"The Question of Constitutional Reform and a New Constitution in the Context of Present-Day Bangladesh"

  • Md Hossain Al Rashed Badol
  • |
  • Font increase
  • Font Decrease

Photo: Collected

Photo: Collected

Bangladesh’s Constitutional Reform Commission’s recent report proposes changes that could have a profound impact on the country’s history. These proposed changes go beyond merely amending certain articles of the Constitution and indicate a fundamental restructuring. It suggests revolutionary changes in the core principles of the Constitution and the nature of governance.

The necessity of a strong constitutional framework to ensure the effectiveness of democratic processes in Bangladesh’s current political system is evident. However, if these proposed changes alter the fundamental structure of the Constitution, they could create risks of power centralization or unilateral dominance. The cornerstone of democracy is the balance of power, which ensures government accountability to the people. In the present context, if the proposed changes undermine this balance, they will go against the interests of the people.

বিজ্ঞাপন

Bangladesh’s current political situation is under international scrutiny. If constitutional changes undermine human rights or democratic processes, international pressure will increase.

The proposed changes are so deep and extensive that they are tantamount to creating a new Constitution. The legal and political legitimacy of such a new framework becomes a significant question. Referring to it as the "Constitution of 1972" could cause confusion among the public because it is not merely an amendment but an entirely new structure and philosophy. Even if legitimacy is sought through a referendum, it may appear to the public as an entirely new constitutional design.

বিজ্ঞাপন

The Role of Professor Ali Riaz

Under the leadership of Professor Ali Riaz, the commission has proposed a reform of the highest standard. He firmly advocated for a new Constitution and carried out his responsibilities with exceptional skill. While there are possibilities for debate regarding this proposed framework, there is little room for criticism regarding its intent and broader vision. The proposal for a new Constitution reflects the resolve to move towards a democratic, inclusive, and modern state.

Reform vs. New Framework

When compared with the general idea of constitutional amendments, this proposal goes much further. It attempts to redefine the basic structure of the state, the foundation of governance, and the relationship between the state and its people. It does not merely change laws but redefines issues such as representation, fundamental rights, and the balance of power.

Elections and Public Opinion

In Bangladesh’s current political landscape, elections remain a contentious issue. The proposal for a new Constitution could deepen divisions. A free, fair, and credible electoral process is essential for the legitimacy of any effort to reform the Constitution. Without public trust and support, such significant changes cannot be effective. Without public representation, significant constitutional changes may lose legitimacy in the eyes of the people. As a central component of the democratic process, elections reflect the people’s will. However, when elections are neither free, fair, nor credible, they erode public trust and create a crisis of political legitimacy.
Through a fair election, the representatives and government elected can honor public opinion on constitutional reform, ensuring broader public support. Examples from other countries, such as South Africa’s 1994 election or Indonesia’s democratic transition, prove that free elections can resolve political crises and establish new governance structures. Through such elections, people give legitimacy to their government, which helps build a strong and effective state.

Why Elections Are Necessary in the Present Context

In Bangladesh, the current political instability and lack of balance in power have intensified the need for a democratic election. Organizing a free, fair, and credible election in the current political crisis is critical because:

• A fair and neutral election can restore public trust. It will not only bring back political stability but also strengthen the democratic foundation of the state.

• A credible election can help resolve the current political disputes and pave the way for peace.

• Free and credible elections will enhance the country’s political legitimacy and acceptance in the eyes of the international community.

• Without elections, implementing a new Constitution could create a contentious and crisis-prone situation for the public.

In a democracy, no significant constitutional change should be enacted without public opinion. Organizing an urgent democratic election is the only way to rebuild the democratic structure of the country. Such an election will not only ensure a balance of power but also provide a solid foundation for long-term political stability and any efforts to reform the Constitution. Without democratic elections, any effort to reform or create a new constitutional framework could increase division and instability in the country. A democratic election is an essential step to bring back stability and undertake significant initiatives like constitutional reform. It could open a new chapter in the country’s political culture, pushing Bangladesh further along the path of development. A fair, free, and credible election can restore political stability in the country. Not only that, but it will also regain public trust and strengthen Bangladesh’s global image. However, if a fair election is not held on an urgent basis, political crises will worsen, and the country’s democratic framework will become more fragile.

