'তত্ত্বাবধায়ক সরকার' ব্যবস্থা: একটি সাংবিধানিক মূল্যায়ন ও বিকল্প সন্ধান

(The Caretaker Government: A Constitutional Evaluation and Search for Alternative)

Md Zakir Hossain and M Jashim Ali Chowdhury

Published in: The Chittagong University Journal of Law, Vol XIX 2014 pp 228-263

The full text is available at: https://www.researchgate.net/publication/336813297_The_Caretaker_Government_A_Constittutional_Evaluation_and_Search_for_Alternative_In_Bangla

Religious Equality in South Asia: Does “Constitutionalised Secularism” Matter?

Dr Jashim Ali Chowdhury

Md Jahedul Islam

Published in The Chittagong University Journal of Law, Volume XXIV 2019 (Published in June 2023) pp 41-60

 

Abstract

The constitutional principle of Secularism has been famously interpreted as creating a “wall of separation” between the state and the church (religion). Most states in the South Asian region are, however, fraught with histories of political bias toward dominant religions and the societal intolerance of religious plurality. Yet, these countries have endorsed a varying degree of commitment to secularism and religious freedom in their constitutions. India and Nepal are constitutionally secular countries without any state religion. Higher judiciaries of both countries, however, have effectively established Hinduism as the most favoured religion. Bangladesh and Sri Lanka, on the other hand, are constitutionally secular states but have a constitutional bias towards a state or most favoured religion. Facing the dilemma, Bangladesh Supreme Court has declared secularism as a basic structure of the constitution but paradoxically refused to adjudicate the constitutionality of its state religion amendment. The Sri Lankan Supreme Court calls the state a secular one but interprets the constitutionally guaranteed “foremost place of Buddhism” at the expense of the religious freedom of minorities. This paper argues that in the process of constitutional adjudication, the higher judiciaries of South Asia’s secular and hybrid-secular countries have come to one common ground - the establishment of the dominant religion at the cost of equality and freedom for religious minorities. From a theoretical point of view, if secularism is minimally understood as religious neutrality, if not a “wall of separation”, these South Asian countries are failing even this minimal understanding of secularism, and their courts are trying to give their constitutions “a secular or neutral outlook, when [those, in fact, are] neither secular nor truly neutral”. Therefore, this paper argues that constitutional secularism in the region is a dead idea – at least in its “wall of separation” and state neutrality sense.

Parliament of Bangladesh: Constitutional Position and Contributions

Dr M Jashim Ali Chowdhury 

Published in: Ridwanul Hoque and Rokeya Chowdhury (eds), A History of the Constitution of Bangladesh: The Founding, Development, and Way Ahead (Routledge, London, 11 July 2023) pp. 145-160

Publisher Link: 10.4324/9781003276814-12

Abstract

Bangladesh’s original constitutional scheme of 1972 adopted a Westminster parliamentary system. The choice was influenced, among others, by post-colonial political elites’ over-appreciation of the British parliamentary system as the most adaptable institution for Commonwealth countries. In the case of Bangladesh, a desire to reverse the decades-long suppression by Pakistani authoritarian presidentialism also provided strong motivation. However, fifty years into its constitutional beginning, Bangladesh had undergone different cycles of constitutional changes involving one-party presidentialism, military dictatorships, unelected non-political caretaker governments, illiberal bipartisanships, and, again, the latest ongoing round of one-party monopoly. Curiously, the vicious cycle of constitutional dismemberment and restoration, realised through several constitutional amendments, shows that the 1972 scheme of the parliamentary system has a remarkable level of perseverance. Given this paradox of constitutional design and its political mishandling, this chapter evaluates the institutional value that the parliament of Bangladesh (Jatiya Sangsad) carries within the body politic. It is argued that the decline of principled liberal-conservative bipartisanship, along with the emergence of an overtly dominating and dynastic party system, has made the constitutional design of parliamentary system a hollow device with which to attain constitutionalism in Bangladesh.

