 |
| Md Tanvir Ahmed Sarker |
Introduction:
"We the people are
the rightful masters of both Congress and the courts, not to overthrow the
Constitution but to overthrow the men who pervert the Constitution." –
Abraham Lincoln
The
constitution is the supreme or apex law in most of the states or countries in
this world. A country is mostly governed by its constitution because all other
laws follow the constitution. The Constitution is the fundamental legislation
of a nation that describes the power as well as limitations of the
government and the rights and duties of citizens. It is a vital document that
defines the foundation for the governance of a country and serves as a shield
against tyranny and abuse of authority.
The
Constitution of the Republic of Bangladesh is the supreme law of Bangladesh.
The Constitution itself establishes its own supremacy under section 7. Again in
article 7(2), it states that “any other law inconsistent with the constitution
will be void.” Bangladesh adopted its constitution back on November 4, 1972,
and it came into effect on 16 December 1972. Over time, the Constitution of
Bangladesh has been amended 17 times.
Amending a
constitution from time to time is important for numerous reasons; adjusting to
societal change, improving rights and liberties, illustrating constitutional
concepts, advancing democratic ideals, and addressing structural problems are a
few of the reasons.
This is a
pivotal time for Bangladesh. We might argue that it is a post-revelation
time, and the constitution of Bangladesh requires reformation in the aftermath
of this revelation. In light of these considerations, this essay critically
analyzes the necessity, challenges, and potential impacts of constitutional
amendments in Bangladesh, particularly in strengthening democracy, protecting
minority rights, ensuring good governance, and upholding judicial independence
in this crucial time.
Addressing
the Need for Constitutional Reform:
The world is constantly changing, and along with it,
our surroundings are also evolving. We must adapt to these changes. Since the
independence of Bangladesh, when the constitution was adopted back in 1972,
Bangladesh changed a lot. It's 53 years of independence. Between this time, the
constitution was amended 17 times by the government, which was in power. . Most of
these modifications, with the exception of two or three, were passed to further the interests of
the ruling party
rather than those
of the country
and its people.[1]
Constitutions
need to evolve from time to time. Reform ensures the constitution remains
relevant and effective in addressing contemporary challenges.
The aspiration to
establish a nation founded on equality, human dignity, and social justice has
been fundamental to the creation of Bangladesh. Over the past 15 years, this
nation has experienced a significant deviation from those values, yielding to
the influence of fascism. Democratic institutions have been methodically
undermined, facilitating the emergence of authoritarian governance. Essential
human rights and democratic liberties have been violated, and the ambitions
that formerly motivated the populace to strive for independence have been
supplanted by dynastic and oppressive regimes.[2]
The constitution is, in
essence, the "manual" for governing a state. The fundamental tenets
of the constitution are intended to direct state governance. They must be
grounded on values rather than ideology. Since society is composed of a variety
of beliefs, ideological frameworks invariably result in conflict. Ideological
frameworks have not produced any long-term benefits for Bangladesh; rather,
they have widened divisions over the country's fifty years of government under
different regimes.[3]
The need
for reform of the constitution is urgent; the previous government, in their
15-year regime, amended the constitution in their interest. By amending the
constitution with their interest and ideology, they curtailed the object of a
constitution. They curtailed democracy, good governance, judicial independence,
minority rights, and many other things for their interest to prolong their
regime.
Towards
a Stronger and More Inclusive Democracy:
Bangladesh is a democratic country per its
constitution. But there are tremendous lacks in the genuine scenes of
democracy. Democracy is a system of administration in which laws, policies,
leadership, and major projects of a state or other polity are directly or
indirectly decided by the “people.” So the main element of democracy is people.
Some key issues to the democratic deficit include: The consolidation of
authority within the executive branch has damaged the balance of power across
government institutions. Article 70 of the Constitution restricts Members of
Parliament from voting against their party lines, limiting their independence
and stifling parliamentary debate. This article restrain the progress of a
vibrant legislative process and reduce democratic deliberation.[4] Election
process in our country has been called into question by issues like voter
suppression, political violence, and electoral fraud. A truly representative
government cannot be established because of these problems, which also
undermine public confidence in the democratic process. Political
interference in judicial appointments and decisions has compromised the
independence of the judiciary. An impartial judiciary is crucial for upholding
the rule of law and protecting citizens' rights; its erosion poses significant
threats to democratic governance.[5]
There are
some principles that can be added to the constitution to strengthen democracy.
They are as follows:
1. Reintroducing the caretaker government system
2. Revising article 70 to allow a Member of Parliament to vote
opposition parties without vacating his seat.
