RECENT debates in Bangladesh have centred on whether the country needs a new constitution or if minor amendments to the existing one would suffice. Before we assess the legality and legitimacy of the Constitution鈥檚 provisions and whether they truly reflect the people鈥檚 aspirations, we must first address a more fundamental question: Was the 1972 Constituent Assembly that framed the Constitution a legitimate body? Did it truly hold the constituent power on behalf of the people of Bangladesh? This article explores the legitimacy of the 1972 Constituent Assembly in framing the Constitution.
The Constitution of Bangladesh was framed by the Constituent Assembly in 1972. This Assembly was established under the Constituent Assembly Order of 1972, which was promulgated by the President of Bangladesh. According to Article 4 of this Order, the Assembly was composed of members of the National and Provincial Assemblies elected in 1970 and 1971. The task of this Constituent Assembly was to draft a constitution for the newly formed Republic of Bangladesh. However, these assembly members had been elected under Pakistan鈥檚 Legal Framework Order of 1970 with the mandate to bring about constitutional reforms and to frame a constitution for Pakistan, not for a sovereign Bangladesh. Furthermore, the election campaigns of these members revolved around the six-point movement, focused on the distribution of powers in a federal Pakistan. Thus, it is reasonable to question whether the 1972 Constituent Assembly was truly representative of the people鈥檚 will in post-independence Bangladesh and whether it legitimately exercised constituent power.
According to Bangladeshi and Indian jurisprudence, constituent power is the authority to frame a constitution. It belonged to the people and is exercised on their behalf by the Constituent Assembly. In the hands of the people, the constituent power comprised the legislative, executive, and judicial powers. There was no demarcation between the three powers, as the doctrine of separation of powers did not apply to the constituent authority. While adopting the constitution, the constituent authority distributed the constituent powers held by the people between the three organs of the state.
Legal scholars hold that constituent power exists beyond the constitution 鈥� it precedes it and gives it validity. This power is a 鈥榩re-legal force鈥� arising from specific historical and political contexts. According to a former Judge of the Federal Constitutional Court of Germany, Ernst-Wolfgang B枚ckenf枚rde, this power has no legal restraints but is shaped by its political and historical environment. Justice Shahabuddin Ahmed, in Bangladesh鈥檚 Eighth Amendment case, defined it as the original authority that belongs to the people and which is exercised by the Constituent Assembly on their behalf.
Further, constituent power rests with the people in a political sense. This refers to the political nation 鈥攁 group aware of itself as a political entity that has come about as a result of historical and political changes. Sometimes a specific group or class may represent the political people and hold this power. For example, during the French Revolution, the Third Estate represented the nation. In Marxist-Leninist theory, the proletariat (through the Communist Party) was seen as the bearer of constituent power.
In 1971, the constituent power was clearly held by the people of Bangladesh, who emerged as a distinct political entity following independence. This identity, which scholars argue began forming during the 1905 partition of Bengal, fully crystallised in 1971. However, the Constituent Assembly that drafted the constitution in 1972 was composed of members elected under a mandate to draft a constitution for Pakistan, not for a newly independent nation. These members were not chosen for their qualifications to frame a constitution for Bangladesh, as evidenced by the often-poor quality of debates during the Assembly鈥檚 sessions. Consequently, the legitimacy of the Assembly鈥檚 authority to exercise constituent power on behalf of the newly formed political entity can be seriously questioned.
For a Constituent Assembly to truly exercise the people鈥檚 constituent power, there must be a clear link between the people鈥檚 will and the Assembly鈥檚 mandate. In France, for example, the 1791 and 1793 Constitutions were framed with the involvement of primary assemblies, and the 1793 Constitution was even approved through a referendum. Similarly, primary assemblies played a role in drafting the Spanish Constitution of Cadiz and the Venezuelan Constitution. In contrast, the 1972 Constituent Assembly of Bangladesh lacked this direct connection with the people鈥檚 mandate, raising concerns about its legitimacy.
Now that we have a constitution, what has become of this constituent power? According to Indian jurisprudence, once the constitution is adopted, constituent power is divided among the three organs of the state, and the people can no longer exercise it. Some, like German scholar Martin Kriele, argue that constituent power should be 鈥榮ilenced鈥� after the constitution is in place to protect it from political unpredictability. However, B枚ckenf枚rde rejects this view, calling it 鈥榡uristic sleight-of-hand.鈥� He asserts that constituent power, as a political force, continues to exist even after a constitution is framed. Thus, B枚ckenf枚rde observes, 鈥榠t is a peculiar notion that the necessary legitimation of the constitution could be condensed into a single point, its (revolutionary) creation, from which the constitution is then valid in a virtually self-sustaining process, independent of the continued existence of this legitimation.鈥�
The events of July and August 2024 are best understood in terms of this continuing constituent power. The events of this period led to the establishment of a new constitutional order, not under the existing constitution but through the people鈥檚 exercise of constituent power. The interim government, led by advisors, cannot be justified or explained by the existing constitution, for it does not contemplate or provide for an interim government. The interim government is better explained as a product of constituent power, a pre-legal authority driven by the historical-political events of 2024. The exercise of constituent power does not necessarily imply abrogation of the constitution. The existence of the constitution is in no way contrary to the wielding and exercise of constituent power by the people. According to B枚ckenf枚rde, the constituent power can alter or erode the constitution 鈥榩iece by piece in individual steps鈥�.
Therefore, the people of Bangladesh, empowered by the political events of 2024, now hold the constituent power to frame a new constitution. Given the questionable legitimacy of the 1972 Constituent Assembly, it is essential that a properly constituted and truly representative assembly be formed to draft a new constitution that genuinely reflects the will of the people.
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Ehsan Siddiq is an advocate of the Supreme Court of Bangladesh.
