Office of Profit Paradox Under Bangladesh Constitution
Introduction
In constitution of Bangladesh, the true principle is that there should not be conflict between legislatures and executives of the duties and interest. In short, Office of profit means a profit which brings to unexpected or pecuniary gain or advantage or benefit which is not legal. It will be an office of profit that it carries some remuneration, pecuniary advantage, and benefit by abuse of power. It may be an office or place of profit if it carries some remuneration, financial advantage, benefit etc which breaks the rule of constitution. The legislatures are making of laws, budget, and control of all government actions1. The executive branch of government should implement the laws, proper utilize the public money, and be accountable to the legislature in its Functioning2. However, if the legislators are beholden to the executive, the legislature can no longer retain its independence. Even legislatures lose the ability to control the Council of Ministers and the army of officials and public servants. Consequently, the Constitution fervently tries to stop office of profit for legislators. The relation between the executive and legislative branches in Bangladesh has been inconsistent due to the political system3. In Bangladesh, the executive is enforced legislator to do unethical and unlawful activities4.The phrase ‘office of profit’ is holding in Bangladeshi politics right now. In addition, each and every member should take care to ensure that there is no real conflict between their personal interests and public duties. A MP receives some pecuniary gain in connection with office then it becomes an office of profit. Office of profit breaks the rule of constitution.
1. The legislative branch of the government is a unicameral Parliament, or Jatiyo Sangsad (House of the People). This branch makes the laws for the nation (see fig.11) Members of Parliament. A legislator should have at least twenty-five years old. They are elected from territorial constituencies. Parliament sits for a maximum of five years. It should meet at least twice a year. In addition, it should meet less than thirty days after election results are declared. The president calls legislative body into conference. Even, the legislative body elects a speaker and a deputy speaker. They control the discussion parliamentary activities. Finally, Parliament also appoints a standing committee, a special committee, a secretariat.
2. In reality, Bangladesh’s prime ministers fervently decide on major government policies with little or no involvement by Parliament. Prime minister has superior executive power that dominant all the member. Consequently, any Member of Parliament who votes against their respective party automatically loses their seats. The prime minister’s broad constitutional powers have been increased in recent years due to the cause of the opposition parties. Opposition party boycotts from Parliaments due to conflict of interest. In Bangladesh, while BNP MPs boycotted the legislature during much of the period of AL dominance in the late 1990s.In addition, AL MPs have sporadically boycotted the National Assembly since losing power to the BNP in the October 2001 elections. 2. It is conspicuous that the country’s judiciary is independent from executive branch control. In addition, there continues to be formal executive control over the country’s lower courts despite a 1999 High Court order which dictated that these courts should be under the supervision of the judicial branch. However, the Supreme Court extended the deadline for the 15th time in 4 years, for the formal separation of the judiciary from the executive branch. 3. In Bangladesh, Parliamentary systems executive initiated holds a privileged position on the calendar with opposition and private member proposals limited to specific days. In practice, the privileged position of the executive in a parliamentary system is derived from its ability to control the majority within the legislature. They control by via simple majority requirements for the determination of the agenda.
Office of Profit Practice in Bangladesh
If there is a legislature in presidential systems, as a result it tends to have more legislative power and decrease executive control. However, there is s parliamentary systems generally exhibit less legislative power, but more executive control. There has been alternation in government (after more than forty years of single party domination). Consequently, there is still a comparatively high level of government instability and inconsistence. In addition, the names used for each one of these systems do not reflect the legislative reality. Finally, there continue to be an abnormally high reliance on the decentralized legislative procedure5. Executives control important policy-making process6. In Bangladesh agenda-setting tools can be formal or informal. In addition, they perceive that the formal tools and institutional structures that govern the agenda-setting process are more efficient than any informal. However, such informal tools are unquestionably harder to measure. As a result, it takes more difficult to find efficient power or influence. In most of what follows the emphasis will be on formal agenda-setting tools rather than informal norms. It is difficult to find who control which agenda-setting powers of the legislature and executive exist within the broader context of informal norms and practices. In separation of powers systems the daily calendar, as well as the long-term calendar, is set by the legislature itself, without direct executive influence with few exceptions7.