3. Setting Term Limits and Fixed Terms for Important Offices
4. Creating guidelines that genuinely guarantee the judiciary's
independence
5. Give local government organizations more authority and resources.
6. Establish strict rules regarding fair elections.
Including these principles in our constitution can surely strengthen the
path of democracy.
Safeguarding
Minority Rights:
Minority
rights are the normal individual rights as applied to members of racial,
ethnic, class, religious, linguistic or gender and sexual minorities, and also
the collective rights accorded to any minority group.[6]
Minor are those who are less in number than others in a state. Bangladesh
is home to an extensive diversity of minority communities, including Hindus,
Buddhists, Christians, Ahmadis, Shi'a Muslims, indigenous people, and the
Rohingya. Despite constitutional provisions of equality and non-discrimination,
these minors typically encounter major hurdles that damage their rights
and well-being.[7] Religious
and ethnic minorities in Bangladesh have been subjected to different forms
of persecution, including land confiscation, physical attacks, and threats of
violence. Previous governments have frequently been criticized for their
incapacity or failure to address these concerns effectively[8]. Reports
show that members of minority groups have experienced arbitrary
imprisonment, often without bail, based on what are considered as false
allegations. Such activities lead to a climate of fear and restrict the full
involvement of minorities in societal and political areas[9]. Minority
groups frequently face limitations on their religious and cultural practices,
particularly harassment and bullying intended to stifle their personal beliefs
and customs.[10]
Our
Cosntitution have several articles that address and protect minority
rights.Article 28 of the constitution states that the State shall not discriminate against any
citizen on grounds of religion, race, caste, sex, or place of birth.
Article 23A describes that
the state shall take steps to protect and develop the unique local culture and
tradition of tribes, minor races, ethnic sectors, and communities, and section
41 guarantees freedom of religion.Through our constitution have some principle
for protecting minor right,their implementation is missing in the true
scenario.
To fortify the
protection of minority rights,our constitution can adopt several principle
like;
1.Explicitly
give recognition of minority rights at constitution,that allows these groups to
protect their rights, culture , religion and language freely
2.
Establish equal protection clause in constitution,that ensures that no
individual or minor group faces any discrimination by the state and also by any
citizens.
3.Anti-discrimination
clauses that prohibits unequal treatment based on race, religion, gender, or
other characteristics.
4.
Ensure equitable participation of minority groups in political,social and
economic opportunities.
Integrating
these principles into our constitution can create a robust framework that
upholds minority rights properly.
Ensuring
Good Governance:
Good
governance refers to the effective, transparent, and accountable
management of resources and decision-making. It aims to protect the interests
of people, emphasize public sector management, and ensure the free flow of
information[11].
In our country there is huge lackings in good governance. Ensuring good
governance in Bangladesh is impeded by several critical challenges.Corruption
is one of the main causes of it. Widespread
corruption damages public trust and limits effective service delivery. The
absence of strict accountability procedures permits corrupt practices to
thrive, harming numerous industries and hampering development endeavors.[12]. This shortcoming leads to inefficient policy adoption and public discontent. Weak institutional frameworks are also responsible for it. Governance
processes are disrupted by adversarial politics and frequent political upheavals.
Such volatility creates an atmosphere were good governance. practices are
disregarded and takes focus away from developmental objectives. Absence of ccountability and
transparency in legal frameworks is another main cause of it. These are some of
the problems, but there are more problems like bureaucratic Inefficiency,
poverty and inequality, limited civic engagement etc.
To
enhance good governance in Bangladesh, the Constitution could be amended to
include the following provisions:
1. create independent anti-corruption committees with the capacity to investigate,that
can bring charges against corruption crimes can curb corruption.
2. enforce the separation of powers strictly to make sure
that the judiciary acts independently from the executive and legislative
branches
3. Incorporate provisions that demand regular transparency of
government activities, finances, and decision-making processes.
4. Adopt principles,that ensure perticipation of various groups,in
public and political institutions such as marginalized communities and
minorities.
5.Enforcement of public service accountability
Maintaining these principles in constitution can definitely assure Good
Governance.
