To keep institutions strong, constitutional reform is crucial

Infographic: TBS

As a lawyer and counsel in constitutional cases, I believe the most important thing is for the institutions to function. Reform, of course, is crucial, but I think it is even more vital for the institutions to function. This can be easily explained by comparing governance and people's rights before and after 5 August. For instance, now, you can protest in the streets without the fear of being shot. You can write freely, and no one is arresting you or subjecting you to enforced disappearance. There are no extrajudicial killings, and the media can publish whatever it wants.

However, when you think about it, the Constitution has not changed. It remains the same as it was before 5th August. The same constitution exists in Bangladesh today. Yet, people's rights are now being protected under the very same constitution. So, what has changed between the time before and after 5th August?

The change lies in the fact that the autocratic system has been removed, allowing institutions to operate impartially. These institutions are no longer working to perpetuate a despotic regime; instead, they are functioning as they should within a constitutional framework. That's why people's rights are now being protected. While the Constitution is undoubtedly important, it is far more crucial for the institutions to work effectively. One way to look at reform is to examine why the institutions failed to function in the past. Now, they are working, but this was not the case before. Therefore, I believe one of the key objectives of reform should be to ensure that institutions function properly.

As an example of an institution, one can consider our Supreme Court. For the last 15 years or so, until 5th August, it completely failed to protect people's rights. But now, the court is safeguarding those rights. The constitution has not changed; rather, the spirit and the attitude of the institution have. The way the institutions, including the executive branch of the government and the Supreme Court, operate has transformed, and that is why people's rights are now being respected by the executive and protected by the Supreme Court. The same can be said of all institutions, such as the Anti-Corruption Commission, the Election Commission, and others. I'm mentioning a few key examples, but this applies to all institutions, even those overseeing the country's economy, such as the Bangladesh Bank, the Securities and Exchange Commission, investment or tax authorities, etc. Institutions are vital, and for 16 years, none of them functioned effectively, which is why people's rights were not protected.

When institutions function, even without constitutional reform, the government improves, which is evident now. The constitution has not been altered; people are discussing reform, but none has been implemented as of yet. The only change that has occurred is the functioning of the institutions, which demonstrates their importance.

One objective of reform is to ensure that no future regime or prime minister can dominate or manipulate the institutions, making them unworkable. This can be achieved, for example, by ensuring that the right people are appointed to the right positions in various institutions. Previously, all appointments had to be made through the prime minister, consolidating all power there. Since the prime minister was the centre of the system, no appointments could occur without her approval. In such a system, all institutions were effectively held hostage to the prime minister, which is why they failed to function. To prevent this in the future, the appointment process must be accountable and structured in such a way that prevents any individual from controlling all institutions, directly or indirectly.

Reform is not just about creating a new document; you can create another one, but if institutions don't function, you will be back to square one. Another key aspect of reform is recognising that reforms can only take us so far. Ultimately, we need the right people in the right positions. It doesn't matter how well the constitution is written or how comprehensive the laws are – if the right people are not in the right roles, performance will remain poor. For example, concerning the judiciary, our constitution, even before any reforms, guaranteed the independence of the Supreme Court judges. Once a judge is appointed, they cannot be removed without a constitutional process. To ensure judicial independence, the tenure of judges must be secure, and the terms of their employment cannot be altered. These are all guaranteed in our constitution. However, if a judge does not feel that they are independent or if they feel pressured to please someone or are influenced by external forces, no amount of constitutional guarantee will result in an independent judgment.

Institutions are run by people, and these people must feel they have a duty to the public, not to a particular individual, party, or government. This cultural shift is essential for the effective functioning of the institutions.

Electoral reform is critical for ensuring people's rights and good governance. Election is the foundation of an accountable government. If we look at our history from 1990 to 2001 when we had fair, periodic elections, governments were accountable, and people's rights were respected. However, when the 15th Amendment removed the process for fair elections, the government began to manipulate elections to stay in power, eliminating accountability and safeguards. The government started acting without regard for the people. Therefore, ensuring free and fair elections every five years is vital. In a country like ours, this is a realistic goal, given our limitations, such as resources and underdeveloped institutions. Nevertheless, having free and fair elections ensures that the government remains accountable to the people, preventing authoritarianism and arbitrary actions. This is why electoral reform is so important.

The 15th Amendment case is significant because we were able to achieve this reform through the court. The court's decision allowed for the reinstatement of a non-partisan caretaker government to ensure free and fair elections every five years.

Article 70 of the constitution should be reformed, as it hampers the accountability of party leaders. Members of parliament, though elected by the people, cannot take action against the prime minister if they feel she is acting against the people's interests. Therefore, Article 70 needs to be addressed in the context of the constitutional reforms we are discussing.

Checks and balances between the president and prime minister are also important. Making institutions functional and neutralising the appointment process can curtail the power of the prime minister, leading to a more balanced system.

Proportional representation in parliament is an idea gaining popularity, though some political parties may not be ready for it yet. A potential solution could be to have a directly elected lower house and a proportionally represented upper house of the parliament.

With regard to the election-time government, it might be possible to have a system for all parties in parliament to agree on a chief advisor, with a default system in place if they cannot reach a consensus. The chief advisor would then nominate other advisors. If the agreement fails, the constitution must outline the steps to resolve this situation, preventing a deadlock. One possible solution could be to appoint the most recent retired chief justice as a last resort.

Constitutional reform requires the involvement of elected representatives, which is why the government has formed the National Consensus Commission. Its goal is to build a consensus on reform, ensuring political commitment from all parties and stakeholders to implement these reforms after the election. Some reforms, such as public administration, police, and media reforms, can perhaps to an extent be achieved without elected representatives, but constitutional reform requires their involvement.

Therefore, the consensus and commitment of political parties is essential, and the National Consensus Commission, headed by the chief advisor, has been established to create a national consensus on reform, including constitutional amendments, and to secure political commitment before the election. The referendum requirements restored by the 15th Amendment Case concern only a few specific articles, not the entire constitution. The process outlined in the constitution requires that amendments be passed by parliament with a two-thirds majority, followed by a referendum in respect of amendment of certain articles.

As for the transformation of the interim government into a caretaker government, I don't think that is possible. The current government was formed under unique circumstances, and it cannot be restructured into a caretaker government. The constitutional provisions for a non-partisan government no longer exist. The constitutionality of the current government comes from the appellate division's opinion and the doctrine of necessity, which addresses the constitutional vacuum that was created when the prime minister fled the country. This created an unprecedented situation that required immediate action to safeguard the safety and security of the country and the people. The current government was formed to address this crisis, and its legitimacy is rooted in the doctrine of necessity and the appellate division's opinion.

Dr Sharif Bhuiyan. Sketch: TBS

This article is transcribed by Senior Correspondent Rezaul Karim of TBS based on a conversation with Dr Sharif Bhuiyan, a constitutional expert and senior advocate at the Supreme Court of Bangladesh. The views and opinions expressed in this article are those of Dr Bhuiyan's and do not necessarily reflect the opinions and views of The Business Standard.