Balancing Power Of President And Prime Minister

The entire period of administration in independent Bangladesh in its thirty-five years of history can be divided almost fifty-fifty into presidential and parliamentary forms of government, interrupted by two military and several years of military take-over of administrations.

While the presidential form of government is criticized by our politicians and intellectuals as autocratic, the three full terms of parliamentary form of administration from 1991 through 2006, duly elected by more-or-less free and fair elections with massive voter turnouts [1] , have been no less dictatorial than the presidential form of administration in true measures of effective democracy.

The root cause of that dictatorship, be it in parliamentary or presidential form of government, is the one-man (or one-woman) party leadership with no accountability [2] whatsoever to their respective parties, to the parliament [3] , or to the people who elected them. But what we need is true and lasting democratic reforms for effective governance by balancing the power between The President and The Prime Minister.

Historical Scenario

Neither Pakistan nor Bangladesh have ever had any good experience with strong presidents, who have inevitably [4] tended to assume absolute power and treat parliament as a subordinate agency. Up to 1971 the struggle against a powerful and unaccountable [5] president was expected to be resolved through a strong, freely elected parliament headed by a prime minister. This was the essence of the 1972 constitution. But this phase lasted for less than 2 years till the passage of the 4th Amendment in January 1975. From 1975 to 1991 we had been exposed to a president with absolute power.

The removal of an unaccountable president, through a mass movement in 1990, should logically have led us to a restoration [6] of the parliamentary system. However, for those with short memories, which seems to include most people, Begum Khaleda Zia, once elected to power in the March 1991 elections, was not at all keen to amend [7] the constitution and restore the parliamentary system. She was more interested to continue with a strong presidency. Her ambitions were frustrated by the then president, Shahabuddin Ahmed, who had, as the head of a caretaker government, given Bangladesh one of the fairest elections in our history. President Shahabuddin pointed out to Khaleda Zia and her colleagues that the 1991 elections were contested under the assumption that Bangladesh would return to a parliamentary system. This, indeed, was the commitment of the major political parties to the electorate. If Khaleda Zia wanted to resile from this position, now that her party was elected to office, and retain the strong presidency, then Shahabuddin threatened to dissolve the Parliament and call fresh elections. The BNP could then campaign on the basis of retaining the presidential system and if they obtained an electoral mandate for this Khaleda Zia could become president, presumably after contesting a presidential election.

The BNP was reluctant to expose itself to another election fought on the mandate [8] of a strong presidency. They agreed to join hands with the Awam League in Parliament to repeal the 4th amendment, and Khaleda Zia took office as prime minister. However, the autocratic impulses which had inspired her to retain the presidential system, extended into her exercise of power as prime minister. The prime minister transformed herself into a president in all but name, building a strong secretariat in the Prime Minister's Office, where all key decisions in her government were referred. As a result, the Parliament, which had been restored with its powers, remained ineffectual. Here, the then opposition, led by the Awami League, helped to keep Parliament ineffectual by walking out of the house on every possible occasion and boycotting the house for long periods of time. For the five years of 1991-96, very little of consequence was discussed or decided in Parliament, and all powers were appropriated by the presidential prime minister.

Tragically, this tradition, set in motion in the first tenure of the BNP, was perpetuated by the Awami League. This time the BNP played their role in boycotting Parliament. To the credit of the Awami League they did make some efforts to empower Parliament by establishing the Prime Minister's Question Hour and activating the parliamentary committees. But the BNP boycotted Prime Minister's Question Hour, while their long boycotts of the Jatiyo Sangshad weakened the effectiveness of the parliamentary committees. Once again the PMO became the centre of power in the then government, and we witnessed another 5 years of a chief executive and government with little or no accountability to Parliament.

The return of the BNP-led alliance to office in 2001, with weak representation of the opposition in Parliament, elevated the PMO into a virtual monarchy. Long boycotts of the Parliament by the opposition, the refusal of the ruling party to give any opportunity to the opposition to ask questions in the Prime Minister's Question Hour and the virtual dysfunction of the parliamentary committees transformed the Parliament into a rubber stamp institution. Thus, for a period of 15 years and three elected governments, we have been witness to an all-powerful prime minister, an unaccountable executive, and a dysfunctional parliament. It is hardly surprising that governance has degenerated and corruption has flourished.

After this long exposure to an ineffective parliament, whether under a presidential or parliamentary system, it is somewhat bizarre [9] to be arguing that we now need to solve the problems of a malfunctioning democracy by strengthening the president's powers and putting in place an unelected supra-body in the form of a National Security Council.

