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“All Citizens are Equal before Law and are Entitled to Equal Protection of Law”-Article 27 of the Constitution of the People’s Republic of Bangladesh

Issue No: 297
November 24, 2012

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Constitutional Evolution

Forty years of Bangladesh constitution: "Wandering in the wilderness"

M A Sayeed

Photo: Ahmadiyyatimes.blogspot.com

To the Hebrews, passing of a forty-year period is taken as “the passing of a generation.” The Bangladesh Constitution functioning for forty years can thus be said “to pass a generation.” Biblically, the number '40' has another significance which represents “a time of testing or judgment” (the belief that Egypt was left deserted for 40 years because of God's judgment or the Israelites spent 40 years wandering in the wilderness seems to exemplify such significance). The forty-year old Bangladesh Constitution casts a critical eye not simply because of its passage of a generation but because of such passage being more a matter of “testing or judgment.”

The experience of the first generation of our constitution is a bit blending of trick, trauma and triumph. Indeed, there will be hardly any disagreement that we are yet to be successful in formulating and reconstructing our “constitutional edifice” in the true line of our commitment to constitution and constitutionalism. Why have we been utterly unhappy with our constitutional experiments? Why is the constitution still left as a trauma, not being a tribute to the nation instead? Does the Biblical doctrine of testing or judgment founded on the presupposition of “mistake and misery” have any ramification in this regard? If so, what are the mistakes we have started with or committed repeatedly and what are the miseries going on?

The larger tapestry of our social, political and economic trend shows the impact of our constitutional crisis which often resulted in the loss of our syncretic faith in constitutionalism and good governance. That the genesis of such constitutional crisisas popularly believed always lies in the “province of our political culture” is only partially true. The truth of the matter rather invites us to explore the roots of the problem in terms of thematic and pragmatic aspects of the constitution underlying some basic constitutional and political values. In this write-up, we will try to prove that our constitution has tremendously failed in both of its thematic and pragmatic configuration. In so doing, we will put forward the following crucial concerns:

The Constitution of Bangladesh originated with the typical paradox that most of the post-colonial constitutions of the African and Asian nations have entrapped in. The paradox, as identified by Okoth-Ogendo, lies in the simultaneous existence of a “clear commitment to the idea of constitution and an emphatic rejection of the classical or at any rate liberal notion of constitutionalism.” The essential feature of such paradox is the centralization of power which actually arises out of an incurable disorder in the “power mapping.”

Our Constitution itself, since its inception, fails to envision the problem of power realities by blindly emulating the Westminster type of parliamentary democracy which has already been proved to be ill-suited to the peculiarities of our society. By making the President a titular head and uniting the legislative and executive functions in the same body of persons, our constitution practically makes the centralization of power inevitable in the historical process of redesigning our state.

The second concern lies in the fact that our constitution seems, what Murphy calls, to be “a sham or cosmetic constitution.” According to Murphy, a constitution is said to be “sham” when the constitutional text contains any element of deception. On the other hand, when the constitutional document's presentation of itself, its people, their values and decisional process is imperfect, it may be considered as “cosmetic constitution.”

The Preamble of our constitution pledges socialism as one of the fundamental principles of state policy, but the overall scheme of the constitution does not necessarily, let alone neatly, fit with the operative mechanism of socialism. In practice, the absence of socialistic ideals in almost every sphere of state life therefore makes it doubtful whether the constitution has practically served as the source of deception. Moreover, the simultaneous existence of apparently irreconcilable ideals like democracy and socialism also creates a similar doubt.

For becoming an authoritative text, a true constitution should be cautious in incorporating and politicizing the ideals getting virtually congruent with the values of the people. The degree of distance laying between the ideals our constitution contains and the values that our societies foster seems to fade the sacrosanct of our constitution. Moreover, “double standardization of ideological choice” has been a noxious feature of our constitution which allows accepting secularism by going beyond the religious belief of majority people in order to protect the religious minorities in one hand, but depriving the ethnic minorities by accepting the nationality of the majority on the other. By pledging socialism and nationalism as absolute constitutional ideals, our constitution hides the ongoing disagreement and thereby creates the possibility of fragmentation and degeneration.

To many constitutional observers, it became increasingly obvious that the defects of our constitution were originally related to the defects in our understanding of democracy and constitutionalism. The success of a constitution depends on the challenge of balancing the core principles of democracy and constitutionalism. In order to embody democratic theories, a constitutional text must protect the rights of political participation, and insofar as it embodies constitutionalism, “it must protect substantive rights by limiting the power of people's freely chosen representatives.” (Murphy: 1993)

Though our constitution ensures democratic participation, it tremendously failed to accommodate the concept of limited government which is the basic requirement of constitutionalism. The obvious consequence of such failure creates an index of “imperium government” having almost an absolute power as state authority. It also creates a dissonance between constitutional order and rest of the legal order which facilitates the emergence of a strong bureaucratic and military professionalism comprised mostly of the caprice of educated middle class.

The more important factor contributing to distressing our constitutional development is the lack of our commitment to the “autochthonous basic law.” Our constitution is said to derive its legitimacy and sanctity from the principles of autochthony (The Eight Amendment Case). The search of autochthony involves not only the rejection of external institutions and foreign constitutional devices, but also its relevancy to our indigenous and traditional social values.

However, our leaders, as Rounaq Jahan claims, “regarded the political ideology and value system developed in the imperialist [w]est… as appropriate values for adoption.” This creates a considerable dilemma in reconciling the requirement of autochthony with the 'the notion of borrowing [w]estern political ideas and institutions.' Instead of being socially relevant, our constitution adhered to the style of Westminster constitution thereby frustrating the basic postulates of autochthony. The positivist pedigree in the core of constitutional authority and our reliance on the Diceyan concept of rule of law increase the degree of such frustration.

The foregoing discussion quite clearly suggests that a document bearing the label 'Constitution' and declaring its own supremacy may not even amount to a “true constitution.” Of course, a true constitution must contain some constitutional insights nourished in the cram of political philosophy coupled with an arrangement of effective and pragmatic machinery.

Being with our tediously pessimistic observations, what our readers are thinking now? Will they nevertheless argue that we do really have a constitution, and always had? Or will they think alike that our forty-year constitutional journey was nothing but 'wandering in the wilderness?'

Interestingly, the spiritual significance of number 40 does not always push us to pessimism. We may get optimism from the fact that a fetus takes 40 weeks in the womb to be born as a full-fledged human being. So we must have a hopethe great hopethat our constitution has just been passing the period of its mother's womb. Now let's give birth to a new constitutiona constitution in the best sense.

The writer is an LLM student at the University of Dhaka.


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