Constitution-making and unmaking in Bangladesh

Our Constitution has experienced a roller coaster ride since its adoption. It had a promising start (1972) but soon fell into turbulent phases of constitutional chaos (1975-90). It tried to bounce back for a while (1990) but faced barrages of democracy-defying assaults again. Now, fifty years into its birth, the present appears worrying and the future bleak. In this short opinion piece, I will try to understand why.

The Constitution of 1972 had solid ideological foundations. The framers had a patriotic conviction in our unique national identity, parliamentary democracy, socialist economy, religious tolerance and fundamental freedoms. Hence, the original scripture was famously based on the four foundational principles - democracy, socialism, nationalism, and secularism (Preamble and Art 8).

It had a structural identity too. The executive and legislative branches were modelled on a Westminster-type parliamentary system. The judicial branch was organised in a US-style separation of powers model. Chances of Pakistani-style presidential authoritarianism and military intervention  in politics were sealed (Arts 48 and 7). The rulers' accountability to the peoples' representatives (Art 57), judicial oversight of the executive and legislative branches (Art 102) and the citizens' protection against the state excesses (Art 44) were guaranteed. Watchdog institutions like the parliamentary committees (Art 76), Ombudsman (Art 77), Election Commission (Art 118), Comptroller and Auditor General (Art 127), and Public Service Commission (Art 137) were all built to the highest possible standard of institutional design known in those days.

However, fifty years later, the Constitution's four foundational pillars seem ludicrously contradictory. The post-1975 military rulers hurt the framers' four foundational principles grievously. They discarded "socialism" for a market-based capitalist economy and jubilantly axed the Constitution's principal identity – the "Bangalee Nationalism" (5th Amendment, 1979). They would also wipe out "Secularism" and islamise the state (5th and 8th Amendments, 1979 and 1988 respectively). So clinical was the assault that even the political party responsible for drafting the original script would give in. They would "revive" the four pillars, but with compromises, contradictions and problematic articulations (15th Amendment, 2011). Therefore, the situation stands that the country has either entirely walked away from some of its foundational principles (socialism, for example) or irreparably damaged the others (democracy, nationalism and secularism).

 The original Constitution's structural arrangement also fell into hotchpotch. The parliamentary system was discarded almost immediately after its introduction (4th Amendment, 1975). The subsequent military intervention into politics brought back the Pakistani-era presidential authoritarianism (5th and 7th Amendments, 1979 and 1986 respectively). A mass revolution of 1990 sought to revive the parliamentary system (12th Amendment 1992), but the country would only fall into competitively authoritarian party regimes (1991-96, 1996-2001, 2001-06 and 2009-13). The current decade of the country's (extra-)constitutional life is marked by polarisation and monopolisation. During this torturous journey, the parliament has lost sight of its  prime duty – enforcing individual and collective ministerial responsibilities. Governance continues to look like a crude "elective(!) dictatorship" (Lord Hailsham, The Richard Dimbleby Lecture, 14 Oct 1976, BBC, London).

The judiciary has been marginalised, bringing its institutional assertiveness to a knee (16th Amendment, 2014 and the 16th Amnemdnet Case, 2016). The nation's electoral machinery has been laid bare. A promising experiment with an election-time caretaker government (13th Amnemdnet, 1996) has been purposefully mishandled. It failed to do the good it was meant to do - contribute to the country's electoral integrity. Instead, it expedited the court-packing, scandalised the judges and then died a controversial death (15th Amendment, 2011). The "Ombudsman" was never created. The Comptroller and Auditor General, Public Service Commission and other "constitutional institutions" fell into the "executive's vortex".

Now, what could explain this disastrous failure of a remarkable Constitution? Many of us (specially those on the left) tend to blame the framers' "lack of institutional imagination" for this constitutional debacle. While this view could make sense in several areas of constitutional design (the executive-legislature relations, the government's absolute appointment power, for example), I would argue something else. The constitution-making itself carried, inevitably perhaps, some clues to its future unmaking. Two of them were prominent.

First, the total exclusion of the religious-conservative political elements from the constitution-making process (how logical it appeared in 1972) had reduced (if not dislodged) the Constitution's political morale. In 1972, an essential requirement of the parliamentary system – conservative-liberal bipartisanship, was conspicuously missing. The conservative political elements of undivided Pakistan - the Muslim League (ML) and Jamaat-e-Islami (JI), actively opposed the liberation of Bangladesh. They lost their right to exist in the newly independent country, but the pro-Soviet leftists could not fill the vacuum with their insignificant mass base in society. So, the seismic political change of 1975 led to a quick resurgence of the radical right. From that point onwards, Bangladesh's constitutional unmaking has been rapid. Avenging their exclusion from the constitution-making process, the religious nationalists would actively deconstruct the Constitution and its foundational pillars.

Secondly, the framers of the Constitution lived in a society where politics had always been about personalising public power rather than institutionalising it. Even the drafters were drawing from a personalistic leadership style that would only be aggravated during military rule. After the democratic revival of 1990, persons, egos and political dynasties would block the prospect of internal democracy, mass-based recruitment and merit-based promotion system within the political parties. Distrust and distaste for democratic opposition would only yield violence, election rigging and back-door conspiracies for ascending or clinging to power. It led to radicalisation, polarisation and extra-constitutional intervention in politics.

When we talk about a Constitutional democracy, we talk about its "Democratic Instrumental Vision" (Johan P. Olsen, Governing through Institution Building, Oxford 2010). Institution building is key to the project. Putting persons before institutions is like putting the horse before the cart. In 1972, our Constitution framers might have designed a liberal constitutional order. Whether theirs was a workable one is debatable. The politicians, including the framers themselves, would make and unmake the system in ways that best served their personal or partisan interests over the nation's long-term institutional interests. Power-personalisation must have its consequences. Hence, the Constitution's continuing agony should not surprise us.

The Writer is a Lecturer, University of Hull Law School, UK.