The Pakistan experience, which is being enacted before our eyes today, should have educated us to the un-workability of a duality of power between a president and parliament. In recognition of the un-workability of this arrangement the Pakistanis are seeking to amend the constitution to clip the powers of the president, which have invariably been used to frustrate the electoral mandate. A similar dyarchy of power in Nepal between the king and parliament has culminated in the abolition of the monarchy [10] .

What we should be looking for today in Bangladesh is to return to the letter and spirit of the 1973 constitution by restoring the power of the Parliament.

The President-versus-Prime-Minister power balance

The country has “tried both the Presidential and the Parliamentary forms of government. Now we should try to set up a balanced system giving more power to the President, Ministers and other agencies to enable them carry out their tasks… Power must be balanced, not tilted towards any family and dynasty." [11] That was the beginning. Then the general apparently stopped, but seminars and symposiums that were allegedly sponsored by the military marked Dhaka’s aristocratic hotels, as did so-called think tanks.

A seemingly military-backed paper presented in Dhaka observed the generals’ idea to be a logical one and came up with some recommendations [12] , among them that:

1. Prime Minister shall not prepare and send a penal of his/her sole choice for any constitutional post to the President; instead, there shall be a commission to deal with matters related to appointment to constitutional posts and President shall appoint such persons in consultation with the Prime Minister.

2. President shall have 10 percent reserve quota in the administration which he will fill in consultation with the Prime Minister with qualified, experienced and honest persons, and 10 percent quota in the cabinet which he will fill, with or without consultation with Prime Minister, with qualified, honest and non-partisan persons.

3. President shall have the prerogative of declaring Emergency in the whole or in parts of Bangladesh whenever the security and economic life of Bangladesh will be in jeopardy without being advised by the Prime Minister.

4. President being the Commander-in-Chief of the armed forces shall meaningfully be consulted regarding appointments, transfers and promotions of the officers not below the rank of Brigadiers or equivalents. Even his consent may be binding while selecting the service chiefs.

5. Appointments, transfers and promotions of High Commissioners/ Ambassadors shall not be the sole domains of the Prime Minister; rather these shall be made through meaningful consultations with the President.

6. A Constitution Commission needs to be constituted to look into details to device a practicable, up to date frame of balance of powers between the President and the Prime Minister in the Parliamentary system.

The proposed “Constitution Commission" exists nowhere in the constitution and stands completely ultra vires. Article 142(1) of the constitution clearly stipulates that: [13] 

Notwithstanding anything contained in this Constitution-

(a) any provision thereof may be amended by way of addition, alteration, substitution or repeal by Act of Parliament:

Provided that-

(i) no Bill for such amendment shall be allowed to proceed unless the long title thereof expressly states that it will amend a provision of the Constitution;

(ii) no such Bill shall be presented to the President for assent unless it is passed by the votes of not less than two-thirds of the total number of members of Parliament;

(b) when a Bill passed as aforesaid is presented to the President for his assent he shall, within the period of seven days after the Bill is presented to him assent to the Bill, and if he fails so to do he shall be deemed to have assented to it on the expiration of that period.

Again, article 142(1A) stipulates that any amendment regarding the preamble or article 8 or 48 (pertaining to the Office of the President) or 56 (pertaining to the prime minister and other ministers) will be subject to a nationwide referendum referred by the president. [14] 

In the face of severe criticism, government sources started to argue that the government might constitute such a Constitution Commission and the commission might only prepare a recommendation. They argued that based on the groundwork of such a commission, the next elected parliament would go ahead. Such statements added to the widespread suspicion that the military regime was preparing for to a rubberstamp parliament through poll engineering.

All this prompts a simple question: is the Bangladeshi army proceeding towards a Pakistani model? Because the military-sponsored provisions in the Constitution of Pakistan provide that the cabinet should hold office at the pleasure of the president, President Golam Ishaque Khan could dismiss the elected regime of Benazir Bhutto. The same president attempted the same thing against the elected government of Nawaz Sharif but was foiled with a historic verdict of the Lahore High Court.

If the idea gets implemented, the army, an already overdeveloped institution, will surpass all others in Bangladesh on the pretext of balancing power between the president and prime minister. It will totally destroy the democratic polity with a de facto “military-prime minister" power (im)balance. Some power-hungry generals will influence the Office of the President even by installing a handpicked person in the post. In that case the military will turn it into an institution diametrically opposed to the people’s interest, engendering a new power equation: prime minister for the people and president for the vested quarters in military. In a parliamentary system, the question of a power balance between the president and the prime minister is absurd. The point should be how to make the Office of the Prime Minister more accountable to parliament. A drastic change in the Parliamentary Committee system could be an effective and an acceptable measure aimed at a more accountable prime minister.

