Many political leaders of major parties have also realised that intra-party political reforms are not enough for genuine democracy, and have also suggested some constitutional reforms with a view to running an accountable government and parliament.

The BNP Secretary General on July 12 reportedly proposed bringing about changes in the constitution, and has welcomed the idea of the caretaker government constituting a "Constitution-Related Committee," whose suggestions could be adopted in next parliament. Earlier, many AL leaders had also come out with the suggestion that the constitution neeed changes for restoring proper democracy in the country.

The 1972 Bangladesh constitution provides for representative democracy in which the ability of the elected representatives to exercise decision-making powers is subject to rule of law (not merely rule by law) that places constraints on the extent to which the will of majority can be exercised against the rights of minority parties.

It seems clear that the constitution of 1972 is not working because our rulers and parliamentarians ignored the fundamentals of democracy, i.e. tolerance and respect for each other.

Why did the constitution of 1972 not work?

Some reasons for the non-functioning of the constitution are mentioned below:

First, many suggest the constitution of 1972 is too idealistic for politicians in Bangladesh. Many of the framers were "Jeffersonian" in outlook and attitude with high moral grounds. The model of the constitution seems to be based on a mix of the American constitution and the Bill of Rights of Britain, coupled with the 1948 UN Universal Declaration of Human Rights.

The consititution of a country is somehing that must be suited to the historical, political, social and cultural ethos of people the country. The constitution is not a "one size fits all" phenomenon, which can be transplated from one country to another.

Second, at that time Bangladesh's heroic victory in December 1971 had caught the attention of the world, and it appears that the framers wanted to show to the world how quickly and perfectly they could frame a constitution for Bangladesh. It is creditable that the constitution was prepared and promulgated within nine months. However, the framers appeared not to have considered the geographical, political, social, and cultural conditions of the country.

Third, the then framers of the constitution, out of emotional exuberance, thought there would never be any war, or threat to security or economic life, or political crises, or internal disturbance in the country. That was why they failed to incorporate even emergency provisions.

Soon, they realised that such an ideal consitution did not fit in with realities on the ground and, between 1972 and 1975, four amendments to the constitution were adopted, including the emergency provision.

Fourth, the current form of parliamentary democracy has regettably turned into "Prime Ministerial" authoritarian democracy because there have been no checks and balances on the powers of the prime minister and the president. Furthermore, whatever powers the president had were totally marginalised by the 1991 Twelfth Amendment Act. It is believed that the untramelled powers of the prime minister as the executive head of the government have been the source of the political ills characterised by gross abuse or inaction.

Fifth, the constitution can be interpretated in two ways: (a) strict textual or literal interpretation, and (b) originalism or constructivism. A literal interpretation of a provision of the constitution cannot be made without taking into account the spirit and letter of the constitution as a whole.

The interpretation of a provision of the constitution cannot be made in isolation, because the constitution is a book in which each chapter is related to the other. In a sense, the text is organic in character. If there is any dimunition of powers in one chapter, other chapters are affected adversely. Such interpretation is called constructivism.

For example, the 1972 constitution is a parliamentary one, not presidential, wherein executive power rests on the prime minister, not on the president. The 1975 constitutional change from parliamentary to presidential form, and the making of a one party-state, destroyed the fundamentals of the 1972 constitution.

The fourth amendment ought to have been challenged in the Supreme Court as being unconstitutional because the fabric of the original constitution (parliamentary democracy) was the "embodiment of the will of the people of Bangladesh."

Without the expressed will of the people through a referendum, such a fundamental change of the basic framework of the constitution was arguably unconstitutional. It is noted that India's Supreme Court had a ruling on this issue.

Sixth, under successive military regimes in the country the rulers had amended constitutional provisions as they wished, through presidential orders or proclamations. The question is, who gave them the authority to change the basic fabric of the constitution? It is argued that they could not do it without the people's consent.

Arguably these amendments were unconstitutional. All these undue interferences and abuse of the constutional provisions lead to one conclusion, that the constitution of 1972 did not suit the politicians or the rulers of the country.

Seventh and finally, the constitution is based on certain expected assumptions and conduct from office holders. Those expectations have totally been ignored in practice. The ruling party leaders did not interpret or use the provisions of the constitution in good faith.

For example, Article 70 with its three sub-clauses is arguably unconstitutional because it denies the basic right of an MP in a representative democracy to voice his/her opinion in the parliament on a subject of his/her concern, and is not permitted to abstain from voting.

If an MP does, then he has to resign from the party. At the same time, it allows an independent elected member to switch and join the ruling party. Should the independent member not resign as well? Is the Article not contradictory in its terms?

Issues that need to be considered in the revised constitution

What is imperative is that provisions of the constitution must be made explicity clear. If they are vague, they are likely to be abused or manipulated.

The Constitution Commission may consider a democratic political system that is based on accountability, justice and fairplay, with adequate checks and balances of powers distributed in the various organs of the state. It is suggested that the Commission consider the following list of issues that are only indicative:

• Should the parliament have two houses? Should the lower house have more than 300 members in a country with 140 million people?
• Should the duration of the parliament be for three years?
• Should the tenure of the prime minister be limited to two terms, since the tenure of the president has been limited to two terms under Article 50(2)?
• Should the number of ministers, state ministers, deputy ministers and advisers, or persons having status of minister/state minister/deputy minister be limited to only 10% of the elected members of parliament?
• Should the speaker, after being elected, cease to have any affiliation to any political party, for nuetrality?
• Should there be certain number of women candidates for MPs from each party in parliament?
• Should the functions of MPs be clearly spelt-out, including the do's and don'ts? Should they be lmited only to law-making functions?
• Should there be any time-frame in which local governments are to be constituted through elections?
• Should any amendment of the constitution or any important national issue be put on referendum? A provision for referendum exists in the constitution in respect of certain matters, including that of the prime minister.
• Should all constitutional and other important posts are to be recommended/nominated for appointments by a Committee representing politicians from all major parties and individuals from civil society including professionals and experts in their fields?
• Should the powers of the President and the Prime Minister operate as checks and balances on each other?
• Should all state institutions, including the Election Commission, Anti-Corruption Commission, Ombudsman, Auditor General and Public Service Commission be separated, strengthened and made independent of the government?
• Should there an Institutional Forum representing government, civil society, human rights organisations and private business sector for better communication and decision on national issues?
• Should representatives of civil society and business sector be allowed to participate as non-voting members in parliamentary committees?
• Should parliamentary committees be chaired by representatives of opposition parties and be made effective?
• Should retired persons of higher judiciary be involved in any part of the administration? Should former chief justices continue to be the chief adviser in non-party care-taker governments?
• Should there be any bar of 5 years for retired public servants or employees of autonomous governmental organisations prior to joining any political party ?
• Should there be a National Security Council for co-ordinating security and other national issues?
• Should any political party not gaining 5% of popular vote in the parliamentary election be denied representation in the parliament, or not recognised as a registered lawful political party?

If drastic amendments to the constitution (14 amendments until this date) were made during the last 36 years, why can't we revise the constitution for a new political and economic order that contains checks and balances on the powers of the MPs.

Many suggest that this CTG may consider setting up of a Constitutional Review Commission to consider the above gamut of constitutional issues. Meanwhile, a robust and dispassionate national debate needs to be initiated by all political parties and all sections of society to provide inputs to the Commission. Let there be a new beginning of Bangladesh.

Barrister Harun ur Rashid is former Bangladesh Ambassador to the UN, Geneva.