Can bicameralism be introduced in Bangladesh?

As the next parliamentary elections get closer, a number of bold claims are being made by the mainstream political parties of Bangladesh. When it comes to the opposition, in particular, the claims are quite stirring. 

Bangladesh Nationalist Party (BNP), despite stating that it shall not participate in the next general elections under the leadership of the existing Election Commission and the current ruling party i.e Awami League, has not shied away from making promises about its future tenure in power. 

One of the claims, quite stirring, and which has been in discussion in recent times within many political parties, is the introduction of a bicameral legislature system.

The details as to whether or not the bicameral legislature would be established in the existing unitary state system, or a new federal system would be introduced, is uncertain. BNP says it intends to introduce the bicameral legislature in order to make the democratic process of Bangladesh more transparent. 

Although the purpose can be considered noble, the prospect and possibilities are dependent on various other factors. For instance, the prospect of a bicameral system in a unitary state system and a federal state system is quite different.

Meg Russel in his 'Rethinking Bicameral Strength: A Three-Dimensional Approach' discusses three components that are necessary for a strong bicameral legislature. These components are the balance of constitutional powers of the houses, the distinction of the representation between the two houses and the legitimacy of the second or upper house. 

For the first element, if the second house is not able to exert real influence over the law-making powers and policy of the first house, then having a bicameral system can only serve as an ornament to the legislative system. 

Moreover, a clear distinction between the representatives of the two houses is essential. Otherwise, having the same kind of representation in both houses is meaningless. 

For instance, in the United Kingdom, while the lower house i.e the House of Commons represented the elected members of commoners, the upper house i.e the House of Lords, represented the aristocracy (there are changes now). 

In the USA, the upper house i.e the Senate, is formed through territorial representation and presents a distinct perspective from that of the House of Representatives. 

The upper or second house should have the legitimacy to actually exercise the power instead of only having them on paper. In the UK legislature, the power of the upper house has diminished drastically over the years. 

Thus, whether a member of the upper house occupies a seat by appointment or election, or by any other process, largely determines whether you get a strong or weak bicameralism.

The effect of bicameralism is fading in the unitary states over the years. The power is being centralised in one house i.e first house, while the upper or second house remains a constitutional ornament. The bicameral system in federalism on the contrary has more possibilities.

In fact, most of the federal states have bicameral legislatures. For instance, in the UK, the upper house can hardly play any role in law-making in an actual sense, as they do not have the power to block legislation but can only delay it for a certain period of time.

However, in the United States, the Senate can exercise actual power in law-making and other functions, subject to certain conditions. Although federalism does not guarantee strong bicameralism, it does enhance the possibility of it. Hence, the discussion of bicameralism in Bangladesh requires extensive study and discussion. 

BNP claims it will introduce bicameralism upon coming to power, or getting the majority of votes. However, just getting the majority of votes will only allow the introduction of bicameralism in a unitary state. Such an introduction would be a late one, as bicameralism in unitary states is in decline. 

The process of how a person becomes a member of the upper house in the case of bicameralism in a unitary state is also quite concerning. If it is determined by the percentage of representation in the lower house, then such a bicameral system will mostly have no effect on democratic transparency, and instead would become a system for unwanted expenditure. 

The reason why BNP gaining only a majority will limit bicameralism to the unitary state is because of the eternity clause, i.e Article 7B of the Constitution of Bangladesh, and judgement of the Supreme Court of Bangladesh in the 8th amendment case, which serves as legal barriers to introducing federalism in Bangladesh. 

According to Article 1 of the Constitution, Bangladesh is a unitary state. In the 8th amendment case, the SC regarded the unitary nature of the state as a basic structure of the Constitution, and thus not amendable. Moreover, according to Article 7B, Part I of the Constitution is not amendable, and Article 1 is incorporated in Part I and thus, not amendable as well.

Therefore, even if BNP gets a majority in the parliament but does not get two-thirds of the seats in parliament, they cannot amend the Constitution, according to Article 142 of the Constitution. Thus, mere majority does not enable the introduction of federalism in Bangladesh. 

Even in the case of a two-thirds majority, the legal barrier of the 8th amendment's precedence will still exist. 

There are many other reasons which may not allow a bicameral legislature under a federal system in the current legal framework in Bangladesh. 

So, whether BNP can surpass these barriers to introduce strong bicameralism, or use it as an excuse once in power to introduce ornamental constitutional bicameralism; or even not introduce it at all, is something we all have to wait and see. 

Akhlak-Ul-Islam Tusar is a final year student at the Department of Law, East West University

Disclaimer: The views and opinions expressed in this article are those of the author and do not necessarily reflect the opinions and views of The Business Standard.