[🇧🇩] Everything about our constitution

Saif · Nov 27, 2024

A multi-racial, multi-cultural, gender sensitive constitution

Representatives from civil society and different organisations yesterday proposed for a multi-racial constitution that will acknowledge multiple languages, cultures, religions, and gender sensitivity.

www.thedailystar.net

A multi-racial, multi-cultural, gender sensitive constitution
Propose civil society, orgs to reform commission

Representatives from civil society and different organisations yesterday proposed for a multi-racial constitution that will acknowledge multiple languages, cultures, religions, and gender sensitivity.

They also suggested allowing people with dual citizenship to run for the position of Member of Parliament but not to hold top-level executive positions.

They placed their proposals before the constitutional reform commission led by Prof Ali Riaz, during a meeting that was part of its ongoing stakeholder consultations. The meeting was held at the National Parliament Building.

Justice Iman Ali, Chief of the Chakma Circle Devasish Roy, and Prof Md Robiul Islam gave recommendations on constitutional reforms.

Talking to The Daily Star, Devasish Roy said he proposed to include indigenous people in the constitution-drafting process to ensure that they, too, feel ownership of the constitution.

He also proposed that the preamble of the constitution should recognise the historical role of the people of different ethnic, religious, linguistic, and other backgrounds, alongside marginalised groups, who have been defending the integrity of the country's territory for centuries and nurturing its biodiversity.

"Some of the fundamental principles should be included as fundamental rights so that they are judicially enforceable, like rights to healthcare, food and nutrition, and quality education," he said.

He also demanded that Article 36 should be amended to acknowledge the need to provide reasonable restrictions to the acquisition of land ownership rights in tribal areas in the CHT and plains.

He recommended incorporating laws like the 1900 Regulations and post-CHT Accord laws of 1998 (on regional and district councils), which protect indigenous people, into the first schedule of the constitution.

Prof Mirza Taslima and Kazi Maruful Islam, representing the University Teachers' Network, also proposed several recommendations.

Contacted, Prof Taslima said she emphasised making the constitution multi-racial and acknowledging diverse languages, cultures, religions, and gender sensitivity in the constitution, while Prof Maruful talked about how the parliament should be.

Roman Uddin and Apon Zahir from the Centre for Governance Studies also presented their proposals.

Speaking to the newspaper, Apon Zahir said they suggested that elections should only be considered legitimate if voter turnout exceeds 51 percent.

He reiterated the proposal to allow individuals with dual citizenship to run for parliament but not hold top executive roles.

They recommended recognising indigenous identities in the constitution.

They also recommended explicitly declaring all forms of discrimination against indigenous peoples, as well as religious and ethnic minorities, illegal.

The organisations and representatives attending the meeting included Akhtar Hossain Khan from the Newspaper Owners' Association of Bangladesh (NOAB); Sanjida Islam Tulee and Mushfiqur Rahman Johan from Mayer Dak; Tamanna Singh Baraik and Puja Rani from the Dalit Women's Forum; Nadira Parveen and Sultan Md Salauddin Siddique from Nagorik Udyog; Joya Shikder and Sudip Kumar Das from Sampurna; Md Junaid and Mohammad Millat Hossain from the Bangladesh Judicial Service Association; and Nazma Akter from the Combined Garment Workers' Federation.

Members of the commission present at the meeting included Prof Sumaiya Khair, Barrister Imran Siddiq, Prof Mohammad Ikramul Haque, Barrister M Moin Alam Firozi, Firoz Ahmed, and Md Mustain Billah.