Making and Unmaking the Constitution of Bangladesh

Dr M Jashim Ali Chowdhury

Published in: Ngoc Bui Son and Mara Malagodi (eds.), Asian Comparative Constitutional Law Volume I: Constitution Making (pp 363-382, Hart Publishing: London, 18 May 2023)

Publisher's Link: <https://www.bloomsbury.com/uk/asian-comparative-constitutional-law-volume-1-9781509949700/>

Abstract

Bangladesh’s Constitution of 1972 was largely modelled on a UK-styled parliamentary system with a ‘half-hearted’ combination of a US-styled judiciary. The framers choose a Westminster-like arrangement between the executive and legislative branches. The judicial branch was given a semblance of independence (through the judges’ appointment, removal, and discipline processes) and the power of judicial review. The choice of parliamentary system was influenced, among others, by the post-colonial political elites’ general appreciation of it as a convenient institutional model for the former British colonies (Sri Lanka (1948), India (1950), Pakistan (1956), and Malaysia (1957) for example). In the newly independent Bangladesh, a desire to avoid the painful tragedy of Pakistan’s authoritarian presidentialism also provided strong motivation. Th e independence of the judiciary and its judicial review powers were necessary for enforcing the country’s constitutional supremacy (as opposed to the UK’s parliamentary sovereignty) and fundamental rights. Ideologically, the sponsors of the 1972 Constitution showed a strong commitment to a social democratic republic based on four foundational principles-democracy, socialism, nationalism, and secularism. Now, 50 years into its constitutional beginning, Bangladesh seems to have mishandled the original design and forgotten the original ideals. Since 1972, the country has undergone different political experiments involving one-party presidentialism, several direct or indirect military regimes, several election-time caretaker governments, competitive bi-partisan authoritarian governments, and the ongoing round of one-party authoritarianism. During this tortuous constitutional journey, Bangladesh’s parliamentary system has transformed into a crude version of the prime minister’s ‘elective dictatorship’. The judiciary has been marginalised, and its check-and-balance potential is mostly gone. 6 On the ideological front, the country has either walked away from some of its foundational principles (socialism, for example) or substantially tempered with the others (democracy, nationalism and secularism, for example). Some pundits have blamed the framers’ lack of institutional imagination for this constitutional debacle. While the lack of institutional imagination may be a valid argument in several areas of constitutional design (executive legislature relations and the electoral system, for example), this chapter argues that Bangladesh’s constitution-making process carried with it some other inherent and inevitable dilemmas on political participation, leadership style, and civil-military relations. Total exclusion of the religious-conservative political elements from the constitution-making process (how logical it appeared then) had partially weakened (if not dislodged) the 1972 Constitution's political foundation. Second, a socially resonant tendency to personalise public power inhibited the Constitution-drafters’ ability to prioritise institutional considerations over their leader’s personal preferences. Resultantly, a seismic constitutional change in 1975 led to direct military intervention into politics and the revival of the ultra-religious conservatives. Bangladesh’s constitutional unmaking has been rapid and consistent since then.

 

The Parliament (Jatya Sangsad) of Bangladesh

M Jashim Ali Chowdhury

Published in: Po Jen Yap and Rehan Abeyratne (eds) Routledge Handbook of Asian Parliaments, (Routledge 2023), pp 103-124

Link: https://doi.org/10.4324/9781003109402-9

Abstract

The Parliament of Bangladesh (hereinafter, the Parliament) is officially known as the Jatiya Sangsad (House of the Nation). It is a unicameral legislature established under Article 65 of the Constitution of the People's Republic of Bangladesh (hereinafter, the Constitution). Modelled on Westminster, the Parliament is entrusted with legislative powers, constitutional amendment power, financial and budgetary powers, and the powers of democratic oversight over the government. The Prime Minister and the Cabinet are drawn from the majority parliamentary party. The government remains in power so long as it bears the confidence of Parliament. As Bangladesh recognises constitutional supremacy, parliamentary laws and even constitutional amendments are subject to judicial review. The Supreme Court of Bangladesh is considered the guardian of the written Constitution and, hence, has the power of judicial review over executive and legislative actions. This chapter explains the structure, composition, powers, functions, and legislative process of the Parliament. The chapter also includes critical reflections on several of its institutional aspects.