Constitutional supremacy: The dangers within

The "idea" of a constitution may be old.  After all even Aristotle had written about them.  However, the reality of "constitutions" as codified rules that define the structure of government, the relationship between its branches, and the rights and liberties of the people, is much more recent.  Even though the constitutions of San Marino and Sweden are technically older, it is the US constitution, ratified in 1789, which is generally considered to be the oldest continuously functioning written constitution.

Bangladesh was eager for one when it became independent. This priority was driven by two factors.  The first was the region's experience with inscribed rules of governance.  Even when India was "ruled" by the East India Company, and certainly after it came under the direct authority of the Crown in 1858, there was an obsessive reliance on written regulations, procedures and protocols through various Acts and Charters passed by the British Parliament. When Pakistan was created, it went through two constitutions in 24 years (the first took 9 years to formulate and 2 to abrogate and the second took 2 to make and 9 to break). Thus, when Bangladesh came into existence, it was heir to a fairly extended "constitutional" history. 

Second, the dreams and demands of the people that inspired and sustained the struggle for liberation and the war of independence made a democratic constitution a political necessity and a moral imperative.  Hence, within one day of Bangabandhu's triumphal return to Dhaka on Jan 10, 1972 he issued the Provisional Constitutional Order 1972.  A 34-member constitution drafting committee was announced on April 11 under Dr. Kamal Hossain, a draft was placed before the Parliament within 6 months, and after its third reading and approval on Nov 4, and upon its coming into effect on Dec 16, Bangladesh established itself as a constitutional republic. Its tryst with destiny had been redeemed.

But while Bangladesh had a constitution, its commitment to "constitutionalism", i.e. embracing its principles and ensuring its sanctity and permanence, remained a bit shaky.  Drastic changes were introduced through the adoption of the 4th amendment on Jan 25, 1975, which radically shifted the initial focus of the constitution and turned it into a single-party, Presidential system, which curtailed the powers of the Parliament and the Judiciary, as well as the space for free speech or public assembly. 

Bangabandhu's heinous assassination in 1975 complicated Bangladesh's democratic journey in more fundamental ways.  The path towards democracy became progressively rockier with most regimes seeking to interpret, often to bend, the constitution to meet its interests and, in the process, jeopardize its original premises and promises.

The resulting democratic deficits are reflected, on the one hand, in the inability to ensure the rule of law, free and fair elections, economic justice, free speech, human rights and civil liberties which are all specifically enjoined in the constitution.  On the other hand, increasing levels of corruption, violence, intolerance, communalism, political hyper-polarization, and civic distrust led to the erosion of democratic norms and values without which any constitution becomes hollow and futile.

But a quieter and more insidious development which subverts constitutional rule is the gradual increase in powers of the executive. The idea of checks and balances of the different branches of Government, with judicial review and legislative oversight limiting the exercise of Executive power, guaranteeing the rights of the people, safeguarding the rule of law, and confirming the supremacy of the constitution, is problematized, and democracy itself is threatened.

Admittedly, this is not unique to Bangladesh.  Arthur Schlesinger had indicated it in his "The Imperial Presidency" (1973), which was gradually manifested in the notion of the "unitary executive".  This referred to the claimed privileges and prerogatives of the executive branch which protected it from legislative controls in some critical areas and allowed it to exert much greater power beyond the spirit of the constitution. 

It was argued that the economic complexities of a globalized environment which required specialized knowledge and quick decisions, as well as the military challenges the world faced which demanded a high level of secrecy and centralized command structures, both privileged executive powers at the expense of other branches of government.  This process has not gone unchallenged by the legislative or judicial bodies, but was not able to significantly limit executive over-reach throughout the last century.  

In Bangladesh there have been some enabling conditions that have facilitated, and later intensified, this tendency.  First, in Weberian terms, it is "charismatic leadership" that prevails in Bangladesh (as opposed to rational/legal or coercive/traditional leadership).  The ability to appeal to the public through deploying the rhetorical, psychological and institutional instruments to "routinize" charisma also gives leaders an aura of absoluteness, and supports the fetishization of the "strong man" approach to leadership. Leaders "rule" through manipulating fear and favor.   Subordinates measure their importance in terms of their closeness to the leader which is cultivated through loyalty, service and sycophancy.  Ordinary people are encouraged to demonstrate subservience through regular and ritual affirmation of the leader's supremacy in exaggerated and, sometimes, comical ways.

Second, the authoritarian ethos that defines the socio-political or civic culture here also helps to uphold and legitimize this process.  The patriarchal structure silences the voices of women, and renders them "invisible".  (Women in positions of power usually derive that status as daughters, wives, or as mothers of men who had wielded power earlier).

