43 years of our Constitution

EVERY year we pass 4th November, the day of adoption of our Constitution, without any special ceremony or celebration. The Constitution was made effective from sixteenth December, 1972. We also pass this day without specially mentioning this event. So we have not made any occasion to specially recall or celebrate the day when we adopted our Constitution or the day when the Constitution entered into force. This is rather unusual, but true. Since our Constitution was made effective on the sixteenth December, the Victory Day, therefore, that the day has great significance as the Constitution Day too, has been perhaps rendered forlorn by joyful emotions and celebrations of the Victory Day.

I propose on the occasion of forty three years of the life of our Constitution that fourth November be formally declared as the Constitution Day of Bangladesh, with or without declaring it a national holiday, to be observed with due solemnity and marked by programmes aimed at increasing constitutional awareness amongst the people and reaffirming the promise to uphold the constitutional ideals, goals and principles. Constitutional development in Bangladesh has not been very easy and even. The Constitution was born healthy, but grew up to become sick and wounded, struggling to gather sufficient strength to stand and move upright. This truly reflects equally unhealthy social, economic and political development of the country. 

The Constitution of Bangladesh had undergone over the last forty three years massive alterations, manipulations and amendments. It also suffered suspension and restricted application. Yet, proving its inner strength and sustainability, our Constitution stood the test of time. Often strangulated by tampering amendments, the Constitution had experienced agonising ordeals, but never died. It has already demonstrated its staying power and sufficient potentiality to regain its force to guide the nation.

Let us make a short historical review of the Constitution, and the constitutional development with sincere tributes paid to the founding fathers of the Constitution who enacted one of the best versions of a written constitution, then in existence in the world. The Constitution Committee headed by Dr. Kamal Hossain, took immense pains to learn from the constitutional experiences from around the world and crystallised them into a body of legal principles and provisions, worthy of a nation which earned independence by blood of the people. Naturally it turned out to be a legal document embodying the highest ideals of democracy, fundamental human rights and dignity, justice, people's welfare and rule of law. Despite all sorts of experimentations with many provisions of the Constitution, these ideals and the provision that the people are the owners of the state power are declared in Article 7 of our Constitution.

Original Constitution of Bangladesh was characterised by genuinely true norms and principles of democratic governance. But the socio-economic and political development of post-liberation Bangladesh rendered the Constitution almost unworkable. Harsh realities dictated constitutional amendment providing for preventive detention (Second Constitution Amendment) which apparently failed to fulfill the objectives for which it was meant. Special Powers Act, 1974, which was passed by the Parliament under the authority of the Second Amendment, was more misused than used for fighting rampant corruption and sabotage. In fact, prevailing conditions in the country demanded more of effective political and administrative management rather than constitutional sanction for adopting punitive measures.

Increasingly worsening situations in the post-liberation Bangladesh ultimately led to adoption of the Constitution Fourth Amendment which was almost absurd in nature, absurd in the sense that it was more of the nature of revision of the Constitution than of amendment. In fact, the then Awami League Government in its desperate attempt to save the nation from near collapse, wanted a new constitution, without revoking at the same time the original one. Result was insertion in the Constitution of the provisions which rendered it beyond recognition. I believe, this was an extraordinary and temporary measure. 

Subsequent civil-military regimes for long years made all sorts of experimentations with the Constitution by way of willful amendment to suit their own purpose, but never dared revoke it. Rather, the incumbents always tried to give semblance of constitutionality to their rules, attempting thereby to take shelter behind the authority of the original Constitution as a source of moral and legal strength.

A qualitative change in the constitutional development occurred after a popular movement had overthrown General Ershad's Government in December 1990. A fairly free polls under a Caretaker Government and election of a new Parliament created fresh hopes for a new and healthy constitutional journey. After the return to parliamentary democracy under Twelfth Amendment, the Constitution was restored in substantial parts to its original form. But unfortunately rigged polls again posed a threat undermining the democratic provisions of the Constitution. It necessitated another popular movement to compel the incumbents to hold elections under Caretaker Government. This was done under the Constitution Thirteenth Amendment.

Most of the changes in the Constitution between August 15, 1975, and the time when the Constitution Eight Amendment was passed in the Parliament, were brought forth by martial law proclamations, orders, regulations etc., later embodied in the Fifth and Seventh Amendments passed by parliaments which were outcomes of grossly rigged polls. 

Relying on the doctrine of basic structures as upheld by our Highest Court, some other amendments of the Constitution can also be very legitimately questioned. First amongst them is the declaration of Islam as the state religion of Bangladesh which was made under the Eighth Amendment. The spirit of democracy, the principle of equality, the rule of law and secularism are so real and vibrant in our Constitution that declaring any religion as the state religion is very puzzling.

The writer is a professor of law at University of Chittagong currently on deputation as a member , Law Commission, Bangladesh.