SCLS Law Review Vol. 1. No.3 [Sept. 2018], p 37-44
Available Online: http://sclsbd.org/wp-content/uploads/2019/03/9.-Democratic-Audit-Jashim-Ali-Chy.pdf
Available Online: http://sclsbd.org/wp-content/uploads/2019/03/9.-Democratic-Audit-Jashim-Ali-Chy.pdf
1. Introduction
This paper would
attempt to chalk out the theoretical framework for a Democratic Audit of the
parliament of Bangladesh. While the current paper does not attempt the Audit
itself, it lines out the contours and criteria of the proposed Audit and its
implication for Bangladesh. David Beetham’s Four Prong theory of Democratic
Audit Model may be saturated into three broader aspects of legislature as a
democratic institution. As part of the over-all Audit, accountability and
institutional theories associated with each of those three aspects could then
be explained and tested in relation to Bangladesh Parliament.
2. Four-Fold
Sectionalisation of Democratic Audit Model
Beetham’s
Democratic Audit sees democracy firstly, as a set of principles or regulative
ideals like popular control and political equality etc, and secondly, as some
institutions and practices through which these principles are realised. As part
of his Audit, Professor Beetham would ask four questions to see whether and how
far a system is democratic. The fourfold sectionalisation of Democratic Audit
are: first, existence and scope of free
and fair elections, second, degree
of openness, accountability and
responsiveness of the government, third, the quality of protection for citizens; and fourth, democratic society ensured through
pluralism, popular and media access in the state institutions and processes.[1]
While Professor
Beetham’s Audit tools may be accused of being a Westminster system being widely
adopted around the world, its institutional arrangements should have a
universal relevance. Yet, had there been any substantial differences of
situation, experience and political perspective, suitable audit criteria and
appropriate standards of assessment might be formulated chosen.[2] Bangladesh being a common
law heritage and declaredly Westminster parliamentary system, Beetham’s
fourfold sectionalisation should be an appropriate theoretical framework for an
institutional investigation to its strength and weaknesses.
3. Three Prong Evaluation of the Parliament of
Bangladesh
For scrutinising
the legislative branch of the state, a careful saturation of fourfold
sectionalisation in Democratic Audit Model would lead us to three boarder
perspectives:
1)
Parliament
as a Representative Institution
2)
Parliament
as an Accountability Institution
3)
Parliament
as an Accountable Institution
3.1. Parliament as a Representative Institution
Studies on
Bangladesh parliament are predominantly about its constitutional roles, law
making and oversight. Quality of representation the parliament has in
Bangladesh has not been addressed in the academic circle too much. The
successive governments emphasised ‘elected’ nature of the parliament. On the
other hand, civil society critics and opinion leaders were branded ‘unelected’
and hence less entitled to question the elected ‘representatives’.[3] Recent debate over the
invalidation of Caretaker Government System[4] and the constitutional
amendment on judges’ removal[5] has re-ignited the debate
over parliament’s actual position as the “sole representative” of the people.
The representative character and role of the parliament will be addressed in
this dissertation in a systematic way that would enable us to answer the
following questions –
1)
How
fair is the electoral process in Bangladesh?
2)
How
reflective of popular will is the current First Paste the Post system?
3)
How
equal is the representation of different groups of citizens?
4)
How
much quality is there in the representation?
Parliament is placed
in a highly strategic position to scrutinise the executive and other branches
of the Republic. Parliament of course in its turn is answerable to its
constituency (the electorates).[7] Horizontal accountability
system works within the systems and structures.[8] In this sense, horizontal
accountability provides capacity for state institutions to check abuses by
other institutions.[9] Parliament does this through its legislative power and oversight powers. An analytical account of
the legislative process and oversight tools in disposal of Bangladesh
Parliament would necessarily call for an evaluation of the Government
Backbenchers, Opposition Members and Parliamentary Committees. Under the
Horizontal Accountability structure, the thesis will investigate the oversight
structure of the parliament of Bangladesh and the role of Opposition,
Government Back Benchers and Parliamentary Committees within the oversight
structure. In this relation the theory of Party modes developed by Professor
Anthony King would be a convincing testing tool. King tested the patterns of
executive-legislator relations in Britain, France, and West Germany. This study
would attempt one with Bangladesh. Questions for consideration under King’s
party modes will be how far it could be utilised to explain the performances of
the Government Back Bench, Opposition and Parliamentary Committees in
Bangladesh?
