Constitution Amendment: Committee's Ninth Meeting With Experts Covers Caretaker System, Upper House and Article 70

Dhaka: A special parliamentary committee has discussed major issues including the caretaker government system and the formation of an upper house of parliament, with the aim of amending the constitution on a large scale. At the committee's ninth meeting on Saturday (24 October), constitutional experts, law professors and Supreme Court lawyers gave their views on the amendment.

Deputy Attorney General Arif Khan spoke about the meeting's discussions in an interview taken by Munjurul Islam Nahid. Arif Khan said the committee's chairman and Home Minister Salahuddin himself said the ninth meeting was the most important of the meetings held so far. In his view, the lawyers, teachers of constitutional law, researchers and experts present on Saturday had the opportunity for a fundamental discussion on the constitution.

The greatest focus was on the power to amend the constitution, its scope and method. Discussion covered how far the provision for amendment in Article 142 of the constitution would need to be extended for this committee to gain the power to amend the constitution. In other words, the committee's jurisdiction and method of amendment were a main subject, and the committee sought experts' opinions on it.

The caretaker government system also came up as an important subject. Article 70 of the constitution, formation of an upper house of parliament and fundamental rights were also discussed. Of these, formation of the upper house received the most discussion, Arif Khan said. He said an important policy discussion on constitutional reform took place with all committee members present, and everyone gave views spontaneously over a long time.

At least 15 to 16 important persons gave diverse views on the committee's jurisdiction. In Arif Khan's observation, taken together, the experts adopted a middle position — this committee has jurisdiction to propose fundamental changes, because the committee cannot directly change the constitution, but it can propose changes.

Fundamental change means proposing serious and important changes. But the committee has no jurisdiction to propose anything that would destroy the constitution's core purpose. As an example, Arif Khan said the committee could not propose abolishing democracy in Bangladesh and establishing a monarchy, because that would destroy the constitution's core purpose. Apart from such matters, the committee has broad powers, and in the end everyone agreed on this middle position, he said.

There was also important discussion on the power of judicial review, a subject of Article 102 of the constitution. Arif Khan said that in the recent past, a few judges used the Supreme Court's power to deliver controversial verdicts. The caretaker government system, which had the trust of a huge number of people, was also abolished by a few High Court judges through constitutional interpretation, which in his view pushed political history towards uncertainty.

The meeting discussed how to stop and control judges exceeding the limits of their power. Discussion noted that judges in many cases cross limits and are even seen doing work to please the executive. Proposals included that a better appointment process for judges would solve the problem, that ensuring good governance would remove it, and that relevant articles should be amended to set guidelines for the limits and scope of judges' power to rule on important state matters.

A question was raised whether a judge can declare an amendment to the constitution invalid, and if so, whether the prior provision would automatically be restored without parliament's intervention. Arif Khan said the majority view in Saturday's discussion was that the judiciary can, in particular cases, rule an amendment invalid, but the prior provision should not automatically revive without parliament's intervention as a result of that ruling.

Establishing a separate secretariat for the judiciary and vesting control and discipline of subordinate court judges in the judiciary were discussed together, as the two subjects have the same purpose. As Arif Khan understood the government's position, no discussant said judicial independence, a separate secretariat, or the Supreme Court's leadership in promotion and posting of judges was unnecessary. Rather, he understood the government's position to be that after a large-scale constitutional amendment, laws on establishing the secretariat and on punishment, transfer and posting of judges will be enacted in light of the new constitution. He noted the government is not against establishing the secretariat or against judicial independence.

Fundamental rights were not discussed very much. Whether the time has come to declare education a fundamental right, and whether health and other rights under the principles of state policy can be made more directly enforceable, came up in discussion. In Arif Khan's view, the majority opinion in the discussion was that it is better to keep the current structure and position of fundamental rights in the constitution unchanged.

A neutral selection committee for appointments to constitutional institutions including the Election Commission was also discussed. The subject is in the July Charter. Arif Khan said everyone seemed to agree the July Charter's subjects can be properly considered and accepted or rejected where necessary. Discussion also covered regulating appointments to important constitutional and statutory bodies, including the Anti-Corruption Commission, by law, and ensuring transparency and accountability through a selection committee.

Arif Khan said there was not much difference between the government and experts on Article 70 of the constitution. Everyone agreed Article 70 needs to be kept. But discussion, also present in the July Charter and showing consensus, was that Article 70 would not apply in three or four specific areas including war and money bills. However, some influential persons dissented on the war exception, raising fears that adding the provision could be misinterpreted and misused.

Direct voting to elect representatives to reserved women's seats was also discussed, but not very much. One researcher said the method of electing MPs to reserved women's seats through a selection process is quite old and ineffective. Arif Khan said the government was not seen taking a specific position on this. He noted there were various discussions on how an upper house of parliament would be formed, and a senior constitutional expert and university law professor proposed a middle, compromise formula.