Review of the Bangladesh Constitution
The review of the Constitution of 1972 is not only an important issue but also goes to the heart of political malaise in the country as manifested before January 11, 2007
The setting up of a Constitutional Review Commission has been reportedly raised by the Non-Party Care-Taker government that has been constituted by the President on January 12, 2007 under the provisions of the Constitution under Chapter IIA.
The Chapter IIA that envisages a Non-Party-Care taker government between the elected outgoing and the incoming governments was incorporated in the Constitution in 1996 because the political parties could not trust the ruling party to hold parliamentary elections. The tenure of theCare-taker government will continue until a new Prime Minister enters upon the office after the constitution of parliament (Article 58B.1 of the Constitution)
Is the Care taker government empowered to set up the Commission?
Some political parties and others have raised question of legality regarding the setting of the Constitution Review Commission by the Care-taker government and argue that the function of the Care-taker government is to hold parliamentary elections, nothing less and nothing more. It has been further argued that the elected government is only empowered to undertake such exercise.
To many legal experts, the above position seems to be misconceived for the following reasons:
First, the functions of the Care-taker government are enumerated in Article 58D where in case of necessity, the government can make policy decision. Furthermore since this care-taker government was installed under unusual circumstances of country’s political turmoil, chaos and lawlessness, it has to fight against what the government has recently described as 3-M—Money, Muscle and Misuse of power.
Second, almost all political parties have acknowledged the policy-making powers of the Care-taker government when they and others demand the Care-taker government to set up a tribunal for the trial of the war criminals under the 1973 International Crimes (Tribunal) Act. Therefore it seems illogical they find it inappropriate for the government to set up the Review Commission. Their position, it is argued, seems to be conradictory.
Third, the recommendations of the Commission would be scrutised and adopted by the next elected parliament, and the Care-Taker government is merely initiating the process of the review of the Constitution and is not dealing with the final product.
Fourth, it may be argued that the next elected Parliament could act as the Constituent Assembly just as the Nepalese Parliament elected in last April acted as Constituent Assembly and abolished the monarchy on 29 May and turned the country into secular Republic.
Finally, political leaders of all political parties have also realised that intra-party political reforms are not enough for genuine democracy and have also suggested some constitutional reforms with a view to running an accountable government and a parliament.
The then BNP Secretary General on July 12, 2007 reportedly proposed for bringing changes in the constitution and has welcomed the idea that if the Care-Taker government would constitute a “Constitution-Related Committee”, its suggestions could be adopted in next parliament.
Earlier, many AL leaders have also come out with suggestion that the Constitution needs changes for restoring proper democracy in the country.
Basic Character of the 1972 Constitution:
The 1972 Bangladesh Constution provides for representative democracy in which the ability of the elected representatives to exercise decision-making power is subject to rule of law (not merely rule by law) that places constraints on the government leaders on the extent to which the will of majority can be exercised against the rights of minority parties.
The Constitution provides a parliamentary system of government and not Presidential, wherein executive power rests on the Prime Minister, not on the President.
It is argued that the basic fabric of the constitution could not be changed without the expressed will of the people through a referendum and such fundamental change of the constitution was arguably unconstitutional. It is noted that India’s Supreme Court had a ruling on this issue.
Past Amendments of the Constitution:
The Constitution had undergone 14 amendments as of today and these amendments have changed the Constitution of 1972 so much that it lost its substance, spirit and character of the Constitution of the founding fathers.
The first severe knocking-blow to the Constitution came in 1975 when the system of government was turned into presidential from parliamentary. This constitutional change from parliamentary to presidential, and making one party-state, destroyed the fundamentals of the 1972 Constitution.
Successive military regimes under martial law in the country had alao amended constitutional provisions as they wished for through Presidential Orders or Proclamations.
Why review is necessary?
The Constitution is based on certain expected assumptions and conduct from office holders. Those expectations have totally been ignored in practice in the past. The ruling party leaders did not interpret, or use the provisions of the Constitution in good faith.
The interpretation of the Constitution can be in two ways: (a) strict textualism or literal interpretation and (b) originalism or constructivism. Literal interpretation of a provision of the constitution cannot be made without taking into account of the spirit and letter of the Constitution as a whole.
The interpretation of a provision of the Constitution cannot made in isolation because the constitutional document is a text in which each chapter is related to the other. In a sense the text is organic in character. If there is any dimunition of powers in one chapter, other chapters are affected adversely. Such interpretation is called constructivism.
For example, the entire amended Article 70 with its three sub-clauses is arguably unconstitutional because it denies the basic right of a MP in a representative democracy to voice his/her opinion in the Parliament on a subject of his/her concern and that the member is not permitted to abstain from voting.
If a MP acts against Article 70, that MP has to resign from the party. At the same time, it allows an independent elected member to switch and join the ruling party. Should the independent member not resign as well? Is it not contradictory in its terms?
The current form of parliamentary democracy has regettably turned into “Prime Ministerial” authoritarian democracy because there has been no checks and balances on the powers of the Prime Minister.
Furthermore, whatever the powers of the President had, they had been totally marginalised by the 1991 Twelfth Amendment Act. It is believed that untramelled powers of the Prime Minister as an executive head of the government have been the source of political ills characterised by gross abuse or misuse of power.
The 37- years of governance has demonstrated the pitfalls and deficits of the provisions of the Constitution and some of the amended provisions are totally against the democratic norms of the Consitution that they need to be deleted.
What is imperative is that provisions of the Constitution must be made explicity clear with checks and balances on the separation of powers among the organs of the state—executive, legislative and judiciary.
Simply said, the government runs the administration, parliament enacts laws and judiciary interprets the laws. Each organ has its own limits of power enumerated under the constitution and that is the essence of constitutional democracy in a Republic.
Everyone agrees that the present Constitution needs drastic revision in the light of our past experience, and should take into account our political, social and cultural environment of the country. Constitut
ion is not something that “one size fits all” phenomenon and can be transplanted in the country from another country. In this context the setting up of a Constitution Review Commission calls for urgent attention for national interest.
By Barrister Harun ur Rashid
Former Bangladesh Ambassador to the UN, Geneva.
