Why Bangladesh needs a new constitution
The July Uprising has raised calls for constitutional reform in Bangladesh. Without systemic changes, the current political structure may continue to perpetuate power imbalances
The July Uprising, which culminated in the removal of Prime Minister Sheikh Hasina on August 5, has ignited debates on state reform. Central to this discussion is a critical question: should Bangladesh continue with its existing Constitution, or is it time to adopt a new one?
While this may seem like an academic query, it carries significant implications for the future of the nation. Some argue that the necessary changes can be achieved within the current framework, while others believe that proclaiming a new republic and adopting a new constitution is the most sustainable solution.
The Uprising was not merely about toppling an autocratic regime; it represented a broader demand to restore democracy and curb the abuse of power. Achieving these goals will require substantial changes to constitutional and legal provisions.
However, the three branches of government under the current Constitution are incapable of implementing meaningful reform. Parliament is currently dissolved, making amendments impossible through the legislative process, and the President lacks the authority to enact constitutional changes through ordinances. While the Supreme Court can review and invalidate previous amendments, it cannot introduce entirely new reforms.
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In this context, solely relying on the judiciary for constitutional reform is risky, as it could compromise judicial independence under populist pressure. For instance, the Court may invalidate the controversial Fifteenth Amendment but cannot impose a new two-term limit for the Prime Minister. Thus, the question of whether to amend the existing Constitution or adopt a new one remains central to the debate on Bangladesh's path forward.
If the newly sworn interim government conducts a general election without amending the Constitution, the newly elected Parliament will inherit the same flawed system that existed under the previous regime. The ruling party in this new Parliament would likely be hesitant to pursue necessary reforms, as the current system provides a power structure that benefits any governing party.
For example, the Awami League, which once advocated for a caretaker government system in 1996, later abolished this mechanism in 2011 to maintain its regime. Given these uncertainties, adopting a new constitution would be a more effective way to meet the popular demand for governmental reform.
The previous government extended its control over key institutions like the Supreme Court and other constitutional bodies, including the Election Commission. The goals of the uprising cannot be fully realised without overhauling these institutions.
However, the interim government lacks the legal authority to remove existing judges and commissioners, as this power rests with either the dissolved Parliament or the Supreme Judicial Council, which consists of senior judges.
If these officials refuse to resign, the government will face significant challenges in reforming these bodies. Proclaiming a new republic would bypass these obstacles by abolishing the old institutions and allowing fresh appointments.
The recent actions of the President further invoked questions on the validity of the interim government. He dissolved the Parliament, despite lacking the authority to do so without the advice of the Prime Minister. He also formed and administered an oath to the interim government without adhering to the procedures set by the Constitution.
To validate these actions, he further 'secured' an advisory opinion from the Supreme Court, which appears to be a very non-traditional use of it. Therefore, with the takeover of the interim government and dissolution of the Parliament, several provisions about the executive and legislative branches are now 'in effect' suspended.
If the current Constitution is retained in this manner, it may lead the next governments to target and persecute the members of the interim government by using Article 7A. This provision criminalises the abrogation, repeal, or suspension of any provision of the Constitution by any 'unconstitutional means' with capital punishment. Hence, the legality and security of the interim government can be firmly established by grounding its authority in the proclamation of a new republic.
Under the current Constitution, all executive actions must be carried out in the President's name. Should the President die or 'resign', the interim government could face a constitutional deadlock to carry out its executive functions. Proclaiming a new republic would help resolve these potential deadlocks by creating a new order and appointing a new president.
A major concern about adopting a new constitution is that it might overshadow the legacy of the 1971 liberation struggle, which remains the pivotal event in the history of Bangladesh. However, it is worth examining whether the 1972 Constitution truly embodied the ideals of that struggle.
The Constituent Assembly that drafted the 1972 Constitution consisted of persons elected under the Pakistan regime and was dominated by a single party, the Awami League.
Moreover, the Constitution was not ratified through a referendum, meaning the broader population had no direct say in its adoption. Considering the lack of popular representation and participation in 1972 and the political changes Bangladesh has gone through in the past five decades, it is time to revisit and reassess these foundational ideals of the existing Constitution.
A new constituent assembly could provide the right forum for this important national reflection.
The existing Constitution has been worn down during the last few decades due to the drive for centralisation of power, political conflicts, and ideological battles. A fresh start is needed through the adoption of a new constitution, even if the path involves uncertainties.
One way of initiating the transition may involve proclaiming a new republic with retrospective effect from August 5 or later. When the present 'interim government' is (re)constituted and sworn in under this new document, it would formally transform into a revolutionary government. The primary mandate of this revolutionary government would be to convene a new constituent assembly, elected through popular vote, and to conduct a general election under the newly adopted constitution.
While the specific provisions that can be included in the new constitution may be discussed elsewhere, it would be a wise move by the assembly if it made the anti-autocracy provisions unamendable. Once the general election is held under the new constitution, the revolutionary government would then transfer the power to the new government.
Tarik Morshed is an Assistant Professor of Law at Khulna University, specialising in constitutional and human rights law. He holds an MSc from the University of Oxford and an LLM from the University of Dhaka.
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.
