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A ‘new constitution’ and my discontents
Constitution-making is invariably an “elitist” chore, as scholars rightly call it “equitable elite bargaining.”
A ‘new constitution’ and my discontents
FILE VISUAL: ANWAR SOHEL
Since the fall of the Awami League government, we have been debating prospects of transitioning into a new republic with a new constitution. With the inception of the Jatiyo Nagorik Party (JNP), the debates and discussions are now taking a definite shape. We now have several concrete arguments with time—and alongside, the discontents too.
One argument is that the 1972 constitution-making episode was elitist and dominated by one party. It is quite a fair criticism that resonates with many feminist, Marxist scholars about virtually any constitution of the world. However, it is not clear whether any constitution-making episode can stand blameless on this count.
Studies on constitutionalism have always been saturated with discussions on how dominant political parties' ideologies influence constitution building—be it a one-party, authoritarian, or a liberal-democratic state. In appraising the one-party dominance over the 1972 constitution-making episode, we must consider the historical contingencies too, characterised by the Liberation War, its antecedents and political aftermath, the need for post-war reconstruction and solidification of a constitutional identity. Some say that the constituent assembly members were elected under the Legal Framework Order (LFO) 1970 of the erstwhile Pakistan, and hence, the constitution they drafted needs to be replaced with a new one. However, it must be noted that following the constitutional subversion facilitated by Ayub Khan, the LFO came as a remarkable political win, posing one concrete opportunity for democratic transition. Therefore, the significance of the moment within which the LFO came into being cannot be overstated.
Pertinently, the Proclamation of Independence (which we all agree to be our first constitution) as adopted on April 10, 1971 (with retrospective effect from the March 26, 1971), the representatives elected in the 1970 elections constituted themselves into a "Constituent Assembly" for drafting a constitution for an independent Bangladesh. Following the war, the Provisional Constitution of Bangladesh Order of 1972 further defined the same elected representatives as the "Constituent Assembly" who, in fact, later drafted and adopted the existing constitution of Bangladesh. While the JNP vows to protect the ideals of shammo, manobik morjada, and shamajik shubichar (that were categorically enshrined in the Proclamation of Independence), the process of adopting a new constitution as laid down in the same document cannot be ignored. If we adopt historiographical lenses, then the immense political significance of 1970 elections and its aftermath can also not be downplayed as that would undermine both the wartime and post-war politico-constitutional consensus. Against this backdrop, the dominance of the Awami League among the elected representatives in the 1970 elections must be seen as rather a historical fact, which cannot be accounted for through myopic presentist lenses.
In any case, constitution-making is invariably an "elitist" chore, as scholars rightly call it "equitable elite bargaining." Whoever makes the constitution at a given point of time are always, invariably, the political elites, impersonating "we, the people" at times through "elections", through "eliciting opinions from the people" or at other times, through "referenda". Now that the JNP is asking for a new constitution, and as the idea of a new constitution seemingly stems from their political vision for a "second republic", won't claims about their dominance, at least in terms of steering the process, be legitimate too?
To simplify matters, some propose having a parliament act as a constituent assembly (put in place through simultaneous elections). Such an arrangement will be all the more "exclusive" and "elitist," potentially rendering the parliament cum constituent assembly authoritarian as virtually subservient-to-none. Similar experience in Venezuela under Nicolás Maduro provides a cautionary tale in this regard. Alternatively, such an arrangement can usher in major political instability and long-term disunity too, particularly amid a rapidly shifting political landscape like ours.
Interestingly, I may say, based on questionable lack of women's representation and lack of an explicit feminist methodological approach to drafting constitutions, that virtually all constitutions are unfairly dominated by men (e.g., one "sex") and their exclusionary ideologies. This argument will not be tenable because of the systemic inequalities that exist and because women as a group do not have the political capital as such. Indeed, for those who are left out of the process, a constitution-making episode will always look "exclusionary," "elitist," and dominated by "others," and because constitutions are only imperfect ideological settlements that only a sustainable culture of democracy can carry forward.