Anthony King’s
Party Modes
King has set forth
several modes of parliamentary interaction that occur within the political
parties – intra-party, opposition, non-party, and cross-party modes. The intra-party mode, for example,
depends greatly on the extent of legislative independence. For example, the
parliamentary leadership in Germany is independent from the persons holding the
executive positions. Government backbenchers hold a strong say in the
legislative affairs. Additionally, the committee system being totally
non-partisan, members have almost independence in shaping the legislation. On
the other hand, in Britain, though the leadership in the parliament is separate
from the prime minister, party whipping is stronger than its German
counter-part. Government backbenchers are also less independent than the
Germans.[10]
Party members mostly withheld causing embarrassment for the party leadership in
control of the government. Party remains the most formidable channel for
political career opportunities.[11]
In the Opposition mode, legislature and
its internal mechanisms leave scope of opposition beyond a mere symbolic
opposition. As par King’s Analysis, British and French Parliaments being
primarily deliberative bodies, opportunities for Opposition are few.
Opposition’s case role remains that of watching the government from outside the
government and raising the other side of the argument in policy discourse.
Germany’s greater legislative capacity and the power of committees gives to the
Opposition more opportunities than the British and French counter parts.
Depoliticized nature of the committee system also permits effective opposition
where the opposition point of view is seen as not merely partisan. [12]
The Cross-party and Non-party modes are best suitable
for legislatures which may be like Polsby’s transformative parliament mentioned
earlier. Here, the partisanship per se is relatively unimportant. The more a
legislature's activities are committee oriented, the more non- partisan or
cross-partisan modes comes to play. The cross-party mode is particularly
supported by the existence of coalitional government.[13]
3.3. Parliament as an Accountable Institution
The theory of Vertical
Accountability or Political Accountability, also referred to as
direct-accountability, occurs when institutions are called upon to explain and
justify their performances to the public (electorates). Apart from being an
institution of horizontal accountability, parliament is also important as an
institution with vertical accountability.[14] While assessing the
parliament of Bangladesh as an Accountable institution, the thesis would touch
upon two fundamental issues –
First,
whether the MPs are primarily to act as legislators or as representatives of
the people? To put the questions alternatively, how much constituency services
are desirable of the MPs? And whether the MPs’ constituency role would affect
the doctrine of separation of power as enshrined in the constitution of
Bangladesh?
Second,
whether the MPs represent their electorates as their trustee on the first place
or they act merely as agents of their respective political parties? To what
extent article 70 of the constitution of Bangladesh (anti-defection clause)
shifts the balance towards either of the trustee or agent roles?
MPs’ Constituency
Role and Separation of Power
Members of
Parliaments usually discharge three functions – representative, legislator and
scrutinizer. Representative role indicates that MPs elected as representatives
of their electorates must have some accountability towards his/her support
base. To this end, constituency services constitute an important part of the
MPs’ role of representation. Maintaining a direct touch with the locality,
attending the local issues and sponsoring the local causes to the appropriate
branch of the Executive are considered an extremely important role for the
Members of Parliament particularly when re-election from the constituency
depends heavily upon the local units of parties and their support base.
The problem of the
trichotomous roles of law making, scrutinizing and representing is however one
of balancing. In unstable democracies with institutional weaknesses and
capacity deficit in parliament, the representative aspect of the parliament
memberships get more and more prominence and MPs behave more like a local
leader than a national lawmaker. The electorates in general also shows a
‘cognitive lacking’ about the representative functions of the MPs.[15] People in general put
greater emphasis on their MPs paying more attention to the local issues than to
the national policy discourses. Bangladesh has been particularly stricken by
this conventional wisdom. Independent self-government at the local level has
been severely curtailed by excessive interference by the MPs in local
governments.
According to article
59(1) of the constitution of Bangladesh, the local government bodies in every
administrative unit of the state are entrusted with local development works.