The South Asian Context

In South Asian politics, constitutional amendments or rewriting have always been complex and sensitive issues. Constitutions in this region are not just legal documents; they act as the cornerstone of national identity, power structures, and political culture.
For example:

• India’s Emergency and the 42nd Amendment: During the 1975 Emergency, Indira Gandhi’s government tried to alter the fundamental framework of the Constitution, limiting the powers of the judiciary and other democratic institutions. Although the Supreme Court, in the Kesavananda Bharati case, later established the "basic structure doctrine" to limit such changes, this experience highlighted how constitutional amendments could divide public opinion and weaken democratic structures. In the landmark case of Sankari Prasad v. Union of India (1951), the Court distinguished between legislative power and constituent power, asserting that the authority to amend a constitution is not a standard legislative function but rather an exercise of constituent power. Consequently, it deemed the amending power to be "absolute."

• Pakistan’s 18th Amendment: For instance, during General Zia-ul-Haq’s regime, Islamic provisions were introduced into the Constitution, deepening political and social divisions.

• Sri Lanka’s 20th Amendment: The recent amendment expanded presidential powers, creating dissatisfaction among the public and threatening democracy.

• Controversial Fourth Amendment (1975) of Bangladesh: This amendment increased the president's powers and introduced a one-party system (BAKSAL). It raised significant concerns about the future of democracy and paved the way for military rule in the country. In the same way the Fifteenth Amendment (2011) abolished the caretaker government system. It caused significant political unrest and further intensified the conflict between the two major political parties. Such amendments demonstrate that constitutional reforms, when implemented without considering public opinion, can divide the nation and weaken the democratic framework.

These examples show how constitutional amendments often create political conflicts, divide public opinion, and raise questions about legal legitimacy.
Lessons from South Asia

India’s constitutional amendments or Sri Lanka’s constitutional reform experiences prove that efforts to amend the Constitution often divide public opinion and upset the balance of power. In Pakistan’s case, military interventions and repeated constitutional changes have weakened the country’s democratic framework. Bangladesh is no exception, as constitutional amendments have often been used as tools to fulfill the political interests of ruling governments. Lessons from South Asia reveal that constitutional amendments driven by the ruling party’s agenda, without considering public opinion and interest, risk weakening democracy. Such processes can lead to public distrust and political instability.
Future Directions

The current proposal to rewrite Bangladesh’s Constitution raises a fundamental question: Does it truly reflect the will of the people, or is it another attempt at centralizing power? Without a participatory and transparent process that prioritizes public opinion, these proposed changes could pose a threat to democracy and social unity.

If a free, fair, and credible election is held in Bangladesh, the country’s political environment could see positive changes. Proposals for constitutional reform will only gain acceptance when they reflect public opinion and genuine aspirations. Such initiatives not only restore political stability but also strengthen democratic values.

Bangladesh’s Constitution is more than a legal document; it symbolizes national identity like national flag. Every amendment or redrafting should be based on public opinion to ensure that it serves as the foundation of a stable, democratic, and inclusive state. Experiences from South Asian countries teach us that constitutional reform must be completed with deep political and social responsibility.

The challenges highlighted in this reform report underscore the need for active public participation and a transparent process to ensure the acceptance of a new Constitution. Gathering public opinion through referendums or public hearings could be an effective approach.

If the new Constitution aims to create a strong, inclusive, and democratic state structure, it must become a symbol of national consensus, not merely a legal document. In the context of Bangladesh, constitutional reform is a significant proposal, but its acceptance depends on the people’s will. A free, fair and participatory democratic election is the most effective way to reflect public opinion and ensure the legitimacy of such profound changes.

Md Hossain Al Rashed Badol, Bachelor’s and Master’s Degree, Faculty of Law & Justice, Jahangirnagar University.Research Assistant, Ecological Right Project, James E. Rogers College of Law University of Arizona, University of Arizona, USA. Joint Convener, Bangladesh Nationalist Student Party (Chatrodal), Fellow Arizona Student Association.