The reform options

Assessing various reform ideas that have been floated

This is my third post on constitutional, and institutional, reforms. The first post translated a chapter from Abul Mansur Ahmed’s memoir, which explained why the original 1972 constitution was a flawed document because it conflated so-called high ideals and government policy. The second post argued that the constitutional set up we had in the previous stint of electoral democracy, in the two decades from 1991, made Bangladesh vulnerable to despotism because of extreme centralisation of power.

This piece provides an overview of various reform ideas that have been doing the rounds. In doing so, it’s important to keep a few things in mind. Firstly, there is no silver bullet solution. In fact, that’s one key message of this post.

Secondly, no constitution in the world can substitute for individual responsibility. Whatever the constitution had said, Sheikh Mujibur Rahman enjoyed unbridled power in 1973. How he chose to exercise that power was up to him. Similarly, the constitution did not make Hasina kill thousands of people. However, certain constitutional and institutional set ups — rules of the game — make despotism more likely than others.

Thirdly, any reform idea will likely have unintended consequences. Some consequences, however, can be expected. One implication of this is that, incremental reforms might be less risky than drastic ones.

With these in mind, let’s assess various ideas that are doing the rounds.

One idea that has a consensus is that we need some form of election time government. Historically, elections held under such governments — whether interim, caretaker or martial law — had been freer and fairer than those held under partisan incumbents. Recall, our extremely centralised political set up raised the cost of losing very high, giving the incumbents strong incentives to rig the election. These election-time governments scrambled the incumbents’ machinations, and created a level playing field. That was the theory anyhow, and was perhaps most clearly demonstrated in 2001, when key individuals — the chief advisor, the election commission, and civil-military bureaucrats, all under the supervision of the widely respected President Shahabuddin Ahmed — did exactly what the system wanted them to do.

However, that system had two serious flaws.

The first was that the election-time caretaker government was to be headed by the last retired Chief Justice. This gave a strong incentive for the incumbent to pack the court or appoint partisan individuals to the benches. One way to mitigate this problem, however, is to reform judicial appointments. For example, judges to higher courts could be appointed, by seniority, from a college whose members are nominated by the current and past Chief Justices as well as incumbent and opposition parties. This or other similar transparent rules for judicial appointments could reduce the risk of politicisation of the higher courts.

A second problem with the old fashioned caretaker government was that it opened the door for depoliticisation — the idea that political parties are incapable of working together and a group of unelected ‘wise people’ could do better. This idea led to the infamous 1/11 minus-2 experiment.

One possible way around the depoliticisation risk is to politicise the election-time government. For example, the election-time government could be run by an all-party national government whose members would be individuals not seeking election themselves. A further extension to this idea is that the election-time national government could come from an upper house of the parliament.

An upper house of the parliament is an idea that is being floated by many, including the largest political party — the BNP. One benefit of an upper house is that it can include individuals from many sectors of the society who are not engaged in electoral politics. The upper house members can also be empowered to provide checks against the executive. For example, the upper house can vet appointments to constitutional bodies. And as noted, election-time government could come from the upper house.

However, much would depend on the manner in which the upper house is elected. And elected is the operative word here. Any idea that upper house members would be nominated by the Prime Minister and the leader of the opposition would essentially mean another vehicle for patronage and corruption.

How to elect the upper house members then?

If federations, upper house members represent federating states. The idea there is to prevent large states from dominating smaller ones. Bangladesh is not a federation, and as argued below, it shouldn’t become one. So, a federal senate is not particularly useful model for Bangladesh. A better model might be to have an upper house elected by the proportional system.

Suppose the upper house were to have a hundred members elected through proportional voting. Further suppose that these 100 upper house members are to approve key appointments by a simple majority — this alone would go a long way from politicising state institutions because no party has ever won more than 50 percent of votes in a free and fair election in Bangladesh. On top of this, if constitutional amendments required a two-thirds majority in the upper house, a repeat of the 4th or 15th amendments to the constitution that created Mujib and Hasina’s tyrannies would be almost impossible. And 10 of these individuals could form the election-time national government.