Parliament “shall, by law, confer powers on the local government bodies,
including power to impose taxes for local purposes, to prepare their budgets
and to maintain funds”.[16] Parliament is therefore
constitutionally bound to allow the local government bodies a full
autonomy. Practically the MPs dominate
the local government policy making and governance. Relationship of the MPs with
local government bodies in their constituencies are that of conflict, collusion
and subordination.[17]
Involvement of the MPs in the local
government institution has been the root cause of over politicization of local
governance as well as mis-governance at central level. It has affected the
quality of law making as well. The Supreme Court of Bangladesh caught the issue
in two cases namely - Barrister Ziaur
Rahman Khan v. Bangladesh 20 BLD (HCD) 120 and Anwar Hossain Monju v. Bangladesh BLT (HCD) 86
In Barrister Ziaur Rahman Khan, a Member
of Parliament challenged a notification calling the meeting of Thana
Co-ordination Committee without prior consultation with him. Unfortunately, the
Court failed to appreciate the role of a Member of Parliament in the local
government and development issues from the right perspective. It accepted the
contention of the MP to held that MPs have an interest in overseeing their
local governance:
Members elected
from a particular constituency have overall and multi-faced responsibilities to
look after the welfare of their constituencies and their involvement in the
development work of their constituencies as far as possible is desirable. The
spirit of any democratic constitution including ours is to involve the locally
elected member of Parliament not only national matters but also in local maters
or in the development activities of his constituency.
The illusion of Barrister Ziaur Rahman
disappeared in Anwar Hossain Monju.
In this writ petition, Mr Anwar Hossain Monju, an Opposition MP from Pirojpur
in the 8th Parliament challenged a government notification appointing 62
Ministers in charge of 62 districts all over the country. The concern of Mr.
Monju was that his role as an MP in development of his locality would be
illegally interrupted by these 'Ministers'.
The plain argument of the petitioner was
that neither any provision nor the over-all scheme of the Constitution approves
such 'Ministers'. Rather as a side effect, the democratic governance of the
local government units suffers a setback. The government lawyer discharged his
burden by simply referring the 'precedent' of 1980s when such ministers were
frequently appointed by the then military regime. The Court in its epoch-making
judgment filled up the omissions in the arguments of the parties. Justice ABM Khairul
Haque emphasised on democratic governance of local government. The court believed
neither the MP challenging the District Ministers nor the impugned Ministers
had any role in functioning of the local government units.
Problem of Barrister Ziaur Rahman and
Anwar Hossain Monju is that the cases take a completely opposite outlook to a
common problem. While former accepts a sweeping power of “supervision” in the
MPs hand, the later denies it all together. Therefore, this dissertation would
need to argue for a middle ground between the two. It will need to attempt a
principled analysis of the separation of power and check and balances between
legislative branch and executive branch on the one hand and the MPs
constituency role on the other hand.
Trustee and
Delegate Model of Representation
Edmund Burke is
the proponent of a famous controversy of democratic representation: Should MPs
act according to the will of the people or according to their independent
judgment? Burke’s famous speech to the electors of Bristol in 1774 runs as
follows:
Parliament is not
a congress of ambassadors from different and hostile interests, which interests
each must maintain, as an agent and advocate, against other agents and
advocates; but Parliament is a deliberative assembly of one nation, with one
interest, that of the whole - where not local purposes, not local prejudices,
ought to guide, but the general good, resulting from the general reason of the
whole.[18]
The controversy therefore indicates
preference between local interests of constituencies or those of the one
nation. Burke prioritises the national interests. There is however argument
that Burke’s national interest criterion was becoming obsolete even in his own
days. The idea of instructed delegates taking instructions from their districts
is an old day concept. Apart from presenting the grievances of their people,
early day representatives were unlikely to deliberate on national policy vis-a-vis the king.[19]
However, the development of the
relationship between king and parliament in Britain made this agency theory of
representation gradually obsolete. With the growth of parliamentary
sovereignty, the agents-of-district-interests became less significant. National
interests rather than the geographical ones became more and more prominent.
Apart from Burke’s view of political representation, delegate model has been
questioned from two other normative points of view: First, modern politics are
controlled by national controversies over which electoral districts’ positions are
not uniform. Second, it totally misses the existence of political parties in
democratic process.[20] Modern democratic process
has more or less replaced the constituents with the organised political
parties. Programs and manifestos of the political parties have the tendency to
bind the MPs to their party directives. In that sense, the Burkean controversy
of representation may now be re-described as being one between the interests of
the parties and of the nation.
