The Students Against Discrimination, a movement that led the former prime minister Sheikh Hasina to flee the country, demanded a new constitution, repealing the existing one. On some legal grounds, I fully agree with this demand. Firstly, the legality of the interim government, formed following a successful mass uprising in July-August, may be questioned under the existing Constitution of Bangladesh. There is no provision for establishing an interim government in the constitution. So, the Supreme Court of Bangladesh, the guardian of the constitution, has scope to declare this government unconstitutional in the future following the 5th and 7th amendment cases. Secondly, the existing constitution can no longer be amended because of Articles 7A and 7B. Article 7B limits the parliament from amending two-thirds of articles of the constitution, including Articles 7A and 7B. These limitations are considered 鈥榗onstitutional handcuffs鈥�. Further, Article 7A prescribes capital punishment for whoever abrogates, repeals, or suspends the constitution or its any provision by any unconstitutional means. Thirdly, the current constitution consists of many undemocratic and anti-people provisions, including floor-crossing, preventive detention, emergency provisions, unenforceable fundamental rights, etc. Last but not least, there is a constitutional vacuum at this moment in various sectors. For example, it鈥檚 unclear to whom the president will resign, how the next election will be organised, etc. Additionally, the constitution can only be amended by the parliament. But no parliament exists at this moment. Who will then amend the constitution? To fill such a different vacuum, 鈥榩eople鈥檚 will鈥� should be taken into consideration. Therefore, I think it is inevitable to draft a new constitution to validate the current government, to fill up the constitutional gap, and to keep the spirit of the July revolution intact.
A bundle of questions may arise. Such as, can the current government draft the constitution? How can a constituent assembly be made? How can the people鈥檚 will be included in the constitution? This write-up tries to find the answer to these questions from the global constitutional gene pool.
No doubt, most of the constitutions of the world are created by the constituent assembly. Such as the American Constitution, the French Constitution, the Bangladesh Constitution 1972, etc. Contrarily, some constitutions are made by a single political actor. These types of constitutions are usually created in authoritarian regimes or during periods of significant political upheaval. For example, the Constitution of the Soviet Union (1924). After the Russian Revolution, Vladimir Lenin and the Bolshevik Party created this constitution by a small group of leaders, reflecting the party鈥檚 ideology and goals, without substantial input from the general populace or other political factions. Furthermore, Kim Il-Sung and the Workers鈥� Party of Korea established the first constitution, the Constitution of the Democratic People鈥檚 Republic of Korea 1948, which reflected the leader鈥檚 ideology. Bangladesh is not now governed by any autocratic regime, so there is no option to create a constitution other than by the constituent assembly.
Jon Elster observed in his article 鈥楩orces and mechanisms in the constitution-making process鈥� (1995) that the constituent assembly has two kinds of constraints while making a constitution. Upstream and downstream constraints. Upstream constraints are imposed by the upstream actors, i.e., the creator of the constituent assembly. A constituent assembly is usually created by two means. On one side, there is the authority or person who decides to establish a constituent assembly. In 1787, this decision was made by the Continental Congress in the United States. In France, the King made the decision in 1789. In Germany in 1949, the Western occupying powers made the decision. On the other side, there鈥檚 the process for choosing the representatives for the assembly. In the US and Germany, the state legislatures picked the delegates. In Bangladesh, the constituent assembly was formed consisting of the elected representatives of the 1970 election, which falls under the second category. The people or groups that organise the assembly often try to set limits on how it works or what the constitution should include. For example, the Continental Congress told the Federal Convention to suggest changes to the Articles of Confederation, not to create a completely new constitution. On the other hand, downstream constraints occur when a proposed document must be approved by another group. The people drafting the document are limited by what they know about the preferences of that group. For example, in the US, since the constitution needed approval from the states, the drafters couldn鈥檛 disregard the states鈥� interests.
However, in his article 鈥業mportance of constitution making鈥� (2011), David Landau found the biggest risk in creating a constitution, that strong individuals or political parties can use either genuine or fake majorities to force their version of the constitution on everyone else in society. So, he urged constitutional theorists to construct a model that will obstruct the new authoritarian or semi-authoritarian regime that comes after a revolution. Since the interim government of Bangladesh or the next elected government will have a chance to become autocratic, the people鈥檚 will must be taken into account in an effective way, like a referendum.
As per the above practices and observations, it can be argued that the interim government can be given power to select delegates of the constituent assembly, and later such a constitution should be ratified by the elected representatives or by referendum. Therefore, the assembly must consider the interests of the 鈥榩eople鈥� without whose ratification the constitution will not come into effect.
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Abuzar Gifari is a lawyer and research officer at the International Institute of Law and Diplomacy.