To the extent that the lower house is elected under the existing first-past-the-post system, the prime minister is required to pass supply and confidence bills through a majority in the assembly, and ordinary legislations are passed by the lower house, the day-to-day functioning of government will not experience a dramatic rupture under this kind of upper house. But the upper house could still be a strong bulwark against despotism.

But why not elect the lower house through proportional system? This idea has been proposed by a number of smaller parties, including Jamaat-e-Islami. And it is likely to be opposed by the BNP.

One can see the electoral reasons for the BNP’s stance. It had historically won 30-40 percent of votes. However, its seat count varied from around 10 percent (in 2008) to nearly 70 percent (1979). As things stand, BNP stands to win big with the current system and is willing to risk another 2008 style drubbing in distant future.

However, leaving BNP’s electoral calculations aside, what are the arguments for and against the proportional system?

One argument for it is that the system more accurately reflects parties’ support. The first-past-the-post system can provide quirky and lop-sided results. For example, in 2001, the Awami League received around 40 percent vote against BNP’s 41 percent — but the former received only 20 percent seats while the latter got over 60 percent! Further, BNP received proportionately more votes in 2008 than it did in 1991, when it won 140 seats and formed the government! Proportional system could end these anomalies. In that sense, it is more representative.

A counterargument is that a proportional parliament would be one where no one has a majority, making for unstable government. This could well be the case, but is that necessarily a bad thing? Bangladesh has suffered from ‘strong governments’ — that is, overbearing presidents and prime ministers — throughout history. Perhaps coalition governments where parties have to give and take are not a bad thing.

Perhaps.

But let’s also consider a few downside risks to proportional system that are arguably more likely in Bangladesh.

Proportional system in mature democracies (of mainly Europe but also elsewhere) rely on political parties that have strong internal institutions and intra-party democracy, with trade unions, environmental and gender rights movements, church and community organisations, ethnic and regional organisations playing strong roles in politics. Further, these countries have strong, elected, responsible local governments.

This means that every individual has at least one local politician responsible for the local needs, and the parties that are in the national legislature act on their electorates’ interest.

None of this holds true in today’s Bangladesh.

There is no meaningful local government — an issue that is covered below. Severing ties with a local MP unless local governments are strengthened seems counter to democratic ideals. Perhaps a more complicated version of the proportional system could be considered, where there are still local MPs, but the overall seat count is determined by party votes. However, the more complex a new system, the greater the risks of unintended consequences!

Further, and more importantly, any proportional system — even the more complicated versions with pre-announced party lists, mixed member proportional voting and so on — in Bangladeshi political culture would give more power to the party high command.

Let me illustrate this with a practical example. Under the current system, there are at least 300 individuals in BNP who believe they could win an election because of their personal strength. That is, the party leadership must contend with at least 300 individuals. However, if we move to any kind of proportional system, the race will be on to secure a spot in the top third of the party’s list. At best, the list will be drawn on some wise counsel the party leadership avails itself of. More likely, it will result in serious corruption!

That is, instead of decentralising power, the proportional system in Bangladeshi context could in fact create parties that are beholden to individual leaders, with possible corruption and cronyism to boot!

Is the risk worth the benefit, particularly if the upper house is elected on proportional basis?

Another idea that has been widely floated is to increase the power of the presidency with respect to the prime minister.

In traditional Westminster system, the president (or the Crown) has so-called reserve powers, most importantly when there is no clear parliamentary majority. The wording of the current constitution proscribes even these powers. Restoring the traditional reserve powers to the president could, therefore, rebalance the power between the president and the prime minister.

But is there a case for a stronger presidency?

The army chief has floated that perhaps the defence forces should be put under the president’s command, functionally as well as ceremonially. But would this not make the president more powerful than the prime minister, de facto if not de jure?

