The Peoples' Republic of Bangladesh initially adopted a constitution in 1972 that sought to direct the state power to develop ways and means for the society's transition to a socialistic economic order through a secular parliamentary democracy.1Today, through constitutional changes, Bangladesh is neither a parliamentary democracy, nor does it follow a path to a socialistic economy. Secularism also is no longer a constitutional dictum.2These clearly indicate changes in the fundamentals of the Constitution (1972), and such changes, wheneuer they occur, require probing in terms of the basis, the process and method of constitution making, constitution-amending and the legitimacy of these processes. The following analysis attempts to explore the Bangladesh case.3
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References
1.
See Government of the Peoples Republic of Bangladesh, Ministry of Law and Parliamentary Affairs, The Constitution of the Peoples' Republic of Bangladesh (Dacca, 1972), Parts I and II.
2.
See Government of the Peoples' Republic of Bangladesh, Ministry of Law and Parliamentary Affairs, The Constitution of the Peoples' Republic of Bangladesh (as modified upto 28 February, 1977) (Dacca, 1979).
3.
It is not proposed here to make an evaluation in terms of the two main approaches of constitutionalism, developed under namely the ‘liberal democratic', and the ‘Marxist' (including the Marxist-Leninist or ‘Marxist-Leninist Maoist') concepts. The Bangladesh experience is rooted in the country's socio-political milieu as evolved through societal interaction during phases of external and internal colonial scenarios, and despite having a universal underpinning is uniquely its own. Therefore looking at the changes or even the original constitution through the set prism of these concepts may prove to be inadequate or even inappropriate particularly in view of disagreements prevailing in defining both the frameworks.
4.
The quest for a popularly acceptable constitution in the area that now forms Bangladesh began not with its formal proclamation of independence in April 1971, but, to mention briefly, with peoples reactions to the Interim Report of the Basic Principles Committee in 1950, the Report of the Constitution Commission 1961, to the 1962 Constitution, the autonomy and anti-Ayub movements. These oppositional reactions apart, their own aspirations were reflected through the proposals of the Grand National Convention, the points made in the Constituent Assembly of Pakistan, the 21 Points of 1954, the Six Points Formula of 1966, the Eleven Charter of 1968-69, the manifestos of the major political parties like the Awami League (AL) and the National Awami Party (NAP). It is these demands, representing a cross-section of the society and promises made by the accepted political leadership that sustained and widened the base of the democratic movements from 1950 onwards. Finally the AL won a landslide victory in the 1970 Elections with a manifesto and campaigning on the basis of these. Later, the Liberation War of 1971—which was a continuation of the earlier political movements—attributed a much wider social legitimacy to these demands which any political party, delegated to govern them, had to take into account. For more details see, Kamruddin Ahmad, A Socio-Political History of Bengal and the Birth of Bangladesh (Dacca, 1975), Appendix B, pp. 392—96; Badruddin Umar, Purba Bangalar Bhasha Aandolan O Tatkaleen Rajneeti (Bengali), (Dhaka, 1975), Part 2, pp. 399—404; Moudud Ahmed, Bangladesh: Constitutional Quest for Autonomy (Dacca, 1979), pp. 17—63; Talukdar Maniruzzaman, Radical Politics and the Emergence of Bangladesh (Dacca, 1975); Shyamali Ghosh, The Awami League, 1949—1971 (Dacca, forthcoming); and A. H .M. Kamruzzaman, General Secretary All Pakistani Awami League, Manifesto of the All Pakistan Awami League (Dacca, 1970).
5.
See A. H. M. Kamaruzzaman, n, 4. Even parties like the various Muslim Leagues, the Jamat-e-Islami, etc., did not openly criticise these objectives.
6.
See the Constitution of the Peoples' Republic of Bangladesh n. 1.
7.
Moudud Ahmed, Bangladesh: Era of Sheikh Mujibur Rahman (Dacca, 1983), p. 127.
8.
For a fuller understanding of the situation see Talukdar Maniruzzaman, “Bangladesh in 1974: Economie Crisis and Political Polarization,” Asian Survey (Barkeley), Vol. 15, no. 2, 1975, pp, 117—28; Zillur R. Khan, “Leadership Parties and Politics in Bangladesh” in Khan and Zafrullah (Eds.), Politics and Bureaucracy in a New Nation Bangladesh (Dacca, 1980), pp. 72—117; Mosharaf Hossain, “Nature of State Power in Bangladesh,” The Journal of Social Studies (Dacca), No. 5, October 1979, pp. 1—42; Rehman Sobhan, “Growth and Contradictions within the Bangladesh Bourgeoisie,” The Journal of Social Studies, No. 9, 1980 pp. 1—27; Nurul Islam, Development Planning in Bangladesh—A Study in Political Economy (Bangladesh, 1979); Emajuddin Ahmed, Bureaucratic Elites in Segmented Economic Growth; Pakistan and Bangladesh (Dacca, 1980) and Moudud Ahmed, n. 7.
