Analyzing the proposals of the Constitution Reform Commission
The Ali Riaz-led commission has proposed sweeping changes to the Constitution
The Constitution Reform Commission has submitted its list of recommendations to Chief Adviser Muhammad Yunus. In its effort to strike a balance in the distribution of power between the organs of state, the commission has proposed sweeping changes to the Bangladesh Constitution. The need for constitutional reform has been longstanding. These proposals are not binding on any political party. The interim government will have to reach a consensus with political parties on how to implement these proposals after a general election is held for the next parliament. The sweeping nature of the proposals demands the formation of a Constituent Assembly. The commission did not include a single elected representative. The proposals also contradict the entrenched ideological positions of the main political parties. While some of its recommendations may be adopted by a future parliament, it is highly unlikely such sweeping changes can be enacted without a Constituent Assembly. While the commission’s head Ali Riaz has argued that they are not radically drafting or rewriting the constitution, the sweeping nature of their proposals indicate a profound and tectonic shift in the text of the constitutional framework.
Preamble
The commission has proposed to drastically alter the preamble of the Bangladesh Constitution, which are the introductory paragraphs of the document. Its proposed text de-emphasizes the liberation struggle of 1971 which was the foundational basis of the Bangladeshi state and constitutional framework. This stands in sharp contradiction to Ali Riaz’s claim before he was appointed as head of the commission that 1971 and the Liberation War remain “above everything”. Then, why is he de-emphasizing 1971 in the preamble?
The commission has proposed to emphasize the revolution of 2024 and a “continuous” struggle for democracy, self-determination, independence and sovereignty. This comes off as a veiled Marxist reference to a never-ending continuous struggle of the proletariat. The young revolutionaries of 2024 do not want a further entrenchment of leftwing bias in the constitution. Young Bangladesh is more influenced by ideals of liberal democracy and Islamic nationalism. Ali Riaz does not represent the young generation who constitute over 65% of the population. The commission’s proposed text for a new preamble is not well-written and fails to capture the idealistic and aspirational hopes of the Bangladeshi people. The commission could have easily proposed to tweak the existing preamble instead of rewriting it entirely.
The original preamble of the 1972 Constitution reads as follows:-
We, the people of Bangladesh, having proclaimed our independence on the 26th day of March, 1971 and through a historic struggle for national liberation, established the independent, sovereign People's Republic of Bangladesh;
Pledging that the high ideals of nationalism, socialism, democracy and secularism, which inspired our heroic people to dedicate themselves to, and our brave martyrs to sacrifice their lives in, the national liberation struggle, shall be the fundamental principles of the Constitution;
Further pledging that it shall be a fundamental aim of the State to realise through the democratic process a socialist society, free from exploitation a society in which the rule of law, fundamental human rights and freedom, equality and justice, political, economic and social, will be secured for all citizens;
Affirming that it is our sacred duty to safeguard, protect and defend this Constitution and to maintain its supremacy as the embodiment of the will of the people of Bangladesh so that we may prosper in freedom and may make our full contribution towards international peace and co-operation in keeping with the progressive aspirations of mankind;
In our Constituent Assembly, this eighteenth day of Kartick, 1379 B.S., corresponding to the fourth day of November, 1972 A.D., do hereby adopt, enact and give to ourselves this Constitution.
The text of the preamble between 1977 and 2011 read as follows:-
BISMILLAH-AR-RAHIMAN-AR-RAHIM
(In the name of Allah, the Beneficent, the Merciful)PREAMBLE
We, the people of Bangladesh, having proclaimed our Independence on the 26th day of March, 1971 and through a historic war for national independence, established the independent, sovereign People's Republic of Bangladesh;
Pledging that the high ideals of absolute trust and faith in the Almighty Allah, nationalism, democracy and socialism meaning economic and social justice, which inspired our heroic people to dedicate themselves to, and our brave martyrs to sacrifice their lives in the war for national independence, shall be fundamental principles of the Constitution;
Further pledging that it shall be a fundamental aim of the State to realise through the democratic process a socialist society, free from exploitation-a society in which the rule of law, fundamental human rights and freedom, equality and justice, political, economic and social, will be secured for all citizens;
Affirming that it is our sacred duty to safeguard, protect and defend this Constitution and to maintain its supremacy as the embodiment of the will of the people of Bangladesh so that we may prosper in freedom and may make our full contribution towards international peace and co-operation in keeping with the progressive aspirations of mankind;
In our Constituent Assembly, this eighteenth day of Kartick, 1379 B.S corresponding to the fourth day of November, 1972 A.D., do hereby adopt, enact and give to ourselves this Constitution.
