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After the fall of the Hasina-led authoritarian regime on August 5 amid the student-led mass uprising in July and August, a debate emerged over whether to reform the existing constitution or draft an entirely new one. Many argued that the current constitution, after years of politically motivated amendments and modifications, has lost its original character and has been used as a tool to impose ‘constitutional fascism or autocracy’. Therefore, they contend, it should be completely rewritten, or a new constitution should be drafted to establish a democratic, pluralistic and inclusive Bangladesh. On the other hand, there are some who think that reform here and there will suffice. Those advocating solely for constitutional reform are either unaware of the people’s political rights or are subtly attempting to preserve the old fascist state structure and system.

Although many scholars have called for drafting a new constitution, the recently formed interim government has instead established a ‘Constitution Reform Commission’, headed by Professor Ali Riaz. The commission includes eight other members, among them two law professors from the University of Dhaka, three lawyers, a political activist and writer, a human rights activist, and a student representative. It appears that the interim government is prioritising constitutional reform rather than drafting a completely new constitution. Interestingly, Professor Ali Riaz himself had previously advocated for rewriting the constitution. This raises the question: why has he now agreed to lead a commission focused on reform rather than a complete rewrite? Given that the current constitution has been used as a tool for ‘constitutional fascism,’ mere reforms may not be sufficient to achieve the liberal democratic transition the country needs.

Apart from the ongoing debate between constitutional reform and drafting a new constitution, the newly formed commission has significant shortcomings. The most notable flaw is its lack of a multidisciplinary and transdisciplinary approach. A staggering six out of its nine members are law professionals — either lawyers, law professors or law graduates. This overwhelming representation of ‘legal experts’ suggests that the interim government views the constitutional crisis as purely a legal issue, which is a serious misconception. Even if the constitution is considered a legal document, law is inseparable from the sociopolitical, cultural and historical context of the nation. Why, out of nine members, have six been chosen from the legal profession? What kind of selection criteria is this? Is the constitution merely a technical legal document? Are we writing a law book? We are discussing the very structure of the nation, a document that should serve as the master guideline. The dominance of legal professionals in the commission may limit the diversity of perspectives required to address broader, systemic issues within the constitution. Constitutional reform is not just a legal endeavour — it also involves political, sociological, economic and philosophical considerations. Without experts from these fields, the commission risks overlooking critical insights on how the constitution could better address human rights, governance, social justice, public policy and political representation.

To ensure meaningful reform, it is crucial to incorporate a wider range of expertise. Beyond constitutional law experts, a well-rounded constitutional reform committee should include experts from various disciplines. This should encompass political philosophers, political scientists, sociologists, anthropologists, political economists, advocates for ethnic and minority rights, historians, international relations experts, public policy specialists, decentralisation experts, public participation scholars, gender equality advocates, and human rights specialists. Though inclusion of right activists and student representatives is a good decision, experts from other disciplines were ignored in the formation of this commission.

Although the commission is heavily over-represented by law professionals, it still lacks sufficient expertise in constitutional law and comparative constitutional analysis. If, to say, experts of this calibre are not available in Bangladesh, the interim government should consider including at least three world-renowned constitutional experts from abroad. This would bring the required depth of knowledge and global perspective to the reform process, ensuring that it meets the highest international standards. While I hesitate to critique individuals, it is clear that some members of the committee do not possess the necessary qualifications in these critical areas. The inclusion of three political activists, rather than seasoned experts, raises concerns, as they may lack the professional skills and expertise required for such a vital task. In fact, figures like Shahdeen Malik or Professor Dr Salimullah Khan would have been far more suitable choices compared to some of the current members.

Another significant limitation of the reform commission is the lack of representation from economists or development experts. One of Bangladesh’s major crises is the unequal allocation of economic and financial resources. Economic inequality and discrimination are so severe that the Gini coefficient, a key indicator of inequality, stood at 0.499 in 2022. Thus, any constitutional reform that fails to address this disparity between the lower class (working class, labourers, garment workers, rickshaw pullers, daily wage earners, etc.) and the upper or upper-middle class will not effectively resolve the ongoing crisis. Although the current constitution contains provisions to protect the rights of the working class, since its formulation in 1972, the political, governmental, and social structures of the constitution have systematically ignored the demands and legitimate aspirations of the working and lower classes. Instead, the constitution primarily serves the elite and middle classes. From a Marxist perspective, the constitution acts as a socio-political framework that perpetuates the exploitation of the working class, a problem exacerbated by the absence of working-class representation in parliament and government bodies. Constitutional reform must address this economic inequality by establishing a just and equitable system for the allocation and distribution of national resources. Moreover, the newly reformed constitution should reflect a commitment to economic justice and sustainable development. To achieve this, the inclusion of experts in constitutional economics and development is essential. Their insights would be critical in ensuring fair wealth distribution and fostering sustainable growth for the nation.