9.
Ganaprajatantri Bangladesh Sarkar, The Bangladesh Gazette Extraordinary, Saturday, 22 September 1973, Part III, pp. 6937-6940. The First Amendment was made in July 1973 to modify Article 47 which enlisted exceptions which when enacted upon would not be considered as violation of the fundamental rights—such as right to property. It also removed the Supreme Court's writ jurisdiction over proceedings of any court or tribunal set up under the Army Act. See, Ganaprajatantri Bangladesh Sarkar, The Bangladesh Gazette Extraordinary, Sunday, 15, July 1973, pp. 5909-5910. The Third Amendment was enacted to give effect to an Agreement between Bangladesh and India on land boundaries between the two countries. See, Ganaprajatantri Bangladesh Sarkar, The Bangladesh Gazette Extraordinary, Thursday, 28 November 1974, pp. 6273—6277.
10.
Ganaprajatantri Bangladesh Sarkar, The Bangladesh Gazette Extraordinary, Thursday, 28, November 1974, Part V, pp. 6273-6277.
11.
See Sheikh Mujib's statements in The Bangladesh Observer, 26 January 1975, 30 March 1975, 5 June 1975, 21 June 1975, 23 July 1975 and 24 July 1975.
12.
See Mosharaf Hussin and Rehman Sobhan, n. 8.
13.
See Moudud Ahmed, n. 7. pp. 223-229.
14.
See Ganaprajatantri Bangladesh Sarkar, The Bangladesh Gazette Extraordinary, Saturday, 25 January 1975, pp. 397-406.
15.
Moudud Ahmed, n. 7, p. 242.
16.
For the organisational structure, etc., of the National Party named the Bangladesh Krishak Awami League (BAKSAL) and the proposed decentralisation in administrative structure of Bangladesh see, Hashemi Masud Jamil, “The Bangladesh Krishak Sramik Awami League—A Political Analysis,” M. Phil Dissertation, Jawahar lal Nehru University, 1984. The basic principles of the new system had featured in the pre-Liberation Manifestos of the Awami League. See for example, Manifesto of the All Pakistan Awami League, 1970, n. 4, which outlined a thorough change in the system of land utilization and creation of new institutions in the form of a network of multipurpose cooperatives and the establishment of an organisational-cum-administrative nucleus at every Thana (the lowest administrative unit).
17.
For the changes see, D. 2, pp. 126—51.
18.
See Ibid., pp. 152—98.
19.
For some details see Emajuddin Ahmed, “Development Strategy in Bangladesh: Probable Political Consequences,” Asian Survey, Vol. 18, no. 11, November 1978, pp. 1168—80; Marcus Franda, “Zaur Rahman and Bangladesh Nationalism,” Economic and Political Weekly (Bombay) Vol. 16, Nos. 10, 11 and 12, Annual Number 1981, pp. 357—80; Shyamali Ghosh. “Economic Planning in Bangladesh,” Commerce Annual Number 1981 (Bombay) pp. 149—65; Shyamali Ghosh, “Bangladesh Under Mixed Economy,” a paper presented at the seminar on “Alternative Economic Structure” at the Indian Institute of Advanced Studies, Shimla, 20—27 March 1985; Talukder Maniruzzaman, The Bangladesh Revolution and After (Dacca, 1980), pp. 199-214.
20.
Martial Law was lifted on 6 April 1979 after the Fifth Amendment was passed in the Parliament. See “Amendments in Constitution,” n. 2.
21.
Announcement made on 24 March 1982.
22.
See various news items in POT (New Delhi), 1985-86.
23.
See his statement, “We have always advocated that the Armed Forces should be partners in the nations' thought process.” Times of India, New Delhi, 9 December 1986 (emphasis added). This is a reminder of two other utterings one by Iskandar Mirza, who while imposing Martial Law in Pakistan in 1958 had said,” I have no sanction of law of the Constitution. I have only the sanction of my conscience,” and the other by Ayub Khan, when while inaugurating the National Assembly of Pakistan on 8 June 1962 he said, “The Constitution that comes into force from today represents my political philosophy….” (Emphasis added).
24.
See for example, Amirul Islam, Bar-at-Law and Abdur Razzak, Bar-at-Law “Samarik Sasan O Sangbidhanik Prokria” (Military Rule and the Constitutional Process), Dainik Sangbad (Dhaka), 10 July 1986 and Abu Jafar Samsuddin, “Sangbidhaner Gurutto, Maryada Banam Sangsodnan”, (Constitution: Importance, Sanctity Versus Amendments) Dainik Sangbad, 4 August 1986. Also see speech by Justice (Retd.) Kamaluddin Hossein as the Chief Guest at the Annual Council meeting of Bangladesh Jatiya Ainjeebi Samitee. Dainik Sangbad, 13 December 1986.
