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Thoughts on Constitution of Bangladesh — III

Democracy and Human Rights

by Mustafizur Rahman
DEMOCRACY has different forms in different countries depending on social structure, values and historical background of the countries concerned. There will be nothing wrong if Bangladesh has its own brand of democracy.1 For that matter human rights may have different colour fci different societies. UN charter or western thoughts may not always be right in defining human rights of various countries with long history of advanced civilization. Bangladesh may have her own brand of human rights best accepted by her own people. However, for avoiding arbitrary interference with the process of democracy or otherwise guaranteed human rights by any government for its own convenience, the constitutional provisions must be clear. So. I would like to touch on some of the provisions that may better protect human rights and make democracy functional.
Fundamental Principle** of State Policy
In part II of the constitution (Articles 8 through 25) under the tittle "Fundamental Principles of state Policy, there are important Articles dealing with fundamental responsibility of the state (Articles 14 and 15). establishment of ... free and compulsory education (Article 17 (a), removal of illiteracy (17 (c). prevention of consumption of alcoholic ... drinks (Article 18 (1), prevention of prostitution and. gambling, equality of opportunity to all citizens, efforts of the state not to allow enjoyment of unearned income (Article 20 (2). strive by every person in the service of the Republic to serve the people, and other important matters, but these have been made ineffective by a small provision in Article 8 (2) which reads "The principles set out in this Part shall
be fundamental to the governance of Bangladesh, shall be .... but shall not be Judicially
Rationalization of Existing Laws and
Incorporation of Important Provisions
RcMedThereto
Updating and/or repeal of undemocratic and anti-people laws: There is no doubt, it is a colossal task to rewrite and improve the quality of laws to make them compatible to the needs of a free nation. So far the parliament members whose sole Job is to make laws avoided this responsible Job and ended up mostly with endorsing the laws framed by the executive branch. For any ruling government the colonial type of -laws are too comfortable to give up. They tend to retain or sometimes consolidate them despite public promises otherwise.
The British laws have been continuing with cosmetic changes till today. The Income Tax Act of 1992, the Company's Act of 1913 and many civil and penal acts are still the laws of the country. There may be some good provisions, but there are also provisions that are humiliating to the people as free citi-zens of a free nation.
There are provisions of arbitrary imposition of tax and the tax payer is to prove that the tax is not justified. There is no provision of punishment for imposing deliberately high and wrong amount of tax. even if with a moUve.
The Customs Act provides the Customs officers discretionary power to the extent that they can comfortably abuse their power for personal gain and put the na-
tional economy in jeopardy.
U may be found «h*t <~er 80% of civil cases in Bangladesh are ' directly or indirectly related to land. Most of the criminal cases may also be found to be the extreme cases of land related disputes.
In modern days with modern facilities of land record and survey and documentation. land dispute can be brought down to zero under a rational law. but efforts are yet to be directed towards it.
The import-export policy (Act) is publicly declared and enacted every year, but it seems, after enactment, it is changed arbitrarily halfway without new approval of the parliament. There are legal provisions that allow this change which is normally found to be abused for obvious reasons. Provision* can be made to prevent such loop holes in laws.
It is openly said that the administration is corrupt, there is political favouritism, there is injustice, there is wastage of state fund, but the constitution does not provide for any mechanism for legal action by the general people to correct the government even if it is corrupt beyond doubt.
The laws and the administrative system have all the ingredients of corruption. The people, sometimes even the ministers, happen to say. "there are governments within the government." But no attempts have been made so far to make structural changes to establish a functional governmental system with respect for the supremacy of the people as provided for in Article 7.
Right of Justice for public Welfare (Article 103)! As It stands now, under Article 102, only an "aggrieved person" can move the High Court Division which can issue writ. As it is the duty of each citizen to serve the constitution ‘ and the laws, to maintain discipline, to perform public duties and to protect public property (Article 21 (2). if it appears to any person that the constitution is violated or being violated by someone Including the government, any individual must have the right to move the. Righ Court to issue order against such violation for public welfare. The Article 102 (1) may thus be substituted with —
"102(1) Any citizen of ' Bangladesh shall have the . right to apply to the High
Court Division or any high court tn Bangladesh to issue order against any violation of right, provisions of the constitution or other law for public welfare even though . the .applicant may not be directly aggrieved by such violation. and the High Court Division may give such directions or orders to any person or authority including any person performing any function tn connection with the affairs of the republic, as mdy be appropriate for enforcement of any of the fundamen . tai rights conferred by Part II of this constitution".
