It has been a hundred and fifty days since the July uprising of the students and the general people. Bangladesh is traversing through all sorts of post-uprising ups and downs. The interim government formed quite a few reform commissions. The commissions will shortly submit their recommendations to the government. In the meantime, in interviews with the media, the heads of several commissions have spoken about their proposed reforms.
In this context, there are two factors that certainly demand attention. Firstly, will these recommendations be able to play a role in the democratisation of the state? In other words, have any recommendations been made that will be effective in pulling the reins on the prevailing unicentric and autocratic power structure of the constitution and the state? We will have to wait for the full-fledged reform proposals before we can comment conclusively in this regard.
The second factor is even more important. Who will implement these recommendations and how? In particular, how will the constitution reforms be carried out? Other than national consensus, there is also an undeniable need for the correct method to be followed.
National consensus is essential for the implementation of reforms. To this end, the government has taken initiative to form a national consensus council with the heads of the reforms commission. Chief advisor Professor Muhammad Yunus will be the chairman of the council with head of the constitution reform commission professor Ali Riaz as the vice chairman. But if an effective consensus is to be achieved, then it will be necessary to include representation from the Students Against Discrimination Movement, the Jatiya Nagorik Committee, BNP and other political parties in the council.
The biggest debate regarding process of reforms is, what process will be followed for reform of the constitution, and who will carry this out? BNP has already raised the question several times as to whether the present interim government has the mandate to reform the constitution. They maintain that it is the elected government that will carry out reforms of the constitution. We will come back to that later. Let's first clear up the difference between the constitutional amendment or reforms and rewriting the constitution.
There is often a propensity to mix up the concept of amendment and reforms. Technically speaking, there is no difference between amendment and reform. An amendment is not a major fundamental change in the constitution. An amendment aims at making certain additions or omissions under the constitution, to the existing constitution. Basically an amendment is undertaken to make an article or section of the constitution clearer, not to make any extensive or fundamental changes to the constitution's power structure. This task can be carried out with a two-thirds majority in parliament. And if the next parliament or the judiciary so desires, they can revoke the amendment. There is such precedence in Bangladesh, such as the enactment of the caretaker government system (1996), the abolition of the system (2011) and the reenactment (2024). That means amendments are not necessarily long-term and, if flawed, can be challenged at a later date.
In the meantime, in Bangladesh's political reality, reform has come to mean fundamental change to a unicentric and autocratic power structure, that is, a democratic constitutional framework. This requires huge participation of the people. There is no scope to carry out this task by taking oath to protect the constitution under the present constitution and forming a parliament. In other words, the jurisdiction for constitutional reforms or change is not with the parliament because fundamental changes of the constitution are more or less permanent and difficult to change. The judiciary or the next parliament will not be able to revoke the reforms simply if they want. Quite to the contrary, they enacted or reformed constitution on the basis of the court's judicial procedure.
Incidentally, it has been over a decade that demands have been made for a change in the constitution's autocratic power structure.
It is not as if this demand suddenly cropped up after the uprising. Gonotantrik Shongbidhan Andolan, Rashtrachinta and several other intellectual initiatives have been speaking out about this. Basically the analytical study of the constitution by such organisations has led to the emergence of the Rashtra Shongskar Andolan, Ganatantra Mancha and similar political organisations and alliances which translated reforms into political agenda. Influenced by these allies, BNP also agreed to certain reforms. BNP's 31 points must be viewed as a continuity of these initiatives.
The constitution is a written document of the people's collective aspirations and desires. The parliament is a law making body of people's representatives. The task of the people's representatives is to enact laws in accordance to the people's aspirations and wishes. If people's wishes and aspirations change, or if the existing constitution goes against the wishes and aspirations of the people, then the people will take initiative to give written form anew to their wishes and aspirations. That is why the preamble of the constitution says that the people of Bangladesh have taken up this constitution for themselves. It is not as simple as certain experts getting together, writing a constitution and imposing it on the people. Such circumstances generally arise after a big incident like a mass uprising. That is why the law and philosophy term a mass uprising as a 'structural moment'.
A mass uprising is the highest embodiment of democracy. The government formed by means of a mass uprising has a much higher mandate than an elected government with 35 per cent to 40 per cent votes.
The question now is, under what process do the people reform the constitution or compose a new one, that is, where is the mandate to take up a constitution? The parliament formed under the prevailing constitution does not have that mandate. If fundamental changes are to be brought about to the constitution's power structure, an election of a constituent assembly or constitutional assembly must be summoned. The winners will discuss and debate in the assembly and draw up the constitution. If necessary, a referendum is held.
In other words, an election is required even for the enactment of a constitution. This is the constituent assembly election. Surprisingly, the political parties are unwilling to admit that there is precedence of such elections in the past and that this is inevitable in the present circumstances.
Given the prevailing reality in Bangladesh, the next election should be an election to the constituent assembly. To hold a Jatiya Sangsad (national parliament) election under the present constitution would be an absolute betrayal of the thousands of martyrs and injured. The elected constituent assembly will present the people with a constitution congruent with the aspirations of the people. But what guarantee is there that the constitution composed by the elected members of the constituent assembly will reflect the aspirations of the people?
This is a justified and logical question. That is why a Legal Frame Order (LFO) must be determined for the constituent assembly. Some are terming this a 'reform framework'.
The LFO formed on the basis of national consensus will basically determine and character and direction of the constituent assembly. The aim of the LFO will be to determine multiparty democracy, liberal economy opposed to money laundering, cultural pluralism, religious harmony, non-communalism and judiciousness. Violating the LFO enacted by the elected constituent assembly will be considered as a counter revolution. Under such circumstances, it would be completely justified to take to the streets in a mass uprising and non-cooperation.
It is an established norm to hold parliamentary polls under the new constitution formed by the constituent assembly. But this will require two election phases (the first being for the constituent assembly). This process may be seen long-winded to the parties eager to come to power. In that case, the next election may be the constituent assembly election and the legislative election together. The elected representatives will first present the nation with a constitution within a fixed time (maybe 120 days). Then that constituent assembly will take the shape of the parliament. The recommendations of the constitutional reform commission will be the basis for debate in the constituent assembly. The recent constitution reform proposal of the Jatiya Nagorik Committee is a formula of the two in one.
Reforms are inevitable. The question of mandate is often being asked in the wrong place. A mass uprising is the highest embodiment of democracy. The government formed by means of a mass uprising has a much higher mandate than an elected government with 35 per cent to 40 per cent votes. The interim government has the mandate to carry out reforms of the public administration, the police, education, elections, the Anti-Corruption Commission and other state institutions. But it would be appropriate to draw up a constitution or reform the constitution by forming a constituent assembly. It is misleading to imagine that the parliament formed under the existing constitution will reform or write the constitution.
* Sarwar Tusher is a writer, thinker and joint convener of the Jatiya Nagorik Committee
* This column appeared in the print and online edition of Prothom Alo and has been rewritten for the English edition by Ayesha Kabir