Reviewing the view
Framing of Bangladesh Constitution: Some unsettled questions
Tapos Kumar Das
Over the years after gaining independence the people of Bangladesh have witnessed an unhappy and inconsistent constitutional journey. For two times comprising of a considerable length of fourteen years they have undergone the military dictatorship. During this time the constitution of Bangladesh has been ruptured for reasons and without reasons. So the original constitution of 1972 lost its original character. But surprisingly it appears that the people of this country are easily convinced by any appearance of the constitution. The reasons may be manifold. But the most fundamental reason for this indifference is the absence of any visible, convincing, authoritative and written document about the ideology of the provisions of the original constitution. Absence of such document has prompted the successive rulers to alter the basic structure of the constitution.
Constitution of Bangladesh is the most fundamental and sacred document of our country. It is expected that all citizens should know it, because it is not only the solemn expression of the will of the people but also the highest law of the land and the people of Bangladesh are constitutionally pledge bound to defend, protect and safeguard the constitution. The second generation, like us of independent Bangladesh, are not happy only knowing the provisions of the constitution, but also want to know the history of its framing and philosophy behind adoption of every Article therein. Sometimes, it is argued that preamble of a constitution explains its underlying principles. It is the legal as well as the moral basis of the constitution. It is the guiding star of the objectives and aims of the state. But merely going through this preamble a layman will struggle to understand the philosophy of the constitution. Some details and accessible articulations were necessary from the framers of the constitution to make the people understand the philosophy behind it.
The history of the framing of the constitution that we often come across through some unauthoritative sources may precisely be described as follows:
The formal Proclamation of Independence of Bangladesh was drafted and adopted on April 10, 1971 and the Revolutionary Government took oath on April 17, 1971. On January 11, 1972 Bongabondhu Sheikh Mujibur Rahman issued the Provisional Constitution of Bangladesh Order in pursuant of which, the Constituent Assembly of Bangladesh Order was issued on March 22, 1972. The Constituent Assembly was entrusted with the only responsibility of making a constitution for Bangladesh.
The Constituent Assembly in its first session of April 10, 1972 formed a Constitution Drafting Committee consisting of 34 members under the Chairmanship of Dr. Kamal Hossain. The Committee invited suggestions from all sections of people and received 98 memorandums. After 74 meetings the Drafting Committee finalised the draft constitution. Dr. Kamal Hossain introduced the draft in the constituent assembly on October 12, 1972 and general discussions on the draft were held from October 19 to November 3, 1972. After general discussion 163 amendment proposals were received among which 84 proposals were adopted . The Constitution of Bangladesh was adopted on November 4, 1972 and it was made effective from December 16, 1972. In short this is the history of framing of Bangladesh constitution, which in a nutshell is provided by Md. Abdul Halim in his book Constitution, Constitutional Law and Politics: Bangladesh Perspective, Dhaka, Third Edition 2006 Page 33-39. And it is one of the informative and accessible books with reference to the evolution of constitutionalism in Bangladesh.
There are some other books on constitutional law written by different authors. But none of them provides any conspicuous information concerning the history of drafting and philosophical background of our constitution. To pick up an example, Constitutional Law of Bangladesh, BILIA, Dhaka, 1995 written by former Attorney General Mahmudul Islam is considered to be the most authoritative book ever written on Bangladesh constitution. But it seems that the book is unexpectedly silent on the history of drafting of the constitution which has blurred the widespread acclamation of the book. A careful perusal of the history provided briefly above, will expose some shortcomings of the information concerning history of framing of our constitution.
The drafting committee of the constitution was consisted of 34 members, but most of us do not know the names of all of them. At best our information confirms the name of Dr. Kamal Hossain, Suranjit Sen Gupta, Barrister M Amir-Ul Islam and Begum Razia Banu (the sole female member) as the Members of the Drafting Committee. We do not know the substances of proposals and suggestions made by different sections of the people which were sought with a view to facilitate the way of framing the constitution. Proceedings on “General Discussion” on the draft constitution never came to the light. Substances of amendments (proposed and adopted) of draft constitution are also kept unknown.