4. The execution of the legislative function cannot be delegated to the executive without clear guidelines. If there are not guidelines regarding the principles and criteria of the delegated laws, it will be counted as an unlawful activity. Furthermore, delegation can only occur within a specified time period and for the achievement of clearly defined objectives and interest of executives. The main purpose of the delegated procedure is that it arduously allows the executive to directly control administrative and implementing legislation. As a result, legislator can not take independently the development decision of major policy initiatives
5. The decentralized procedure calls to use of the ‘see legislative’. The executive branch makes the ultimate determination of laws with need for them. They also are passed by the full floor. As a result, Laws adopted in committee are often referred to as “little laws” because they are generally understood to be smaller, micro-sectional laws. The two types of decrees and the implications of both will be discussed below
6. Most of the mechanisms used by the executive to influence the agenda-setting process in Bangladesh. However, they show outside of “normal legislative procedures”. In practice, they are none the less formal rather than informal in nature. Finally, they rely on the existence of rules and regulation rather than simply norms of behavior. 7. In fact, executive has limited power and they have ability to even introduce bills within the legislature in separation of power. In addition, they have to work through partisan intermediaries. However, emergency orders and executive decrees take precedence over the regular calendar in some cases.
8
| Constitution | 1972 | ||
| Executive(s) | President Zillur Rahman (Awami League, AL), ran unopposed and declared president by Election Commission, 11 February 2009
Prime Minister Sheikh Hasina (AL), appointed 6 January 2009 |
||
| Legislature | Unicameral:
National Parliament (Jatiya Sangsad) (345 seats; 300 directly elected, 45 reserved for women candidates who are selected by members of parliament; most recent elections, 29 December 2008) Awami League (AL): 230 Bangladesh Nationalist Party (BNP): 30 Jatiya Party (JP): 27 Other parties: 9 Non-partisan: 4 |
||
| Judiciary | Supreme Court | ||
In Bangladesh Political violence and state repression have been major sources of instability in recent years9.There is Constitutional model of government and its actual practice in operation have completely reversed this logic. In this model, the executive (Council of Ministers) is drawn from the legislature. While in theory, the legislature holds the government to account, in reality the government controls the legislature as long it has a majority in the House10 .The key issue for the government’s survival is sustaining its majority. Much of the struggle for power, compromise on cabinet composition, and patronage are linked to this need to satisfy the majority of legislators. This is the reason why the size of Council of Ministers became unwieldy over the decades. Parliament has a lead role to play in raising issues and putting them on the national agenda. Strong supporting institutions remain essential to ensuring the effective implementation of its recommendations
8. The research described in this report was sponsored by the Political Instability Task Force (PITF). The PITF is funded by the Central Intelligence Agency. The views expressed herein are the authors’ alone and do not represent the views of the US Government 9.In Bangladesh, Political participation is highly factional different in nature. It is shaped by very small, relatively homogenous elite group of people. In addition, elite people comparatively in origin. They ideologically have strong roots in the countryside. As a result this ruling oligarchy, leadership is highly personalized and maintained. In Bangladesh, multiparty electoral politics had discovered in 1991. As a result, the competition between these rival patronage networks, institutionalized in the form of the BNP and the AL. They continue to produce chronic social instability, inconsistence activities and political violence. Consequently, it is partially responsible for the political crisis currently destroyed the country. 10. The higher legislative success of parliamentary governments relative to presidential governments. In addition it has been used to argue that legislative success is driven by parliamentary governments. The executive controls superior agenda power or control of legislative majorities. We can not show efficiency with some of the empirical rules and regularities across within political systems. Finally it proposes a legislative bargaining model to elucidate this puzzle.
10. In Bangladesh, the model the policies of a confidence-dependent parliamentary government enjoy less uncertain support from governing coalition members. Their short-term policy goals are less important than the government’s survival. This support is stronger when the government has more agenda power and is weaker with a larger ruling coalition. We explore the empirical implications of these findings and their consequences for the comparative study of political institutions.
What Does Office of Profit Show?
(a) Our policy-makers, politicians, leaders want to grab more and more power in one hand.
(b) Those people hold power; they do not want to let the door open for others.
