Constitution has been amended repeatedly in the interests of those in power

Dhaka University law department former professor Ridwanul Hoque

Ridwanul Hoque is former professor of Dhaka University’s department of law. He presently works at the Charles Darwin University in Australia. He has studied and researched at Cambridge University and the University of London. His writings on the constitutions of South Asian countries including Bangladesh, constitutional laws and judicial activism, as well as books edited by him, have been published by renowned publishers abroad. The book, ‘A History of the Constitution of Bangladesh’, edited by him, will be published shortly. He speaks here in an interview with Prothom Alo’s Monzurul Islam.

Q :

Fifty years have passed since the Bangladesh constitution was drawn up. How far do you think has this constitution been able to safeguard people’s democratic rights?

The constitution has both successes and failures in safeguarding the democratic rights of the people of Bangladesh. Before the international covenants on human rights were enacted, Bangladesh’s constitution included a chapter on human rights, that is, Chapter 3. Though the drafts had been prepared beforehand, two significant international covenants came into effect in 1976. Yet our constitution was enacted in 1972. In other words, I would say, our constitution is an excellent document on human rights or citizens’ rights. Yet in the same constitution there are some contradictions and ambiguity. There are some provisions that have a negative impact on democratic rights. But those were added long after the original constitution was authored.

In 1974 the Special Powers Act was enacted for the sake of repressive detention. It may be noted that in 1973 the constitution was amended (2nd Amendment) so that the parliament could pass this law. Had this amendment not been passed, it would have been easy to challenge his law in court as being contradictory to fundamental rights or democratic rights.  At the same time, the provision for a state of emergency to be declared was also added to the constitution. A state of emergency entails that the law and certain fundamental rights like freedom of speech can be suspended by executive power. Our constitution hands over a blank cheque to the government in this regard. While certain fundamental rights can be encroached upon during a state of emergency, there are limits. But the manner in which this prevails in our constitution, is contrary to international law.

There are certain provisions in the constitution that work in contradiction to democratic rights. In that sense, the constitution has certain failures. But broadly speaking, it is not the constitution but our political culture that is responsible for this. Basically it is our executive -- the government, the administration or the law enforcement agencies -- that is responsible for violating fundamental rights or democratic rights.

The parliament is also responsible to an extent for the erosion of our democratic rights. Certain laws that are contrary to human rights or fundamental rights have been passed by the parliament. The latest example of this is the Digital Security Act. There has been the failure of the court in some instances too. So overall, the responsibility for not being able to protect democratic rights lies on the executive, the legislative and the judiciary.

Q :

The Supreme Court is known as the guardian of the constitution. So why then is there no visible action by the court to abolish laws that are contradictory to the constitution or contrary to fundamental rights?

There was a time when our Supreme Court played a very pioneering and bold role in abolishing laws that were contrary to the upholding fundamental rights or went against fundamental rights. The court cannot abolish any law on its own volition or initiative. This requires a conscious community who, as victims, file a case or writ in individual or public interests. Unconstitutional laws can be challenged in this manner. The political circumstances in the country, however, have changed considerably over the past decade. You do not see any writs against laws that are contrary to fundamental rights. Given the reality of the circumstances, perhaps that is why the court too doesn’t take up such issues with due consideration. There is a lack of power balance among the executive, the legislative and the judiciary. If the Supreme Court could really play a role, then a law that goes against fundamental rights, like the Digital Security Act, would have been scrapped. It must be admitted that the court’s role in such matters is not up to expectations.

Q :

We know that there is a strong link between the constitution and the state and politics. Many believe that the rise of undemocratic rule in this country is rooted in the constitution. Many have even demanded that the constitution be amended or a new constitution be enacted. Then again, there are some who demand reverting to the constitution of 1972. How do you view these varying views concerning the constitution?

I see the varying views towards the constitution positively. This is a part of democratic practice. I do not believe that it is the constitution alone that is responsible for the authoritarian rule or propensity that we see now. When we reverted to democracy after the end of autocratic rule, we failed to provide adequate protection to democracy within the constitution. Our constitution excessively empowers the prime minister. But that is not the main reason. Our political culture is responsible for this predicament. The authoritarian trend resulted from the lack of confidence and trust between the two major political parties, a lack of democracy within the parties and the unwillingness of the party in power to relinquish power.

Q :

So far 17 amendments have been brought to the constitution. Have these amendments weakened the basic framework of the constitution?

The constitution is not a constant, but a continuous process. That is why constitutional amendments are only natural. The need for amendments may arise in the greater interests of the state or to improve the constitution further. But in most cases of our constitutional amendments, these were not the considerations. Certain amendments have been brought about that are contradictory to the fundamental spirit of the constitution. There are just two or three amendments among the 17 that are absolutely ‘innocent’. The rest are aimed at providing the government in power certain benefits. For example, the 14th amendment (extending the retirement age of judges) and the 15th amendment (repealing the caretaker government system) were such amendments. In this manner, the government in power has twisted the constitution at various times in order to hold on to power. As a result, the fundamental framework has undeniably become weakened.

