The majority of Bangladeshis want improvements in the state's management structure, a reduction in corruption, and the correction of existing problems. Many have proposed their own suggestions on how to address these issues.

Constitutional reform seems to have occupied the concerns of many. Some reformers are suggesting dissolving the constitution without paying attention to the consequences of such action—that all constitutional posts, including the posts of the president, the chief justice, the chiefs of the armed forces, the IGP, the election commissioners, the attorney general, etc., will be dissolved with the constitution, resulting in further anarchy. One of their arguments is that the 1972 constitution was formulated without the people's mandate, which is not true.

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A ‘new constitution’ and my discontents

The Legal Framework Order promulgated by General Yahya Khan clearly stated that the December 1970 election in Pakistan was for the sole purpose of forming a constituent assembly which would frame a constitution for the then Pakistan. As the country broke down into two for various reasons, the PPP in Pakistan framed and adopted a constitution and held an election afterwards under the new constitution, and so did the Awami League by framing and adopting the constitution and holding an election under the new constitution. The Proclamation of Independence issued on April 10, 1971 (DLR, Vol. XXIV, Bangladesh Statutes 1971-72) further testifies to such events. If a new party comes to power with a mandate to frame a constitution, then it will have to hold another election under the newly adopted constitution.

For reforms to be effective, it is necessary to consider identifying the defects in the state management structure which contributed to the mismanagement of state administration and ever-increasing corruption. Recent history shows that the prime minister, while holding the position of party chief, was not only in control of the executive branch but also in control of the other two branches of the state, i.e. the judiciary and the legislature. This must have helped precipitate a cloud of authoritarianism in the country. The judiciary lost its independent soul, and the legislature became a rubber stamp. Banks and financial institutions were captured by authoritarian cronies who looted and laundered money deposited by people in good faith. Some banks are even unable to let their clients withdraw money from their lifetime savings accounts. The state management was supposed to ensure their financial security, but it failed miserably. Media reports revealed that the former chiefs of police and other security forces were also involved in the lotting. They used their positions to accumulate outrageously high amounts of money. Officials responsible for state governance were almost oblivious to the rights of citizens guaranteed under the constitution. They arrested and detained people arbitrarily. A kind of oligarchy was gradually taking over the country.

To resist the repetition of such mismanagement and ill-governance, reforms of various sorts are proposed by many. To start working with a reform proposal, one must first decide and articulate what he or she wants to get rid of and what change is to be brought. Those who want to change everything are susceptible to bringing back the old system in its worst form. Therefore, the purpose of reform cannot be to destroy everything, but to bring in changes where it is necessary. Say, for example, if we do not want to see the prime minister or his/her cabinet members engage in executive functions other than their ministerial responsibility, then we can propose an amendment to Article 56(3) of the constitution by adding a sub-paragraph where it can be mentioned that: "Upon taking oath, the Prime Minister and the Cabinet Minister(s) will lose their executive post as the chairperson or the president or the general secretary or any other executive post of the party which nominated him/her for participating in the election, and also will lose all executive post(s) in any other organisation."

The advantage of such an amendment is that the prime minister will not become all-powerful to lead an authoritarian regime. There will be a scope for resistance from the party position. Party approval will be required to bring in any fundamental change. Moreover, the prime minister and the cabinet members will have more time to spend on the governance of the country.

If we do not want to see a political party run by an unelected authoritarian leader, and if we do not want to see such a leader become the prime minister, we can create a provision in the constitution to nip in the bud such possibilities by adding an amendment in Article 66(2) in the form of sub-paragraph (h) where it can be mentioned that: "A person shall be disqualified for election as Member of Parliament who is nominated by a political party which has an unelected (and/or elected uncontested) president or chairperson or general secretary."

Another sub-paragraph could be added where it can be mentioned that: "A person shall be disqualified for election as a Member of Parliament whose nomination to participate in the election is not approved by the local party committee from where he or she is contesting; And an elected Parliament member shall, upon taking the oath, lose his/her executive position as the chairperson or managing director of a bank or organisation."

A series of events, which unfolded in the past, made it clear that our judiciary is not independent. Judgements and approaches to the discharge of judicial functions are changing with the change of political regime. Therefore, appointments of judges need scrutiny in a public forum. Once appointed, the judges should feel secure about their job and no one should force them to resign without a constitutional procedure. For this, Article 96(2) can be amended by substituting it with: "A judge shall not be removed from his office except by order of the President passed pursuant to a resolution, taken in an open forum hearing, of a Supreme Judicial Council formed of two elected members of the Bar Council, two elected members of Parliament, two elected members of the Press Council, and two members of the Judiciary."

One may wonder why members of the press council should be included in the supreme judicial council. This is to bring out closed-door proceedings for public information. In the past, it remained confidential, and we got unsatisfactory judicial performance.

There are many more things that warrant discussion. Input is required from all strata of citizens. One person should not dictate how a population of 170 million people should frame their management structure.

A state is considered an organised political community under one government. At the time of a transition or reform, one should not just dismantle everything in the current form. Dismantling the power structure of the country may look brave but could be dangerously chaotic. Currently, there is no local government and no parliamentary structure which can help security forces to communicate with people and calm them down in cases of eruption of any kind of civil disobedience or anarchy. Security personnel or people from the state bureaucracy can hardly reach a few people to seek cooperation.

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An unfinished struggle: Democracy, identity and reform

With the dismantling of the local government, almost all formerly elected representatives are made outlaws. Many of them are now fugitives from justice for allegedly committing crimes not clear to either the accused or the accuser. Together with their close supporters, the number could easily reach over a million. Moreover, the security forces are implementing a government initiative known as "Operation Devil Hunt" without fair proceeding. It is the responsibility of the government to ensure the safety of all the citizens, irrespective of their social, religious, political, etc., position or criminal record, while paying attention to the desire for justice among the formerly oppressed. No one knows what the definition of "devil" is. This term is not included in the Penal Code, nor is it a known common legal cliché. I presume the term "hunt" stands for "arresting," as is mentioned in the Criminal Procedure Code, and "devil" stands for "thug," as is defined in Section 310 of the Penal Code.

As "devil" is not a legal term, arresting and confining them as devil may turn out to be illegal. The future may see many cases against the members of the security forces and their supervisors for illegal confinement. And if the term "devil" is used for targeting people for political opinion, someone may in the future bring serious allegations against the security forces, triggering international concern. Holding a new election, either local government or parliament, without a power structure placed in the field could be disastrous. Partially reviving the old local government structure, in a selective way, may help ameliorate the escalating disarray.

Muhammad Mohi-us Sunnah is a former UN official, lawyer and a member of Paris based international lawyers' association, Union Internationale des Avocats (UIA).

Views expressed in this article are the author's own.

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