50 Years of Bangladesh Constitution: Intentions, Institutions and Implementations

The beginning of our constitutional discourse was promising. The 1972 Constituent Assembly (CA) of the newly-liberated Bangladesh produced the constitution in only nine months, a much shorter period compared to other countries except a few like the United States.

It's undeniable that a number of factors helped in that process. For example, the CA was entrusted with only framing the constitution (unlike some others such as the Indian CA of 1946, which had a concurrent function of making laws), and there were few scopes of dissent thanks to the near-absence of opposition members in the CA (3 out of 403). But the real success of the CA was the quality of the 1972 constitution.

The 1972 or original constitution had progressive provisions such as inclusion of secularism among the fundamental principles of state policy at a time when no other South Asian country had such provisions. It also had provisions that were ambitious (i.e. Article 77 on the office of Ombudsman), efficient (Article 44 on the right to enforcement of fundamental rights) and promising (Article 8 requiring interpretation of the constitution and other laws in light of the fundamental principles including socio-economic rights)—such provisions were absent in the majority of contemporary constitutions.

These do not mean that the 1972 constitution was perfect. In particular, it contained a few provisions inconsistent with the spirit of good governance such as concentration of too much power in the Prime Minister (Article 48, 55) and denial of free exercise of voting in the parliament (Article 70). It, however, made provisions for its amendment (Article 142) which offered windows of opportunity for addressing its deficiencies or modifying it to reflect later developments.

Many constitutions in the world, in fact, have progressed through their amendments in later periods. Such amendments include provisions for protection of human rights (First 10 amendments to US constitution, Right to Information in Belgium, Mexico, Norway, etc.); strengthening of good governance (18th amendment to Pakistan constitution); decentralisation of power and ensuring people's participation (108-112 amendments to Indian constitution); enforceability of social and economic rights (1996 South African constitution, right to water in some countries such as Ecuador and Costa Rica); and contemporising of the constitution (1990 Zaire vs. 1998 DR of Congo constitution).

There are also a few examples of regression by substitution of a constitution with an inferior one or weakening it by later amendments, which is a known feature of some African constitutions. 

It is, however, generally agreed that the purpose of constitutional reform should not be to raze, destroy or weaken its foundation, but to modify and strengthen it to reflect new circumstances and correct the deficiencies in the past and also to adapt to the needs of various times.

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In terms of a constitutional journey, Bangladesh, unfortunately, falls into the wrong category of countries. Despite its promising beginning, it has regressed on many accounts in the last 50 years. As outlined below, it has also largely failed to reflect contemporary advances and to realise institutional development as inspired or instructed in the 1972 constitution.   

Regressive amendments

Out of the 17 amendments done so far, only a few—like the 1st amendments (made to ensure justice for victims of international crimes) and the 12th amendment (which reinstituted parliamentary democracy)—aimed at achieving pro-people reforms, while others were mostly self-serving efforts undermining the fundamental constitutional principles. For example, the 4th amendment was made to establish a one-party autocratic regime, and the 5th and 7th amendments were orchestrated to legalise Martial Law rules. Other amendments included insertion of Islam as a state religion resulting in its awkward co-existence with secularism (8th amendment), denying safeguards to arrest in cases of preventive detention (2nd amendment), repealing of the provisions for non-party caretaker government for conducting free and fair election (15th amendment).

Failure to reflect contemporary developments

Among other things, the 15th amendment to Bangladesh constitution has added a provision for protection of environment and biodiversity (Article 18A). This is a rare example where Bangladesh has taken account of emerging constitutional norms of global relevance. In the majority of other cases, however, the discussions and debates on constitutional reforms ignore contemporary constitutionalism on issues such as enforceability of economic rights like right to food and water, environmental obligations and essentials of good governance like objective appointment in the constitutional bodies, and ensuring individual accountability of the members of the cabinet. 

To illustrate it, let's consider that since the entry into force of the constitution of South Africa in 1996, a growing consensus has developed over the desirability of judicial enforcement of economic rights in a good number of countries in Latin America, East Europe as well as in India. There are genuine progresses as well; for example, right to education is now judicially enforceable in India and Pakistan, which is not the case in Bangladesh. 

Omissions

Bangladesh constitution has delegated to parliament the task of furthering its objectives by making laws on a number of important issues, including for empowering the subordinate courts to enforce fundamental rights (44), elaborating qualifications for the appointment of judges in higher Judiciary (95), strengthening the parliamentary committees (76) and appointment in the election commission (118). None of this has been complied with in the last 50 years.

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Apart from parliamentary efforts, constitutional provisions may be advanced and strengthened through a progressive interpretation of the provisions. Among others, the judiciaries of India and Pakistan have taken such steps, not only for strengthening their independence, but also for expansion of human rights and development of democratic institutions.

In this respect as well, our success is limited. In constitutional cases, our apex court generally appeared to be more keen on invalidating the Martial Law regimes from decades ago than on scrutinising the apparent constitutional violations by the incumbents. In doing so, they sometimes arrive at such decisions that lack judicial insight and objectivity. 

For example, the much-hyped 5th amendment judgment declared the legalisation of martial law regime by the 5th amendment as invalid, but at that same time, it retained some of the provisions of martial law, including those that benefit the higher judiciary judges themselves. The 5th and 7th amendment judgments also did little to enhance and beef up our democratic institutions.

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As Sir Ivor Jennings remarked in "Law and Constitution": the constitution consists of institutions and not of papers that describe them. No one could disagree with him and therefore, in my view, the most serious failure in our constitutional discourse of the last half-century is the failure to build institutions of accountability on the basis of the constitutional mandate.

Successive governments of Bangladesh have rather tried to dismantle the institutions such as higher judiciary, the election commission, the cabinet and the parliamentary committees for self-serving reasons. For example, they have strengthened their grip on higher judiciary by exploiting the lack of legal provisions on adequate qualification for appointment in the higher judiciary, criterion on elevation of High Court judges to the Appellate Division, or appointment requirements of the Chief Justice.

It is difficult to be optimistic at the end of this discussion. But, in deeper observations, we may find some reasons to believe that better days of constitutionalism would arrive soon.

Our Constitution has survived 50 years of onslaught and its basic foundations—i.e. the high morals of the liberation war—are still there. Moreover, the aspirations and resolve of the people to build an egalitarian and welfare state have kept on solidifying for years.

In achieving all these, the 1972 constitution will undoubtedly continue to inspire, enlighten, and embolden the present and future generations of Bangladesh.

Dr Asif Nazrul is Professor and Chairman, Department of Law, University of Dhaka.