The interim government has not yet produced an English translation of the preamble proposed by the Ali Riaz-led commission. A rough translation of his proposal reads :-
We, the people of Bangladesh, who as people of this land waged a people’s war to achieve independence and establish democracy through united resistance against autocratic and fascist governance in keeping with a continuous struggle for freedom;
We honor the supreme sacrifice of all martyrs and commit to the ideals of equality, human dignity and social justice which inspired the people of Bangladesh in the Liberation War of 1971 and the ideals of democracy and non-discrimination which united them against the fascist regime in 2024; in order to establish these high ideals in the state and society;
We, through the enforcement of the people’s sovereign rights, pledge equality, human dignity, social justice, pluralism and democracy as fundamental principles to draft and enact a constitution for the people; a constitution which shall reflect the aspirations of the people; and an independent constitution which shall ensure national prosperity and secure the rights of present and future generations;
We firmly declare that this constitution shall strengthen the rights, duties and accountability of every citizen towards each other; secure the participation of people’s representatives in the governance of the state; promote the principles of international peace and cooperation; and uphold state sovereignty;
We accept this constitution with the people’s consent as the constitution of the People’s Democratic Republic of Bangladesh.
I give a poor literary review to the text of the proposed preamble. The prose is not well-written and pales in comparison to the original preamble of 1972 and even the preamble tweaked by General Zia in 1977. Not a single person on the Constitution Reform Commission is known to be a good writer. If I were on the Commission, I would have proposed the following tweaks to the original preamble:-
We, the people of Bangladesh, having proclaimed our independence on the 26th day of March, 1971 and through a historic struggle for national liberation, established the independent, sovereign People's Republic of Bangladesh;
Pledging that the high ideals of equality, human dignity, and social justice, which inspired our heroic people to dedicate themselves to, and our brave martyrs to sacrifice their lives in, the national liberation struggle, shall be the fundamental principles of the Constitution;
Further pledging that it shall be the fundamental aim of the State to realise through the democratic process an egalitarian society which ensures representative government, pluralism and non-discrimination which inspired the people of Bangladesh during the Liberation War in 1971 and the uprising against tyranny in 2024; a society in which the rule of law, fundamental human rights and freedom, equality and justice, political, economic and social, will be secured for all citizens;
Affirming that it is our sacred duty to safeguard, protect and defend this Constitution and to maintain its supremacy as the embodiment of the will of the people of Bangladesh so that we may prosper in freedom and may make our full contribution towards international peace and co-operation in keeping with the progressive aspirations of mankind;
In our Constituent Assembly, this eighteenth day of Kartick, 1379 B.S., corresponding to the fourth day of November, 1972 A.D., do hereby adopt, enact and give to ourselves this Constitution.
