The 1972 Constitution, 15th amendment and people

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 November 1st 2013

 M. Serajul Islam

The 1972 constitution was drafted out of a number of available written parliamentary constitutions at the time. If it were merely that, perhaps it would have served the interests of the people. Instead, it was drafted as the party’s gratitude to its founder. Thus while it adopted the parliamentary government, it gave the Prime Minister dictatorial powers. Unfortunately, the 1972 Constitution still did not meet  the Awami League’s need for absolute control to impose its will on the laws of the country, constitution and governance. Thus in 1974, the Awami League used the constitution’s Achilles’ heal, namely the palpably easy way it could be amended, to get rid of the constitution’s democratic pretensions and introduced one-party rule with the Fourth Amendment or the BAKSAL Amendment. The 1972 constitution handed to the Awami League that drafted it, the right as the ruling party to change/alter/amend it at will with a 2/3rd majority in parliament.

The 1972 Constitution also weakened the nation’s rock solid unity based on which it had succeeded against all odds in its war of liberation. The Proclamation of Independence adopted by the first Mujibnagar Government on April 10th, 1971, mentioned “equality, human dignity and social justice,” as the objectives for establishment of Bangladesh. These objectives united all Bangladeshis under one platform. Yet the 1972 Constitution adopted nationalism, socialism, democracy and secularism as state principles and unwittingly or deliberately sowed the seeds of destroying that rock like unity of 1971. No constitutional historian has so far examined these principles to inquire where they came from or their shortcomings. For instance, nationalism based on language automatically excluded the country’s non-Bengali speaking tribal community. Socialism and democracy are mutually contradictory; democracy is based on the principle of freedom of thought and expression while socialism is based on restricting choices. Secularism has pushed the religion of the majority into insignificance.

Stranglehold on Constitution
The 1972 Constitution was drafted to be the instrument in the hands of the Awami League to further its interests. The amendment process was made unbelievably easy intentionally. The 1972 Constitution that gave the Prime Minister unlimited powers to please the Father of the Nation also made the amendment process palpably easy to give the Awami League the stranglehold on the constitution. Unfortunately, the framers did not consider that the AL would lose power as it did with the tragic change of government on August 15th 1975. Thus when other parties assumed power they too amended the constitution at will to serve their interests. HM Ershad introduced the 8th Amendment in 1988 by which Islam was introduced as the state religion to legitimize his hold on power. The AL forced the BNP Government in 1996 to amend the constitution to ensure, ironically, the caretaker government (CTG) for holding elections that it now considers undemocratic. The people were taken for granted in making these changes/amendments/alternations to the constitution.

The 15th Amendment that has sent the country on its journey towards doomsday has been no exception. One could say, the founding fathers of the 1972 constitution after all had a vision. They wanted their party to become the only party in the country and drafted the constitution to be an instrument of that vision. Unfortunately, they could not visualize August 15th 1975. The vision of the founding fathers thus remained dormant till the Awami League won its 3/4th majority in the 9th parliament. That vision that political power over Bangladesh would not just be with the Awami League but also in the safe hands of the Prime Minister has been realized with the 15th Amendment. It was a Court’s order with which the Awami League started the process of the 15th Amendment. That order had recommended 2 more elections under the CTG. The All Party Parliamentary Committee that drafted it, that was a Committee of the Awami League, was unanimous about 2 more elections under the CTG. Eight of the 10 Amicus Curie that Committee had consulted also wanted 2 more elections under the CTG. The recommendation for 2 more elections under the CTG was made because those who made it realized that the lack of trust of the opposition in the ruling party and the politics of conflict would make it impossible to hold elections under party government till politics improved qualitatively and the trust was established between the AL and the BNP.

