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Now, 52 years after the promulgation of the 1972 constitution, we are at a crossroads, which beckons the question of whether this constitution was successful in birthing and sustaining a democratic people’s republic, writes Muhammad Ekramul Haque

FOLLOWING the avid days of a successful student-mass uprising, gross injustice will be done to the blood spilled on the walls and streets of Bangladesh in the months of July and August of 2024 if significant reforms are not made to the system. The immense plight of Bangladeshis in the time following up to the former prime minister Sheikh Hasina’s resignation on August 5 was against a backdrop of pure agony, distrust in the system, disgust with the entire governance structure, and years and years of pent-up anger regarding the pungent dictatorship. Starting from the attack on the students of Dhaka University to the open-air daylight open fire killings of students, civilians and even children by law enforcement agencies and armed Awami fronts. The death toll is in the multiple hundreds, teetering on the edge of a thousand, as deaths are both discovered each day and people injured during the onslaughts meet a slow, painful death.

One law enforcement officer, went as far as reporting to the minister for home affairs, ‘We had to keep shooting to make dead bodies’, ‘We shoot; one dies, one gets hurt, and only one goes, the rest don’t budge. This is our biggest fear.’ These public statements made by police officers are a testament to the atrocities and the crimes against humanity committed by the fascist regime. Not only as such, but the spirit of the people of Bangladesh has blossomed in each soul that took to the streets in protest against the overarching use of force, fascist regime and totalitarian practices by the then government of Bangladesh, attributable to both the regime and the structure inundated by the corrupt practices of the regime. Hence, following both the atrocities and the intense subjugation of the civilian population, coupled with the indomitable spirit of uprising, it would do insurmountable damage to not drastically reform and change the system to one that better accommodates the rights of the people and represents the actual intent of the people’s uprising.

The last three ‘elections’ have had no participation of the people, with widespread proven accusations of electoral manipulation, vote stuffing and state-sponsored crackdowns of opposition leaders. Yet all these ‘elections’ have been carried out by referencing the constitution, although they are flagrant violations of all that it means to be a democratic country. The strongest pillars of democracy — the people’s voices and the media — were kept under strict supervision, suppressed and anyone who dared speak up against the regime was vehemently oppressed. This led to a literal one-man autocratic regime, which derived its sham validity from so-called constitutional law provisions. Democratic rights were nothing but facades, mere paper rights, not veering outside conceptual notions and the text of the constitution, while the application on the people’s side was severely in drought.

Pivotal fundamental rights, like the freedom of expression, were under fire, with any sort of opposition facing instantaneous crackdowns, the government went as far as enacting draconian laws that enabled the government to ‘legally’ carry out routine crackdowns on anyone opposing the regime. Extrajudicial killings, enforced disappearances and state-sponsored crackdowns of opposition voices became common practice under the fascist regime’s rule, such that so much as a mere Facebook post, exercising the internationally recognised and constitutionally safeguarded freedom of expression, was met with one of the many tactics used by the government to silence all voices opposing them, they could be met with arbitrary torture by allies of the regime, they could be picked up from their homes by police in ordinary uniforms and kept and tortured at an unknown location. Just after the historical fall of Sheikh Hasina’s regime, reports in relation to a previously scarcely known arbitrary arrest, detention and enforced disappearance centre were discovered, code named ‘aynaghar’ was used to house people who, in any shape, form or degree, opposed either the government’s actions or some aspect of their authoritarian or totalitarian rule. The regime systematically eroded all the state’s machinery, keeping only a mere façade armed only with ‘yes-men’ who abided and adhered to the supreme’s command.

It is now high time to reform the governance structure to be more akin to the people’s intent and to bring about significant systematic change. The question of whether this is the time to formulate a new constitution has arisen amongst scholars and laymen alike. I will attempt to analyse the viability of such discourse and evaluate the efficacy of such steps in conjunction with possible end goals that can be achieved through those steps.

This is not an attempt to portray all the justifications of drastic ramifications to the current constitution, or even the creation of a new autochthonous constitution, but to unravel the possibility of doing so and to initiate discourse as to the viability of entering into a new constitutional realm. In analysing the discourse surrounding the possibility of scribing a new constitution for Bangladesh, there are a few chains of thought that are penultimate to the conclusion that a new constitution should be written.

The first being that the blood spilt in the successful revolution of the people of Bangladesh, in accordance with Kelsen’s Pure Theory of Law, changed the Grundnorm, or basic rule of the legal system and the constitution deriving its power from the will of the people, and seeing as the will of the people has drastically shifted, evident from the people’s uprising, such should mean that following the revolution it is incumbent for a new constitution to be written, one which reflects the will of the people post the 2024 revolution.

There is a group who is willing to be a bit more lenient and claiming that a shift in Grundnorm has not occurred; however, they cannot fully dismiss the fact that there have been drastic changes in circumstances during and after the protests that toppled the fascist regime. These drastic changes, coupled with the amplified and free voices of the public who yearn for better governance, constitutional safeguarding and a rehaul of the system that implicitly condoned the previous regime, call for drastic changes in the country’s governance, the root of which lies in the constitution of the People’s Republic of Bangladesh. Hence, in order to not lay waste to the drastic changes that have occurred, such changes must be reciprocated by the highest law of the land, the constitution. And to do so, since the constitution has been plagued by both the passage of time and the inundation of overly politicised policies, it is beyond repair, hence bringing forth the solution of a new constitution.

