Primacy of parliament holds the key to sustainable reforms

After months of work by six commissions and discussions with some 30 political parties, the constitutional reforms process seems to have hit a roadblock. This has exposed the precarious nature of the process and triggered a crisis that could make or break the prospects for credible and peaceful elections in February. 

At the heart of the problem lies a conflict between the Bangladesh Nationalist Party (BNP) on the one hand, and the Jamaat-e-Islami and National Citizen Party (NCP) on the other. The key issues in dispute are the pathway to the next parliamentary elections and implementation of constitutional reforms. 

The National Consensus Commission (NCC) has now proposed a "roadmap" for the interim government to consider. Their proposal adheres closely to what Jamaat and NCP are demanding, which has left the BNP in a bitter, frustrated mood. More importantly, it has placed the BNP in a tricky political "trap", leading the party to suspect foul play on the part of the nine-member NCC.

The July Charter, which contains 84 reform proposals including 48 amendments to the constitution, was signed on 17 October without any agreement on how its provisions may be "implemented". Most of the proposed amendments had "notes of dissent" from various parties including the BNP. 

Muddy waters

It was understood that the amendments would be enacted by the next parliament. Political parties that had put notes of dissent on certain points would not be under an obligation to carry them out, if they were elected. Their election manifestos would spell out the points on which they dissented. 

But the Commission has now muddied the water to such an extent that the prospects for credible elections in February are looking increasingly bleak. Even though parties including the BNP have already started announcing the names of their prospective candidates in the polls, doubts persist. Even Tarique Rahman, BNP's absentee acting chairman, has expressed concern. 

There is little doubt that this is the first time many political observers have come across the concept of "automatic amendments" to the constitution. The concept is new, but it is hardly progressive. The inherent authoritarian nature of the concept makes it regressive and, ultimately, unsustainable.

"During the time of the current interim government, questions have arisen in the public mind — will elections take place at the proper time?" Rahman said while addressing a gathering in Dhaka via video link on Sunday. "It was not supposed to be like this. Rise of anxiety and suspicion in the public mind about elections could make the path to democracy risky."

The Commission has proposed that the 48 constitutional amendments would be put to a referendum before or on the day of the elections. But in a remarkable about-turn, their "implementation plan" removed all reference to the notes of dissent. 

Automatic amendments 

The Commission has also proposed that the parliament due to be elected in February would double-up as some sort of "constituent assembly" with the task to implement the 48 proposed amendments in their entirety within 270 days (provided the amendments are approved in a referendum first). If parliament, in its dual role as a Constituent Assembly, fails to do the job, then the amendments would be "automatically" incorporated into the constitution. 

In other words, whether the elected members of parliament want it or not, the 48 proposals put forward by the Commission for the referendum would become part of the constitution. 

There is little doubt that this is the first time many political observers have come across the concept of "automatic amendments" to the constitution. The concept is new, but it is hardly progressive. The inherent authoritarian nature of the concept makes it regressive and, ultimately, unsustainable. 

None of those steps featured in the discussions conducted by the Commission for months. 

The Commission's proposals, handed to Chief Adviser Muhammad Yunus on 28 October were, unsurprisingly, welcomed by Jamaat and the NCP. The BNP, on the other hand, found the proposals to be "laughable" and a "betrayal". 

Cart before the horse

Earlier, the parties had agreed that the Charter would be put to a referendum. Jamaat wanted the Yes/No vote to take place in November. The BNP wanted it on the same day as the elections. The Commission proposed that the interim government, through some sort of "constitutional order" followed by an ordinance, would set-up the referendum, on a date of its own choice. 

For its part, the government decided on 3 November to leave it up to the political parties to come up with a decision. The same parties which could not agree on the modalities of the referendum or the content of the proposals, are now expected to miraculously agree on the way forward. 

But even before the parties get together to start yet another round of debate, there are some glaring issues that would need to be addressed. 

For a start, it is rather odd that amendments to the constitution would be put to a referendum before being passed in parliament. The traditional practice in Bangladesh has been the other way around. The Commission is clearly putting the cart before the horse. 

It would be difficult, if not impossible, to find another parliamentary democracy in the world where parliament is turned into a rubber-stamp for such monumental decisions affecting the constitution. Any process that does not recognise and respect parliament's primacy in the arena of law-making, is only storing trouble for the future.  

Literacy and legitimacy

The last time a constitutional change required a referendum in Bangladesh was in 1991, when the 12th amendment changed the system of government from the presidential back to the pre-1975 parliamentary system. Following intense negotiations among the parties represented in parliament, a consensus was achieved which was reflected in the 307 to nil vote in the house. 

What the Commission is proposing is to hand the elected parliament a fait accompli — a job already done through a referendum, and parliament will have no power to alter it. 

Next comes the referendum itself. The public will be asked whether they agree with the Charter implementation order, and the reform proposals contained in the schedule of the order. This appears to be designed to "legitimise" both the order itself — which will be issued by an unelected interim government, and the 48 reforms which require amendments to the constitution. 

Given that barely 30% of the voting public are likely to have the kind of literacy needed to read — never mind absorb or understand — the 48 proposals, how are they expected to make an "informed choice"? They will have one vote — Yes or No — to give their verdict on 48 separate pieces of legislation. 

The exercise does not appear to be grounded in the reality of Bangladesh, nor with sufficient concern for what kind of precedent it is setting. There is little doubt that much of the reforms contained in the Charter are timely and designed to nudge Bangladesh towards a better political culture. But mere good intentions are no guarantee of immediate or eventual success. 

There is little doubt that this is the first time many political observers have come across the concept of "automatic amendments" to the constitution. The concept is new, but it is hardly progressive. The inherent authoritarian nature of the concept makes it regressive and, ultimately, unsustainable.

The nine men of the Commission are probably consoling themselves with the belief that enough "safeguards" would be inserted into the constitution, so that future regimes cannot make fundamental changes. But as the past year has shown, a temporary government drawing legitimacy from a mass uprising can initiate drastic changes to the constitution simply by being the ruling authority. 

It is risky, if not foolhardy, to assume that one can guarantee constitutional democracy in the future, by showing scant regard for the constitutional process at the present. An elected parliament embodies the will of the people, and it is the only body with the legitimacy to make laws and shape or re-shape the constitution. 

Any action that undermines that primacy would, in the long run, be counter-productive and unsustainable.