The philosophy behind adoption of “Fundamental Principles of State Policy” and “Fundamental Rights” have been mentioned by Dr. Kamal Hossain in different seminars; to mention one, in the British Bangla Law Week 1999, which was arranged by the British Council on the 50 years of the Universal Declaration of Human Rights, 1948. But there are some other important parts of the constitution and so far our knowledge is concerned, no commentary on these has been made either by Dr. Kamal Hossain or by any other framers of the constitution.
Dr. Kamal Hossain, the forerunner of our constitutional document, during his regime as Law Minister witnessed two controversial amendments to the constitution (2nd amendment providing inclusion of emergency provision, suspension of fundamental rights, preventive detention and 4th amendment providing one party government system, restrictions on publication of newspapers other than major four national dailies). Many writers on constitutional law explained the reasoning of these amendments according to their whim. But Dr. Kamal Hossain, who fashioned these amendments, never gave us any conspicuous idea, particularly in any written document, explaining the acute necessity of these amendments.
Just after the adoption of Indian constitution Dr. B. R. Ambedker, its Chief architect, made a lot of articulations explaining rational reasoning of adoption of different Articles. Even he categorically explained the rights of different (first, second and third) generations. So, it can be contented that Dr. Kamal Hossain, who is the legend of our constitution drafting, owes a moral responsibility to inform the countrymen in detail, the history of drafting and philosophical background of different important and controversial Articles of our constitution. Most probably he is the only eligible person to inform the countrymen the real intention of the framers behind each and every Article of the constitution. This expectation is getting firmer as he and other constitutional jurists of Bangladesh are growing older.
What we see in case of international conventions like Charter of the United Nations; Universal Declaration of Human Rights; International Covenant on Civil and Political Rights et cetera ? The drafting history of each of these conventions has been kept recorded in minute details. When, where and by whom initiative was taken; number, places, dates and duration of meetings; substances of proposals made by every member states; substances of amendments proposed by every state on draft conventions; reasons of rejection and adoption of amendments on draft convention; philosophy behind the conventions; even the volume of papers used in drafting; number of helping hands all have been preserved systematically. These records have not only the evidentiary value, but also are satisfying curiosity of researchers.
The similar state of affairs and genuineness can be observed in case of adoption of constitution of different countries, but unfortunately Bangladesh is lagging behind in this type of race. It is apprehended that all the documents have been lost in course of time. Especially the 98 memoranda that were received from different segments of people, are not available in the parliamentary storage. This can be testified from Barrister Abdul Halim's concern. In his book (Constitution, Constitutional Law and Politics: Bangladesh Perspective, Dhaka, and Third Edition 2006 Page 33-39 ) Barrister Halim has mentioned that he had made an effort to collect the raw documents from Record Book of the Constituent Assembly, but he did not find any of them. Because during the time of shifting from Constituent Assembly to present parliament, a large number of documents have been buried in the cold storage.
Though the framers of our constitution were successful in producing a good constitution within a remarkably short time, there is absence of information concerning the history of drafting of the constitution. That is why even after thirty-four years of commencement, we don't know the history of framing of our constitution in detail. The extent we know it, can merely serve the purpose of competing in a public examination. It is far behind from grasping the ideology of the state, upon which the whole edifice of the country is built. Nevertheless, time has not totally flown away, Dr. Kamal Hossain, Barrister Amir-Ul Islam, Suranjit Sen Gupta and some other framers of our constitution are still alive. Either they themselves can articulate the history and philosophy behind the constitution or can help the articulation by sharing their memory, experience and knowledge. If the dogma behind the constitution is clear to us, there will be diminutive confusion pertaining to the intention and dream of the framers of the constitution. Dr. Kamal Hossain, the indispensable name of our constitutional history, will remain ever salutary, if he leads us to know in full the history of framing of our constitution.
The author is a lecturer of Law Department of Stamford University, Dhaka.