(c) They need huge money and they hide their black money.
(d) They don’t practice democracy.
(e) The thirst of greedy leaders can be satisfied only by giving them of faces of profit.
(f) Our political parties, power-loving representatives and people’s leaders have lost morality, principle and dignity.
Given These Circumstances, It Would be Appropriate :
1. There is an office where purely experience and insights of a legislator would be inputs in governmental policy. As a result, this office will not be treated as offices of profit, irrespective of the remuneration and perks associated with such an office.
2. Those offices are involving executive decision making and control of public funds. They are including positions on the governing boards of public undertakings and statutory and non-statutory authorities. They are deciding policy. They are managing institutions or authorizing or approving expenditure shall be treated as offices of profit, and no legislator shall hold such offices.
3. If a serving minister is a member or head of certain organizations like Planning Commission. In that organization where close coordination and integration between the Council of Ministers. The organization or authority or committee is vital for the day-to-day functioning of government. It shall not be treated as office of profit.
4. If discretionary funds at the disposal of legislators or the power to determine specific projects and schemes. They authorize expenditure shall constitute discharge of executive functions and will invite disqualification.
The Office of Profit in India
The most important part of the political history of India is that it has rarely been politically united. The periods of political unity have been extremely short in the face of prolonged history of thousands of years. India earned a respectable place in world community due to cause of politically united under one rule and country prospered. When India is achieving political unity, they retained national unity mainly because of their cultural unity. As a result, people have developed through ages by their inherent sagacity and wisdom.
CONSTITUTIONAL ASPECTS:
There are some rules and regulations in Constitution to disqualification of MP’s: There are separate provisions of disqualification for the Member of Parliament. In addition, the members of state legislatures are disqualified due to break the constitutional rules and regulations. Indian Constitution clearly mentions that the parliament has the power to make a low in respect to the issue of qualification of the member. Article 102 lays down disqualification of membership in case.
(a) He holds any office of India or of any state, other than an office declared by a low of parliament not to disqualify its holders.
(b) He is an undercharged in solvent.
(c) He is of unsound mind and stands so declared by a competent court.
(d) He is not a citizen of India or has voluntarily acquired the citizenship of a foreign state or is under any acknowledgement or allegiance or adherence to a foreign state, and
(e) If is so disqualified by or under any law of parliament, it applies to the case of defection as prescribed in Tenth Schedule.
Example of office of profit in India
BACHCHAN ISSUE :
Jaya Bachchan was elected in June 2004 for the Rajya Sabha. She was appointed as the Chairperson of Utter Pradesh Film Development Corporation. Consequently, It was an office of profit under the State government. She was given different types of benefit as part of her job in U.P. In this way, she was holding an office of profit not withstanding her selection as the member of the Council of state very interestingly, a Congress worker from Utter Pradesh filed a complaint against Ms. Bachchan in the Election Commission. The Commission found her guilty of holding an office of profit. As a result, The President, Recommendation of the EC disqualified her under the Article 102 of the Constitution of India11.
SONIA ISSUE :
Congress President Sonia Gandhi was a member of Lok Sabha. She was appointed as the Chairperson of National Advisory Council by the UPA government. She also held several posts under the government. The opposition parties complain against her, and she chose the safe route of resignation. Consequently, she could continue her impression of being the statue of sacrifice and morality. The constitutional Law is amended and declares that positions such as NAC chairperson are not offices of profit. Those who demanded disqualification of MPs for holding ‘double’ positions are eager to ‘define’ an ‘office of profit’ and ‘declare’ some office of profit are not so. 12.