And if that is the case, then should we not move to full-scale presidential system?

To the extent that our problems had historically been with centralisation of power, it is not self-evident that an elected executive president will lead to decentralisation.

Of course, the president could be thwarted with the legislature, judiciary, veto points and so on. But in the event that a president does not get his or her way, in a weak democracy like ours, the risk of Bonapartist takeover is quite high.

How much ‘rebalancing of power’ away from the prime minister to the president is appropriate for Bangladesh will probably be the most important issue to be debated early next year.

Regardless of what happens to the presidency, how the election time government is to function, and what kind of an upper house is introduced, there is an urgent need to rethink the powers and responsibilities of MPs. Two ideas have been floated. Both are good in principle. Both require further scrutiny at a granular level. And the benefits from both will accrue over the long-term, perhaps several electoral cycle.

The first idea is to remove the Article 70 barring floor-crossing for all non-supply votes. That is, MPs should be allowed to vote against the party line for any legislation as long as it’s not a confidence vote (traditionally, supply or finance bills fund the government, and if a government cannot pass the budget then it has lost its majority). This would give the individuals MP a reason to be interested in doing legislator work.

But this is not sufficient. Each MP could be required to serve in at least one committee. These committee works are the core functions of a legislator. In more mature democracies, this is part of the political culture. Whether such a provision is inserted into the constitution or left to parliamentary processes and procedures, it will clearly take some time for the political culture to evolve.

In the meantime, it is important that local matters are transferred to local politicians. Strengthening local government is essential in this regard. For example, all local development work should be the responsibility of local councils, and MPs should be barred from inserting themselves into any local body.

But which council? District? Upazilla? City? Union? The roles and responsibilities of of different layers of local government are currently clear insofaras no one has any responsibility or resources to do anything, so they are all inconsequential. If they are to be empowered, the details will matter tremendously.

At the most extreme is federalisation. However, federations tend to reflect diversity among federating states. In Bangladeshi context, simply dividing the country into half a dozen province doesn’t seem to achieve anything other than unnecessarily replicating bureaucracies (and therefore inefficiency and corruption) around the country!

So, somewhere between the status quo and full federalisation, with the details to be worked out over time — that would perhaps be the most viable option.

The reform process will likely combine these various ideas into a package after consultations with the political parties. Whatever package is finally produced, it should at the least decentralise power away from the prime minister, and restore some form of election-time government. But there are multiple ways to arrive at such a package. The next piece will cover one particular package that is both in line with the stated preferences of various political parties, is an incremental change, and yet likely to achieve the reforms that are needed to prevent a future turn to despotism.

Further reading

• ভক্সদনামা

  ফাহাম আব্দুস সালাম, 25 June 2020

• Who are the middle class in Bangladesh?

  Masum Billah, 4 Oct 2020

• Ukraine and the end of history

  Matthew Yglesias, 30 Mar 2022

• The Darkness

  Noah Smith, 21 March 2023

• Beyond the Election: Overcoming Bangladesh’s Political Deadlock

  Tom Keane, 4 Jan 2024

• No British election is complete without a man with a bin on his head

  John Phipps, 17 June 2024

• Why we recommend referral of situation in Bangladesh to ICC prosecutor by the interim govt

  Michael Polak & Abbas Faiz, 2 Sep 2024

• গণধোলাই থেকে গণপিটুনি: মবতান্ত্রিক বাংলাদেশ

  মিম আরাফাত মানব এবং মনজুরুল মাহমুদ ধ্রুব, 13 Oct 2024

• An economics Nobel for work on why nations succeed and fail

The Economist, 14 Oct 2024

• On foreign policy, has Donald Trump become predictable?

  Elizabeth Saunders, 3 Nov 2024

• After the revolution, Bangladesh is stable. For the moment

  The Economist, 13 Nov 2024

• দ্রুত নির্বাচন দ্রুত পতনেরও কারণ হয়ে উঠতে পারে

কাকন রেজা, 17 Nov 2024