A question on the legal validity and pertinency of the constitution of Bangladesh has arisen once again after the clashing fall of Ex-PM Sheikh Hasina’s autocratic regime. Severe uncertainty follows every time, whenever an autocracy falls, as they demolish the state institutions and the democratic system. It paves the way to emerge some opportunity-seeking groups and try to fulfill their own agendas that we witnessed on August 5 as well.
On August 8, 2024, the interim government ascended to power under the leadership of Dr. Muhammad Yunus, a Nobel laureate. The interim administration is expected to manage the immediate aftermath of the inconstancy, dissolve the emerging issues that had fuelled the upsurge, and lay the foundation for a stable and equipped alteration for a more sustainable government.
The political landscape was characterized by a dominant party regime under Sheikh Hasina’s leadership. Although the 2009 election was cutthroat, subsequent elections in 2014, 2018, and 2024 faced significant condemnation for their defective deeds.
Sheikh Hasina’s dominant party regime exhibited several characteristics that are marked by a coalition of five primary actors: the ruling political elites, influential economic elites, the civil bureaucracy, the military bureaucracy, and law enforcement agencies, all evolved around Prime Minister Sheikh Hasina. This coalition performed collaboratively to hold control and influence across various sectors.
However, concerned citizens have emphasized the decentralization of power to strengthen democratic institutions and ensure the rule of law.
How does the legality of the current constitution derive?
Under the Legal Framework Order of 1970, all the members of the Constituent Assembly of Bangladesh were elected, and they were assigned to accomplish their job later in 1972. Was that order the source of the legality of the Constituent Assembly of Bangladesh at all? You may reply negatively. Actually, the reason is that the Legal Framework Order, 1970, embellished elections for making a constitution for Pakistan, not for Bangladesh.
Interestingly, this fact was not denied in the Proclamation of Independence, 1971. The Constituent Assembly of Pakistan was arbitrarily and illegally postponed for an indefinite time while declaring an unjust and punitive war by Pakistani authority. Until the very war, the representatives of Bangladesh, then East Pakistan, tried to make a constitution of Pakistan. The just and successful war vindicated the Constituent Assembly as a sovereign and independent authority for Bangladesh.
That’s why Justice Badrul Haider Chowdhury described the Bangladesh Constitution as an “autochthonous constitution” while opining in the case of Anwar Hossain Chowdhury v. Bangladesh (1989) BLD (Spl) 1, because it assembled its power not from the colonial superior authority as did India and Pakistan, but from the very people.
An argument goes on its validity that claims firm reference from international law as Bangladesh declared independence in due fulfillment of the legitimate right of self-determination of the people of the country”. The right to self-determination is just a right recognized in public international law. But a domestic constitution and international law are part of the same legal system where international law is above, that is, hierarchically superior to the domestic constitution, Hans Kelsen argues.
The Constitution of the United States of America similarly got its validity from the above. But this above is natural law, unlike international law. This might be recognized as an impalpable argument. The other argument might be called the social covenant argument. The validity of the Bangladesh Constitution derives from the fictitiously constructed general will.
The representatives of the people of Bangladesh themselves constituted a constituent assembly because the elected representatives of the people of Bangladesh “had the people’s mandate. Later, their authority remained unchallenged.
Carl Schmitt argued that if a constitution is not successfully counteracted, it will be considered as appreciated by the people. The opposition parties failed to repel it. The question of successful resistance and revolution is nothing but a question of politics beyond the question of law. Every certain kind of politics breeds a definite constitution.
However, a gradual evolution also appears in the constitution-making process. Initially, people’s participation in the constitution-making process was very limited. But the scenario is improving. This change might be identified as the constitutional evolutionism. We might insist that the draft Constitution of Bangladesh should have been sent to the people for getting their approval via referendum. Even the proposal of Suranjit Sengupta to send the draft Constitution for verifying the public opinion was rejected by the Constituent Assembly of Bangladesh. It hadn’t destroyed the legality of the Bangladesh Constitution but weakened its legitimacy.
Thoughts of prominent statesmen on the constitution Somebody would argue with how constitutional the current interim government is. Although the government is not formed in the constitutional process, the interim government is trying to deal with the issues constitutionally in most cases.
The interim government formed the Constitutional Reform Commission headed by D. Ali Riaz. “The debate on the constitution is exacerbating the crisis,” the Supreme Court Bar president said.
“Every government brings an amendment for its own interest. Nevertheless, an unelected government is unable to bring an amendment; rather, it only recommends this,” asserted Anowar Hossain, a renowned historian. Subrata Chowdhury, a senior lawyer, strongly condemned the attempts to abolish the constitution, although it is rhetoric.
D. Kamal Hossain, an active member of the constituent assembly, urged everyone to establish the constitution as a safeguard against repression, advising on the reformation of the constitution but with a careful hand adopting majority opinions. He stressed, “there is no need to overestimate the constitution and no scope for underestimating it even.”
Points that claim reformation
Adding ‘Bismillahir Rahmanir Rahim’ and glorifying Islam with state religion despite being secular itself are just like enveloping with Islamic cover concealing a number of controversies within it to pacify Islamists. If any constitution fails to ensure the rights of people, then what is the use of a nominally Islamized constitution? That is, our constitution claims reform itself in several points, such as:
Omitting Article 70’s that have established disqualification of parliamentary membership complaining of floor-crossing, which effectively negates the legislature itself.
Repeal of Article No. 39, where originally, by imposing various conditions, the common people’s right to freely express their opinion has been taken away. The Digital Security Act, section 57, is essentially an extension of Article No. 39.
Article 102 regarding the right of an aggrieved person to file a writ petition against any decision given by the judiciary is also subject to change. The issue of non-interference with state policy in Article 8 of the Constitution has been established by the Supreme Court, which is creating barriers to the establishment of certain rights of working people.
The students leading the anti-discrimination movement think that the popular term constitutionalism is a usurpation of people’s rights. Directive principles cannot be left unenforceable; the younger generation wants enforceability of social and economic rights through reformation of the present constitutions.
They claim that just as the Constitution of 1972 embodies the aspirations of the disenfranchised people of East Bengal from 1947 to 1971, the spirit of the popular uprising of 24 should be kept here. They also think that all the articles of the constitution that protect the interests of any group need to be amended.
Hundreds of workers of various professions, including rickshaw pullers, have been martyred in this movement; their aspirations should also be given place in the constitution. People, right now, want a constitution that does not encourage the creation of Black laws.
Even if a new constitution is created, it will not make much difference with the current constitution, but the main question is whether this constitution is working properly in the management of the state and protecting people’s rights. The question of whether a cat can kill a mouse is more relevant than whether the cat is white or black.
From the above discussion, it is concluded that the issue of making a new constitution will not make much difference, but we can talk about the functioning of this constitution and its reforms. And in this reform work, the interim government can choose methods like referendum or public discretion.
However, the first and foremost thing to increase the relevance of the constitution is the change in political and social culture. Otherwise, our unwise and unforeseen actions will thwart this victory.
