[In October and November 2024, Sifat Tasneem and I wrote a three-part series on Lawyer'sClub[dot]com calling the attempt to abrogate the 1972 Constitution suicidal. In the third part (2 November 2024), we specifically presented our arguments for constitutional stability and continuity. The English version of that part is published today (15 November 2024) on the editorial page of the Daily Observer newspaper. We welcome your interest in this issue.]

In defence of the original constitution

Dr M Jashim Ali Chowdhury & Sifat Tasnim*

Published in the Daily Observer. Friday, 15 November 2024

On the eve of its 52nd anniversary, Bangladesh's original Constitution faces an existential threat. Debate is intense whether we amend or abrogate it. Multifaceted arguments and narratives are being offered for its abolition and replacement. Given the context, it is very important that all sides of the debate are aired and heard with equal emphasise. In this piece, we argue that the idea of a new constitution will do more harm than good to the country. We have several reasons to do so.

First, the proponents of the "New Constitution" argue that no fundamental changes can be made by amending the current Constitution for some of its stumbling blocks - the basic structures. However, it is not abundantly clear which potential reforms would likely offend the basic structures of the 1972 Constitution, the prominent of which are democracy, judicial independence, separation of powers, rule of law, accountable governance, etc. It has been hypothetically argued that reforms like bicameral parliament and a federal- presidential system might be invalidated by the Supreme Court citing the unitary character of the original Constitution (Anwar Hossain Chowdhury v Bangladesh 1989 BLD (Spl) 1). While the uncertainty and fluidity around the Bangladesh Supreme Court's basic structure doctrine (BSD) is not unheard, reinstating the Referendum Clause in Article 142 should provide a democratic check on judicial fluidity with the BSD. So far, there is no single precedent of invalidating constitutional amendments made through the referendum process. Rather, Justice Habibur Rahman pointed out, in Anwar Hossain Chowdhury v Bangladesh, that had the 8th Amendment (1988) gone through a Referendum, the outcome of that case would have been different. Moreover, if the BSD is the main hesitation, it must not be forgotten that a new constitution as a whole is not immune from the BSD-inspired judicial challenge, particularly when the current Constitution includes an eternity clause (article 7B) and a sedition clause (article 7A).

Next, it is argued that the 1972 Constitution cannot be amended due to its unamendability clause (article 7B). However, a sensible approach to the 7B hurdle is to challenge it vis-a-vis the 1972 Constitution's basic structure. If the Constitution itself is abrogated, instead of challenging the article 7B, there is a risk that the reformers may later be accused under article 7A (offence of sedition). The pragmatic strategy should be to process the constitutional reforms through the existing processes and safeguards rather than falling into the article 7A's trap.

The third argument is quite revolutionary. It is said that radical changes must come through the exercise of the constituent power, not the amendment power. This argument is unlikely to be supported by established constitutional theories. In comparative constitutional studies, there is extensive literature on constitutional renewal, dismemberment, and revolutionary constitutionalism which acknowledge that the constituent power (the power of the people to write the constitution) can also be exercised while amending constitutions.

Periodic fresh starts with constitutions usually undermine their long-term viability. A durable, continuous, and long-lived constitution may not be perfect, but it acquires an internal resilience rooted in its established jurisprudence. With that strength, judges and lawyers resist unconstitutional and abusive amendments. While some undemocratic amendments may not be immediately challenged due to political circumstances (such as the abolition of the caretaker government in 2011), they are bound to be challenged in the future (which is being done now). Even if some amendments are never challenged (such as the Fourth Amendment of 1975), they are bound to be lost in the historical process. Common sense tells us, you should not uproot the great banyan to sow the new saplings, until you really have to.

Now, if Bangladesh is to venture their paths, it risks sliding towardsrecurringphases of constitutional replacements in the future. The "New Constitution" will likely carry a constant existential threat in the short and long run. It will likely prove an easier task for the later regimes to abolish or replace it rather than going through thetroublesome path of amendments and judicial reviews. It'salways easier to draft a new Constitution and ask the judges of the court to take fresh oaths under that.

We acknowledge that there are some valid criticisms of the 1972 Constitution, but its greatest strength perhaps is its structural design - the parliamentary form of government, endorsed by a political consensus in 1992. It has withstood 53 years-long politics of assassinations, coups, military rule, authoritarian party government, abusive amendments, and experiments.

If comparative constitutional history is a lesson - the more the constitutional replacement, the less constitutions thrive. In South Asia, the Constitution of Pakistan was written thrice - 1956, 1962, and 1973. Afghanistan's Constitution was also written three times - in 1923, 1964, and 2004. In 2021, the Taliban simply withered the 2004 Constitution away. Sri Lanka had two - 1972 and 1978. Myanmar had three - 1947, 1974, and 2008. Myanmar military junta ruled the country without a Constitution for twenty years - from 1988 to 2008. Despite several fresh starts, Pakistan and Myanmar could not escape the grip of the military establishment. Myanmar and Sri Lanka endure the fiercest civil wars, due to their constitutional instability around ethnic power-sharing arrangements. Sri Lanka's replacement of the parliamentary system with a presidential system has created constant tension between the President and the Prime Minister causing constitutional breakdown on multiple occasions.

Now, if Bangladesh is to venture their paths, it risks sliding towards recurring phases of constitutional replacements in the future. The "New Constitution" will likely carry a constant existential threat in the short and long run. It will likely prove an easier task for the later regimes to abolish or replace it rather than going through the troublesome path of amendments and judicial reviews. It's always easier to draft a new Constitution and ask the judges of the court to take fresh oaths under that.

Historically speaking, the 4th amendment of 1975 was a "new" Constitution in all its means and purposes - a "second revolution" they called it. Still, the promoters of that amendment did not say that they were replacing the 1972 Constitution. The constitutional reforms during 1976-79 defaced the 1972 Constitution unrecognizably. Still, they called those amendments rather than replacement. The 12th Amendment of 1992 caused fundamental realignment of governance structure. Still, no political party demanded a new constitution at that time. Former Chief Justice Mustafa Kamal called it the completion of a "full constitutional cycle ". The 15th Amendment of 2011 is another major structural and ideological realignment. Again, nobody called it a rewriting of the Constitution. We believe that those tendencies were not mere historical coincidences. At every moment of our constitutional transitions, the proponents of change valued the importance of constitutional continuity and endurance. It is because of this constitutional conservatism that Bangladesh has turned around again and again with its own identity and stood with in sharp contrast with countries struggling with the very idea of Constitution.

*Dr M Jashim Ali Chowdhury, Lecturer in Law, University of Hull, UK and Sifat Tasnim, Student of Law, Bangladesh Maritime University.