Saif · Dec 15, 2024

Democratic rewrite of constitution

THE call for constitutional change in Bangladesh has intensified, not merely for refinement but as a profound demand for democratic renewal. Reforming the 1972 constitution within its current framework overlooks a critical reality: the document is itself embedded with principles that have...

www.newagebd.net

Democratic rewrite of constitution
Kazi ASM Nurul Huda 16 December, 2024, 00:00

THE call for constitutional change in Bangladesh has intensified, not merely for refinement but as a profound demand for democratic renewal. Reforming the 1972 constitution within its current framework overlooks a critical reality: the document is itself embedded with principles that have enabled authoritarianism rather than safeguarded against it, which contradicts the spirit of Bangladesh’s 1971 liberation war. The question now is whether a complete rewrite is necessary to eliminate entrenched authoritarian elements to create a future rooted in the values of equality, human dignity and social justice that inspired the nation’s fight for independence.

This debate on reforming versus rewriting goes beyond semantics; it signifies fundamentally different intentions that shape the extent of change. Reform implies a focused attempt to improve specific areas within an existing framework, with the assumption that the foundation is sound but needs updates to address new or evolving needs. In contrast, rewriting signifies a complete rethinking of the entire structure, often suggesting that the current framework is fundamentally flawed, misaligned or outdated.

The choice to rewrite raises questions of intent and often sparks resistance, as it implies inherent flaws in the original document. Supporters of rewriting Bangladesh’s 1972 constitution argue that certain provisions promote authoritarianism, a drift so deeply embedded that only a full overhaul can eliminate this risk. This stance, while contentious, argues that the current constitution is incompatible with modern democratic ideals and requires a new foundation rather than incremental updates.

In contrast, reformation aims to refine or strengthen the existing framework without replacing it entirely. Proponents of constitutional reformation in Bangladesh argue that careful adjustments to select provisions can mitigate authoritarian risks while preserving the essence of the 1972 Constitution. By respecting the original intentions of its framers, reformation offers continuity and proposes a constructive way forward without discarding the document’s core values.

The debate around the constitution also touches a deeper historical chord. The central question surrounding the 1972 constitution is whether it genuinely embodied the high ideals of equality, human dignity, and social justice set forth in paragraph 12 of the 1971 Proclamation of Bangladesh Independence, issued on April 10, 1971, by the provisional government of Bangladesh in Mujibnagar. Although these values appear in the constitution’s preamble, they were not codified as core state principles. Instead, the constitution adopted four guiding pillars — nationalism, socialism, democracy and secularism — that were not part of the original Proclamation. This substitution, ostensibly to uphold the Liberation War’s spirit, may have instead distorted it. For a document foundational to national identity, it is crucial to question why these ideals were replaced and who stood to benefit from this shift.

The long-term consequences of these decisions have grown clearer over time. By embedding the four pillars as the constitution’s core, the framers arguably created a framework that allowed for authoritarian practices in Bangladesh’s politics over the past 50 years. The extended rule of the Awami League from 2009 to 2024 illustrates how these principles have facilitated power consolidation and created a system that prioritises specific political interests over true democratic representation.

A constitution that repeatedly enables authoritarianism likely has inherent issues. The constitution’s foundational pillars have justified selective policies that favour certain interests, compromise freedom of expression, and restrict economic opportunity. Nationalism, for example, has been invoked to justify policies that limit dissent, while secularism, though intended for harmony, has restricted political expression. Similarly, socialism, meant to promote equality, has sometimes justified restrictive economic policies. These foundational principles have promoted an environment where authoritarianism can take root and thrive.

When the foundational principles themselves allow authoritarian drift, reform alone is unlikely to deliver the transformative change that Bangladesh needs. Isolated amendments might temporarily curb authoritarian tendencies but cannot reshape a framework that ultimately prioritises certain interests over democratic will. Even an extensively revised 1972 constitution would still carry the weight of principles misaligned with democratic ideals. Under these circumstances, reform risks becoming a superficial fix when a fundamental shift is essential. The entrenched values that permeate and compromise the entire document suggest that only a comprehensive rewrite could enable the constitution to authentically reflect the original ideals of the liberation war, ideals that serve neither any particular person’s interest nor any party’s ideology.