Now, if the MPs
are to be considered the agents of their parties, the original Burkean
controversy does not fade away at all. To be considered an ideal substitute for
the interests of the nation -
1.
Political
parties must present clearly defined policy alternatives to the voters.
2.
internal
party cohesion or discipline must be sufficient to implement their policy
program.
3.
voters
must vote rationally, have policy preferences and know the differences between
programs of different political parties. [21]
If any or either of these conditions is
not met, MPs’ agent or delegate status in relation to their parties is most
likely to be in conflict with their trustee status in relation to the nation as
a whole. Therefore, the Burkean controversy of mandate-independence remains
alive. The controversy remains even more relevant for Bangladesh given the
presence of an anti-Floor Crossing clause in the constitution. Article 70 of
the Constitution of Bangladesh endangers a MP voting against his own political
party with losing his seat in parliament.
Article 70 has been considered the most
controversial provision of the Constitution of Bangladesh. The article has been
accused of causing a major set-back in parliament’s oversight power. The
judiciary also took a conservative attitude in interpreting the article 70.
First judicial cognisance of the article was Abdus Samad Azad v. Bangladesh 44 DLR 354. Six MPs from the
opposition party in the 5th Parliament (Awami League) challenged the
President's Election 1991. The Act introduced Open Ballot voting in
Presidential Election, while the original constitution specifically provided
that the election should be in Secret Ballot. A Division Bench of High Court
Division of the supreme court of Bangladesh comprising F.H.M Habibur Rahman and
Abdul Hasib JJ was divided on whether to accept the writ or not. The issue was
then thrown to the Single Bench consisting Anwarul Hoque Chowdhury J.
Barrister Amirul Islam, one of the leading
lawyers of the country, appearing on behalf of petitioners argued that the 1991
Act would unnecessarily attract the vice of article 70 in presidential
election. MPs voting in Open Ballot system would run the risk of losing his
seat, if he votes against the presidential candidate nominated by his party. Barrister
Islam argued that article 70 being a restrictive provision in the free
excercise of opinion and judgments, it must be interpreted in a restrictive
fashion and it should govern the essential legislative functions of the MPs
only. Election of the President, being an extra ordinary special function,
cannot be brought within the operation of Article 70, Barrister Islam argued.
Islam’s line of argument is essentially this - If the sole purpose of Article
70 is to prevent malicious defection and unnecessary defeat of the Cabinet in
the floor, it should be limited only to the essential legislative affairs.
Talking from an originalist point of view, the intention of the framers of the
Constitution not to allow Article 70 operate in Presidential Election was evident
in the Second Schedule of the original Constitution which provided for Open
Ballot voting.
Barrister M Aminul Islam, the then
Attorney General of Bangladesh, took a strict and conservative stance. To
support the Open Ballot voting, he argued that political parties should get
priority above all in public affairs. MPs are bound by the party mandate and
directions. People elect them on the basis of party and so the electorate of a
particular electoral area has a right to know for whom their representatives
are voting. Interestingly, the Court did not pay much attention to restrictive
reading argument. It rather interpreted the article in broadest possible way:
There is a self-imposed restriction
in Constitution itself which speaks of the role of a political party and its
manner of influence upon a member of a political party, voted to Parliament
under its ticket. A MP is thus not a free agent to act while voting in
parliament.[22]
This being the position of the judiciary
in relation to article 70, Bangladesh’s position over Burkean
Mandate-Independence controversy remains problematic. Article 70, as is
understood by the judiciary, has apparently relegated the MPs to a mere
delegate status. This dissertation would attempt to see whether and how much
the overall representative character of parliament is affected by the article
70. And also, whether the reach of article 70 is actually as perverse as it
appears to be.
4. Concluding
Remarks
While the purpose of this
paper is to present the framework for a Democratic Audit of Bangladesh
Parliament, the preliminary insights we get from the above suggests that Parliament
of Bangladesh might yield very marginal indications of strengths. Still the
proposed Democratic Audit would pave a more comprehensive and scientific basis
for testing the institutional contours of the parliament of Bangladesh. Any
academic investigation of the Parliament is therefore highly likely to yield
more concrete and practical research output for parliamentary reform.
