by F R Chowdhury
The word “state” would normally mean independent sovereign states often being a member of the United Nations. A state could be a kingdom or a republic. Some of the kingdoms have absolute monarchs. The word of the monarch is the final law. These countries do not have functional democracy. Saudi Arabia, Kuwait, Qatar, Bahrain and a few others fall into this category. There are many more kingdoms where the monarch has a constitutional role as a ceremonial head of the state and the state is run by a government elected by the people. These countries though known as kingdoms have full democracy. United Kingdom, Belgium, Netherlands, Sweden, Norway, Denmark, Thailand and Japan fall into this category.
Kingdoms that have constitutional monarchs, the king or queen are like a “father figure” keeping the nation together. Everything runs in the name of his or her majesty. The monarch is obliged to invite the leader of the majority party to form the government yet, it is known as his or her majesty’s government. The king or queen opens the parliament with a speech where the government is referred to as “my government”. The cabinet does not approve the king’s speech though the prime minister advises the monarch on the content of the speech. In Britain the Queen delivers her speech in the House of Lords where traditionally the cabinet and the elected members of the parliament keep standing. I was shocked to hear the cabinet secretary in Bangladesh briefing the press after cabinet meeting that the cabinet had approved the president’s speech. This was a serious insult to the head of the state. In all countries, whether kingdoms or republics, the head of the state is the supreme commander of the armed forces. The king or president takes salute on national day parade and on graduation/ commissioning ceremony of the armed forces. I have never seen the British prime minister attending any of those military ceremonies. As a matter of fact he has no time for such things. Where the Queen cannot appear in person, she is normally represented by a member of the royal family who wears the ceremonial military uniform. The prime minister does not want to behave like a clown by wearing 5-star general’s uniform in peace time as done in Bangladesh.
There are two types of presidents in republics. In the parliamentary system the parliament elects a president. The president is the head of the state, supreme commander of the armed forces and the custodian of the constitution. He is above politics – I mean party politics. Even if he was a member of the parliament, the seat becomes vacant as soon as he is elected president. As the ultimate guardian of the state, he is expected to be neutral and treat everyone with equal respect. The president is elected by simple majority but his impeachment will require the consent of 2/3 rd members of the parliament. However, when a new parliament is elected, they may elect a new president when the tenure of the previous president will automatically expire. The president will normally invite the leader of the majority party to form a government that shall run the state on his behalf. He shall conduct the oath of office to the prime minister and members of the cabinet. The prime minister shall be the chief executive and head of the government. Relevant minister or secretary of state shall be treated as government so far it relates to the activities of that department or ministry. The government/ cabinet shall be responsible to the nation through the parliament. They shall have to justify every decision and action in the parliament. However, it is the duty of the prime minister to call on the president from time to time to keep the president informed of all developments.
In the other system the president is head of the state as well as head of the government. In this case the president must be elected directly by the people. The oath of office shall normally be conducted by the chief justice. The 1975 election of Sheikh Mujibur Rahman by the parliament as the executive president of Bangladesh was not in conformity with democratic system and procedures. The president (directly elected by the people) appoints a cabinet to assist him to run the affairs of the state. He may even appoint a prime minister but the president will continue to be head of the government. In some countries the ministers nominated by the president must be approved by the parliament or its select committee. The ministers shall satisfy the parliament on the decisions and actions taken by the government. However, the executive president may also be impeached by 2/3rd majority of the parliament.
An elected parliament is the reflection of proper democratic process. The parliament makes acts of parliament that become law once signed by the head of state. The budget must be passed in the parliament. Parliament must debate on all bilateral, regional and international treaties before their acceptance or accession. Any agreement or treaty signed by the prime minister or any other minister must be ratified by the parliament. In fact such documents are signed (provisionally) subject to ratification. The Noon-Nehru and Indira-Mujib treaties were eventually ratified by Indian parliament very recently (ages after their original agreement). On point of order MPs bring very important matters to the attention of relevant ministers. MPs may also bring to the notice of the parliament grievances of his/ her constituents. In fact parliament can discuss almost any matter except those under judicial process.
