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Thoughts on Constitution of Bangladesh

Extra-constitutional Solution - How Long and How Often?

by Muninfiziir Rahman
***Starting today, this Is the first in a series of write-ups on the subject by' the author who worked on detailed provisions of a proposed constitution for several years.EVER since our freedom in 1947 from the colonial rule, we have experienced good many socio-political changes through extra-constitutional' events. Highly costly political Independence of Bangladesh is also an outcome of extraconstitutional • events. While the sufferings and sacrifice of the people in all the processes are still fresh iC memory, people in differenT political groupings are now clamouring for another extraconstitutional arrangement in the name of general people who are still virtually the hostages of anti-people ad-ministrative system, discretionary laws, institutionalized - corruption and absence of sense of national 'direction. People have not yet earned their individual liberty and freedom which they have' been aspiring for over more than last halfa century, if not more than two centuries and a haff
The laws that ruled the people for so long are still in filace. Wbrse laws are also ramed to rule the people. The government of a free na-tioo is not supposed to rule the people. Its duty and power is to efficiently manage the affairs of the state on behalf of the people. The law makers are supposed to frame laws with due respect to the personal liberty of the people for the welfare of the people and the state. The constitution of the country must guide and mandate the law makers to frame and enact laws with responsibilities towards the people only.
One may wonder why people finally accept the extra-constitutional arrangement. I think either they feel they are helpless, or they are too good and forgive the betrayal of the past and pin their new hope to any new arrangement which Just betrays them again.
A well-thought constitution could be framed in
1947. or in 1971-72, or in 1991 (when amendment was confined to changeover to parliamentary system) or at any other time in between. This could have saved repetition of scopes or occasions of short-sighted extra-constitutional arrangement. We re-. peatedly lost chances
It has always been criticized that the government trover-si zed. Inefficient, corrupt and less responsive to the welfare .of the people. There are many institutions, that are outliving their usefulness. There are governments within the government. The productive sector of economy is dwindling. The foreign debts are mounting. The quality of education is deteriorating. Unemployment and underemployment is increasing. Poverty is a aggravating. The land and tax related system is being used as a means of public harassment and extortion. Police system is highly questionable. The human rights are being violated. Unfortunately there has been no remedy for obvious reasons. As long as these would continue, there would remain public dissatisfaction and stability will not come so easily and question of extra-constitutional arrangement shall surface again and again.
Many countries such as South Korea, the Philippines. Brazil. Argentina. Pakistan and so on have in recent years amended their consti-tutions. The countries that are enjoying rather peaceful political environment and rapid economic growth have good many provisions in their constitutions. Unfair provisions introduced by ruling governments for shortsighted convenience usually backfire some day.
I think, ft is now time for us, though late enough, to put together our wisdom irrespective of political stand or
ideology to recast our constitution so that it can ensure an environment of peace for national prosperity, and peaceful transition of power for continuity. The constitution must ensure discharge of responsibility that goes with power.
There should not be any* prejudice against either par-liamentary' system or presidential system. We can openly debate and go for what is more likely to work better here.
The parliament may be unicameral or bicameral. The number of members of parliament may be 300 as it Is or 200 to 250 (even in case of bicameral system) in consideration of the burden on national economy. The parliament must be made functional. The parliament members may be given enough remuneration and fund to carry out various studies for improvement or preparation of bills. The position should , not anyway be allowed to be a part time job.
The constitution must provide for real power to the people to prevent any government from acting arbitrarily against the interest of the people or the state. Only the major provisions that concern the people directly or likely to ensure fairness, justice and peaceful transition of power are mentioned here as a prelude to the debate on a cherished constitution for the welfare of all with the expectation that the concerned citizens shall come up with brilliant Ideas towards formulation of a new or recasting of the present constitution to make it a lasting gift to generations to
come.
In this connection. I would like to touch on some constitutional provisions that may either be amended, re-Inoved or added for eliminating some of the weaknesses ot the constitution of Bangladesh in bringing about good government and national prosperity, and avoiding the need for extra-constitutional ad hoc arrangement to solve so-called political crises oncq for all.
Access to Public Information (proposed addition to
Article 39 (2))
As access to public information by citizens can stop some corruption or cover-ups before they can be harmful to the state and the people, and help the public in helping the state with educated ideas and also as such information is the property of the people, the people must have access to public information. It is therefore proposed that the following' section be added after section 2(b) of.Article 39 as its section (3) and (4) :
"(3) Subject to reasonable conditions prescribed by law, the state shall adopt and implement a policy of full public disclosure of all Its ■ transactions involving public interest":
"(4) The right of the people to information on matters of public concern shall be recognized. Access to official records, and to documents, and papers pertaining to official acts, transactions, or decisions. as well as to government research data used as basis for policy development, shall be afforded to the citizens. subject to such limitations as may be provided by
law that shall not abridge any right guaranteed by this constitution."
People's Right of Enact, meat on Direct Initiative (a proposed addition in Article
- 39'as Section (5). '
Though it is recognized thW "air powers in the Republic belong to the people...", there is nq specific provision to exercise the powers -peacefully- except through representatives with various limitations. ' For establishing peaceful means of exercising these powers when extraordinary situation arises, it is proposed that the following clause be added in Article 39 as its section (5) or elsewhere which may read as—
"(5) The parliament shall, within not more than three years from the date of ratification of this amendment, provide for a system of initiative and referendum. and the exceptions therefrom, whereby the people shall directly be able to propose and enact laws or approve or reject any act or law or part thereof passed by the parliament or local self-government body after registration of a petition therefor signed by at least ten percentum of the total number of registered voters, of which every legislative constituency district must be represented by at least three percentum of the registered voters thereof.
It is believed that such a provision shall reduce the chances of violent protest and likely to create a framework for peaceful transfer of power, which has never happened in the history of Bangladesh. (This provision may serve as a safety valve against any explosive political crisis.)
Amendments or Revisions of Constitution (Article 142)
Some of the matters that would have needed referendum are made free from that obligation under the 12th amendment. This is a very vital provision for the people. The people must have a direct say on any amendment through referendum pr through Initiative. The Article 142 14 thus proposed ro be substituted with —
"142 (1). Any amendment to. or revision of-or addition to this constitution may be proposed by :
(a) The parliament upon a vote of two-thlrds of all members; qr
(b) The people through initiative upon a petition ofat least ten percentum of the total number of registered voters, of which every constituency for preceding parliamentary election must be represented by at least three percentum of the registered voters therein.
No amendment under this provision shall be authorized within three years following ratification of the amendment incorporating this provision nor oftener than once every three years thereafter.
(2) Any amendment to, or revision of. or addition to the constitution under provision (1) (a) shall be valid drily when ratified by a majority of the votes cast in a referendum which ^hall be held not earlier than sixty days nor later than ninety days after the approval in the parliament in case of 1 (a) or after certification by the Election Commission, of the sufficiency of the petition in case of 1 (b) of this Article.
Tomorrow: Political Party, Citixcn Registration and National Security Council
The author, a PhD, is Director General. International Industry Technology Promotion Agency. Tokyo and Cha irman. The Institute of Development Strategy. Dhaka.