Q :

The election-time caretaker government system was introduced by means of the 13th amendment. The court declared that void, but there are debates over the issue. How do you view the court taking a decision on such a political issue?

There is a theory in constitution law called political question doctrine. Basically, the court will not intervene in politics or take decisions in this regard. But there are times when politics and constitutional law cannot be separated. In such instances, the court will decide whether the issue is political or constitutional. In the matter of the 13th amendment, the court felt that this was a constitutional question and so took a decision accordingly. I too feel that the matter is not political alone, but is linked with the law. But broadly speaking, it is a political question. In such cases, certain matters are to be taken into consideration. That consideration leaves scope for certain discrepancies or misunderstanding.

There remain questions over the manner in which the court declared the caretaker government ‘unconstitutional’ and ‘undemocratic’. The caretaker government was formed on the basis of consensus of all political parties. So how can that be undemocratic? The 13th amendment was a reflection of political consensus. So it is not logical to term this as unconstitutional. Three Appellate Division judges of differing views spoke of taking the people’s opinion to determine whether the ruling was valid or not. It was passed in a hurry. No consideration was made over what political crisis could emerge from this ruling and how the ruling party could use this in its own interests. After the court ruling, the parliament in a one-sided manner abolished the caretaker government system by means of a constitutional amendment. The caretaker government system has been brought in on the basis of consensus of the political parties. And so I feel that the parliament’s decision regarding the caretaker government system should have also been taken on the basis of their consensus.

Q :

An outcome of the 13th amendment is elections under a party government. Given the contentious politics that exists in Bangladesh, how realistic is it that elections under a political government will be fair? How far can we be optimistic, given the experience of the past two elections?

The answer to this question must be found in context to Bangladesh’s history. Our history stretching from 1972 to 2023 is a history of mistrust, no confidence and violation of the constitution. In that sense I feel that it is not at all realistic to think that an election under the party in power will be fair. The election under a party government in 1973 was relatively good because at that time there was no very strong opposition. And the elections held under military rule cannot really be called elections. Those were more of ‘selections’. Then the elections of 1991, 1996, 2001 and 2008 held under caretaker governments were fair. None of the remaining elections held under party government were fair. After the caretaker government system was annulled, the elections held in 2014 and 2018 are riddled with questions. The main opposition party BNP and some other opposition parties didn’t even take part in the 2014 election. Of the 300 seats, the candidate in 150 were elected uncontested. The voter turnout was also extremely low. As for the 2018 election, it may have been inclusive, but questions remain regarding the results. The local and international media pointed to numerous discrepancies and instances of rigging of the results. Under such circumstances, there are widespread apprehensions about how fair the next election will be under a party government.

Q :

It is said that if the parliament is intact during the national election, the members of parliament get special facilities in their constitutions and they have the scope to influence the election. What do you think?

Elections are held under party governments in many countries. In those countries, once the election date is announced, the parliament is dissolved. And if the parliament remains in place, the members of parliament do not get any extra privileges compared to the other candidates. The cabinet functions like a caretaker government. But as the parliament remained intact during the last two elections in Bangladesh, the members of parliament enjoyed all privileges. Given our political reality, it is difficult to imagine a fair election under a party government. It is also contrary to the fundamental spirit of democracy.

Q :

The national election is scheduled to be held within a few months, but apprehensions remain as to whether all parties will participate and if the election will be competitive. Awami League wants to remain in power and hold the election. They speak of ‘upholding’ the constitution. BNP demands that the constitution be amended and the elections be conducted under a caretaker government. How will an inclusive election be possible if both parties remain so inflexible? Is there no solution to this within the constitution?

If such inflexible positions remain in place, then there is no solution to this crisis in the constitution. Such a situation arose in 1996 too. BNP at the time staged a one-sided election and came to power, and within a few days they amended the constitution and the caretaker government system was put in place. Awami League won that election under a caretaker government. All this took place on the basis of consensus. So a resolution to the prevailing political crisis also requires a consensus. The party in power is take on a responsible role. If there is political consensus, all sorts of initiatives can be taken within and outside of the constitution. Elections can even be held under an election time government or interim government based on political understanding, without amending the constitution.

Q :

What is your overall evaluation of Bangladesh’s constitution and democracy?

It has been 50 years since the constitution was enacted. It remains in place through all sorts of ups and downs. The two major challenges faced by constitutionalism at the moment are a free, fair and inclusive election, and capacity building of the democratic institutions.


Q :

Thank you.

Thank you too.