Why would we return to the 1972 Constitution?
The Constitution of Bangladesh is one of the oldest constitutions in South Asia, seconding only to India. It was passed by the Bangladesh Ganaparishad (Constituent Assembly of Bangladesh) 50 years ago on 4 November. Since then amendments have been made by all regimes, both civil and military . The interests of the ruling party were given prominence over the interests of the people in all those amendments.
All these years, different quarters expressed hope to return to the original Constitution adopted in 1972. But despite having opportunity, no government could do so. Even in the 15th amendment adopted during the Awami League rule in 2011, some of provisions (for example the provision on state religion) adopted during the rule of military government were retained, and in some cases the Constitution of 1972 was ignored (for example the provision on controlling the lower court by the Supreme Court only).
The demand has been made once again to return to the Constitution of 1972 at different programmes celebrating 50 years of the Constitution. But before considering this, the actual aspirations of the authors of the Constitution must be realised first. It is also necessary to evaluate objectively the strong and weak sides of constitutional ways to fulfill the aspirations. This was never done.
2.
The details of the composition of the Constitution is available in in the report of the committee on draft constitution composition and the two-part proceedings of the Bangladesh Ganaparishad, formed in 1972 (by the winners in the elections of national and provincial assemblies of East Pakistan in 1970). If all these documents are read alongside the 1972 constitution together, it would become clear that the main authors of our constitution stressed more on establishing socialism and democracy as the basic principles to run the state (other two principles being nationalism and secularism).
By socialism the members of the Constituent Assembly of Bangladesh meant establishing an economic system that will be free from all types of oppression, discrimination, deprivation and corruption, and the main responsibilities of the state would be to ensure all the fundamental needs or economic rights (food, clothing, housing, education and health) of people. For this, as a system, they endowed the Jatiya Sangsad (National Parliament) with the power to make laws appropriate for expansion of the state (people) ownership and monopoly in doing business and empowered the elected government to take any measure to this end.
The Constituent Assembly of Bangladesh had the belief that socialist economy would be established through the path of democracy, through the parliamentary system of government formed by the “real” people’s representatives elected through fair election. By democracy they not only meant the rule of people’s representatives, at the same time they meant rule of law, fundamental rights and freedom of judiciary. The members of the Ganaparishad also proudly mentioned the absence of issuing nefarious acts and proclamation of emergency in the Constitution of 1972.
Overall, there was not much problem in the Constitution regarding the basic principles to run the state and fundamental rights endowed to the people. Suranjit Sengupta, Manabendra Narayan Larma and a few members of ruling Awami League (AL) strongly raised questions on why the basic principles (especially the economic rights) are not implementable through court order, and why there is scope to impose restrictions on fundamental rights (civic and political rights) through composing laws. The head of the committee on draft constitution composition at Ganaparishad, Dr Kamal Hossain assured time and again that the future governments will surely implement the basic principles (and for this there is no necessity of the court to play a role) and no anti-fundamental rights laws would be composed. But this assurance was not honoured by any successive government.
3
Probably this hope of the Constituent Assembly of Bangladesh was unadulterated. But there were some problems with the system of government they had chosen for this. The first flaw in the constitution of 1972 was concentration of too much power to the prime minister. Some of the members including Dr Kamal Hossain told the Constituent Assembly that the prime ministers of other countries also have such power. But that was not completely true.
If we take a look at the Constitution of India, there the president works at the advice of the whole cabinet. That means, not the prime minister, rather the whole cabinet advises the president there, and if the president thinks it necessary he can return any document to the cabinet division for reconsideration. The president of Bangladesh does not have this scope; rather he has to work following word for word of the prime minister. The way the 72’s Constitution empowered the prime minister, singularly and through advising, Suranjit Sengupta criticised this comparing with the rule of Ayub Khan.
Another flaw of the 1972 Constitution was Article 70. It was said in the Ganaparishad that the article was necessary to keep the government stable. To redress this there was a scope to pass a rule that – no parliament member could cross floor in the non-confidence motion. But the 1972 constitution included a provision that said no parliament member could cross floor to cast vote against the government in any issue. Through this an added scope was created for entertaining the whims of the government (especially of the prime minister as the leader of the House).
Another limitation of that constitution was delineating the specific programmes and jurisdictions of accountability regarding social and economic rights. The Constituent Assembly had the opportunity to compose specific articles regarding economic rights and social safety after the proposals of Suranjit Sengupta, Kshitish Chandra Mandal, Khawaza Ahmed and Manabendra Narayan Larma. It also had a scope to ensure accountability regarding acknowledging the different ethnic communities and the state’s expenses. But those were not done then.
All the proceeding parliaments had the opportunity to dispel the limitations of the 1972 constitution or improve on this. Many countries of the world have properly used the opportunity and strengthened the method of implementation of pro-people rule, democratic structures and human rights. But all the parliaments in Bangladesh rejected or truncated the stronger articles of the constitution of 1972 and kept its weaker articles untouched.
4.
We need to realise all these while discussing the amendment of the constitution. We have to remember, our Constituent Assembly had the “goal” of establishing an actually representative and accountable government. From that point view the prime minister’s power was only about the “system” of running a government. The “goal” of the Constituent Assembly was ending economic disparity and oppression, and the “system” was nationalisation.
In the ultimate analysis no goal of a state changes, it cannot be. But we have the scope to change system to achieve the goal based on experiences. We still have the opportunities to implement the basic principles of the constitution by ensuring real decentralisation in administration, creating balance in the powers of the prime minister, cabinet and the president, enhancing the accountability of the government in economic affairs, and limiting the jurisdiction of article 70 and enhancing efficiency of different constitutional bodies including election commission and court.
Taking all these and other proposals (put forth at different times) into account, we have to think of establishing a government, legislature and judiciary, which would be capable of implementing the basic principles of the constitution of 1972. We have to remember, we surely will completely return to the objectives and basic principles of the constitution. But we must find out appropriate ways of implementation of these based on the experiences we gained in the last 50 years.
* Asif Nazrul is a professor of law department at Dhaka University. Prothoma Prokashan is going to publish a book he has written on debates at the Constituent Assembly of Bangladesh
** The op-ed, originally published in the print and online edition of Prothom Alo, has been rewritten in English by Shameem Reza