Constitutional malleability: Why are we stuck in an electoral impasse?
Since independence, the Constitution of Bangladesh has been acting as a safeguard for most governments to protract their tenure
The wind of political contention surrounding the 12th national election is becoming increasingly volatile. BNP has already declared a one-point demand, calling for the government to step down and is demanding an impartial interim government to restore citizens' voting rights. On the other hand, Awami League is combating all these questions using one shield – "the Constitution."
Since independence, the Constitution of Bangladesh has been acting as a safeguard for most governments to protract their tenure.
In Bangladesh, a common behaviour of a new government is to amend the Constitution to entrench its power. The 4th, 5th, 7th, 14th, and 15th constitutional amendments are a few instances.
The opposing parties, who show their utmost concern regarding democracy, voting rights and freedom of speech, very conveniently reverse their roles when they hold office.
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Bangladesh, therefore, has been confined to a similar political crisis for 52 years; the nation is grappling with the most fundamental task of ensuring an unbiased process for a free and fair election.
Theoretically, our constitutional amendment process is rigid in its characteristics. Unlike other bills, amendment bills need to attain a supermajority of parliament, which is two-thirds of the total members of parliament. Subsequently, the president's assent is required to complete the process.
Moreover, any amendment that contradicts the basic structure and fundamental rights can be repealed by the judicial branch, on the legal basis of Articles 44 and 102. Despite these intricate hindrances, how have ruling parties been exploiting the Constitution to gain advantage in elections?
In our unicameral legislature, a ruling party can proceed with the amendment if they can manage the consent of 223 members. Our parliament has a chronic tendency to be inclined to one side, considering the frequent supermajority.
Large numbers of voters in Bangladesh are swing voters, whose outlandish voting attitude not only changes the government consequently, but also assists them in conquering a supermajority.
For instance, the ongoing crisis regarding abolishing the caretaker government derives from the 15th amendment, which was strenuously passed as AL outfought BNP by winning 230 seats solely, and 263 seats by the alliance in the 9th parliament election.
Previously, BNP had passed the 14th amendment by 226 to 1 (which was controversial for the increase in retirement age for Supreme Court judges). The four party alliance led by BNP held a two-third majority in parliament at the time, and the main opposition AL, with their 63 seats, was inept at putting any impediment.
All other controversial amendments have been passed only when the parliament tilted to one side.
Article 70, the anti-defection law, also prevents individual MPs from playing a distinctive role in voting on parliamentary decisions. The force of these collective cultures put amendment discussions less in parliament and more in the party offices, resulting in an omnipresent, recurrent political crisis.
There is a scintilla of hope for a conciliatory dialogue between the two major parties, AL and BNP, as both have already spurned the chances to compromise with their own strenuous stands.
Now, if both parties accede to sit down for dialogue, will they emphasise the constitutional amendment process?
A 31-point state reform plan has been declared by the BNP-led alliances where they pledged to return to the referendum system, which has been nullified by the 15th Constitutional amendment.
But the question arises, will that help protect the Constitution from arbitrary amendment?
The 5th Constitutional Amendment commenced the referendum in 1979 to strengthen people's democratic practice. By contrast, the opposing parties at the time claimed it was a conspiracy to validate President Zia's military regime in the name of the masses.
Hence, even if political parties can solve the electoral crisis, it has become imperative to embark on a new amendment process, especially to protect potential consensus remedies and fundamental provisions, making the process more intricate and commensurate with the nation's political culture.
However, the concern is who will seal these loopholes.
The incumbent government has made one-third of the Constitution irrevocable under the "Basic structure" provision. As per Article 7(b), it is constitutionally impossible to implement any alteration, insertion, modification, substitution, repeal or any changes in articles related to the fundamental structure. That means any discourse regarding the amendment process is unconstitutional, and AL most likely will not address this issue.
In opposition, though BNP is appealing to people with many bombastic pledges such as balancing power between the Prime minister and Cabinet, circumscribing a Prime Minister's tenure into not more than two terms and establishing an upper house in the legislature with expertise; however, their position about the amendment process is still obscure.
Ultimately, BNP will also not reinforce this point. The reasons could be twofold: i) BNP has suffered heavily from this amendment system, which is why no future amendment is intimidating to them, ii) if they can form a government through a landslide victory, this process will then empower them to pursue their partisan reforms.
In the coming days, if both parties sit for reconciliation and agree to arrange a free, fair and participatory election but fail to address the flaws in the amendment process, we may witness a good election, but the country is sure to fall into the same pattern again.
Muid Hasan Mahin is a Master's student in the Department of Government and Politics at Jahangirnagar University.
Disclaimer: The views and opinions expressed in this article are those of the author and do not necessarily reflect the opinions and views of The Business Standard.