The Supreme Court is supposed to be the highest seat of justice in the country. No one can change the verdict except presidential pardon. An independent judiciary can ensure human rights; equality and justice that are key words embodied in the constitution and are essential for fulfilment of democracy. It is the duty of the Supreme Court to ensure that the legal system operates freely without any hindrance or influence in accordance with the provisions of the constitution and laws enacted by the parliament. However, in case of a writ when the validity and legality of a law is challenged, the highest court serves a notice on the government as to why such law should not be set aside and considered void. The court analyses all reasons and justifications put in favour or against the case. Sometime the court may seek opinion of eminent lawyers (amicus curiae) as friends of the court. If the verdict is “bad law” then that is the end of the law. Before declaring it a bad law the court must be satisfied that the law is against the principle of constitution and fair justice; and the law is detrimental to the interest of the nation or that the law is subjective rather than objective (holistic).
My remarks about judiciary and its administration in Bangladesh will not be complete unless I write something about mockery of judiciary by police and media (press and TV). An accused is supposed to be treated as innocent until and unless proven guilty in a court of law. Yet, in Bangladesh police parade all the arrested persons in front of the TV and press. One time I saw in the TV, a journalist trying to ask questions to an accused fighting for life in hospital bed about the bank robbery in which the accused supposed to have got injured. On another incident the police officer was explaining to the press how the accused shot and killed two persons with his firearm. Here in the UK, the police do not even divulge the identity of the accused/ arrested person. Yet, the chief justice, law minister and home minister in Bangladesh remain silent because they do not find anything wrong with it. It is time for them to wake up and see the administration of judiciary in civilized countries.
There is one thing very strange in Bangladesh; in all cases against the government the court serves notice to the secretary of the relevant department. It is the minister (public representative) who is to be considered as the government for the relevant department. The secretary is a mere civil servant. This reminds me of the last days of British Raj in India when some degree of democracy was granted to a few states/ provinces where the elected representatives could discuss and debate on various matters. The cabinet was like an advisory body to the governor. The civil servants (Her Majesty’s loyal servants) held the real power. This was a mere eye wash in the name of democracy. The governor used to take the final decision on the advice of the secretary. Time has changed but the legacy still continues. The rules of business and procedures must change to put the minister in his rightful position. Today’s secretary to the government may appear in court and say that he acted in accordance with the desire and wishes of the government. Such statement would be of no help to the court or the government.
Another strange thing in Bangladesh is that primary law/ act reserves powers for the government to make secondary legislation (regulations). The word “government” in this case is very vague. Who will make the regulations and who will stand responsible for it? In the United Kingdom it will clearly specify that the Secretary of State (cabinet minister in charge of the affairs) may make regulations where he feels it necessary. Though civil servants will do most of the drafting, the secretary of state shall remain responsible. The other point is that many such regulations in Bangladesh come into force immediately (as soon as published). This is not fair. In the UK, it will be written on top:
- Regulations made on ……………
- Placed on the bench of the parliament on ————
- Comes into force on ……………
Normally it remains on the bench of the parliament for a period of 30 days before coming into force. This enables the MPs to have a good look at the regulations and raise any point of objections, if required. Regulations that are made under enabling power of law do not require any debate or approval of the parliament. But the period of one month gives a period for familiarization and preparation. However, if any valid objection is raised then the regulations may have to be edited or re-written and its coming into force would be accordingly delayed.
The best thing about UK secondary legislation is that the Secretary of State has to make a declaration in the regulations to state that a due public consultation has already been conducted. This is normally done by adding “and having consulted all relevant parties and others concerned; I, Secretary of State do hereby………”
We shall now talk about civil service. I have spent about 10 years as a civil servant in Bangladesh followed by another 10 years in the UK. In Bangladesh they are wrongly referred to as government servants. Civil servants serve the state and its people in an impartial way. Their services are automatically placed at the disposal of the government, no matter whichever government is in power. Civil servants are not part of the government but become a part of government machinery to implement its project and policies. They are expected to render honest and sincere services to the government with their ultimate loyalty to the state and the head of the state. Should they feel that their services are being used directly or indirectly for the benefit of any individual or any party rather than general well-being of the country, they should bring it to the notice of the president of the republic. The cabinet secretary is the highest ranking civil servant and in each ministry there shall be a secretary to the government as the highest ranking civil servant within that ministry. In the UK, such civil servants used to be known as under-secretary but now referred to as permanent secretary. The secretary of state (full cabinet minister) or simply referred to as secretary is the governmental head for the relevant ministry.
