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Bangladeshi Constitution: A Good Governance Paradigm

Changes to the Bangladesh Constitution should be well thought through, sustainable and ensure stronger institutions for good governance, says MANZOOR HASAN Modern day constitutions or codes of written laws have antecedents which can be traced back thousands of years. Such historic documents have generally enshrined the legal rights of citizens ranging from issues, such as, the protection of the poor from the usury of the rich to that of non-payment of taxes by widows and orphans. In modern times, states have adopted constitutions which are either written or based on 'usage and conventions' catering for either unitary states or federal or supranational entities. But essentially the constitution of a state guarantees its citizens certain clearly laid down rights and entitlements and that state of affair has to be achieved by the creation of institutions, on the one hand, and the establishment of accountability relationship between institutions of state and its citizens. In other words, the quality of good governance in any society would eventually depend on the intensity of interface between the 'demand' of citizens' entitlements and the 'supply' of institutions' responsiveness .

The December 2008 general elections' verdict is significant because it has given the government the two-thirds majority required for constitutional amendments. In general terms, constitutional changes can come about in two circumstances: either through political consensus or by force (political or military). It is also accepted that constitutional changes through consensus are robust and defensible, both constitutional and politically. In contrast, changes brought about by force generally tend to be unsustainable.

Given the present debate that is ensuing in the country on possible changes to the Constitution of the People's Republic of Bangladesh, I take this opportunity to put some thoughts forward for the consideration of the readers of FORUM. The new government, with a strong mandate for 'change', is taking a serious look at the present Constitution and has initiated a process of consultation for possible amendments and refinement in light of its nearly 40-year existence. A well thought through and timebound process of consultation could yield a list of changes, both constitutional and legislative.

Constitution and governance The Constitution of Bangladesh, which came into operation on December 16, 1972, is as good as any other constitution. The Constitution of Bangladesh is divided into 11 parts containing 153 Articles. The Preamble declares that Bangladesh is a sovereign unitary Republic and the guiding principles would be that of nationalism, democracy and socialism. Given the dynamic nature of our society, it has gone

through a number of changes, as has been the case with many such documents, and it is also expected that it will go through further refinement in the future, with the betterment of people's welfare in mind. But in the final analysis, what is important is that the Constitution would bring about within our society a balance between change and stability, tolerance and competition, opportunity and meritocracy.

What do we mean by governance? There are many definitions but let me state a couple. The World Bank defines governance as "the manner in which the power is exercised in the management of country's economic and social resources for development." UNDP defines governance as "the exercise of power or authority political, economic, administrative or otherwise to manage a country's resources and affairs. It comprises the mechanism, processes and institutions, through which citizens and groups articulate their interests, exercise their legal rights...and mediate their differences." A quick review of the governance literature will throw up the following terms which would indicate presence of good governance in any society: accountability, participation, transparency and openness, responsiveness and responsibility, consensus, rule of law, equity and inclusiveness, efficiency and effectiveness.

What are the citizens' expectations from the state and its organs? Generally, citizens expect efficient and effective use of resources and delivery of basic services such as education, health, personal security, to name a few. Proper functioning of core institutions should result in the fulfillment of these basic entitlements due to the responsiveness of the state institutions in an environment in which sustained economic growth becomes achievable.

Re-visiting the institutions of accountability Bangladesh has achieved much since its independence in 1971, and suffice to say that Bangladesh is on a track to achieve, on average, a growth rate of 6 percent per annum, if not higher, over the coming years, barring any major disaster. With an additional 2-3 percent growth Bangladesh could, cumulatively, become a middle-income country in a decade. But this achievement will depend on the prevailing state of institutions. Whether Bangladesh can emerge from the present 'twilight' zone and either enter the 'daylight of prosperity' or the 'darkness of poverty' will largely depend on the establishment of effective institutions in Bangladesh. This brings me back to the proposition stated above -- the quality of good governance in any society ultimately depend on the interface between the 'demand' of citizens' entitlements and the 'supply' of institutions' responsiveness. What can be the role of the Constitution in establishing better governance in Bangladesh? Let me first assess the 'supply' side.

The Constitution of Bangladesh provides a broad framework of certain key institutions and proper functioning of them is meant to increase the level of accountability within the Bangladeshi body politic. Generally, the Constitution has fared well but there are some lacunas, and some of the constitutional

provisions need strengthening. The Institute of Governance Studies (IGS) of Brac University has examined the constitutional provisions of four such institutions, often referred to as the 'institutions of accountability': the Public Service Commission, the Bangladesh Election Commission, the Office of the Comptroller and Auditor General (OCAG) and the Judiciary. After a thorough analysis of the functioning of the aforementioned institutions, IGS has suggested certain recommendations, and if they are implemented, will increase their level of independence, accountability, efficiency and effectiveness. Initially, the Constitution will have to be amended bearing in mind two broad issues: "first, the appointment of the [senior members of the institutions]; and second, in-built mechanisms to ensure that the [institution] will be able to perform its duties within acceptable standards independent of the level of commitment of the political leadership." A clear constitutional guidance regarding the process of appointment of senior personnel to constitutional positions can be followed up with necessary legislative changes, such as, the formation of "a Supreme Judicial Commission which will identify appropriate persons for appointment as judges and recommend their names to the President." In the case of the Office of the Comptroller & Auditor General, the recommendation is that of "a transparent and clearly laid down process of appointment of the CAG, as well as eligibility criteria for this appointment should be introduced through legislation." In the case of the Public Service Commission, the broad recommendation is the "establish[ment of] a transparent process for appointments to the PSC", and further specific suggestions have been put forward, for example, (i) clear ineligibility/disqualifying criteria should be specified in the proposed act (ii) formation of a search committee for the appointment of competent persons.

