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Constitution reforms: Amendment or rewriting?

Published : Sunday, 22 September, 2024 at 12:00 AM  Count : 483
Muhammad Easin Taha
A new Bangladesh emerged through mass uprisings and the sacrifice of thousands, yet the revolution's objectives remain unfulfilled. A successful revolution reflects its goals in reality. The interim government that ousted the fascist regime lacks constitutional legitimacy. Since independence, five unconstitutional governments have taken power. First, Khandkar Mushtaq unlawfully assumed leadership after the assassination of Bangabandhu Sheikh Mujibur Rahman in 1975. Then, following a coup on November 7, 1975, Ziaur Rahman rose to power unlawfully. On March 24, 1985, Hussain Muhammad Ershad ousted President Abdus Sattar. After Ershad's fall on December 6, 1990, Justice Shahabuddin Ahmed led an interim government that lacked constitutional validity. Lastly, the caretaker government of Fakhruddin Ahmed is widely viewed as illegitimate.

After the fall of Sheikh Hasina on August 5, the current interim government was established based on the doctrine of necessity. The validity of constitutional law can be questioned, but this interim government reflects the people's will. The constitution should mirror the masses' aspirations, and thus, the people's government does not require legal legitimacy; law serves the people, not the other way around. Our interim government took an oath under this constitution despite its invalidation by the mass coup. This oath implies that the Constitution is assumed to be in force, and discussions about the interim government's legitimacy will persist until the constitutional issue is addressed.

A pivotal political question is whether the constitution will be amended or rewritten. To answer this, we must consider the history from December 16, 1972, to August 5, 2024. Does the 1972 constitution truly reflect the people's hopes? The name "People's Republic of Bangladesh" raises questions: who are the kings and who are the subjects? While the constitution states that the people are the source of all power, this raises doubts about their status as subjects.

The interim government has pledged to change the nation's structures, but the method of change remains unclear. If constitutional institutions are altered through legal means, dictatorship may arise again. Thus, the constitution must be amended or rewritten first, followed by restructuring state institutions. 

To determine the best path, we must assess the current constitution and the people's aspirations. The past 16 years under the Awami League government show a regime that has legalized its misdeeds through constitutional changes, driven by the desires of Sheikh Hasina. The current constitution, rather than restricting dictatorship, has facilitated it. A state cannot thrive with a constitution that enables authoritarianism.

The current constitution does not reflect the people's will and is increasingly seen as ineffective. Elections held under this constitution have been marred by controversy, with accusations of rigging and lack of transparency. This inability to ensure fair elections points to a deeper flaw in the constitution.

Many argue that it's possible to reform the state by amending the constitution rather than rewriting it. However, we must ask whether those who swore to uphold the constitution truly possess the authority to amend it. Does the parliament, bound by the constitution, have the power to alter the framework it is founded upon? If a political party amends the constitution to serve its interests, how can we guarantee that it won't be changed again by a future government?

If we assume state reorganization is achievable through amendments, we must confront the fact that the current constitution allows limited amendments, hampered by Article 7B. The inconsistencies present in the constitution necessitate a sweeping reform that would amend a significant portion of it. 

The preamble and the initial articles of the constitution contain contradictions. The second paragraph of the preamble speaks of ideals like nationalism and socialism, yet these principles may not genuinely reflect the motivations of the freedom fighters. This raises questions about their inclusion and the actual beliefs of those who fought for liberation.

Furthermore, Article 2A introduces a state religion, which contradicts the principles of secularism outlined in Articles 8 and 12. A state cannot effectively promote both a state religion and secularism simultaneously. Additionally, Article 4A undermines the dignity of the nation by mandating the display of the Father of the Nation's portrait in official settings, which could be seen as elevating him to a near-divine status.

Article 6(2) claims that the people of Bangladesh are known as Bengalis, potentially excluding other ethnicities living in the country. This raises the question of representation and recognition for all citizens.

Article 7(1) asserts that the people hold all power, yet this unlimited power is constrained by the very constitution that claims to represent it. This contradiction highlights a fundamental flaw in the constitution's structure.

Article 7A reflects outdated views, while Article 7B limits amendments to the constitution, creating a scenario where the constitution's integrity is jeopardized. The 15th Amendment has already altered the original framework significantly; thus, the essence of the 1972 constitution has been lost.

If the current constitution remains intact, the cycle of uprisings will continue, as Article 7(a) criminalizes any unconstitutional alteration of the constitution. The recent interim government, born from popular uprising, finds itself in a legally precarious position.

Rewriting the constitution may be the only solution to address the demand for state reform without creating a constitutional crisis. This effort should be undertaken without nullifying the existing constitution. A new constitution could emerge from consensus among political parties, civil society, and various stakeholders, minimizing the risk of conflict.

The hopes of 1971 and those for 2024 are intertwined. The failure to meet the expectations of 1971 has led to new uprisings, signaling a demand for a "Second Bangladesh" to preserve the sovereignty obtained at great cost. Thus, revisiting the 1972 constitution with fresh discussions could provide a foundation for a future that reflects the true aspirations of the people.

The writer is an advocate



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