An even more forgiving group denies the possible shift of the Grundnorm and the drastic changes that have occurred but believes that certain provisions must be incorporated into the constitution, not only to cater to the natural fundamental rights of the people but also to represent the state-of-the-art 21stÌý century needs of the people of Bangladesh in 2024. A plethora of rights have gained sustenance over the 50 years since this constitution was scribed in the early years of the birth of Bangladesh, rights such as technological rights, the right to science, the right to academic freedom, fundamental rights in relation to education or the more concretised and vigilant right to a safe environment. These stances, taken on the international level and the global constitutional law gene pool, must be reflected in the constitution of the country. Even for additions like these to be made and changes like these to occur, the existing constitutional law does not provide for the efficient incorporation of modern rights as fundamental rights since Part 3 of the constitution has been blocked off from any form of amendment by Article 7B, rendering any sort of positive change as obsolete. If we want to make the right to education a constitutionally guaranteed fundamental right, it will not be possible for the existence of the so-called basic structure provision in Article 7B of the present constitution.

Following the liberation war of 1971, we drafted and enacted a constitution in 1972, which reflected the needs of the newly born state of Bangladesh. Now, 52 years after the promulgation of the 1972 constitution, we are at a crossroads, which beckons the question of whether this constitution was successful in birthing and sustaining a democratic people’s republic. In light of the events of July and August of 2024, week after week marred with constitutional violation after constitutional violation, we begin to unravel that indeed, whether by text or by practice, the constitution of the People’s Republic of Bangladesh has indeed failed to do the very thing it set out to do. Throughout the years of its promulgation, many questions have arisen as to the efficacy of the constitution; some answers attributed it to the lack of textual content, some answers attributed it to the lack of application of constitutional principles in practice.

Now, following the revolutionary events that occurred throughout July and the beginning of August, we must ask ourselves as to where the text of the constitution failed and where the application of constitutional provisions failed. It must be noted that each case of practical failure to uphold the constitution is not merely a failure in practice but correlated to the absence of textual safeguarding or provisioning in the text of the constitution itself. For example, repeated violations of fundamental rights as enshrined in Part III of the constitution is inherently coupled with the lack of bar of an individual running for the highest office of the country more than two times. It is now clear from historical evidence that multiple consecutive terms in office inherently worsen the condition of the practical applications of constitutional law provisions, such as the fundamental rights as enshrined in Part III. The world constitutional gene pool has, in the last 50 years, not only expanded in terms of numbers but also in terms of the periphery of rights given to their people. The rights forum, internationally, has seen many changes in the last half century, with the addition of modern rights such as climate justice and the right to science.

Taking into consideration the demographic changes, changes to demand and supply and the beckoning of time itself, it might be apt to reconsider what we took for granted as fundamental to our system. For example, since we have been carrying the unitary system of government since our inception, it might be of substance to consider what good or bad has been achieved out of this system. This is not to suggest that the presence of the unitary system has resulted in the collapse of good governance as we see it today, but since we have not been able to delve into a federal system at all, how must we determine the better option without having given ourselves the chance? In the event that we would want to consider different options as to the form of governance, in order to ensure good governance, we would need to make significant changes to the current government system along with making changes to the current constitution since provisions like the basic structure doctrine end up bottlenecking ourselves.

When delving into different constitutional forms of government, as to presidential and prime ministerial forms of government, since the promulgation of the 1972 constitution, we have had a taste of both. Unfortunately, neither has been a case for good governance or lack of concentration of power. It might be worth thinking about whether a mix of both would be a good solution — a system where power is not solely vested in one person or party.

There is a possibility of posing counterarguments to the first and second perspectives owing to their theoretical and fluid nature; however, even the most lenient observation, the third one, beckons for a new constitution. When it comes to the question of whether a new constitution should be written and enacted, it seems as though the first and second justifications are quite strong in nature, while the third one seems to fall suite on the same path, albeit a shorter or more rugged distance. The first two clearly necessitate the creation of a new constitution; however, even the third justification necessitates and justifies the adoption of a new constitution. Existing constitutional provisions, like the basic structure doctrine, plague the current constitution, to the point where it has become unworkable and is inherently resistant to any sort of positive change. Hence, if any of these justifications are to stand, then the adoption of a new constitution would be the path to take upon the formation of a new constituent assembly.

This is not an attempt to portray all the justifications of drastic ramifications to the current constitution, or even the creation of a new autochthonous constitution, but to unravel the possibility of doing so and to initiate discourse as to the viability of entering into a new constitutional realm.

Lastly, one may pose a question: what necessitates writing so many things in a constitution? The answer to this question is that in countries where there aren’t strong constitutional provisions, robust judiciaries to implement existing constitutional provisions, or fair and viable democratic systems, it hinders or obstructs the path of organic development of constitutional law. Such as Bangladesh, where the lack of transparent democracy, inherent absence of a pro-active and robust judiciary and significant fair constitutionalism have led to the absolute deterioration of the application of constitutional law provisions, to the extent where, in recollection of the last 50 years, constitutional law practices have culminated in not much. We cannot just wait for the organic development of constitutional laws to single-handedly uplift the people’s lives, nor can we leave gaps in our texts waiting for that to happen as seen in developed constitutional law jurisdictions; hence, our best bet is to author an autochthonous constitution that provides for our people’s needs in their entirety.

Change is inevitable, yet to save our country and this system, such changes need to be drastic, following the disastrous rule that bottlenecked the country from all fronts. In order to even attempt at repaying the blood spilt across the months of July and August of 2024, significant, meaningful and positive changes are pertinent. Constitutional reforms are necessary to accommodate the will of the people of Bangladesh at present in order to build a society that is just, and if doing so requires the formation of a new constitution, then be it.

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Muhammad Ekramul Haque is professor of comparative constitutional law, department of law, University of Dhaka and senior research fellow, The Constitutional Studies Program, The University of Texas at Austin, USA.