A quest for understanding constitutionalism

Constitution is supposed to stand against the uncertainty in the political life in the state of nature, and it contradicts the 'hereditary' or 'might is right' order of monarchy, it denies – benevolent or not so – dictatorship or military takeover. It is rather a formula for a stable form of political life. Constitution is not a document of surrender to the destiny but a map to a destination. Discussing constitution only as a piece of law, may be supreme, tends to pull us in the oblivion about its supposed role.

Post 1947 constitutional events had to deal with two challenges - decolonisation and constitution of a (new) political order. But it failed in both. The post 1971 experience has not been much better, if not poor and/or similar. Our kind of constitutionalism suffers from incapacity in terms of decolonisation and negligence in constitution of a (new) political order. Our comfortable indifference to the history of colonisation and its undercurrents in legal system and State mechanisms help us to continue with a manifest failure to reconcile the competing interests and tensions underlying the kind of political order we want; thus, we have failed to carve out a stable political order. In search for a political order, the country was uncertain about the form of government. Even the most agreed form of parliamentary democracy was not diligently maintained.  A caretaker system was created for mending the fragility of our political order, but it failed to fulfill the promise it once showed.

Being unaware of the legacy of colonisation of epistemology and jurisprudence may not prevent the temptation to separate the following two questions. Why does a country follow constitutionalism? And why did constitutionalism actually emerge? For the first question, one view, endorsed in Bangladesh, suggests that (post-colonial) countries follow constitutionalism for a fresh start. The vague idea of 'fresh start' may turn out to be that constitutionalism is somewhat a matter of fashion. In other words, in case of Bangladesh, Constitution is like a new piece of legislation that nobody knows what will happen to, when it faces the power it supposes to tame. Will it make the balance between the necessary power of the State and the necessity to control the State?

Constitution is born politically, it grows through judiciary, and some are the believers of 'original is better' when it comes to the question of change by Parliament. However, the constitution continues to grow, perhaps in a wrong way in Bangladesh. If the growth of the text betrays with what the sacrifices of millions were made for, then that is a dangerous and devastating growth. Let me elaborate.

In the year of its birth, the constitution was slim due to non-existence of some tumorous amendments and the few fatty judgements loaded with non-law literature. The present corpus of the constitution consists of nearly 23 thousand words, and around 112 thousand characters. It was several thousand less in 1972, the year of drafting of the constitution. A wise man has asked to imagine: how many martyrs have sacrificed their lives in 1971 for each letter of the constitution? Should one be oblivious of the spirit of constitutionalism that sprouts from the million souls sacrificed for this cause in this land?

Several metaphors may help us to understand the idea of constitution. One may think of it as an operating system for what we know as a computer, a constitution is an operating system for a political order.  The drivers that connect different elements of the machine (computer) to the operating system should not malfunction.  But this is something that happens to constitutional political order. One may opt to find an upgraded version of a driver for a computer programme to run. However, it is not easy to find upgraded versions of human actors who tend to run the political order according to the Constitution.

People also use the metaphor of Odysseus. He bound himself – the power binds itself – to avoid the siren calls of sea, the illusive pitfalls for power. The State should bind itself with the rules of constitution so that it does not bring danger for its people. It keeps the people safe from abuse of power, and it keeps safe the ones who are bestowed with the power from the vices of power.

In our country, we are more supernatural than the Greek gods. We all know that Behula made her journey to heaven and brought back Lakhindar into life. Behula's raft is very fragile in comparison to the warship of Odysseus, and it symbolises the land and people of Bengal.  One who has ever floated on a raft of banana trees for crossing waters knows that it takes courage to rely on such a fragile vehicle and it requires a subtle sense of balance to safely cross the waters. In her journey Behula had these two virtues for making the journey. Moreover, she had an unusual mixture of courage and hope for which she travelled with the dead to return it to life. This unusual mixture, incomparable to the bravery of Greek epic heroes for different reasons, is uncommon to the ordinary mortals who run the political orders.

Let me speculate two alternative futures for constitutionalism. The first comes from Behula's journey. The heaven is rather an intermediate phase of Behula's journey where her ultimate end is to 'live happily ever after'. This is the common dream of the people of this land told and retold through the thousand years of fairy tales. Then, they lived happily ever after. Did the people of Bangladesh live happily ever after they started their journey as a constitutional democracy? Or are they just continuously reminded of the American wisdom that 'eternal vigilance is the price of liberty'?

The writer teaches law at the University of Asia Pacific.