11. Member of Parliament (MP) Jaya Bachchan’s disqualification, the proposed ordinance to save some MPs, the opposition’s hue and cry that the ordinance was to save Sonia Gandhi — President of Congress Party and leader of United Progressive Alliance comprising of non-rightist parties at the Centre, and her strategic resignation to disarm the opposition and neutralize the sting in their attack, all led to serious controversy over a number of government offices, their profits, and the control of the government over legislators in these offices. Jaya Bachchan was disqualified because she was also chairperson of the Uttar Pradesh Film Development Corporation, a statutory body. 12.The people who are the legal counsels of Mrs Sonia Gandhi say, her position as Chairperson of National Advisory Council could be an office and office of profit but definitely not “under the government’ and hence she cannot be disqualified. The position is of cabinet rank, which has several financial benefits and allowances from the government. It is true that the present government itself is under the influence of Sonia Gandhi, and Sonia Gandhi as Chairperson of NAC not at all under the influence of ‘government’. That is so because of her unique position as the sole leader of congress party duly inherited from Rajiv Gandhi and other illustrious personalities above the line. Any other person with the same rank would be definitely under the influential power of executive government, which is objectionable under Article 10
Separations of Power in USA
There are some requirements to the legislation which causes such involvements to be in breach of the separation of powers. The precise element of judicial power which is sought to be protected needs to be appreciated. It is the independence of the judicial branch in its exercise of the core element of judicial power. The controversies between parties in litigation resulting in an authoritative and binding declaration of their respective rights and duties according to existing law.13 Although ‘judicial power’ is a concept resistant to precise definition,14. It absolutely distinct from non-judicial powers,15 this core element remains at the centre of all serious attempts to provide some definitional framework.16The independence of the exercise of this power in the hands of the Ch III courts, as has often been observed, affords citizens the right to enjoy the fruits of litigation, even, or especially, against the Commonwealth
13. These are the elements contained in the oft-quoted classic definition by Griffith CJ in Huddart, Parker and Co Pty Ltd v Moorehead (1909) 8 CLR 330 at 357.
14.In the words of Windeyer J in R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361 at 394, ‘[t]he concept seems to me to defy, perhaps it were better to say transcend, purely abstract conceptual analysis’
15.In the (unanimous) judgment in Precision Data Holdings Ltd v Wills (1991) 173 CLR 167 at 188, reference was made to the ‘difficulty, if not impossibility, of framing a definition of judicial power that is at once exclusive and exhaustive’.24.See above n 23. See also Fencott v Muller (1983) 152 CLR 570 at 608 and R v Trade Practices Tribunal; ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361 at 374
Recommendations
.
Legislative
In general legislatures Also known as Congress that first review policy proposals in committee before sending them for final vote. It has a greater degree of legislative influence and control over policy outcomes. To protect office of profit legislative take some steps.
v Makes all laws which protected countries from office of profit.
v Controls all the money: taxes, borrows, and sets the budget. As a result, it will be less occurred office of profit.
v Confirms federal judicial appointments, and defines by law the jurisdiction of the judicial branch in cases not specified by the Constitution.
v Only Congress can declare martial law.
Executive
In many parliamentary systems these institutional and structural weaknesses would not pose significant problems because the executive would represent a coherent and cohesive majority based on disciplined parties within the legislature. Such a majority would allow the Government to control the legislative process despite the institutional weakness of thepolitical structures.
v Also known as the President.
v Preserves, protects and defends the Constitution.
v Faithfully executes the laws of the Country.
v Executes the instructions of Congress.
v May veto laws (but the veto may be overridden by Congress by a 2/3 majority) or refuse to execute them if she/he deems them unconstitutional.
v Executes the spending authorized by Congress.
Conclusion
In this research I examine that there are huge office of profit occurs in Bangladesh. Most of the Politician and Law-maker are dishonest. They are regularly practicing office of profit due to their personal benefits. They are earning lots of money and even they do not give tax. In addition, I also found weaknesses of the Bangladesh overall system on the legislative process and the role of agenda setting within it. I am examining the history of legislative-executive relations in Bangladesh to clarify both one of the underlying structural weaknesses and ineffectiveness to implement Government Policies. I am also finding the importance of agenda-setting in the legislative process in general and the standard structural norms and formal rules that govern agenda-setting in democratic political systems
BIBLIOGRAPHY
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Websites
1. www.mongabay.com/history/bangladesh/bangladesh-legislature.
2. www.cao.gov.bd/constitution/index.htm
3. www.law.emory.edu/ifl/legal/bangladesh.htm
4. www.parliamentofindia.nic.in
5. www.pmindia.nic.in
6. www.sonarbangladesh.com/articles/BarristerAbdurRazzaq.
7. www.supremecourtofindia.nic.in
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