental Principles for the State. Article 8(1) provides that “the Principles of absolute trust and faith in the Almighty Allah, nationalism, democracy and socialism.”
Again, Article 8(2) says that the principles shall in the following spheres-
a) They shall be fundamental in governance of the country,
b) Shall be applied in making law,
c) They shall be a guide to the interpretation of the Constitution and of other laws of Bangladesh.
d) They shall form the basis of all works of the State and of its citizens.
Now, the question is that the principles mentioned in Article 8(1) are self-contradictory as we said before in the topic of ‘Backwardness of the Constitution of Bangladesh’. In this situation how can they be applied in the foremost grounds prescribed in the Article 8(2)? So this vital provision (Art-8) must be modified and the fundamental principles must be ascertained.
Safeguard as to arrest and detention
Article 33 provides ‘safeguard as to arrest and detention’. As well as this Article provides the authority to made preventive detention law. And under this authority the Special Powers Act 1974 was made. It permits preventive detention all times. As far as preventive detention is concerned it should be applicable during the grave emergency. So, this Article must be reformed, because it violates the Article 36.
The Ordinance making power of the President
The Ordinance Making power of the President (Art-93) is one of the main sources of abuse of power. As the power to make ordinance depends upon the subjective satisfaction of the President, it can enable the executive to play an uncontrolled hand in abusing power.
So, the power to make ordinance should bring into a controlled format. The suggestion in this regard may be that when there is the existence of such situation which needs ordinance to face, the President may make ordinance. But this ordinance before coming into force must be published before the public, so that people can participate in this matter.
Provision relating to the Emergency
Article 141A says that the President can declare emergency on the ground of war, external aggression or internal disturbance. On the other, the proviso of Article 141A (1) provides that the proclamation of emergency shall require for it validity the prior counter signature of the Prime Minister. Thus it made the provision conflicting. So, this provision must be reformed.
And it is also important to change the provision if the emergency is declared at a time when the Parliament is not in session, so that no further third party like the last Caretaker Government can take the favor of its vagueness.
Article 142(2) and Article 26(3) provides an unconstitutional provision that is Article 26 shall not apply to the provisions amended by Article 142. So the Parliament can amend the Constitution violating the fundamental rights of the people. So as soon as possible this provision must be abolished.
Before enacting any law it should be produced before the common people so that they can give their opinion on it. The essence of this statement is that the government should establish the public opinion in every sphere of life. It is one sort of democratic object. And in order to ensure public opinion a provision should kept in the Constitution not in the directive Part, but in the obligatory Part. The reason behind giving emphasize to establish public opinion is that if once the public opinion is established with the judicial enforceability then the government will fall under a pressure and they will remember all the time that the people is the source of all power and then the will act according to the aspiration of the common people.
Power of the President
The President is a doll made by timber. That is to say that when a bill is brought before him in order to have his assent, though his is not given any assent, but after the expiry of the prescribed time the bill will be deemed to have assented by the President. This provision must be changed, because this provision underestimates the President and should be reformed in this way that if the President does not give any assent to any bill, then after the expiry of the prescribed time, it will go back to the Parliament for reconsideration. The President cannot do it in accordance with his will. There must be a legislative board for the President to make him understand that whether the bill is healthy one or not.
So, these were the suggestions on our part to make the Constitution of Bangladesh a strong one. As soon as we can conquer the existing problems prevailing in the present Constitution of our Country, we will have a healthy Constitution.
Concluding Remark
Constitution is the supreme law of Bangladesh [Art. 7(2)]. It is the reflection of peoples’ wishes and desires.
source-www.wikipedia.com,
https://www.lawyersnjurists.com/article/a-dissertation-on-drawbacks-of-the-constitution-of-bangladesh/
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