With the BNP widely considered as the government-in-waiting, I assume it would seek to uphold General Zia’s legacy once it is elected to power. The BNP is likely to revert to the preamble crafted by Zia in 1977. In such a scenario, the original preamble can be tweaked in the following way:-
BISMILLAH-AR-RAHIMAN-AR-RAHIM
(In the name of Allah, the Beneficent, the Merciful)PREAMBLE
We, the people of Bangladesh, having proclaimed our Independence on the 26th day of March, 1971 and through a historic war for national independence, established the independent, sovereign People's Republic of Bangladesh;
Pledging that the high ideals of absolute trust and faith in the Almighty Allah, equality, human dignity, social justice and democracy, which inspired our heroic people to dedicate themselves to, and our brave martyrs to sacrifice their lives in the war for national independence, shall be fundamental principles of the Constitution;
Further pledging that it shall be the fundamental aim of the State to realise through the democratic process an egalitarian society which ensures representative government, pluralism and non-discrimination which inspired the people of Bangladesh during the Liberation War in 1971 and the uprising against tyranny in 2024; a society in which the rule of law, fundamental human rights and freedom, equality and justice, political, economic and social, will be secured for all citizens;
Affirming that it is our sacred duty to safeguard, protect and defend this Constitution and to maintain its supremacy as the embodiment of the will of the people of Bangladesh so that we may prosper in freedom and may make our full contribution towards international peace and co-operation in keeping with the progressive aspirations of mankind;
In our Constituent Assembly, this eighteenth day of Kartick, 1379 B.S corresponding to the fourth day of November, 1972 A.D., do hereby adopt, enact and give to ourselves this Constitution.
Getting the preamble right is essential for questions of national identity. A poorly worded preamble will fail to inspire confidence in the constitutional reforms being promoted and undertaken by the interim government.
The ‘secularism’ conundrum
The commission has proposed to reform the fundamental principles of Bangladesh’s constitution, including replacing the terms of nationalism, socialism and secularism with equality, human dignity, social justice and pluralism; while preserving mention of democracy. This author has long argued that Bangladesh should adopt the ideals of the Proclamation of Independence in its constitutional framework, including equality, human dignity and social justice. The four fundamental principles of nationalism, socialism, democracy and secularism were unilaterally decided by Sheikh Mujibur Rahman in 1972 and have come to be known as principles of ‘Mujibism’.
The proposed replacement of ‘secularism’ is raising eye brows, not least because Chief Adviser Muhammad Yunus has cited secularism as a state policy in his address to the UN General Assembly. One may argue that the constitution does not need to include the word in order to be actually secular. The original Indian constitution did not use the word when adopted in 1949. The first amendment of the American constitution guarantees freedom of religion and separation of religion and state but does not use the term secularism.
Pluralism has been proposed as a pragmatic compromise between secularism and Islamic nationalism.
The recognition of Islam in the constitutional framework is also being scrutinized in the aftermath of the Supreme Court’s decision to declare the 15th amendment unconstitutional. The state religion will have to co-exist with the democratic tenets of the constitution, especially the fundamental rights. Pluralism has been proposed as a pragmatic compromise between secularism and Islamic nationalism.
The compromise has become necessary due to the political failure of Bangladeshi secularism. The vanguard party of Bangladeshi secularism, the Awami League, chose to retain the state religion during the 15th amendment to the constitution. Clearly, the Awami League felt that it would be politically expedient to retain the state religion. With both the Awami League and BNP preserving the state religion introduced by the National Party in 1988, the provision has enjoyed broad support from democratically-elected governments. The BNP has been in a longstanding alliance with conservative Islamic groups. The Awami League has even engaged with orthodox and ultra-conservative Islamic groups which have sought to undermine women’s rights, gender equality and equal opportunity. The Awami League failed to develop a liberal democratic ecosystem which would have been essential to sustain secular democracy. Instead, the Awami League chose to be authoritarian and waged a war on institutions that would have allowed secular democracy to flourish, including through free and fair elections, a free press and an independent judiciary. The intense divisions among Bangladesh’s elite have prevented a meaningful reform effort for secularism. In all likelihood, a future BNP government will uphold the legacy of Islamic nationalism promoted by the party’s founder Ziaur Rahman.
I am yet to see the commission’s views concerning Article 2A which was reworded during the 15th amendment. I have a gut feeling that a future rightwing government will possibly revert to the original wording of Article 2A. The interim government has not proposed to discard Article 2A. Hence, a compromise is necessary which requires pluralism to be compatible with the state religion.