Some aspirant generals will, most probably, choose to amend article 48(3) of the constitution, rendering the president independent of this article in terms of article 62, which reads: [15] 

(1) Parliament shall by law provide for regulating-

(a) the raising and maintaining of the defence services of Bangladesh and of their reserves;

(b) the grant of commissions therein;

(c) the appointment of Chief of Staff of the defence services, and their salaries and allowances; and

(d) the discipline and other matters relating to those services and reserves.

(2) Until Parliament by law provides for the matters specified in clause (1) the President may, by order, provide for such of them as are not already subject to existing law.

But this jurisdiction of the president is not unconditional, as article 48(3) stipulates that, “In the exercise of all his functions, save only that of appointing the Prime Minister pursuant to clause (3) of Article 56 and the Chief Justice pursuant to clause (1) of Article 95, the President shall act in accordance with the advice of the Prime Minister" (emphasis added). Hence, if the power of the president in article 62(2) is independent of the prime minister’s advice as stated in article 48, some generals will desperately abuse the Office of the President, a non-representative and non-accountable office, unlike that of the prime minister. It may, however, be sensible to empower the president in terms of article 106 of the constitution, which reads: [16] 

If at any time it appears to the President that a question of law has arisen, or is likely to arise, which is of such a nature and of such public importance that it is expedient to obtain the opinion of the Supreme Court upon it, he may refer the question to the Appellate Division for consideration and the division may, after such hearing as it thinks fit, report its opinion thereon to the President.

The president can be empowered through an amendment in article 48(3) so that he can refer a vital question of public importance to the Supreme Court without any advice of the prime minister. Only an elected parliament can undertake such an initiative.

The question of the National Security Council

Apart from the president-prime minister power balance, another proposed innovation aimed at protracted military dominance is the proposed National Security Council (NSC). The Bangladesh Institute of Leadership and Security Studies (BILSS), observed the following factors in favour of establishing such an institution. [17] 

a) Geo-strategic location, stage of economic development, unique demographic profile pose multifaceted security challenges: political violence, destabilization, religious extremism, cross-border crimes, arms trafficking, drugs are more serious than inter-state conflict that also exist.

b) Bangladesh’s security traffic is already heavy, and getting heavier as we are trying to harness our natural resources, like oil, gas, coal and water, and deal with energy, food and environmental security.

c) Weak capacity building in state institutions, limited vision of political leadership and incapacitated political institutions, particularly Parliament and parties have led to a situation that needs NSC as an integrated leadership model for national security and stability for sustained development.

As BILSS advocates in terms of the proposed NSC:

a) The NSC should ideally be a part of the constitution with a new article inserted, or could be enacted as an ordinance now and be incorporated into the constitution later.

b) If Bangladesh continues with a parliamentary system, the NSC should be located with the president to create an appropriate check and balance with the prime ministerial power.

c) The NSC needs to work with operational autonomy under overall civilian control.

d) In Bangladesh, there is a need to expand the NSC to include political leaders, military leaders, intelligence agencies, bureaucrats, businessmen and experts or eminent persons. It should be within the range of 9-13 persons.

However, BILSS concluded that such a body ought to be constituted in consultation with the people and the keynote speaker of the roundtable at which these points were presented, Professor Rahman, concluded that the discussants’ verdicts were in favour of the national parliament supervising the NSC. A Daily Star article by a retired army official, Shafaat Ahmad, advocated some legislative safeguards to be incorporated into the NSC provisions, including that the prime minister be bound to consult and be advised by the NSC and that preparation of NSC directives be mandatory once the prime minister has given a final decision. [18] 

Most of the arguments on the NSC from the ambitious generals start with an innocent face, but end with a proposed structure that would supersede the Office of the Prime Minister. In a parliamentary democracy, while people’s aspirations are manifested through electoral choice, the proposed NSC structure demonstrates mistrust towards political or representative leadership.

All countries need institutions to address vital security issues. The idea of NSC, first initiated in the US in 1947, was substantiated through the hierarchical restructuring of President Eisenhower in 1953. The UK, India, Singapore, Malaysia and Korea have devised NSCs to address their respective issues. None of these countries let the NSC supersede the primacy of the chief elected representative of the country. In contrast, Turkey and Thailand have devised so-called civil-military relationships undermining the supreme elected posts that have ensured repeated setbacks to democracy.

The military-controlled caretaker government of Bangladesh seemingly opts for an NSC that would surpass the supremacy of the Office of the Prime Minister and be located with the Office of the President. In a parliamentary arrangement, such a setup is an obvious threat to democracy. Nowhere in the arguments advocating the NSC has its accountability been made clear. If such a body were installed, Bangladesh would enter a vicious circle leading ultimately to bloodshed in order to revive democracy.