In the case of the Judiciary, Article 95(1) of the Constitution provides that the judges of the Supreme Court will be appointed by the President of the Republic. This was amended in 1975 and the requirement of consultation with the Chief Justice was removed. It remained as a convention but was finally discarded but a recent judicial decision has re-asserted the role of the Chief Justice. "Such a decision has to be seen in the context of recent political history of Bangladesh, where political affiliation has played a significant role in appointments of high officials, including judges." This is another example of constitutional strengthening that could take place through appropriate constitutional amendments. Other related constitutional clauses which could be re-visited in relation to the judiciary are Articles 95(2)(c) and 88.

Safeguarding citizens' voice Good governance is achieved and optimised if citizens' voice is heard and heeded. "We are concerned here with that form of governance which serves the citizens by safeguarding territorial integrity of the State and securing individual security, rule of law and the delivery of services ranging from education, health to livelihood and food security." In Part II of the Bangladeshi Constitution the 'Fundamental Principles of State Policy' clearly articulates some of the basic entitlements of citizens. These principles touch on diverse issues, such as, participation of women, removal of illiteracy and improvement of

public health. Article 8(2) of the Constitution states "The principles set out in this Part shall be fundamental to the governance of Bangladesh, shall be applied by the State in the making of laws, shall be a guide to the interpretation of the Constitution and of the other laws of Bangladesh, and shall form the basis of the work of the State and its citizens ." These principles are significant and they act as a guide to the interpretation of the Constitution and the laws of Bangladesh. According to an eminent jurist: "Any legal provision made to further the principles of State policy will be prima facie be constitutional. If any provision of the Constitution or any statute is susceptible of more than one meaning, the courts should adopt that meaning which is in conformity with the principles set out in Part II of the Constitution." These are lofty and commendable principles but to what extent are they really improving the welfare of the citizens? It is the responsibility of the government to create an enabling environment which would allow citizens to demand the services that they deserve, as clearly articulated in the fundamental principles of State policy. Neither the market nor the non-profit sector can perform the role of the state to facilitate and coordinate the delivering of basic services and entitlements to its citizens.

Conclusion In 1997, Thailand adopted a new constitution, which was acclaimed to be most citizen-centric in its approach. The constitution made provisions for an elected civil society Senate, envisaged that the majority of senators will be representatives of civil society representing a cross section of diverse national interests rather than narrower political, administrative, or business interests. It embodied an important role for the Senate in appointing nominees to the new independent agencies mandated by the constitution to promote transparency and accountability. It enshrined civic involvement as both state policy and a civic right. It stipulated that the government must encourage public participation as a matter of policy. In terms of resource management, the new Thai Constitution made significant public participation an essential requirement and incorporated certain mechanisms to promote accountability and transparency. A decade later, despite such an enlightened constitution, we saw unprecedented violence in the streets of Bangkok and elsewhere. What lessons can we take from this?

Bangladesh is very fortunate, as discussed above, to have a progressive and far-sighted constitution, which needs some fine-tuning to strengthen the 'institutions of accountability' and citizens' rights to go about their personal business and pursuits with enhanced expectations. Since 1991 the people of Bangladesh have been asserting their voices, changing their representatives to ensure change in government. But democracy has remained confined to periodic elections and good governance a matter of luck. What is badly wanting in Bangladesh is accountable political leadership and enlightened policymaking. Making the existing Constitution a scapegoat for our present malaise, and bringing about amendments to achieve partisan ends, would be like 'throwing the baby with the bath water.' It will be wise and beneficial for us, particularly the politicians, to pause and ponder before suggesting large-scale changes to the present Bangladeshi Constitution.

1. For further elaboration of this point I refer to the forthcoming The State of Governance in Bangladesh 2009, IGS, BRAC University 2. IGS (Institute of Governance Studies), BRAC University, 2008, Institutions of Accountability, the Public Service Commission: Policy Note, Dhaka, IGS 3. IGS (Institute of Governance Studies), BRAC University, 2010, Institutions of Accountability Series, the Judiciary: Policy Note, Dhaka, IGS 4. IGS (Institute of Governance Studies), BRAC University, 2010, Institutions of Accountability Series, Office of the Comptroller and Auditor General: Policy Note, Dhaka, IGS 5. IGS (Institute of Governance Studies), BRAC University, 2008, Institutions of Accountability, the Public Service Commission: Policy Note, Dhaka, IGS 6. IGS (Institute of Governance Studies), BRAC University, 2010, Institutions of Accountability Series, the Judiciary: Policy Note, Dhaka, IGS 7. Singh, Balmiki Prasad, 2008, The Challenge of Good Governance in India: Need for Innovative Approaches, paper presented in the second international conference of the Global Innovators organized by Ash Institute for Democratic Governance and Innovation and John F. Kennedy School of Government, Harvard University, 31 March-2 April 8. 9. 10. 11. Article 10 Article 17 Article 18 Islam, M, 2006, Constitutional Law of Bangladesh, Dhaka, Mullick Brothers