Though rewriting a constitution is a significant undertaking requiring thorough justification, the way the 1972 constitution embeds elements that diverge from the Liberation War’s spirit — elements that cater to specific interests over a genuinely inclusive national ethos — suggests that rewriting may be more appropriate than simple or substantial reformation. A rewritten constitution could better align with the ideals of the 1971 Proclamation and more effectively support democratic governance.

What would a rewrite of the constitution entail, and why is it necessary? A comprehensive constitutional rewrite would mean re-examining each element of the document to build a democratic framework from the ground up. This new constitution would need to incorporate the ideals of equality, human dignity, and social justice that inspired the Liberation War and implement safeguards to prevent power consolidation. By starting anew, Bangladesh could craft a constitutional framework that genuinely respects the aspirations of its people rather than historical political interests.

A new constitution would also serve as a symbolic reaffirmation of the liberation war’s values, honouring those who sacrificed for these ideals. This symbolic aspect is no less important than the legal ramifications, as it represents a collective reimagining of national identity and purpose.

Creating a new constitution, however, is not simple. It requires broad consensus, thoughtful debate, and transparency involving diverse voices across Bangladeshi society to ensure that the new document reflects the will of the people rather than a single political ideology or interest. In this way, a new constitution could serve as a bulwark against the cycle of authoritarian governance that has plagued Bangladesh’s history.

While it’s true that a constitution alone, however perfect it is, cannot guarantee democracy, it does provide the essential framework upon which democratic culture and public commitment to democratic principles can grow. Some might argue that rewriting Bangladesh’s constitution risks greater instability in an already politically volatile nation. However, much of the current instability stems from authoritarian abuses embedded in the existing constitutional structure. A new constitution, with strong democratic checks and balances, could actually serve as a stabilising force by dismantling mechanisms that allow power consolidation and political centralization. This foundational change would give Bangladesh a chance to build a political environment rooted in democratic integrity. It would create the essential space for political culture, education, and public awareness to flourish around democratic values instead of being eroded by partisan interests.

In fine, the case for a new constitution in Bangladesh is not merely about legal reform but about reimagining the nation’s political identity. Crafting a document that embodies the genuine spirit of the liberation war and the principles of a democratic society would pave the way towards a future free from authoritarianism. The question, then, is no longer merely whether the constitution needs reform but rather how it should be rewritten to lay the foundation for a genuinely democratic Bangladesh and who is entitled to undertake this task.

Kazi ASM Nurul Huda is an associate professor of philosophy at the University of Dhaka. He holds a PhD in philosophy from the University of Oklahoma, USA.

Saif · Dec 17, 2024

Reviving caretaker govt system reflects people’s expectations: Shahdeen Malik

'It will pave the way for a more democratic Bangladesh,' said the constitution expert

www.thedailystar.net

Reviving caretaker govt system reflects people’s expectations: Shahdeen Malik

Eminent jurist Shahdeen Malik today said reviving the caretaker government system certainly reflects people's expectations.

"It will pave the way for a more democratic Bangladesh," said the constitution expert in his impromptu reaction to The Daily Star after a High Court verdict on the 15th amendment of the constitution.

The HC today scrapped a part of the constitution's 15th amendment that cancelled the provision of the non-party caretaker government system and restored the provision of the referendum for bringing any amendment to the constitution.

The abolition of the non-party caretaker government system is void and unconstitutional as it destroyed democracy, free and fair elections, and the independence of judiciary which are the basic structures of the constitution, the court said.

Delivering the verdict on two separate writ petitions, the HC also struck down articles 7(A) and 7(B) of the Constitution, declaring them void and unconstitutional.

"Bringing back the provision for referendum is also certainly a welcome decision," said Shahdeen.

"Articles 7(A) and 7(B) were in conflict with the constitution, so it was expected that these would be declared unconstitutional," he added.

Article 7(A) of the Constitution pertained to the use of force and other unconstitutional means to "abrogate, repeal or suspend" the Constitution or any of its articles.

Article 7(B) makes certain parts of the Constitution unamendable "by way of insertion, modification, substitution, repeal or by any other means".