All that being said, Bangladesh was the first country in South Asia to use the word ‘secularism’ in its constitutional text despite the lack of political capital which currently exists for the term. Secular jurisprudence by the courts will play an important role in upholding human rights and the rule of law. One example is the case of Editor, The Daily Banglabazar Patrika and two others vs. District Magistrate and Deputy Commissioner, Naogaon 2001 21 BLD 45 in which the court held the following:-
Fatwa means legal opinion which, therefore, further means legal opinion of a lawful person or authority. Legal system of Bangladesh empowers only the Courts to decide all questions relating to legal opinion on the Muslim and other Laws as in force. We, therefore, hold that any fatwa……[is] unauthorised and illegal.
Historically, the farman and parwana were the instruments of Indo-Persian lawmaking and constitutionalism in the Sultanate, Mughal and Nawabi periods. The farman and parwana were royal decrees issued by Emperors, Subedars and Nawabs which made up the Mughal constitution. The modern fatwa is more influenced by conservative strands of Islam (i.e. Wahabism) not recognized by the constitutional framework.
It is important to ensure that the state religion is not misused to infringe on fundamental rights. Therefore, I have previously argued to reword Article 2A.
The state religion of the Republic is Islam, but other religions may be practiced in peace and harmony in the Republic. This provision shall be enforceable in line with fundamental rights and freedoms.
OR
Islam is the religion of the Republic. There shall be freedom of religion in the Republic. This provision shall be enforceable in line with fundamental rights and freedoms.
OR
The Islamic faith, as well as Islamic social justice, are integral values of the Republic. The Islamic heritage of Bangladesh shall be preserved. There shall be freedom of religion in the Republic. This provision shall be enforceable in line with fundamental rights and freedoms.
Name of the state
The new Bangla name of the republic proposed by the commission is “People’s Democratic Republic of Bangladesh”. The commission maintains that it will keep the English name of the People’s Republic of Bangladesh and only proposes to change the Bangla name to People’s Democratic Republic.
These changes reflect the leftwing bias of Ali Riaz. The only other countries with the title of People’s Democratic Republic are Algeria and Laos. Why is a distinguished professor from the United States who is a scholar of the Atlantic Council and Woodrow Wilson Center proposing to rename Bangladesh with a name which has distinctly socialist and communist connotations?
Tenure of parliament
The commission has proposed a four year tenure for parliament and government, instead of the current five year tenure. Will four years be enough to implement the policies of a political government in a developing country like Bangladesh?
Creation of a Senate
The commission has a proposed a 105-member upper house to be known as the Senate. 100 Senators will be elected during the national parliamentary election. It is unclear to me how the remaining Senators will be elected. The Senate will have a four year tenure.
Term limits for prime minister
Two consecutive terms has been proposed for the prime minister. One of the commission’s aims has been to strike a balance in the powers distributed among high offices. It has been suggested that the ban on no-confidence motions be lifted in order to allow parliament to hold the premier more accountable. The commission has also proposed that a prime minister should not be a political party’s head at the same time.
Scrapping Article 70
The commission has proposed to change Article 70 which restricts the voting rights of MPs. This has been a longstanding demand to strengthen parliament. Every parliament in Bangladesh has been a rubber stamp body, be it under presidential governments of the 1970s and 1980s or parliamentary governments after 1990, due to the severe restrictions imposed by Article 70 on the freedom of MPs to vote.
Parliamentary seats
It has been proposed that parliament should have 400 seats, including 300 seats elected during a general election and 100 women’s reserved seats which will also have members directly elected. Is the women’s reservation necessary? A more prudent strategy would be to require political parties to nominate a minimum number of women candidates.
Parliamentary candidates
The age of 21 has been proposed as the minimum age for parliamentary candidates to stand in an election. This can open the door to younger people getting elected.
Expansion of fundamental rights
According to the Chief Adviser’s office, new fundamental rights proposed include rights to food, education, healthcare, housing, internet access, information, voting rights, the right to participate in government, privacy, and child development.
Conclusion
Many of the changes proposed by the commission are indeed necessary, positive and welcome steps. But the commission must realize that it needs to engage the younger generation to write a constitution that reflects hope, liberty and equal opportunity.