Consensus disregarded
The Prime Minister using the absolute powers of the Prime Minister in the 1972 Constitution disregarded the consensus view of 2 elections under the CTG because her vision was the vision with which the founding fathers of the 1972 constitution had drafted it, a Bangladesh where AL would be the only party and where the Prime Minister would have unchallenged powers. The 15th Amendment ended the last bit of people’s authority in the constitution; it scrapped the provision of referendum from the constitution thus making its commitment that the country’s sovereignty rests with the people, a farce. In fact, the 15th Amendment, the way it has been drafted and passed; the way it has divided the nation and the way it has undermined people’s will has unequivocally underlined the weakness and irrelevance of the 1972 Constitution as a people’s document and established it as the document for upholding the interests of the Awami League. The imprint of the BAKSAL is too clearly evident in the 15h Amendment to escape even a causal glance because it has put the system of elections under the Interim or Party (read Awami League) Government in place of the CTG in clear knowledge that the BNP would not participate.

It is in the backdrop of these developments that the ruling party is making statements that are difficult to comprehend. The AL leaders led by the Prime Minister are dismissing the demand of the opposition for election under the CTG on the ground that the constitution does not permit it. The demand for elections under the CTG is not just the demand of the BNP; it has become the demand of the rest of the nation. Apart from the BNP, the next largest party in parliament, the Jatiya Party has demanded it, as has a wide array of smaller parties of the country. In fact, if there has ever been consensus on the way out of a grave national crisis in Bangladesh, it is the current demand in the country for elections under the CTG. All friends of Bangladesh abroad including the UN have likewise urged the ruling party to ensure that the country would have free, fair, transparent and “inclusive” national election which is another way of telling it to leave aside its lame constitutional argument and resolve the election issue with the opposition.

CTG is not in AL’s interest
The reality concerning the 1972 constitution therefore makes the AL led government’s argument that it cannot oblige to the BNP’s demand for elections under the CTG on constitutional ground just another way of saying it would not oblige because it is not in its interest to do so. If the AL were willing to accede to the BNP and the wish of the people, it could do so with the same ease with which it introduced the 15th Amendment. In fact obliging the BNP and the people and also the wishes of friends of Bangladesh interested in the country’s well being and saving the nation from a catastrophe is as simple as the Prime Minister nodding her head. The 1972 constitution has made this that palpably easy. The constitutional argument of the AL against resolving the current political crisis in Bangladesh is therefore nothing but a lame excuse. The Prime Minister herself inadvertently undermined the constitutional argument when she offered to hold elections under All Party Government to weaken the BNP’s call for the CTG. There is no mention of elections under All Party Government anywhere in the 1972 Constitution.

In the face of the AL’s insistence to go into denial over the weakness of its constitutional argument, the country’s constitutional experts could rise over party lines and give their opinion for the good of Bangladesh. There is no doubt that the people would have opted for the CTG overwhelmingly if a referendum had been held over it. The constitutional argument of the ruling party against the CTG is therefore irrelevant if reason were to guide the arguments of the ruling party. The AL led government could save the country from certain disaster by re-introducing the CTG and holding elections under it as easily as it had scrapped it. In fact, it could even do better. It could negotiate its reservations about the CTG with the BNP, make changes and alterations in the framework and then agree upon the individuals and elect them as the CTG using its 3/4th majority that would take care of its constitutional concern that only elected government could elect a democratic government.

That if the AL were to do it could be one useful purpose that the 1972 Constitution could do for the country. Nevertheless, after the sun sets on the present unfortunate chapter of our politics and a new dawn arises, it would be imperative for the country to revisit the 1972 Constitution that was drafted as the rulers’ document. As long as it exists in its present form, the people are not going to believe any ruling party  when it raises the constitutional argument to defend any of its actions. The constitutional history of the country is replete with too many examples to prove the point. The 15th Amendment has been the straw that broke the camel’s back regarding the 1972 constitution’s credibility. The country badly needs a pro-people constitution to save it from its perennial trysts with political crisis that are created deliberately by the ruling party to protect its interests.
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The writer is a retired career Ambassador.