The HC declared unconstitutional the parts of the 15th Amendment Act, which scrapped the 13th amendment that had introduced the non-party caretaker government system in 1996, and brought significant changes to the charter.

In the verdict, the HC did not interfere in the provisions of the 15th Amendment Act which deals with the state principles including secularism, socialism, state region, nationalism, father of the nation and the number of reserved seats for women in parliament, saying that the future governments will decide these issues.

The 15th Amendment was passed in the parliament in 2011.

Saif · Dec 18, 2024

Scrapping caretaker government system unconstitutional: HC

HC also restored provision for referendums for constitutional amendments; repealed articles 7A, 7B; upheld state principles

www.thedailystar.net

Scrapping caretaker government system unconstitutional: HC

HC also restored provision for referendums for constitutional amendments; repealed articles 7A, 7B; upheld state principles

The High Court today scrapped a part of the constitution's 15th amendment that cancelled the provision of the non-party caretaker government system and restored the provision of the referendum for bringing any amendment to the constitution.

The abolition of the non-party caretaker government system is void and unconstitutional as the abolition has destroyed democracy, free and fair elections, independence of judiciary which are the basic structures of the Constitution, the court said.

Delivering verdict on two separate writ petitions, the HC also struck down articles 7 (A) and 7 (B) of the Constitution, declaring them void and unconstitutional.

Article 7 (A) of the Bangladesh Constitution pertained to the use of force and other unconstitutional means to "abrogate, repeal or suspend" the Constitutions or any of its articles.

Article 7 (B) makes certain parts of the Constitution unamendable "by way of insertion, modification, substitution, repeal or by any other means".

The HC declared unconstitutional the parts of the 15th Amendment Act, which scrapped the 13th amendment that had introduced the non-party caretaker government system in 1996, and brought significant changes to the charter.

In the verdict, the HC did not interfere in the provisions of the 15th Amendment Act which deals with the state principles including the secularism, socialism, state region, nationalism, father of the nation and number of reserved seats for women in parliament, saying that the future governments will take the decision about these issues.

The court also clarified the current interim government is not a caretaker government.

It said the present government government is totally different as it was formed by the president after he sought the opinion of the Appellate Division of Supreme Court under article 106 of the constitution.

Article 106 says, "If at any time it appears to the President that a question of law has arisen, or is likely to arise, which is of such a nature and of such public importance that it is expedient to obtain the opinion of the Supreme Court upon it, he may refer the question to the Appellate Division for consideration and the division may, after such hearing as it thinks fit, report its opinion thereon to the President."

The High Court bench of Justice Farah Mahbub and Justice Debasish Roy Chowdhury delivered the verdict following two separate writ petitions challenging the constitutionality of the 15th amendment to the constitution.

On December 5, the bench fixed today as the date for the announcement of the judgement after concluding hearings on the petitions.

The court has heard arguments on the petitions for 12 working days. One of the writ petitions was filed by Mofazzal Hossain, a freedom fighter from Narayanpara, Naogaon.

On October 19, the HC bench led by Justice Farah Mahbub issued a rule asking the government to explain why the Constitution (15th Amendment) Act, 2011, should not be declared unconstitutional. It also questioned why actions taken under the amendment should not be invalidated.

On August 19, another HC bench led by Justice Naima Haider, who is currently on leave, issued a similar rule following a writ petition filed by five citizens.

The petitioners included – Badiul Alam Majumdar, secretary of Shushashoner Jonno Nagorik, along with Tofail Ahmed, M Hafizuddin Khan, Md Jobirul Hoque Bhuiyan, and Zahrah Rahman. The petitioners, submitting their case as a public interest litigation, argued that the abolition of the non-party caretaker government system through the 15th amendment led to three consecutive disputed elections in 2014, 2018, and 2024.

Apart from the writ petitioners and the state, few political parties, including BNP and Jamaat-e-Islami and some SC lawyers have placed arguments before the HC against the 15th amendment and in favour of the caretaker government system.