Prohibition of discrimination with eseape clause (Article 26(3), 28 (4). 28 (3) (a)): It may be considered that these escape clause may be abused. So it may be better to remove them. So, section (3) of Article 26 may be re-j pealed.
Article 28(4): after women
and children, "or for advancement of any backward section of citizens" may be substituted by "the aged or the handicapped, or'tire victims of natural diMeter,' or residents of recognized risk prone areas. *
Article 29(3)(A): may be repealed.
The term "backward section of citizens’" may call for clear definition, but it is better if this ambiguous term is avoided.
General rights (addition to Article 47A): The Article 47(l)-(3) save many law* which are necessarily rational. 1 think. Article 47( 1)-(3) should be removed "or amended rightly.
The following provision may be added to Article 47A(or elsewhere) so that if reads as "47A(3). The enumeration in this constitution of certain rights shall‘not be construed to deny or disparage others retained by the people".
SPECIAL POWER ACT: This act grossly violates the spirit and purpose of democracy as well as the very intrinsic human rights of a free citizen of a free nation. Constitution must have specific provision that can prevent any scope of enactment of such a law under any circumstances. This law should be declared null and void immediately by the parliament or by a decree for the ■ time being.
RESTRICTIONS ON VOTES IN PARIAMENT: The restriction on the freedom of the members of Parliament (Article 70) is a negation of human rights and curtailment of representation of the voters. This law should not exist under any form of democracy. This should be I repealed.
The Prime Minister and the Cabinet
(Part IV. Chapter 11 Article 55).
Article 56(2) that limits the number of ministers to be appointed from amongst persons other than parliament members [presently amended as one-tenth of the total from previous one-fifth) may be rewritten to provide for appointment of ministers from qualified persons other than members of parliament without restrictions and it may readThe appointments of the Prime Minister and other Ministers and of the Ministers of State and Deputy Ministers shall be made by the President from among the parliament members or persons qualified for election as Members of Parliament and chosen by the Prime Minister, but for the period between a dissolution of Par liament and the next following general election The President can appoint any persons an Acting Prime
Minister, who appears to him to command the support of the majority of the members of the parliament before its dissolution, but is not a member of any political party or a member of parliament for not less than one year before the date of such appointment. Had this provl-Sfori ’ Mkn there in the twelfth amendment, the present dilemma of non-party impartial caretaker government could have been easily solved.
The restriction on the number of ministers from outside the members of parliament is not necessary in that it is the Prime Minister who shall decide the matter for smooth running of the affairs of the government. But this freedom shall permit the ruling party to have access to the talents of the whole nation. which is good for any party which may come to power and is definitely good for thetiation.
Government is usually under pressure from parliament members for political blessings tied with economic benefit. This resulted in a ridiculously high number of cabinet ministers. This was cited as one Of the examples of abuse of power and inefficiency of the government. There may be a constitutional restriction on the maximum number of cabinet ministers say. twenty as in Japan and on the number of ministries, say. between twelve and six teen. There may be one chief Cabinet Affairs Minister who shall be the spokesman of the Prime Minister and the government. supported by one or two deputy chiefs, all of whom shall be senior ministers who shall oversee the operation of different organs (equivalent to ministries in many cases) placed directly under the Prime Minister for efficient coordination.
However, the government may be allowed to appoint vice-ministers (or in other name) to assist the ministers In connection jvlth policy coordination. parliamentary affairs. investigation on public complaints, improvement In functional efficiency and public information related to the ministry concerned. (This is practiced in many countries, though initially there are some objections from some vested interest groups However. unless the system is devised meticulously, it may do more harm than good) These vice ministers may be appointed from among senior experts including qualified Members of the Parliament
Tomorrow: Office of Om budsmaa. PSC and Accountability of Public Servants