Founding Constitution and our state of democracy | The Daily Star
12:00 AM, November 06, 2018 / LAST MODIFIED: 12:00 AM, November 06, 2018

Law opinion

Founding Constitution and our state of democracy

Bangladesh emerged as an independent country on 26 March 1971 when the nation declared its breaking out of Pakistan's colonial rule. It all began with the Declaration of Independence by Bangabandhu Sheikh Mujibur Rahman, the 'undisputed leader' of the people. Soon thereafter followed the Proclamation of Independence of 10 April 1971, providing the nation with its first constitution (see The Daily Star, 10 April 2018). Put into effect on 26 March 1971, the first interim constitution was promulgated by the Constituent Assembly, composed of the 'elected representatives of the people of Bangladesh'. The Proclamation formally legalised Bangladesh's independence, gave the country the name Bangladesh, established the 'Constituent Assembly' for framing a Constitution, and installed the historic interim government with the President as its head. Importantly, the Proclamation recognised that “the will” of the people of Bangladesh would be “supreme”, while declaring 'equality, human dignity and social justice' as the fundamental principles of the new republic. Briefly, the first founding constituent document adopted the principles of popular sovereignty, democracy, and social inclusivity as constitutional identities.

After the physical liberation of Bangladesh from Pakistan on 16 December 1971 but before the founding Constitution was adopted, the country embraced the parliamentary form of democracy – 'the manifest aspiration of the people'. This significant transition was effectuated through the Provisional Constitution of Bangladesh Order of 11 January 1972, promulgated by the President. A few months later, the Constitution Drafting Committee met in its first meeting on 10 April 1972. The Committee held over seventy meetings and several public consultations after which it readied the draft constitution by early October 1972. The Constitution Bill was introduced in the Constituent Assembly on 12 October 1972.

On 4 November 1972, the 'people of Bangladesh', acting through the Constituent Assembly, adopted the nation's founding Constitution that came into force on 16 December 1972, ceremonially coinciding with the nation's victory day. The Constitution of Bangladesh has been a revolutionary, autochthonous document based on supreme sacrifices of the people who liberated Bangladesh.

The above-noted two pre-Constitution instruments recognised deliberative democracy and popular sovereignty as founding values. Drawing upon these and other values for which the nation had long fought, the founding Constitution entrenched four 'high ideals' as its fundamental principles – 'nationalism, socialism, democracy and secularism'. These fundamental constitutional cores were indeed the nation's identity principles. By one reading, except for 'democracy', other three fundamental principles seem to be new to the first interim Constitution. In reality, however, that is not the case. The other three principles are integral to 'democracy'. Even hegemonic Bangalee nationalism, which is an affront to inclusive constitutionalism, can be made to come to terms with 'democracy' when one takes seriously the opening words of the Constitution – “We the people” – within which is included any non-Bangalee group or people. That this is the light in which all fundamental principles of the Constitution have to be understood and interpreted is evident in the entrenchment of popular sovereignty and constitutional supremacy in article 7. Nevertheless, the lack of recognition of other nations was deficient at the time in terms of inclusive democracy. That deficiency is somewhat remedied in 2011 in the newly inserted article 23A.

Apart from the four fundamental cores, the Constitution's edifice was also premised upon the values of the rule of law, respect for fundamental human rights and freedom, and equality and justice – social, economic, and political. To my mind, thus, the first principle of the Constitution has been a liberal and deliberative democracy.

Unfortunately, however, the trajectory of Bangladeshi democracy has been a chequered one. In 1975, assailment of democracy came from within internal forces of politics. And, after the brutal assassination of Bangabandhu in August 1975, the nation fell prey to forces of un-constitutionalism extrinsic to politics. It had for long sixteen years been under the grip of lingering autocracy, transitioning to democracy only in 1991. Even thereafter, Bangladeshi democracy remained unconsolidated, illiberal, and quite exclusionary. During the autocratic regimes, the four fundamental cores of the Constitution were drastically compromised and defaced. Occasionally there were parliaments, but the general elections were sham and engineered. Corruption and terrorisation of politics reached an alarming state.

Post-1991 democracy in Bangladesh has remained equally non-deliberative and unstable. This scenario is largely attributable to pre-1991 politico-constitutional crises. Another culprit is the practice of predatory politics. It seems that the greatest challenge to democracy is ensuring effective participation of the people through free, fair, and competitive elections. First and foremost, democracy cannot sustain without a fair and competitive election and the existence of tolerative multiple political parties. Beyond that, a truly effective democracy, which the founding Constitution had mandated, requires a complete accountability of those in charge of powers to those from whom the state-power originates. These goals were indeed the founding aspirations of the Constitution itself. 

By contrast, the challenge of ensuring free and competitive elections has been in the centre of a lasting democratic crisis in Bangladesh, beginning at least in 2007 when a two-year-long emergency was imposed. In the last decade or so, that democratic crisis culminated in many deviations from practices of liberal democracy. For example, the system of election time care-taker government was abolished first by a questionable judicial intervention and then by a hastily enacted non-consensual constitutional amendment. Tagged with this has been the second example of non-competitive general elections of 2014, boycotted by major political parties. A consequence has been the absence of an opposition party in the current parliament, despite the officially declared opposition. Further importantly, 152 out of contestable 300 seats were elected without contestation of any sort. Because of the so-diagnosed crisis of democracy, we have witnessed in recent times serious strains on the principle of respect for human rights, dignity, and liberty of the people. Not to blame any political party, but it is reasonable to conclude that this state of affairs is not compatible with the vision of democracy the founding Constitution aspired for. 

A constitution of any nation is its autobiography (Justice Albie Sachs) in the sense that it grows with the aspiration and goals of that nation. Seen in this light, the founding aspiration of a deliberative democracy based on the higher values of justice, rule of law, and responsible governance was to continually guide Bangladesh's politics. Almost 50 years into the Constitution's founding, that transformative aspiration has remained largely unfulfilled. To be optimistic, however, there is much to reply on democratic resilience and the power and agency of the people, the makers of the Constitution.

 

The writer is a Professor of Law, University of Dhaka.

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