Another key argument is that the existing constitution is "fascistic." Authoritarianism or fascism is an indefensible political vision, a conscious governance choice, and an inanimate constitution cannot be blamed for that unless it explicitly provides for one-party rule or authoritarianism. In many authoritarian or paternalist countries, apparently good reading constitutions are kept simply as tools of window dressing. The democratic subversion in the post-independence Bangladesh was facilitated by a series of constitutional amendments, which irreparably whittled down constitutional checks and balances (e.g. fourth constitutional amendment), subverted the constitutional mandate of democratic rule (e.g. fifth and seventh constitutional amendments), and monopolised a static constitutional narrative and thereby contributed to democratic backsliding (e.g., fifteenth constitutional amendment). But these were but amendments—not the constitution itself. The Awami League government, time and again, co-opted constitution-based rhetorics while remaining authoritarian, but that is a classic example of abusing the constitution, not of "using" one. Instances of abusing the constitution were prominent during other military and non-military regimes too. Indeed, blaming the constitution for explaining the political follies and calling for its replacement without addressing its political understructure is quite enervated and does not align with the vigour and acumen that our youth shows otherwise.
While arguing for a new republic, the JNP often refers to France, which I do not think offers a useful, appropriable example for our context. A cardinal yet uncomplicated rule of adopting constitutional experiences is that we cannot transplant an idea without accounting for the overarching politico-cultural contexts. Indeed, transplanting an 1852 idea into a 2025 postcolonial independent country sounds perversely counterintuitive as there are literally no parallels that we can draw to begin a sensical comparison (other than the fact that France opted for a second republic).
Pertinently, contemporary instances only show how new constitution-making episodes can potentially bring in disunity, violence, and instabilities. We do have the inspiring instance of South Africa, which chose to undo its constitutional order rooted in apartheid, racialised political and governance structure, and explicit electoral discrimination against the non-Whites. What do we seek to undo? Persistent culture of rights violations, authoritarian governance, and democratic deficit? But the existing constitution permits/endorses none of these. Certainly, state powers could be better organised and less concentrated in the existing constitution, but that does not make the entire constitution expendable and does not necessitate making an entirely new one. Finally, any new constitution will not be entirely "new" as such unless we opt for something other than a liberal democratic constitutional order. In fact, some scholars suggest that the very idea of replacing an old constitution with a new one is a "myth" and is only possible in theory. In practice, there will always be constitutional/legal continuity. A so-called new constitution will perhaps only arrange things in a different order, expand on or restrict certain rights, and may dilute some commitments. What troubles me is the idea of going over the entire process all over again, of deepening and entrenching divisions, producing new binaries, reinforcing the existing ones, and so on. And the people who lie in the fringes and the margins will not be able to withstand that.
Psymhe Wadud teaches law at the University of Dhaka and is in charge of Law & Our Rights at The Daily Star.
FILE VISUAL: ANWAR SOHEL
Since the fall of the Awami League government, we have been debating prospects of transitioning into a new republic with a new constitution. With the inception of the Jatiyo Nagorik Party (JNP), the debates and discussions are now taking a definite shape. We now have several concrete arguments with time—and alongside, the discontents too.
One argument is that the 1972 constitution-making episode was elitist and dominated by one party. It is quite a fair criticism that resonates with many feminist, Marxist scholars about virtually any constitution of the world. However, it is not clear whether any constitution-making episode can stand blameless on this count.
Studies on constitutionalism have always been saturated with discussions on how dominant political parties' ideologies influence constitution building—be it a one-party, authoritarian, or a liberal-democratic state. In appraising the one-party dominance over the 1972 constitution-making episode, we must consider the historical contingencies too, characterised by the Liberation War, its antecedents and political aftermath, the need for post-war reconstruction and solidification of a constitutional identity. Some say that the constituent assembly members were elected under the Legal Framework Order (LFO) 1970 of the erstwhile Pakistan, and hence, the constitution they drafted needs to be replaced with a new one. However, it must be noted that following the constitutional subversion facilitated by Ayub Khan, the LFO came as a remarkable political win, posing one concrete opportunity for democratic transition. Therefore, the significance of the moment within which the LFO came into being cannot be overstated.
Pertinently, the Proclamation of Independence (which we all agree to be our first constitution) as adopted on April 10, 1971 (with retrospective effect from the March 26, 1971), the representatives elected in the 1970 elections constituted themselves into a "Constituent Assembly" for drafting a constitution for an independent Bangladesh. Following the war, the Provisional Constitution of Bangladesh Order of 1972 further defined the same elected representatives as the "Constituent Assembly" who, in fact, later drafted and adopted the existing constitution of Bangladesh. While the JNP vows to protect the ideals of shammo, manobik morjada, and shamajik shubichar (that were categorically enshrined in the Proclamation of Independence), the process of adopting a new constitution as laid down in the same document cannot be ignored. If we adopt historiographical lenses, then the immense political significance of 1970 elections and its aftermath can also not be downplayed as that would undermine both the wartime and post-war politico-constitutional consensus. Against this backdrop, the dominance of the Awami League among the elected representatives in the 1970 elections must be seen as rather a historical fact, which cannot be accounted for through myopic presentist lenses.
