EVERY nation in the world claims to have a constitution, but most of them don't practice constitutionalism and only some have constitutional governments (CG). The time seems to be appropriate for an examination of the general application of constitutionalism in Bangladesh in the current situation.
For delineating CG, Stanley de Smith sets the following five tests: (i) political competition, (ii) free, fair and periodic elections, (iii) government accountability, (iv) popular participation, and (v) effective guarantees of civil and political liberties. People having experience of the recent political maneuverings in Bangladesh would concur that the country doesn't meet the criteria mentioned above.
Besides, Louis Henkin provided some preconditions that include: (i) government according to the constitution; (ii) separation of powers; (iii) sovereignty of the people and the government; (iv) constitutional review; (v) independent judiciary; (vi) limited government against individual rights; (vii) controlling the police; (viii) civilian control of the military; and (ix) strictly limited state power to suspend the operation of the constitution. Bangladesh experience suggests that there is no limit upon what governments may do.
CG is associated with democratic governance and is an antithesis of arbitrary or despotic rule. It prohibits tyrannical or whimsical rule by any individual or group/party. It believes in people's sovereignty that Rousseau had outlined in pre-revolutionary France in the 18th century. In a CG, legitimacy of the government power is derived from the people's will. It doesn't practice majority dictatorship, rather it emphasises consensual governance as defined by John Locke in UK in the 17th century. Popular will is legitimately expressed and established in the CG.
A CG is accountable to the popular will and the governing authority is accountable to the governed through elections and referendum. There is accountability of office bearers to the body politic or electorate. The government follows regular procedures in promotion and transfer, and discipline in fiscal accounting. In a two-directional flow of accountability, citizens also have the responsibility of controlling the acts of the government by raising their voice, if necessary.
In a CG, office bearers conduct themselves as the representatives of their constituents and act in the legislature on behalf of their electorate. Periodical free and fair elections take place for ensuring representative nature of governance. Legislative members maintain constant touch with their constituents to keep them aware of changing state policies and issues. In most democracies, legislators are accustomed to receiving letters, emails, text messages and phone calls from their voters on a regular basis. In a CG advice is appreciated and their suggestions taken into account in the framing of laws and policies on different issues.
Any government could be regarded as constitutional so long as it provides procedural stability, has substantive flexibility and preserves the rules of political procedure. Adaptation to changing circumstances is an important quality of a CG and it can make policies favourable to the customs and way of thinking of the people. As a legacy of the colonial past, however, our public leaders remain rigid in their personal prejudice instead of compromising with the conflicting interests.
'No one is above the law' is another important pillar of the CG. Professor E.C.S. Wade emphasises three ideals of the rule of law: (i) a preference for law and order within a community rather than anarchy, warfare and constant strife, (ii) government must be conducted according to law and, in disputed cases, judicial decisions will declare what is required by law, and (iii) a body of political opinion about the declared rules in matters both of substance and of procedure. One may wonder whether our leaders have the adequate training or mindset to have respect for the principles enunciated by Professor Wade.
Normally, a constitution is amended or changed through two-thirds majority in the legislature. Nevertheless in a unicameral legislature like in Bangladesh, and with presence of Article 70 in the Constitution, amendment of the constitution can be smoothly carried out through the personal directives of the executive.
Openness and disclosure of information are regarded as important features of a CG. For maintaining transparency there cannot be any smokescreen created by political quarters or bureaucracy regarding their activities. Leaders and administrators need to be subject to disclosure of information and release details of official activities to the public, to whom they are accountable. People have to be adequately informed for greater participation in government activities, and it is obligatory for the legislature to publish a record of its debates, except for the security matters.
The debate over the practice of constitutionalism in Bangladesh goes on without ending. After four decades of independence, public leaders need to understand that constitutionalism is more than just having a constitution; it has to do with constitutional spirit, procedure, substance and institutions. Finally, taking lessons from mistakes and misdeeds of the past, the spirit of CG should be upheld by our public leaders to rectify things across the political spectrum.
The writer is Professor, Department of Political Science & Sociology, North South University.