A review on the recommendation of Constitutional Reform Commission

The people of Bangladesh aspired for long for having a constitution which will prevent perpetually the evaluation of any kind of fascism or despotism. The people of Bangladesh are not cherished that the constitution of Bangladesh should be framed in such a fashion that in future no autocracy, despotism, nepotism will ever emerge in future. We also expected that and welcomed any kind of reformation that would have a sustainable impact on the rulers who would refrain from being despotic in the discharge of their own functions.

The reform proposal that has been forwarded by the reform commission so far I am concerned has my mixed reaction. At the outset I am quite disappointed to see that the reform committee has come forward with a reform proposal to change the name of the country. We have proposed that the words 'Nagarik Tantri', and 'Janogonoantri' Bangladesh be used in place of 'gono projatantri' Bangladesh. This is absolutely redundant and has nothing to do with the real reforms of opinion that it is absolutely futile and useless to change the name.

The commission has proposed that the citizens of Bangladesh be recognized as Bangladeshi. I fully support this view as a nation we are certainly Bangladeshi and there is no doubt in it. However, the word Bangladeshi has been proposed to be omitted possibly in the context that in Bangladesh there are other nationals, other people who speak different languages other than Bengali. Though the justification has not been given well, I understand that Janoganaer Jatiyota Bengali may be omitted and this is justified in the context that other than citizens who speak Bengali, some citizens also have other languages.

Then a very fundamental proposal to change the fundamental state policy has been proposed namely secularism, socialism and nationalism. This three fundamental policy of state has been proposed to be amended. These are the basic structure of the constitution and therefore this is not amenable to any change. Then certain changes have been proposed under fundamental rights namely right to food, right to education, right to treatment, right to shelter, housing, right to access to internet, right to information, right to vote, right to privacy, etc. The right to vote, the right to the administration of state, these are in fact the fundamental right to state policy. The right to another franchise may be included as a fundamental right but the right to administer state cannot be a fundamental right because anybody may go to the court and may ask for enforcement of this fundamental right. This cannot be a fundamental right.

Then right to food, education, these are also rights under the right as to state policy but these rights for the time being are not that easy for the state to ensure to the citizens. The citizen cannot, does not have a state so it can afford to provide food to every citizen. The state is not also in a position to accommodate treatment to every citizen of the country nor does it have any ability to fix the shelter to have access to the internet. These are all impractical for the time being.

The right to privacy is still a fundamental right guaranteed in the constitution. So this has to be, these aspects have to be considered very carefully and not all but a few of them may be taken as a fundamental right.

Then another very important aspect is that the right to get bail has been proposed to be inserted in the fundamental right but the right to bail cannot be a fundamental right as it is just a discretion to the court. If it is made a fundamental right then any accused of a murder may go to the court and may ask for this right to be enforced. If it is made a fundamental right then anybody may be released on bail since it is the fundamental right and cannot be put behind the bar for even for any even for committing any heinous offense. So this is not practicable.

A proposal has been made to make changes in the national assembly. It has proposed that it will be a bicameral system of parliament. It will have a higher chamber and lower chamber. The higher chamber has been proposed as Senate and the lower chamber has been the higher house has been named as National Assembly. The lower house has been termed as National Assembly and the higher has been termed as Senate. It has been proposed that there will be 400 members altogether in the National Assembly that is Nimna Kokkho out of which 300 will be elected directly from the people's representative and 100 lady representatives will also be elected in their respective electorate. When there is an existing 300 member parliament it is not known why it has been raised to 100 to 400 more so 100. Other female members have been proposed to be inserted even by election when the female members already have their seats by your competition in 300 membership. So it is not known why 400 has been member has been proposed out of which 100 from female and that too by way of election that is not known and what will be the useful purpose to be served that has not has been indicated and then the members of Senate is proposed to be elected or nominated by the representative vote of the members of National Assembly in proportion to their numbers of numbers being elected.

Therefore the persons who will be in Uccho Kokkho namely Senate out of 100 they will be nominated by already by the members of National Assembly and as such it is easily it is understood and not difficult to perceive that this persons will be just a spoke persons of the members of National Assembly because they will be their appointee only 5 persons will be selected by the president I do not think that it will serve any good purpose for the democracy or sustainable democracy. The reform proposal has not in particular described what would be the function of the members of Uccho Kokkho and how the balance will be created by the members of Uccho Kokkho nothing has been stated. It is not clear why the proposal for Uccho Kokkho has been made so and in the absence of definite terms of reference and functions being pointed out it will just be a matter of expense without any fruitful purpose.

