Straight Line
Constitutional bodies and accountability mechanism
Concerned citizens would perhaps agree that in Bangladesh there is a pressing need to recast the structure and staffing of the principal constitutional bodies. No citizen may dispute the accomplishment of the prime objective of providing a stable government, tackling corruption and protecting basic human rights effectively.
It, thus, follows that to achieve these goals, the importance of having firm and capable watchdog organisations should not be a matter of debate.
A democratic society needs the services of watchdog organisations if it is committed to ensure constitutionalism. To start with, there is the paramount necessity of building awareness about the essentials of constitutionalism as part of a democratic system of government.
We have to be sure, if we want to break with the unsatisfactory practices of the present and the immediate past, and maybe before that, to anchor certain principles that could be strictly enforced. Do we, at least theoretically if not practically, want to ensure that reversion to corrupt habits becomes difficult?
The pragmatic but unpleasant information is that political power residing in people, in actual practice, might turn out to be potentially dangerous and destructive, especially in a third-world scenario. The expectation of substantial conformity with the rules is a massive challenge.
Let us not forget that the rule of law was the fruit of political conflict stretching over many centuries. Therefore, constitutionalism requires that any exercise of political power shall be bounded by a system of higher order rules.
The aforementioned higher order rules would determine the validity of legislative and executive action by prescribing the procedure according to which it must be performed or by delimiting its permissible contents. These rules, in situations like ours, need to be in the form of directions/prohibitions incorporated in a basic constitutional instrument, disregard of which may be pronounced ineffectual by a court of law.
Constitutionalism becomes meaningful when institutions acquire sufficient teeth to curb arbitrariness of discretion, and are respected by the wielders of political power. It is also manifestly facilitating when there are forbidden zones, which authority may not trespass, and there is visible enjoyment of human liberty.
In Bangladesh, it is time that we seek to establish different forms of accountability, not simply through a system of elected government but by placing restrictions on the power of the majority. We need to think of a constitutional court to set legal limits on the exercise of public power, and formal financial accountability in public affairs.
We should frame rules that embody a defensible constitutional morality, which accords with principles of good governance.
In Bangladesh, patron-client relations have come to embody a deeply ingrained set of complementary values. In fact, the stability of our society has not been largely dependent on questioning the authority of those further up the hierarchy.
In our situation, the effectiveness of watchdogs headed by a government appointee has been called into question. Once in position, rather than insisting on performing statutory obligations to investigate and prosecute ministers and officials, the person in question has been alleged to be inclined to defer to superior authority, deriving from the patronage of the government.
It has been alleged that we have a relationship pattern that unites politics and economics. To be specific, on the part of the patron, political influence or power ensures access to wealth, with the client providing the services that contribute to the patron's wealth. The client has his share in the proceeds. It is a symbiotic relationship where each needs the other to obtain the benefits that both receive.
The above informal relationship that requires associates paying each other in kind for favours rendered essentially runs counter to the traditional and formal concepts of constitutionalism. In our election system it is not unusual to come across situations where votes have been cast in exchange for a personal commitment arising from financial reward.
It would not be a travesty of truth to comment that many Bangladeshis do not have the opportunity to vote to secure the achievement of wider community goals due to the securing of calculated gain at election time in the form of cash hand-outs.
There is premonition that Bangladesh is slowly but steadily moving towards a type of "Contracting State." Such movement attempts to reduce the size of the public sector by privatisation of state run industries. The objective is to improve the efficiency of delivery of services to the citizens through exposure to market forces.
This process of contract making expands the interface between bureaucratic organs of the state and elected politicians on one hand and private sector organisations on the other. Such developments increase the potential for conflicts of interest to arise in the awarding of such contracts. This is problematic because elected politicians in the government have strong business connections and involvement.
In such a situation, the task of designing effective constitutional accountability mechanisms is rendered more complex.
In Bangladesh, unfortunately, the efficiency and integrity of constitutional bodies have been questioned. Some quarters have raised serious reservations about the selection procedure to such bodies. The allegations, accusations, innuendos and insinuations, whatever one may call them, cannot perhaps be ruled out or summarily dismissed for reasons better left unsaid.
Our political establishment may not be very sensitive about the not-very-unjustifiable criticisms leveled against the constitutional bodies and, as such, may not react positively, but the compulsions of a true democratic polity dictate that we turn such bodies into truly credible institutions worthy of drawing respect from the people.
Consequently, can we think of appointing the election commissioners through a selection committee representing the judiciary, representatives of political parties, nominees of the president of the Republic, distinguished academics and eminent citizens, to start with?
The procedure of submitting nominations and selection through voting by the members of the aforementioned selection committee may be sorted out through consultation. The final appointments may be confirmed by the chief justice of the Supreme Court or by the president of the Republic. Similar arrangements may be made for selecting members of the anti-corruption commission and the proposed human rights commission.
If we are desirous of an orderly and accountable democratic polity then the constitutional bodies have to be headed and presided over by suitably qualified and well-respected individuals of integrity and, thus, there should be very stringent criteria that are required to be fulfilled by potential candidates for consideration to all constitutional posts.
To secure the independence of the constitutional bodies, their funding allocation and organisational structure deserve special consideration. The setting up of each constitutional body should necessitate the establishment of a distinct office and administration, which is not dependent on any part of the executive through a government department.
The bodies should be institutions in their own right, and should form a unique structure to enable them to perform their statutory duties. There should be autonomy in the way the bodies organise their personnel, administration and budget. Such bodies should report to the Parliament on the results of their activities.
The above bodies have to operate within a budget limit that will be approved by the Parliament. If such working parameters are worked out, then the constitutional bodies will have the scope to determine their organisational structure, the conditions of service and salary of the staff including the commissioners.
Constitutionalism is actually a degree of self-imposed restraint, which should operate beyond the text of the constitution, especially on the part of practicing politicians and public officials. We can establish real constitutionalism when political behaviour is actually restricted within certain boundaries. The moot point is that both government and opposition must be equally committed to shared principles of constitutionalism.
If we do not want violent street protests to be the final arbiters of public affairs then our politicians have to be genuinely committed to structural reform and wealth redistribution in our distressingly unequal society.
Unfortunately, our democratic process has precious little to offer to the overwhelming majority of voters, apart from the scattered pay-outs at election time. The compounding tragedy is that politics has been a means of livelihood for many here and the insensitive rich and the irresponsibly powerful do not face the threat of being sidelined from the political process, as yet.
Muhammad Nurul Huda is a columnist of The Daily Star.
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