In addition to Professor Ali Riaz, it is essential to include more political scientists and philosophers in the commission. The absence of experts from these fields could lead to reforms that focus primarily on legal mechanisms rather than addressing the deeper philosophical and political challenges embedded in Bangladesh’s governance. The failure to safeguard liberal democratic rights into the constitutional framework of Bangladesh was not solely a legal crisis; it stemmed largely from an ideological and philosophical crisis. This crisis was marked by a tilt towards authoritarian political ideology and the adoption of an exclusionary version of secularism based on Bengali nationalism that marginalised not only other ethnic identities but also Bengali Muslims from the sociopolitical power structure. While Bengali nationalism was instrumental in our fight for freedom against the Pakistani autocratic regime, it failed to create a cohesive political community in Bangladesh. This shortcoming arose from its inability to include other ethnic nationalities in the process of national solidarity. Additionally, its foundational narratives were largely shaped by colonial cultural influences originating from Kolkata, resulting in a form of cultural hegemony. This dominance, viewed as cultural fascism, has produced consent among Bangladesh’s urban and middle classes in favour of Indian neo-colonial influence across the political, cultural and economic spheres. What we now need is a national framework that addresses these ideological, political and philosophical shortcomings, guiding us towards the development of a true political community. Therefore, it is imperative to include experts in political philosophy and ideology on this reform committee. These scholars will help ensure that the ideological foundations of constitutional norms and the governance system are properly examined and addressed.

From the perspective of political philosophy, there are significant deficiencies in Bangladesh’s constitution. The current constitution prioritises the so-called ‘security and order’ of the state/government over individual liberty and other human rights such as freedom of expression and freedom of thought. This has allowed the introduction and enforcement of oppressive laws and regulations that can easily infringe upon individual freedoms and even minimum rights. One reason why we refer to the fallen regime as a ‘constitutional fascism’ is that, while fundamental rights of individuals are recognised, greater emphasis is given to safeguarding governmental stability and security, thereby allowing the passage of numerous laws that infringe on people’s rights. However, if, like the US constitution, the protection of individual liberty and other human rights had been made immutable and the introduction of any law contrary to those rights had been considered a crime, it would not have been so easy to implement fascism through legal means.

In our constitution, the government, meaning the executive branch, is designated as the most powerful authority, whereas it should have been the legislature or parliament that was recognised as a more effective and powerful body than the executive branch to ensure the protection of human rights and fundamental guidelines. Since that was not done, the government has been able to discard fundamental human rights at will and maintain a legal and administrative system that allows for continuous repression and persecution. Why did this happen? It’s not just a legal argument but also an ideological matter. After the 1971 War of Independence, the political narrative that gained prominence prioritised an authoritarian ideology over one that safeguarded the rights of the common people/individuals. Many believe this is why the revolution of 1971 was derailed. Based on that ideology, the country’s constitution focused more on an authoritarian framework than on safeguarding individual liberty, individualism, fundamental human rights and liberal democratic rights. Due to the ideological weakness of the political philosophy of that time, many didn’t realise that leaving room for an authoritarian framework would make it nearly impossible to implement fundamental human rights.

Many now argue that since our constitution recognises basic human rights and freedom of speech, the problem lies in enforcing the law, not the constitution itself. However, the current constitution does not provide the necessary constitutional safeguards to make these rights absolute and enforceable. The executive branch has been made more powerful than the legislative branch, allowing for the violation of rights. Moreover, the head of the executive branch has been given absolute state power; even the legislature is kept under the control of the executive branch, and mechanisms have been put in place to keep the judiciary under the executive’s influence. All these elements indicate that the constitution of Bangladesh could indeed serve as a protector of an authoritarian state structure. Therefore, the constitution needs to be overhauled to establish a liberal democratic framework. A revolutionary change to the current constitution is needed to provide adequate protection for individual liberties and rights, ensuring they are regarded as unchangeable. In this regard, the responsibility for reforming or changing the constitution should not be left solely in the hands of lawyers and rights activists; the opinions of political scientists, political philosophers, sociologists, and historians must also be considered.

In a nutshell, the Constitution Reform Commission, far from being strong, seems incapable of achieving substantial results due to a lack of sufficient expertise and the absence of multidisciplinary experts. Therefore, the interim government should promptly reorganise this commission by including capable, skilled individuals who can conduct in-depth analysis. The government must appoint genuinely qualified experts with proven skills, experience and merit in constitutional reform rather than selecting individuals without clear criteria for these essential qualifications. To properly outline the constitution from legal, political, philosophical, social and economic perspectives, the government should bring in experts from disciplines beyond law. If necessary, the government can include renowned constitutional experts from abroad and seek their advice and guidance. After a massive people’s uprising, a superficial reform would not be acceptable. While we acknowledge the goodwill of the government, who will bear the responsibility if the necessary and fundamental changes to the constitution are not made due to the formation of an incompetent commission?

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Dr Zobaer Al Mahmud is an associate professor of clinical pharmacy and pharmacology at the University of Dhaka.