Given the prime minister and the office of president it was expected that there would be provisions to be made to reduce the functions of the prime minister but no significant change from the existing provisions is seen in the proposal nor there has been any substantial reform been pointed out which suggests to create any balance between the functions of the prime minister and the president.

it was expected that the present constitution makes unfettered power in the hand of the prime minister the prime minister is the person who exercises the all are all are every of the powers of the executive unfettered power there is no proposal in the reform which will suggest how the unfettered power can be balanced or can be negated how it can be how the prime minister's power can be reduced and can be can make a balance with any other authority. If nothing has been stated, the president's power has been increased in a way so as to match the power of the prime minister there is no check and balance that has been created. Therefore no substantial change of power either of the president or the prime minister and therefore the main apprehension of the citizens that the place the future prime minister may again be have the trend of being despotic again there will be a system of  tyranny be established, We don't see any real positive approach in the reform which will deter the trend of future prime minister to be less powerful and that will prevent a future prime minister not to be despotic. Therefore it is a room for frustration that there is no effective reform suggestions reducing the power of the prime minister or there is any balance of power between the prime minister and the president.

Then the Supreme Court of the judiciary, it has been proposed that the high court division to be decentralized however the the petition the seat of apparition will be not up this is a status that was that has already been settled and the apex court in the case of 8th amendment held that the decentralization of the benches of the high court division is unconstitutional. Therefore this proposal is already against the constitution and directly ultra-virus of the constipation.

We however welcome the gesture that has been found in the proposal that the senior most judge will be the prime chief justice of Bangladesh. This is undoubtedly a good proposal and in the absence of any such provision being in the constitution. In the past quite a good number of justices in the apex court either had resigned or didn't join in the court and thereby we had we had because the nation was unlucky unfortunate not to have some of the very good judges as chief justices. Therefore I really welcome this gesture. The most senior judge will be the chief justice however this proposal has not made any suggestion as to who would be the judges in the appeal e division.  There would have been some suggestions in this regard. We always expected that the most senior judges of the high court division and of course the majority had to be given the highest preference yet seniority.

The Commission has proposed for a 'jatya shangbidhanik council' national constitution comprising the president prime minister, the leader of the opposition, the speaker of the lower chamber, the speaker of the higher chamber Bangladesh, the chief justice of Bangladesh and the deputy speaker nominated by the opposition party. I think that such a council is appropriate and may play a good role. The proposed council comprises various persons of high designation however it is not appropriate for the chief justice to be a member in that council. It is not the function of the chief justice and therefore I recommend that he the Bangladesh chief justice may not be a member of the city committee who has other executive functions as well.

I appreciate the tenure of the president of the prime minister being for us and the both of them not to be appointed respectively as president and prime minister for consecutive for two terms this is a good amendment. So after being consecutively the senior prime minister the case may be remaining the post for two terms namely for eight years he to or she has to go that is a good proposal and this was a long cherished desire of the citizens if implemented then country will be benefited.

The provision of interim government, I think between the caretaker government system and the proposed system, I think the caretaker government system is better and I am of opinion that the existing system if restored in the constitution, should be the system for interim government and of course the interim government should not exercise and discharge any functions other than anything any function is needed to the election that will be their prime duty and the interim government will not concentrate on anything which does s the policy matter of the government.

Then five commissions have been proposed namely Human rights commission, Election commission, Public service commission, Local Government commission and Anti-corruption commission, the proposal is that this commission shall have the status of constitution this will be constitutional commission. I think that will create problems with the independence of this commission. In the existing system these are all state recuperations and have enjoyed their own autonomy, if these are commissions of having constitutional status then the commission's head of the commissions will be dependent and subservient to the members of the parliament and they will be often dictated or there will be scope for dictation. Therefore I think the system now being followed will run better. If these commissions have the status of commission of statutory status. Therefore I oppose the proposed amendment with regard to these five commissions.

Ahsanul Karim is a constitutional expert and a senior advocate at the Supreme Court of Bangladesh.

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