Making and Unmaking the Constitution of Bangladesh

Making and Unmaking the Constitution of Bangladesh

Dr M Jashim Ali Chowdhury

Published in: Ngoc Bui Son and Mara Malagodi (eds.), Asian Comparative Constitutional Law Volume I: Constitution Making (pp 363-382, Hart Publishing: London, 18 May 2023)

Publisher's Link: <https://www.bloomsbury.com/uk/asian-comparative-constitutional-law-volume-1-9781509949700/>

Abstract

Bangladesh’s Constitution of 1972 was largely modelled on a UK-styled parliamentary system with a ‘half-hearted’ combination of a US-styled judiciary. The framers choose a Westminster-like arrangement between the executive and legislative branches. The judicial branch was given a semblance of independence (through the judges’ appointment, removal, and discipline processes) and the power of judicial review. The choice of parliamentary system was influenced, among others, by the post-colonial political elites’ general appreciation of it as a convenient institutional model for the former British colonies (Sri Lanka (1948), India (1950), Pakistan (1956), and Malaysia (1957) for example). In the newly independent Bangladesh, a desire to avoid the painful tragedy of Pakistan’s authoritarian presidentialism also provided strong motivation. Th e independence of the judiciary and its judicial review powers were necessary for enforcing the country’s constitutional supremacy (as opposed to the UK’s parliamentary sovereignty) and fundamental rights. Ideologically, the sponsors of the 1972 Constitution showed a strong commitment to a social democratic republic based on four foundational principles-democracy, socialism, nationalism, and secularism. Now, 50 years into its constitutional beginning, Bangladesh seems to have mishandled the original design and forgotten the original ideals. Since 1972, the country has undergone different political experiments involving one-party presidentialism, several direct or indirect military regimes, several election-time caretaker governments, competitive bi-partisan authoritarian governments, and the ongoing round of one-party authoritarianism. During this tortuous constitutional journey, Bangladesh’s parliamentary system has transformed into a crude version of the prime minister’s ‘elective dictatorship’. The judiciary has been marginalised, and its check-and-balance potential is mostly gone. 6 On the ideological front, the country has either walked away from some of its foundational principles (socialism, for example) or substantially tempered with the others (democracy, nationalism and secularism, for example). Some pundits have blamed the framers’ lack of institutional imagination for this constitutional debacle. While the lack of institutional imagination may be a valid argument in several areas of constitutional design (executive legislature relations and the electoral system, for example), this chapter argues that Bangladesh’s constitution-making process carried with it some other inherent and inevitable dilemmas on political participation, leadership style, and civil-military relations. Total exclusion of the religious-conservative political elements from the constitution-making process (how logical it appeared then) had partially weakened (if not dislodged) the 1972 Constitution's political foundation. Second, a socially resonant tendency to personalise public power inhibited the Constitution-drafters’ ability to prioritise institutional considerations over their leader’s personal preferences. Resultantly, a seismic constitutional change in 1975 led to direct military intervention into politics and the revival of the ultra-religious conservatives. Bangladesh’s constitutional unmaking has been rapid and consistent since then.