* Assistant Professor, Department of
Law, University of Chittagong. This article constitutes a part of the
theoretical framework I propose for my PhD dissertation at King’s College
London. My current doctoral project at King’s is titled as “A Doctrinal
Analysis of the Westminster Parliamentary System in Bangladesh” which seeks to
analyse the parliamentary system of governance in Bangladesh through a variety
of theoretical lenses prevalent in the Westminster parliamentary jurisprudence.
[1] David Beetham,
The Idea of Democratic Audit in Comparative Perspective, Parliamentary Affairs, Oxford University Press, Volume 52,
Issue 4, 1 October 1999, Pages 567–581,https://doi.org/10.1093/pa/52.4.567
at p 570
[2] Ibid, p 577-78
[3]Rounaq Jahan, The
Parliament of Bangladesh: Representation and Accountability, The Journal of
Legislative Studies, 21:2, 250-269, DOI: 10.1080/13572334.2014.975470, p 3
[4] The Caretaker
Government system as introduced via the 13th amendment (1996) was overturned by
the 15th Amendment (2011) Tusher, H. J. (2012, August 11). Unelected
people not to be in government: AL, allies respond to BNP’s reported formulas.
The Daily Star. Retrieved from http://archive.thedailystar.net/
newDesign/news-details.php?nid=245670.
which provided for an NCG for 90 days to organise parliamentary
elections
[5] 16th
Amendment to the Constitution sought to reassert the parliament’s power the
judges’ removal. The original constitution in 1972, Jashim Ali Chowdhury and
Nirmal K Shah (2017), Advocate Asaduzzaman Siddiqui
v. Bangladesh: Bangladesh's Dilemma with Judges' Impeachment, Indian Journal of
Comparative and Administrative Law
[6] Webster Siame
Kameme, The Vertical and Horizontal
Accountability in The Malawi Parliamentary Democracy, PhD Dissertation,
University of Hull (2015); Craig T. Borowiak, Accountability and Democracy: The Pitfalls and Promise of Popular
Control, Oxford University Press, 2011.
[7] Fox, J., 2000.
Civil society and political accountability: Propositions for discussion,
Available at: www.CTORANDGOVERNANCE%2FResources%2FAccountability Governance, at
p.1
[8] L Morlino (2002),
What is a “Good” democracy? Theory and
empirical analysis, Available at: http://ies.berkeley.edu/ research/files/
CP02/CP02 What is Good Democracy, at p. 4
[9] Sahni, P. and Vayunandan,
E (2010) Administrative Theory, PHI
Learning Private Limited, London.
[10] G Loewenberg and
SC Patterson (1997) Comparing
Legislatures, University Press of America, p. 133
[11] Bert A. Rockman,
Legislative-Executive Relations and Legislative Oversight, Legislative Studies
Quarterly, Vol. 9, No. 3 (Aug., 1984), pp. 387-440, Washington University,
Stable URL: http://www.jstor.org/stable/439490,
Accessed: 02-06-2018 16:57 UTC P 406-409
at p 406
[12] Ibid, 407
[13] Ibid
[14] R Stapenhurst, N
Johnston and R Pellizo (2006) The role of parliament in curbing corruption.
Available online:
http://wbi.worldbank.org/wbi/Data/wbi/wbicms/files/drupalacquia/wbi/The%20Role%20of%20Parliment%20in%20Curbing%20Corrupti
on.pdf., p.2
[15] Muhammad Sayadur
Rahman, Role of the Members of Parliament
in the Local Government of Bangladesh: Views and Perceptions of Grassroots in
the Case of Upazila Administration, Public Organiz Rev (2013) 13:71–88
[16] Article 60 the
Constitution of Bangladesh
[17] N Ahmed, T Ahmed
& M Faizullah (2011) Working of
Upazila Parishad in Bangladesh: A study of twelve upazilas, UNDP Dhaka
[18] A H Birch (1972),
Representation, London, Macmillan at
p 39
[19] Ibid, at p 24-37
[20] M Kent Jenning and Thomas E Man, Elections at Home and Abroad Essays in
Honour of Warren Miller, Michigan University Press, 1994 p 243
[21] Ibid p 252
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