Securing
Judicial Independence:
Judicial
independence is a very important element for a democratic country. Bangladesh
constitution though have a few principles regarding judicial independence,their
implementation cant be seen in real.Article 22 mandates about Separation of
Judiciary. Article 94(4) states that "the Chief Justice and the other Judges shall be
independent in the exercise of their judicial functions." Article 116A
says that all persons employed in the judicial service and all magistrates
shall be independent in the exercise of their judicial functions. These
provisions are only in the code,there implimention is not seen in a long time.
several factors have historically undermined this independence. Despite
constitutional provisions advocating for the separation of powers, the
judiciary in Bangladesh has frequently experienced encroachments from the
executive branch. This overlap hampers the judiciary's ability to function
independently and undermines its role as a check on executive authority.[13]
Political Interference in Judicial Appointments is very responsible for
this.The ruling party appoint judges for their interest to misuse the judiciary
for doing anarchy without getting cramped. Certain constitutional amendments
have had lingering effects on judicial independence. For instance, provisions
from the Fifth Amendment have been criticized for compromising judicial
impartiality and require re-evaluation to restore judicial autonomy[14].
Case Backlogs and Resource Constraints is another crucial cause. The judiciary
faces significant challenges, including crushing backlogs of cases and soaring
costs, which impede its ability to deliver timely justice. These issues not
only affect the efficiency of the judicial system but also erode public trust
in its effectiveness[15].Besides
these internal pressure like, lack of commitment, efficiency, and
susceptibility to external pressures is also accountable.
Here
is my ecommendations to Strengthen Judicial Independence:
1. forming a
Judicial Appointments Commission to suggest applicants based on their
qualifications, honesty, and experience. And that commission must be
accountable and transparent.
2.
Giving the judicial authority over administrative
tasks, such as court administration and budgeting
3.
Establishing clear criteria and open processes
for terminating judges
4. Establishing
principles for the court to have the authority to check the constitutionality
of presidential actions and laws.
5.
Implementing these ideas into the Constitution
would foster judicial independence in Bangladesh, creating a fair and impartial
legal system.
Integrating these concepts into the Constitution would enhance judicial
independence in Bangladesh, promoting a just and unbiased legal system.
Hurdles to Constitutional Reform :
Amending or
reforming the Constitution of Bangladesh will be sufficiently tough at this
time. The absence of parliament has resulted in the interim government
governing our country. However, the reform is imperative and must be executed
for the nation's sake. Amending the Constitution of Bangladesh is a
multifaceted undertaking, posing numerous substantial challenges:
The current
system of the constitution has several shortcomings, and those shortcomings
benefit political parties. These groups may resist any changes that diminish
their interests. Due to the low literacy rate, it is difficult to explain the
proposed constitutional changes to the general public in a simple way. However,
ensuring public awareness and participation is critical, as it gives legitimacy
to the reform process. Bangladesh is home to a diverse population of many
ethnic, religious, and social groupings. Constitutional amendments must be
integrated to safeguard the rights and interests of all individuals living
inside Bangladesh. Balancing diverse interests will be a great challenge. The
Bangladesh constitution itself has provisions relating to amendments, which are
kind of rigid. Section 142 of the Constitution of Bangladesh states Parliament
has the power to amend the constitution, but it requires a two-thirds majority
of all the members of Parliament. And Section 7B of the Constitution states
that basic provisions of the Constitution are not amendable. Here, basic
provisions include the preamble, all articles of Part I, all articles of Part
II, subject to the provisions of Part IXA, all articles of Part III, and the
provisions of articles relating to the basic structures of the Constitution and
Article 150 of Part XI.
Various strategies can be applied to successfully confront these
difficulties and offer significant solutions. Some of they are as follows:
1.Creating a Participatory and Democratic Process
2. Improving Education and Public Awareness.
3. Using Inclusive Dialogue to Balance Diverse Interests
4. Proposing a more flexible yet secure amendment mechanism.
5. Maintaining Consensus and Political Stability
6. Building Up Institutional Capabilities
7.
Improving Civic education, referendums, and legal advocacy.
Exploring
the Impact of Constitutional Reforms:
Constitutional reformation plays an important role in shaping a
country's future. The way I proposed amendments can strengthen democracy,
protect the rights of marginalized people, ensure transparent governance, and
maintain judicial independence. However, if not implemented properly, they may
cause political instability, legal complications, and institutional weaknesses.
Now I will discuss the potential impact of constitutional amendments.
I focused particularly on strengthening democracy, minority rights, good
governance, and judicial independence.
If the constitution is modified by my suggestion to strengthen
democracy, free and fair elections, and decentralization of power, protection
of fundamental rights will be secured. But if the alterations are designed to
favor the ruling party, then democracy would be harmed rather than
strengthened. The suggestion I have given to defend minority rights would give
legal recognition and protection of minors, discrimination will be eradicated towards
them, and their representation in government will be ensured. My proposed
reforms for good governance will increase transparency and accountability in
public service and government, including an anti-corruption commission. A
strict rule will be made against corruption and nepotism.