In any case, constitution-making is invariably an "elitist" chore, as scholars rightly call it "equitable elite bargaining." Whoever makes the constitution at a given point of time are always, invariably, the political elites, impersonating "we, the people" at times through "elections", through "eliciting opinions from the people" or at other times, through "referenda". Now that the JNP is asking for a new constitution, and as the idea of a new constitution seemingly stems from their political vision for a "second republic", won't claims about their dominance, at least in terms of steering the process, be legitimate too?
To simplify matters, some propose having a parliament act as a constituent assembly (put in place through simultaneous elections). Such an arrangement will be all the more "exclusive" and "elitist," potentially rendering the parliament cum constituent assembly authoritarian as virtually subservient-to-none. Similar experience in Venezuela under Nicolás Maduro provides a cautionary tale in this regard. Alternatively, such an arrangement can usher in major political instability and long-term disunity too, particularly amid a rapidly shifting political landscape like ours.
Interestingly, I may say, based on questionable lack of women's representation and lack of an explicit feminist methodological approach to drafting constitutions, that virtually all constitutions are unfairly dominated by men (e.g., one "sex") and their exclusionary ideologies. This argument will not be tenable because of the systemic inequalities that exist and because women as a group do not have the political capital as such. Indeed, for those who are left out of the process, a constitution-making episode will always look "exclusionary," "elitist," and dominated by "others," and because constitutions are only imperfect ideological settlements that only a sustainable culture of democracy can carry forward.
Another key argument is that the existing constitution is "fascistic." Authoritarianism or fascism is an indefensible political vision, a conscious governance choice, and an inanimate constitution cannot be blamed for that unless it explicitly provides for one-party rule or authoritarianism. In many authoritarian or paternalist countries, apparently good reading constitutions are kept simply as tools of window dressing. The democratic subversion in the post-independence Bangladesh was facilitated by a series of constitutional amendments, which irreparably whittled down constitutional checks and balances (e.g. fourth constitutional amendment), subverted the constitutional mandate of democratic rule (e.g. fifth and seventh constitutional amendments), and monopolised a static constitutional narrative and thereby contributed to democratic backsliding (e.g., fifteenth constitutional amendment). But these were but amendments—not the constitution itself. The Awami League government, time and again, co-opted constitution-based rhetorics while remaining authoritarian, but that is a classic example of abusing the constitution, not of "using" one. Instances of abusing the constitution were prominent during other military and non-military regimes too. Indeed, blaming the constitution for explaining the political follies and calling for its replacement without addressing its political understructure is quite enervated and does not align with the vigour and acumen that our youth shows otherwise.
While arguing for a new republic, the JNP often refers to France, which I do not think offers a useful, appropriable example for our context. A cardinal yet uncomplicated rule of adopting constitutional experiences is that we cannot transplant an idea without accounting for the overarching politico-cultural contexts. Indeed, transplanting an 1852 idea into a 2025 postcolonial independent country sounds perversely counterintuitive as there are literally no parallels that we can draw to begin a sensical comparison (other than the fact that France opted for a second republic).
Pertinently, contemporary instances only show how new constitution-making episodes can potentially bring in disunity, violence, and instabilities. We do have the inspiring instance of South Africa, which chose to undo its constitutional order rooted in apartheid, racialised political and governance structure, and explicit electoral discrimination against the non-Whites. What do we seek to undo? Persistent culture of rights violations, authoritarian governance, and democratic deficit? But the existing constitution permits/endorses none of these. Certainly, state powers could be better organised and less concentrated in the existing constitution, but that does not make the entire constitution expendable and does not necessitate making an entirely new one. Finally, any new constitution will not be entirely "new" as such unless we opt for something other than a liberal democratic constitutional order. In fact, some scholars suggest that the very idea of replacing an old constitution with a new one is a "myth" and is only possible in theory. In practice, there will always be constitutional/legal continuity. A so-called new constitution will perhaps only arrange things in a different order, expand on or restrict certain rights, and may dilute some commitments. What troubles me is the idea of going over the entire process all over again, of deepening and entrenching divisions, producing new binaries, reinforcing the existing ones, and so on. And the people who lie in the fringes and the margins will not be able to withstand that.
Psymhe Wadud teaches law at the University of Dhaka and is in charge of Law & Our Rights at The Daily Star.
