Review of the 1972 Constitution
A review of the Constitution of Bangladesh, 1972 has been raised by some constitutional experts This is not only an important issue but also goes to the heart of present political malaise in the country.
Many political leaders of major parties have also realised that intra-party political reforms are not enough and have also suggested in the past some constitutional reforms with a view to running an accountable government and a parliament.
Further the current AL government reportedly seeks to restore the 1972 Constitution in its original form as the Constitution as it exists today is the result of amendments of 14 times as of May 2004.
Meanwhile, the High Court in 2005 declared in the case of the Fifth Amendment Act of 1979 that : “ Taking over power by Khandaker Mushtaq Ahmed, nomination of Justice Sayem as President, appointment of Ziaur Rahman as Deputy Chief Law Administrator, handing over of the office the Chief Martial Law Administrator to Ziaur Rahman, nomination of Ziaur Rahman as the President and Referendum Order of 1977—were all without lawful authority and in an unlawful manner.”
The issue has been now pending before the Appellate Division of the Supreme Court and if the Appellate Division upholds the High Court judgment, many of the original provisions of the 1972 Constitution would be restored.
It appears that the AL government is awaiting the final say on the issue from the country’s highest judiciary before it is likely to embark on restoring the Constitution to its original state.
It seems clear that the Constitution of 1972 is not working for our parliamentarians because of the following:
First, the model of the Constitution seems to be based on a mix of American Constitution and Bill of Rights of Britain, coupled with the 1948 UN Universal Declaration of Human Rights The Consititution of a country is a fundamental legal framework that must be suited to historical, political, social and cultural environment of the country. A Constitution is not something that “one size fits all” phenomenon and can be transplated in the country from another one.
Second, at that time Bangladesh’s heroic victory in December 1971 had caught the attention of the world,and it appears the framers wanted to show to the world how quick, an ideal constitution, they would adopt for Bangladesh. Although it is creditable that within nine months, the Constitution was adopted on 4th November 1972, the framers appeared not to have considered political, social, and cultural mind-set of the people and political leaders of the country.
Third, soon after independence, the framers of the Constitution, out of their commitment to peace and unity of the people, thought there would never be any war, or threat to security or economic life or political crisis, or internal disturbance in the country. That was why they failed to incorporate even emergency provisions.
Soon they realised that such ideal consitution did not fit in with realities on the ground and between 1972 and 1975 four amendments of the Constitution were adopted including the emergency provision under the regime of Bangabandhu Sheikh Mujibur Rahman.
Fourth, 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 and the President. Furthermore whatever the powers of the President had, they had been totally marginalised by the 1991 Twelfth Amendment Act.
Fifth, the rulers have adopted the literal interpretation of a provision of the Constitution without taking into account of the spirit and letter of the Constitution as a whole. The Constitution is an organic text and if there is any dimunition of powers in one chapter, other chapters are affected adversely.
Sixth, the Fourth Amendment Act 1975 ought to have been challenged in the Supreme Court as being unconstitutional because it is argued that introducing one political party in 1975 that changed the fundametal framework of multi-party democracy without the expressed will of the people through a referendum was unconstitutional. It is noted that India’s Supreme Court had a ruling that the basic framework of the Constitution could not be changed without people’s expressed will.
Seventh, under successive military regimes in the country, the rulers had amended constitutional provisions as they wished for through Presidential Orders or Martial Law Proclamations. Without people’s consent, it is argued that they could not do it.
Issues needs to be considered in the revised Constitution:
What is imperative is that provisions of the Constitution must be made explicity clear and not left vague in the Constitution. If they are vague, they are likely to be abused or misinterpreted..
It is suggested that the following issues that are only indicative may be considered in the review of the Constitution.
1.Should the Parliament have two Houses? Should the lower House have more than 300 members in a country with 150 million population?
2. Should the duration of the Parliament be for three years?
3. Should the tenure of the Prime Minister be limited to two terms since the term of the President has been limited to two terms under Article 50(2) of the Constitution?
4. Boycott of the parliament by MPs should be made difficult by amending Article 67(b)
5. Should the number of Ministers, State Ministers and Deputy Ministers and Advisers or persons having status of Ministers/state Ministers/Deputy Ministers be limited only 10% of the elected members of Parliament?
6. Should the Speaker, after being elected, cease to have any affiliation of any political party, for nuetrality?
7.. Should there be certain number of women candidates for MPs from each party in parliament?
8.. Should functions of MPs be clearly spelt-out including dos and don’ts? Should be lmited only to law-making functions?
9… Should any amendment of the Constitution or any important national issue be put on referendum to people? A provision for referendum exists in the constitution in respect of certain matters including that of the Prime Minister.
10. Should all constitutional and other important posts are to be recommended/nominated for appointments by a Committee representing politicians from all major parties and individuals from civil society including professionals and experts in their fields ?
11. Should the powers of the President and the Prime Minister operate as checks and balances on each other?
12.. Should all state institutions including the Election Commission, Anti-Corruption Commission , Ombudsman, Auditor General and Public Service Commission be separated, strengthened and independent from the government?
13. Should there an Institutional Forum representing government, civil society, human rights organisations and private business sector for better communication and decision on national issues?
14. Should representatives of civil society and business sector be allowed to participate as non-voting members in parliamentary Committees?
15. Should parliamentary Committees be chaired by representatives of opposition parties and be made effective?
16. Should retired persons of higher judiciary be involved in any part of the administration? Should former Chief Justices continue to be the Chief Adviser in Non-Party Care-taker governments?
17.. Should there be any bar of 5 years for retired public servants or employees of autonomous governmental organisations prior to joining any political party ?
18.. Should there be a National Security Council for co-ordinating security and other national issues?
19. Should any political party not gaining 5% of popular vote in the parliamentary election be denied representation in the parliament or not recognised as a registered lawful political party?
Conclusion:
The Constitution needs appropriate checks and balances on the powers of the state institutions. Many suggest that the AL government may consider in setting up a Constitutional Review Commission to consider the above gamut of issues. Meanwhile a robust and dispassionate national debate on the review of the Constitution needs to be initiated in the Parliament, as well as by all political parties and all sections of society.
Let there be a new beginning of Bangladesh.
By Barrister Harun ur Rashid
Former Bangladesh Ambassador to the UN, Geneva.