Conclusion

Fundamental reforms are required for an effective balance of power among the various branches of government. In order to prevent dictatorship by the head of government and encourage democratic practices in the administration, it is necessary to create laws to make a balance of power between the prime minister, president, cabinet, and the parliament. A parliamentary form of government, with the following formula for essential checks and balances in order to make democracy functional and relieve the administration of dictatorial rule by the all-powerful prime minister, is the best solution we can hope for good governance in our nation.

A) President:

Selection and appointment of the president shall follow the current system. In addition to all other incumbent duties and responsibilities, the president, by constitutional provision, shall hold the portfolio of Defense Ministry, assisted by a state minister to be chosen by the president, and be the commander-in-chief of the armed forces and chancellor of all public universities, in order to protect these vital national institutions from the influences of party politics. The president is impeachable by a vote of two-thirds of the parliament in the event of breach of the Constitution or serious violation of law.

B) Prime Minister:

Selection and appointment of the prime minister and parliamentary majority/minority shall be carried out by the current mechanism. The prime minister shall be the head of the cabinet, and carry out all responsibilities incumbent upon the premier, with the following limitations.

i) Cabinet:

The prime minister shall nominate two names for each port-folio for the positions of cabinet minister, state minister, and/or deputy minister, and the president may select one of the two persons for each port-folio or may choose to select a person from outside the premier's nominations, but not to exceed one-third of the total cabinet appointments by the president from outside the premier's nominations. Up to a maximum of twenty percent of the cabinet positions may be filled by competent individuals who are not elected MPs by the above stated mechanism of joint decision by the premier and the president. The appointments of all ministers shall be confirmed in the parliament by a vote of minimum of fifty percent of MPs. If a minister does not get the required votes for confirmation in the parliament, the nomination process shall start all over again -- from the premier to the president to the parliament as described above.

The minister in charge of each port-folio shall routinely submit to the parliament a quarterly report, not to exceed twenty pages, outlining the progress on various projects and the future initiatives.

ii) Parliament:

The EC shall determine appropriate qualification requirements and other eligibility criteria for the nominations and elections of MPs in order to ensure that the MPs become competent lawmakers and guardians of democratic governance. The parliament shall be in session throughout the whole year, except for three weeks of summer vacation, three weeks of winter vacation and declared public holidays. Moreover, an MP can have a maximum of two weeks of paid sick leave per year. There must be a method of secured electronic monitoring of the attendance of each MP in the parliament, with consequences for unauthorized absence. The attendance of all MPs must be made public records open to all citizens, and should be part of their records to be placed before the voters during the following election, along with their voting records on different issues for the sake of accountability and transparency on the part of elected representatives. The current undemocratic law punishing MPs with the loss of their seat in the parliament for voting against their parties must be abolished.

The parliament shall form committees, with appropriate representation from the majority and minority parties, for each department/division and ministries of the government. The parliamentary committees shall have the subpoena power to summon ministers, including the prime minister, secretaries, chiefs of armed forces, chairs of EC, ACC, PSC, and the heads or other officials of any organization, public, private or autonomous, to testify before it. The parliamentary hearings, similar to the United States congressional hearings, shall be televised live so that the citizens can have a first hand knowledge of the inner workings of the ministries and parliament. After such hearings, the parliamentary committee may send recommendations to any office for mandatory follow-up actions that must be reported back to the parliamentary committee in a fixed period of time.

iii) Firing of a minister:

The prime minister may recommend the name(s) of minister, State Minister or Deputy minister to the president to relieve them of their responsibilities. If the president agrees with the premier's recommendations, then the firing of a minister is final; however, if the president disagrees, then the case shall be referred to the parliament. If a vote of sixty percent of the MPs favours the premier's recommendations, then the minister loses the job; otherwise he/she continues in the position. Similarly, the president may initiate a recommendation to the premier for firing a minister and if the premier agrees, the minister leaves his/her position, but not the post of MP, if elected. But, if the premier does not agree, then again the case shall be referred to the parliament, and a vote of sixty percent of the MPs will decide whether the minister stays or leaves. Likewise, the parliament by a vote of two-thirds may recommend for termination of the job of a minister. If either the president or the prime minister agrees with the parliament's recommendations, then the minister loses the job; otherwise, he/she stays.

The above stated power-sharing mechanism in government at least takes away the much talked-about dictatorship and abuse of power by one individual, the prime minister, and provides for a system of verifiable accountability and transparency on the part of all branches of government and elected officials. The nation cannot afford any more to give free rides to our all-knowing, all-powerful politicians and elected representatives. It is high time for our leaders and officials to serve and treat the people with honesty, integrity, respect, dignity and fairness, and stop acting like their masters.