Our Constitution was enacted on 4th November 1972 and it became effective from 16th December 1972. With the passage of time, the Constitution needs changes for establishing proper democracy in the country. To that end some provisions of the Constitution need to be reviewed. The provisions are as follows:
One of the most important Articles of the Constitution is Article 70 which is known as the “Anti-Defection Law”. According to this Article the seat of a Parliament member shall vacate if he votes against the party that nominated him as a candidate in the election whereby he became Parliament member. This single provision provides the prime minister with exclusive power over the members of his/her party.
Democracy is one of the four fundamental principles of our state policy. Article 11 reiterates that the Republic shall be a democracy. But Article 70 of our Constitution directly runs counter to the very idea of democracy. It frustrates all positive devices inthe Constitution in the name of preventing floor crossing.
Article 55 (3) states, “The Cabinet shall be collectively responsible to Parliament.” This provision of collective responsibility has become empty rhetoric because of article 70 asthe Cabinet always rests assured that it is not going to be defeated by motion of no confidence. As a result, every bill, whatsoever undemocratic it may be, gets passed.
From the above discussion, we can say that Article 70 of our Constitution should be amended but not totally abolished. If article 70 is totally abolished, members of Parliament will exercise their right whenever they desire. According to me, Article 70 should be applicable only in case of no-confidence motions and money bills. But in the case of ordinary bills, Article 70 should not be applicable.
Article 66(2) dd and 99(1)
Two other important provisions of the Constitution are article 66 (2) (dd) and article 99(1). Both these Articles make reference to the “Office of Profit”. The Supreme Court held in its decision that the posts of President, Prime Minister, Minister, Chief Adviser or Adviser are not offices of profit. Now the question arises that which posts would be called Offices of Profit. It’s disappointing that our Constitution is silent about the definition of “Office of Profit”. A clear definition would do away with several future constitutional debates.
Article 48(3) and 55
At present the President can exercise nominal power. We know that under Article 48 (3) of our Constitution, the President has to perform every functions in accordance with the advice of thePrime Minister except that of appointing the Prime Minister and the Chief Justice.
The President appoints the Prime Minister under Article 56 (3) and the Chief Justice under article 95 (1) of our Constitution. On the other hand, the Prime Minister is all in all because of article 55 (1) and 55 (2).
According to Article 55 (1) of our Constitution, “There shall be a Cabinet for Bangladesh having the Prime Minister at its head and comprising also such other Ministers as the Prime Minister may from time to time designate.”
According to Article 55(2) of our Constitution, “The executive power of the Republic shall, in accordance with this Constitution, be exercised by or on the authority of thePrime Minister.”
According to Article 55(3) of our Constitution, “The Cabinet shall be collectively responsible to Parliament.” But the effectiveness of this provision is vitiated by virtue of Article 70 ofthe Constitution.
Because of the above Articles, it can be said that the Prime Minister is the Constitutional dictator. The appointment of Ministers, removal of Ministers and the size of Cabinet etc all rest with thePrime Minister. It seems that the Cabinet in Bangladesh is like a solar system where the Prime Minister is the sun and the others are planets around him/her because of Article 55(1) and 55(2). Here, I propose a balance of powers between the President and thePrime Minister.
We know that there are three main organs of a government. And Judiciary is one of them. But it’s a matter of sorrow that the office of Chief Justice is not secured because of Article 97 of our Constitution.
It is said in Article 96 that a Judge cannot be removed only by the President without recommendation of the Supreme Judicial Council.
But, by means of interpretation of Article 97, the President has the power to remove the Chief Justice without any recommendation of theSupreme Judicial Council . According to Article 97, if the President is satisfied that the Chief Justice is, on account of absence, illness, or any other cause, unable to perform the functions of his office then the President shall appoint a new Chief Justice. In this provision, by insertion of the words “any other cause” there is a reservation of power for the President to remove the Chief Justice. So, although all offices of judges are secured but the office of Chief Justice is not secured.
For such kind of provision, the Chief Justice of Pakistan was removed by President Parvez Mosharraf. That’s why a chaotic situation ensued in Pakistan. Such kind of situation may occur in our country too. That’s why to avoid such kind of difficulties, Article 97 should be amended.
At present, some people are raising their voice for bringing about changes in our Constitution. Above are my recommendations for consideration of readers and all concerned people.
Mohammad Rayhan Uddin, Department of Law,
LL.B. (Honors) (9th Batch),
Premier University, Chittagong, Bangladesh.
Cell No: +8801914676110