The Constitution of Bangladesh remains the best source of principles to steer the nation at this profoundly historic juncture. Bangladesh has witnessed a popular revolution led by the Anti-Discrimination Student Movement. There have been calls for a referendum under Article 119(2) of the Constitution.
A free and fair referendum can be the best way to validate the actions of the transitional period. Structural reform has become a necessity. In this moment of political and constitutional vacuum, historic changes can be enacted during the transition period.
Let us not forget the patriotism which has motivated all of us. After 1971, we are presented today with a second opportunity to build a new social contract. To be fair, the ideals of the social contract which we aspire to already exist in the rights granted by our Constitution. The quota reform movement resonates with them. Equal opportunity in public employment is a fundamental right guaranteed by the Constitution. Our rights include the right to be protected from torture and cruel, inhumane, or degrading punishment or treatment.
It was the failure of the state to adhere to our Constitution and its principles which led us to this impasse. It also goes beyond the failure of the state. The aspirations of the people of Bangladesh must be reflected in this emerging social contract. The desire of the students to have Nobel laureate Muhammad Yunus as head of the interim government reflects the popular urge for national unity. Yunus can be a symbol of national unity around whom everyone can rally.
Parliament has now been dissolved. Under Article 93(1) of the Constitution, the president can issue ordinances to make laws and govern the country. A key question is who advises the president. The students and the nation welcome the appointment of Professor Yunus as the chief advisor.
Under the leadership of Professor Yunus, an ad hoc council of advisors can advise the president. The president will implement the council’s decisions through ordinances. We have a ceremonial presidency which has to act in accordance with the advice given by the government.
The interim government will have to act in accordance with the Constitution. The parameters of ordinance-making powers are that such laws cannot alter any existing provision of the Constitution. The interim government should use the existing provisions of the Constitution, including provisions created after liberation in 1972, to implement reforms, overturn decisions of the previous government, and guide the nation towards a new social contract.
The importance of consultation and consensus with political stakeholders is crucial. In the Islamic faith, consultation is an article of faith in the governance of a community. The state religion supports the importance of consensus. In the past, I have argued in this column that the government can sign a legally binding umbrella political agreement with responsible political parties, bringing together registered political parties. This agreement can reflect political consensus and a commitment to a new social contract based on national unity.
A free and fair referendum can be the best way to validate the actions of the transitional period
During the fifth parliament in 1991, an All Party Select Committee reached consensus to enact the 11th and 12th amendments to the Constitution. The 11th amendment validated the actions of Justice Shahabuddin Ahmed’s caretaker government. The 12th amendment reintroduced the parliamentary system and ended the presidential system.
In the absence of parliament, a special agreement can be signed by Bangladesh’s political parties. This agreement can be implemented through an ordinance. It can be subjected to judicial review under Article 102 of the Constitution. The CHT Peace Accord is an example of an agreement which reflected the government’s commitment to reform in the local government of the hill districts. Today, we need a broader national agreement for structural reform across the state.
Given the exceptional circumstances we are in, the outcome of this transitional process should be validated through a referendum. As a nation, we have been given a rare opportunity to shape our democratic future towards the best possible outcome.
The orthodox Muslim community in Bangladesh is also demanding representation. At the risk of referring to another Abrahamic faith, I believe we can consider a Bangladeshi equivalent of the Good Friday Agreement between political factions in Northern Ireland.
The government may consider imposing a state of emergency to restore law and order. The importance of a human rights approach has been emphasized time and time again. The government will have to articulate on how fundamental rights will be enforced during an emergency.
Umran Chowdhury works in the legal field.