Bangladeshi youths have made history by toppling a 15-year authoritarian regime. Although popularly labeled as the “Bangla Boshonto,” the revolution has also initiated a new phase of political turmoil. Soon after Sheikh Hasina fled the country on August 5, the parliament elected for 2024-2029 was dissolved by the president.
With an interim government led by Muhammad Yunus entrusted with the tasks of wide-ranging reforms, the debate over legitimacy has intensified. There are disagreements among political stakeholders over the tenure and mandate of the interim leadership, as well as its composition and capability to ensure stability and order in the run-up to the election.
Bangladesh has a long history of political crises. Since the country's independence in 1971, each episode of crisis has revolved around power struggles and issues of governance, in most cases accompanied by political violence.
Though these events have repeatedly brought up the role of constitutional provisions in guiding the country in times of crisis, these crises have never been resolved constitutionally.
A history of change
Since its inception in 1972, the Constitution of Bangladesh has been amended 17 times. Within these 53 years since independence, a state of emergency has been declared five times, and the Constitution has been partially or fully abrogated three times. During this time, the nature of government has been unconstitutionally changed six times, and power has been shifted unconstitutionally seven times.
This power struggle reflects two political ideologies competing for power by motivating citizens under two ideological grounds: One is anti-religion, and the other is secularism. These opposing political philosophies remain a source of instability and highlight the absence of an alternative political ideology in the field of politics that may provide stability to the state.
The July 2024 event can be seen as such an event for which the citizens at large were waiting -- a movement that has brought a call for reform in the state fundamentals according to their choice, not being led by or for any artificial ideology so far active in the political field of Bangladesh.
The frequent changes in the nature of the state and the unstable nature of the government of Bangladesh indicate that the state fundamentals are not fully established or universally accepted by the citizens at large, which aligns with the idea that Bangladesh is still in a state of evolution since 1971.
The first written Constitution of Bangladesh was adopted out of necessity for the state, in 1972. At that point in time, as a nation, we were in our infancy and therefore undefined.
The 1972 Constitution took the initiative to define the state, its fundamentals, and its functionaries, but has probably proved to be ineffective, as evident from its inability to mitigate unresolved issues during every state crisis.
We must appreciate that the rule of law is the ultimate soul of a state, which ensures its efficacy within the state. For the positivist school of thought in jurisprudence, a state is a collection of laws, which derive their validity from an ultimate source -- the Constitution.
The Constitution must be the source of validation for all the laws of the state. At present, even though the interim government enjoys broad acceptance among the citizens, the nature of the government conflicts with the present Constitution under which the government took its oath. We need to fix this as soon as possible to ensure the rule of law by adopting a consensus Constitution.
We may consider reforming the Constitution; however, it is impossible to legitimize an act that has been carried out unconstitutionally by subsequently giving it effect under the Constitution.
Furthermore, we must not forget the stringent provisions of Articles 7A, 7B, and 142 of our Constitution. Articles 7A and 7B place a bar on amending certain fundamental provisions of the Constitution, while Article 142 sets procedural requirements for amendments. In the absence of a parliamentary session, no legitimate amendment is possible under this Constitution.
At this stage, despite declaring independence over five decades ago, Bangladesh has not yet achieved a robust and widely accepted Constitution that offers clear directions and guidance for handling the present crises and facilitating a journey towards a stable and cohesive state.
Moving forward, to consolidate the gains from the July revolution, the creation of a new, consensus-based Constitution is essential for providing the foundation upon which a stable and democratic Bangladesh 2.0 can thrive.
To this end, there must be a concerted effort to build a consensus on the core principles that will guide governance reforms under different political arrangements.
Nazmus Saliheen is Barrister-at-Law and Advocate, Bangladesh Supreme Court.