Review of the Constitution
THE review of the Constitution of 1972 is not only an important issue but also goes to the heart of the political malaise in the country as manifested before January 11, 2007.
The setting up of a Constitutional Review Commission has been reportedly raised by the non-party caretaker government that was constituted by the president on January 12, 2007 under the provisions of the Constitution under Chapter IIA.
Chapter IIA, that envisages a non-party caretaker government between the elected outgoing and the incoming governments, was incorporated in the Constitution in 1996 because the political parties could not trust the ruling party to hold parliamentary elections.
The tenure of the caretaker government will continue until a new prime minister enters upon the office after the constitution of Parliament (Article 58B.1 of the Constitution)
Is the caretaker government empowered to set up the commission?
Some political parties and others have raised a question of legality regarding the setting up of the Constitution Review Commission by the caretaker government, and argue that the function of the caretaker government is to hold parliamentary elections, nothing less and nothing more. It has been further argued that only the elected government is empowered to undertake such an exercise.
To many legal experts, the above position seems to be misconceived for the following reasons:
First, the functions of the caretaker government are enumerated in Article 58D where, in case of necessity, the government can make policy decisions. Furthermore, since this caretaker government was installed under unusual circumstances during political turmoil, chaos and lawlessness, it has to fight against what the government has recently described as the 3 Ms -- Money, Muscle and Misuse of power.
Second, almost all political parties acknowledge the policy-making powers of the caretaker government when they and others demand that it set up a tribunal for the trial of the war criminals under the 1973 International Crimes (Tribunal) Act.
Therefore, it seems illogical that they find it inappropriate for the government to set up the review commission. Their position, it is argued, seems to be conradictory.
Third, the recommendations of the commission would be scrutised and adopted by the next elected parliament, and the caretaker government is merely initiating the process of the review of the Constitution and is not dealing with the final product.
Fourth, it may be argued that the next elected parliament could act as the Constituent Assembly, just as the Nepalese Parliament elected last April acted as a Constituent Assembly, abolished the monarchy on May 29, and turned the country into secular Republic.
Finally, leaders of all political 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 then BNP Secretary General on July 12, 2007 reportedly proposed bringing changes in the Constitution and has welcomed the idea that if the caretaker government constituted a constitution-related committee, its suggestions could be adopted in the next parliament.
Earlier, many AL leaders also came out with the suggestion that the Constitution needed changes for restoring proper democracy in the country.
Basic character of the 1972 Constitution
The 1972 Bangladesh Constitution provides for representative democracy, in which the ability of the elected representatives to exercise decision-making power is subject to rule of law (not merely rule by law) that places constraints on the government leaders on the extent to which the will of majority can be exercised against the rights of minority parties.
The Constitution provides a parliamentary system of government and not presidential, wherein executive power rests on the prime minister, not on the president.
It is argued that the basic fabric of the constitution cannot be changed without the expressed will of the people through a referendum, and such fundamental change of the constitution was arguably unconstitutional. It is noted that India's Supreme Court had a ruling on this issue.
Past amendments of the Constitution
The Constitution had undergone 14 amendments as of today, and these amendments have changed the Constitution of 1972 so much that it has lost the substance, spirit and character of the Constitution of the founding fathers.
The first severe knocking-blow to the Constitution came in 1975 when the system of government was turned into presidential from parliamentary. This constitutional change from parliamentary to presidential, and making a one party-state, destroyed the fundamentals of the 1972 Constitution.
Successive military regimes under martial law had also amended constitutional provisions as they wished through Presidential Orders or Proclamations.
Why is a review necessary?
The Constitution is based on certain expected assumptions and conduct from office holders. Those expectations had been totally ignored in practice in the past. The ruling party leaders did not interpret or use the provisions of the Constitution in good faith.
The interpretation of the Constitution can be in two ways: (a) strict textualism or literal interpretation and (b) originalism or constructivism. 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 made in isolation because the constitutional document is a text 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 entire amended Article 70 with its three sub-clauses is arguably unconstitutional because it denies the basic right of a MP in a representative democracy to voice his/her opinion in the Parliament on a subject of his/her concern, and also because the member is not permitted to abstain from voting.
If an MP acts against Article 70, 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 it not contradictory in its terms?
The current form of parliamentary democracy has regettably turned into "prime ministerial" authoritarian democracy because there has been no checks and balances on the powers of the prime minister.
Furthermore, whatever powers the president had were totally marginalised by the 1991 Twelfth Amendment Act. It is believed that untramelled powers of the prime minister as an executive head of the government have been the source of political ills characterised by gross abuse or misuse of power.
The 37 years of governance has demonstrated the pitfalls and deficits of the provisions of the Constitution. Some of the amended provisions are totally against the democratic norms of the Consitution and need to be deleted.
What is imperative is that provisions of the Constitution must be made explicity clear, with checks and balances on the separation of powers among the organs of the stateexecutive, legislative and judiciary.
Simply said, the government runs the administration, parliament enacts laws and judiciary interprets the laws. Each organ has its own limits of power enumerated under the constitution, and that is the essence of constitutional democracy in a Republic.
Everyone agrees that the present Constitution needs drastic revision in the light of our past experience, and should take into account the political, social and cultural environment of the country. A Constitution is not a "one size fits all" phenomenon, which can be transplanted in the country from another country. In this context, the setting up of a Constitution Review Commission calls for urgent attention for national interest.