Judicial independence will also be established by amending my idea. Separation
of power, independent appointment procedure in judiciary and executive,
security of tenure. The principle of non-interference will be established.
The modifications I have recommended for the Bangladesh Constitution, if
enacted properly, will have a major and effective influence, assuring good
changes based on the concepts expressed in this essay.
Conclusion:
A
constitution Stands as the bedrock of a nation's legal framework. Same for our
country, our Constitution stands as the bedrock of our legal framework, a guide
to governance, and the basis of our rights and responsibilities. Everything is
changing over time; like other legal documents, the constitution must evolve to
address the changing sociopolitical landscape of the country.
The need
for constitutional reforms is obvious in the context of strengthening
democracy, protecting minority rights, ensuring good governance, and
safeguarding judicial independence. Constitutional amendments hold the
potential to reshape the future of Bangladesh by providing more robust
safeguards for democratic principles, minority communities, and judicial
fairness. While some challenges exist, these hurdles are not insuperable.
Careful evaluation of these challenges, coupled with proposed reform, will lead
to a stronger, more resilient nation.
Constitutional
reform is not merely a legal duty; it is also a moral responsibility that plays
a key role in reshaping the future of Bangladesh and the lives of its
people. Now is the moment for Bangladesh to embrace the chance for reform and
progress, ensuring that its constitution accords with democratic values, human
rights, and good governance norms.
[1] Mahbuba Sultana, ‘A
Critical Analysis of the Need for Constitutional Reforms for Democracy in
Bangladesh’ (2023) 6 International Journal of Law and Society 181 <https://www.sciencepublishinggroup.com/article/10.11648.j.ijls.20230603.12> accessed 5 May 2024.
[2] ‘The Daily Star’ (The
Daily Star10 October 2024) <https://www.thedailystar.net/opinion/views/news/why-constitutional-reform-essential-3723866>.
[4] ‘Khadga K.C.,
‘DEMOCRATIC PRACTICES in BANGLADESH’ (2016) XXIX TRIBHUVAN UNIVERSITY JOURNAL
85.
[5] ‘Oleh Kachmar,
‘Bangladesh’s Declining Democracy - New Lines Institute’ (New Lines
Institute15 September 2022) <https://newlinesinstitute.org/political-systems/bangladeshs-declining-democracy/?utm_source=chatgpt.com> accessed 27 March 2025.
[6] ‘Wikipedia
Contributors, ‘Minority Rights’ (Wikipedia19 December 2018)’ <https://en.wikipedia.org/wiki/Minority_rights>.
[7] ‘Minority Rights Group
International, Under Threat : The Challenges Facing Religious Minorities in
Bangladesh.’ (Minority Rights Group International 2016).
[8] ‘ibid’
[9] ‘Bangladesh’ (United
States Department of State2022) <https://www.state.gov/reports/2022-report-on-international-religious-freedom/bangladesh/>.
[10] ‘The State of Minority
Rights in Bangladesh: A Critical Review of Human Rights Violations | CAP
Freedom of Conscience’ (CAP Freedom of Conscience | Freedom of Conscience23
February 2025) <https://freedomofconscience.eu/the-state-of-minority-rights-in-bangladesh-a-critical-review-of-human-rights-violations/> accessed 27 March 2025.
[11] ‘Avijit Biswas, ‘Good
Governance: Definitions, 8 Characteristics, and Importance’ (School of
political Science2 October 2020) <https://schoolofpoliticalscience.com/what-is-good-governance/>.
[12] Badrul Hasan, Munira
Sultana and Md Hasan, ‘Good Governance in Bangladesh: Problems and Prospects’
<https://uits.edu.bd/wp-content/uploads/2019/06/03-Good.pdf>.
[13] Mohammad Abdul Hannan
and Md Arifuzzaman, ‘Separation of Judiciary and Judicial Independence in
Bangladesh: An Appraisal’ (2021) 08 OALib 1.
[14] ‘The Daily Star’ (The
Daily Star17 October 2024) <https://thedailystar.net/opinion/views/news/reclaiming-judicial-independence-and-the-struggle-justice-3729516?utm_source=chatgpt.com> accessed 27 March 2025.
[15] ‘The Daily Star’ (The
Daily Star27 March 2025) <https://www.thedailystar.net/law-our-rights/law-vision/news/problems-and-prospects-adr-bangladesh-3859266> accessed 27 March 2025.