Similarly family structures located within that value system are self-consciously hierarchical, and the head of the household is considered supreme.  This is buttressed by the rules of "adab" (proper conduct) which discourage any questioning of authority. In the bureaucracy or in any office, the same autocratic tendencies are evident. Furthermore, the severely stratified class structure, where the economically prosperous flaunt their power and the underprivileged are cowed into accepting their inferior status, further complicates the constitutional assumptions and expectations of equality and inclusiveness.

Third, political parties are not based on ideology or principles but typically tend to be clusters of people around a dominant leader.  The parties are formed and splinter for essentially personal reasons and interests. The fact that 80 parties have applied for registration with the Election Commission this year indicates the irresponsible nature of their formation and agendas. It is not unusual for these leaders to change colors, shift parties, and juggle alliance partners - coalitions which are forged as cynical, transactional and temporary arrangements depending on perceived benefits. Since most of these parties do not practice internal democracy, are not committed to a constitutional polity, and function at the behest of a leader, it is natural for them to support expanded executive authority when a particular party comes to power.

Fourth, like many other constitutions, Bangladesh has detailed the respective roles of the three supposedly co-equal branches of government. But the Parliament in Bangladesh is struggling with its institutional credibility and moral authority. 

The composition of the Parliament contributes to a perception of its irrelevance. The overwhelming ascendancy of one party (almost 90% of the seats in the current legislature belong to the ruling party); the fact that legislators cannot vote their conscience but must support the party line (article 70 of the constitution); and the physical dominance of the business sector whose interests are usually more material (more than 60% of legislators list "business" as their profession), have all helped to nurture this impression. 

Moreover, doubtful elections (made questionable by the rampant use of money, muscle power and administrative shenanigans), committee ineffectiveness, anemic attendance, insipid debates (which sometimes reveal a lack of parliamentary decorum), and the inability and unwillingness to perform its oversight and investigative functions, have also bolstered the notion that it is merely a rubber-stamp entity functioning as an extension of Executive will.                                   

Fifth, the strongest protection of constitutional supremacy is the Judiciary.  It is supposed to serve as the final interpreter and guardian of the constitution with the ability to declare any act of the Legislature or any action of the Executive to be null and void if it violates any constitutional provisions.

In Bangladesh, the Courts have been a bit shy in this regard.  The number of constitutional cases has been very limited. If the Courts do, indeed, decide adversely on a constitutional issue against the interest of the ruling regime, the super-majority that parties enjoy in the Legislature easily enables a constitutional amendment to make the judgment moot.  The last Supreme Court justice who tried to be bold not only had his decision overturned, but eventually had to leave the country.           

Moreover, Courts are overwhelmed by political cases filed against supposed regime opponents and alleged "free speech criminals" (apparently in Bangladesh those who "hurt sentiments" generate swifter legal attention than murderers, rapists, money launderers, or environment destroyers).  Also, the Courts are becoming the primary source of protection and support for a variety of initiatives and causes through Public Interest Litigations and Suo Moto rulings, which should ideally be addressed through a political process involving executive or legislative leadership. 

It should also be pointed out that the Courts remain woefully under-staffed and over-burdened (17,500 cases in the Appellate Division which currently has only 5 justices, and more than 5, 00,000 cases with the HC bench with less than 100 judges). The sheer number of cases hampers its primary obligation to dispense justice to litigants, and causes delays which can be exasperating, unjust and unconstitutional.  It also distracts attention away from its constitutional obligation to check the other branches of government. The swagger of the Executive branch remains unabashed.

While Bangladesh's struggle for a constitutional/democratic order has been long, rich and intense, and while people have dreamed, mobilized, struggled, fought, and died for it, the achievements in this regard appear to be slightly discouraging.  Many aspects of life in Bangladesh have improved significantly, and economic performance has been most impressive and widely lauded.  However, the promise and the conviction that the constitution would serve as the anchor of a free, fair, progressive, inclusive, rights-based polity has been rudely shaken by cultural dynamics, political expediency and personal ambitions.       

The "Divine Right of Kings", for long a staple of European rule, was gradually supplanted by the notion of "popular sovereignty". Instead of the monarch, it was the people who were heralded as sovereign. This transition was not easy, swift or peaceful.  The process reached its conclusion through the adoption of the legal instrument of the written constitution, and establishing its supremacy. In Bangladesh, the accumulation of powers in the hands of the executive has made that journey a bit fraught and incomplete, and the destination itself slightly ambiguous.

Dr Ahrar Ahmad is Professor Emeritus at Black Hills State University in the US, and Director General of Gyantapas Abdur Razzaq Foundation in Dhaka. He can be contacted at ahrar.ahmad@bhsu.edu