The Government normally creates a number of specialized agencies or authorities. These organizations are to some extent autonomous in the sense that they do not have to forward every little thing to the ministry/ government. They are created under separate laws and the chief executive/ chairman/ director general carry out their delegated functions. The head of the organization reports to the government (relevant minister) and not to the secretary to the government. Important papers are addressed to the government which the minister may later forward to the secretary to government for further action. The whole idea is to keep the government informed but avoid “submitted for kind information and necessary action” which is the biggest bottleneck in the administration. While working for UK- Maritime & Coastguard Agency, I issued many exemptions and approvals without any reference to higher authority. In every such case I signed on behalf of the chief executive who had the delegated authority of the secretary of state (meaning that I signed on behalf of the secretary of state).
The minister oversees all agencies and organization under his/ her ministry. The home minister may ask the director or director general of immigration, if he feels it necessary, as to why a visa has been granted or not granted. What the minister cannot do is to tell in advance who to give visa. However, the director is also expected to seek opinion of the government in advance in matters related to politically sensitive issues. The readers may recall how David Blunkett lost his job as Home Secretary (UK) merely by asking the status of an applicant. The delicate balance between the government and civil service must be respected. This is the essence of democracy.
In Bangladesh, the administration has been destroyed beyond repair. It has primarily happened because of the political use of the administration. Now it has gone beyond the grasp. Seven persons killed in Narayanganj by the elite law enforcement unit RAB is an example. The off-duty police officer of Kachukhet goes in civil dress with criminals at Sayadabad to hijack a person to rob his money. Extortion of money by falsely accusing and threatening innocent people has become a routine matter for police. Even after any change of government, it will take ages to clean up the mess.
We shall now discuss about state owned enterprises. I remember one incident when I was the director general of the department of shipping. A deputy secretary was referring to BSC (Bangladesh Shipping Corporation) ships as government ships. It took me quite a while to explain him that those ships were merchant/ commercial ships. They are owned by a company known as Bangladesh Shipping Corporation and that happens to be owned by the public/ state. Since the government runs the state, it falls upon the government to manage the affairs of such state owned enterprises. The person appointed as chairman and managing director acts officially as the owner of the company and remains responsible to the government/ relevant minister for its performance (loss or profit). I also explained that government vessels are those vessels that are not engaged commercially but used for law enforcement or similar purpose. The boats used by police, customs, port health, coastguard etc may be considered as government vessels. The deputy secretary was very happy and concluded the discussion by adding “sir, nobody ever explained us these things”.
The above incident explains the general concept that the civil servants have about state owned enterprises. They are so used to interfering with day to day affairs of the state owned enterprises that these can never operate on a commercial footing. That is the reason they cannot make any profit. It is the role of the government to facilitate business so that it grows and flourishes on its own. The government should normally not get involved in business. However, if the government has to run any state owned enterprise then it must find the right person with skill and expertise. Such person may not be a political person or civil servant or even a military officer but a management expert who can deliver results. Another important factor is that the minister must not become chairman of the board; as this breaks the chain of command. Let the board remain responsible to the minister. Bangladesh Biman hired two foreigners as managing directors but none stayed long because they could not run the organization the way they wanted. Let us remember the glorious early days of BSC when it was headed by Capt. QABM Rahman, Mr. QMS Zaman and Capt. Shafi. That was before bureaucrats came to know about the art of constant interference and minister wanted to become chairman.
In this short paper I have highlighted some of the problems in our legal and administrative system. The solution is to create a high powered commission to make necessary reforms. One thing is certain – the administrative efficiency will increase by more than 50% if we can reduce the number of civil servants by about 50%. Delegate functions and make people responsible for their jobs. Stop writing “shaday obogoti o poroborti nirdesher jonno pesh kora holo”.
London, 23-July-2015 <fazlu.chowdhury@btinternet.com>
What a wonderful article. The composer has covered every aspects in the most simplest way. Any individual could read it and will understand the article and its context. It is sad that the administration in Bangladesh does not have understanding of these points that you have highlighted on your article. Our system has been tailored to facilitate foul play so that there is no room for accountability. I wish people at grass route level develops the knowledge that you have shown here so when it comes to them to run the country we may discover a new Bangladesh. I sincerely thank you on behalf of thousands who has read your article and has gained some knowledge from reading your article. Thank you.