Law Watch
Separation of power: Revisiting the basics
Shah Md. Mushfiqur Rahman
It seems that our long aspired separation of judiciary is on the horizon. But whether letters of law will be truly translated into practical life is a question to be answered in future. Meantime, we may turn our attention to some more fundamental issues to be taken care of to give our democracy a better chance to thrive. I am talking about a better functioning legislature or parliament from the perspective of separation and decentralization of power.
The concept of separation of judiciary derived from a greater concept of separation of political powers of a state. Every student of law knows it well what these powers are: executive, legislature and judiciary. Analyzing constitutions and constitutional practices of several states Baron de Montesquieu came up with a device he named 'separation of power' to thwart any chance of any of these powers getting tyrant. The basic idea was that if powers of two or more state organs are vested in one person, he has a strong likelihood to abuse that authority. Better, let powers be separated and thus diffused to reduce this possibility of high concentration of powers leading to dictatorship by a single authority. When solidifying his theory Montesquieu had England in his mind as perfect example of power-separation. Later on the idea was taken further to further the separation among state organs by some eminent thinkers like James Madison. Eventually the theory saw its best ever exemplification in the governance system of the USA.
In our system, which we inherited from England, legislature and executive can hardly be separated. Theory says, in this form of governance Cabinet is collectively responsible to the Parliament as the body directly representing people's voice and Cabinet loses its mandate if Parliament withdraws its support. But reality tells an altogether different story. Cabinet forms with the most powerful members of the political party/alliance that enjoys majority in the parliament. This collection of big shots again is led by an almost invincible Prime Minister. So, practically there remains no choice for ordinary pro-government parliament members other than to support every government move. And Article 70, which originally installed to restrain floor-crossing but later proved to be quite instrumental in preventing any sort of dissent that may arise from within the party, has a lot to do with weakening the authority of parliament as a separate organ of the state. As a result two kinds of different authorities, lawmaking and executive get virtually converged in one hand. This may furnish us with part of the answer why our ruling party, more particularly our Prime Minister is untouchably omnipotent. Excessive power does not take time to be excessively abused. And we have been experiencing just that over the past one and half decades.
But can this happen that the theory of parliamentary democracy as such is not an unworkable one and it is only us who are responsible for our dysfunctional parliament? Unfortunately this may not be the case. Even in England, proud country to supply the model for modern parliamentary democracy, parliament does not dominate the executive, rather facts are just the other way around. It is highly unlikely that the executive wants a law to be passed but the parliament turns it down. Though there is no 'straight' law to restrain dissenting vote or even defection, several devices are employed with success to keep the parliament members of the ruling party tame and sufficiently obedient. One of such methods is designating whips, whose duty is to make sure that party members attend and vote in favor of their nominating party on important occasions. The word 'whip' originated from the term 'whippers-in' that again came from a barbaric way of amusement. 'Red fox hunting' trailing a vicious pack of hounds was a well-known recreational sport for elites of medieval Europe. Whippers-in were not huntsmen themselves but they had an important part to play. They were responsible to keep the dogs in one single pack and used whips in doing so. Present day 'whippers-in' in 'parliamentary games' are also equipped with some invisible but equally potent whips at their disposal to maintain the discipline inside the party. These range from patronage for obedience to expulsion for disobedience in extreme cases. So, no wonder that there were only three instances in the whole preceding century where English House of Commons exercised their constitutional authority to topple the executive.
Like elsewhere, this executive dominance over parliament and other organs of the government has taken the shape of 'elective dictatorship' in Bangladesh where the winner in election takes it all and parliament acts merely as the rubber stamps of the executive. So we remain unable to find a case of substantial alteration made by the parliament in a law proposed by the executive and there is no example of a bill forwarded by opposition being passed by our rejuvenated parliament.
If we keep the theoretical rhetoric of people's representation aside for a while and look back in the history, it will be seen that the concept of parliament, be it Anglo-Saxon Witenagemot or Roman Comitia Curiata, was originally developed as a collection of elites who used to gather to exert synergized pressure on the all-powerful Monarch. So the primary and the foremost contribution of the emergence of parliamentary system was nothing more than the 'decentralization' of state authority among few hundred people as against one single king. And general people have never been at the receiving end of the benefit that parliamentary system yielded to remain underrepresented, if not unrepresented altogether. What popular suffrage brought new is the sensation of election which really matters little to common people when they find that dominant political parties offer meager divergence in respect of their policies and execution thereof. So if a given government is particularly corrupt, such decentralization of power means decentralization of corruption too. We might have had enough of it. We cannot change the lines of history books, but what we can do is to write the script of our future. But how? Will a change in Article 70 suffice or it requires something more?
Our major political parties, with rare exceptions of course, lack intra-party democratic practice. The ways nominees for different elections, parliamentary or local governments, are selected by these parties are not above criticism. This top-down approach, where top leaders decide who is to represent which constituency, is only enough to ensure that it will be a face off between tycoons. By no means does it bear any symptom of people's representation. Nominees, if elected, remain accountable to the central body of his/her political party and they don't bother to feel any responsibility for his/her constituency. Things can get little better if we can introduce a down-top approach in political parties' selection of nominees. In this approach grass-root units of political parties will have major role to play in this selection process so that only the people having qualities to get past the test of local activists make it to the national or local government level. Secret ballot will rather enhance the credibility of this process. Hopefully this will keep the 'overnight politicians' away from our elections. It will also help elected representatives feel relative independence from his/her political party. After all, representing the voters is their primary responsibility and implementation of concerned political parties' agenda comes second.
Another major and fundamental reform can be done by bringing in the 'proportional representation' of electoral formula in the place of current 'first-past-the-post' system. In the existing system if a political party manages to receive majority seats in the parliament it enjoys unfettered power in governance though its total vote may not be that much higher from its major rival. This system is criticized as being not truly representative of people's choice. On the other hand, in 'proportional representation' number of total votes count and decide the number of parliament members a party will have on the basis of percentage.
It should be mentioned that over the years we have been confusing between the responsibilities of parliament members and local governments. Development activities are supposed to be carried out by the local government bodies and parliament is responsible to legislate and ensure the accountability of the executive division of government. If this division of works, as envisaged by the Constitution, can be maintained to a reasonable extent, lucrative elements of parliamentary membership could be shaken off to keep it away from being prey to the all-devouring greed of mafias. But if we really want to decentralize state power, we need to strengthen our local government bodies. In the changed political milieu of overhauling we may expect the execution of the judgment given in Kudrat-e-Elahi Panir's case, less-talked but equally important as that of Masdar Hossain's case. This case requires the government to reactivate the dormant local government institutions and put people's representatives, as contrasted to bureaucrats, in their central roles.
The writer is Advocate, member of Dhaka Bar Association.
