On August 3, when the student leaders declared a one-point demand for the government’s resignation, they also made a very important observation. Nahid Islam, one of the key leaders of the Students Against Discrimination (and now an adviser of the interim government) clarified their position by declaring that they not only wanted an end of the Hasina regime but also demanded a new political system.
"The fascist government must be abolished. We want to form a Bangladesh, create a political environment that would never allow another autocracy and fascism.” That one particular statement was critical as it highlighted what the mass uprising was all about -- it was never only about changing a regime and instead it was about designing a new political system that would promote inclusivity, and end all forms of discrimination.
The movement aspired to establish a new Bangladesh where people of all religions, ethnicities, and gender identities would coexist and we would be able to build a society whose cornerstone would be compassion and responsibility.
Throughout August and September, the leaders associated with the movement reiterated their commitments to these aspirations and expectations and reminded us that the country requires a "new social contract,” "a new political settlement.”
And these statements are the foundations of the call for reforms of all the necessary institutions, including a reform of the Constitution.
I don’t think that there is any disagreement that the shift from autocracy to democracy will eventually need reform of the Constitution. But the question is: How far should we go? Should we reform or rewrite?
What we want
Let's set aside the reform v rewrite argument and address a broader question -- in the aftermath of the July Uprising, what do we actually want? Do we agree that we need to establish a democratic republic that would embrace the aspirations mentioned above?
And if so, what should we do to achieve that? What should be the broad principles that need to be considered while discussing a new Constitution?
It is important to understand that a free and fair election is just one condition for establishing a democracy. It is the minimum requirement and never enough for establishing a democratic republic. The freest of elections allows the citizens to choose its leaders or evaluate the performance of its leaders every four or five years and at best allows an alternation of power.
It cannot ensure checks and balances or separation of power, cannot guarantee that in between the elections, the citizens will enjoy the political or the civil liberties, and it also doesn’t ensure citizen’s participation in the policy-making process.
In fact, we had electoral democracy in the past but it couldn’t prevent executive overreach, couldn’t prevent partisan control of the state institutions, and couldn’t protect citizens when their rights were violated.
To us, the promise that a free and fair election would solve all the problems is not a new one. We heard it in the past and it didn’t work. If we want to aim for a new social contract that would establish a compassionate and accountable society, the call for reform may start with electoral reform but should never end there.
What next?
Over the last few days, we have heard several proposals but only as bullet points where the details are missing. For instance, we want bi-cameral houses. Fair enough, but how? How will these two houses be elected? What will be the functions of these two houses?
We want a balance between presidential power and the power of the prime minister. Good, but how? More importantly, even if these details become available, we are ignoring the key question -- why?
Why do we want to shape our Constitution in the way that we are proposing? Somehow, we all have come to a conclusion that reinstating the caretaker government, abolishing Article 70 or ensuring that the same person can’t become the PM two times in a row will solve all the problems.
But we are not explaining why. It's important to clarify and explain the basic principles that should guide our actions regarding the Constitution.
In every country’s case, the Constitution making or constitutional amendment is a product of historical accidents that force a nation to revisit its trajectory. Since we have just ended a fierce authoritarian rule that shook us to the core, and since we never got an opportunity to consolidate democracy in the past, we are now committed to not let that happen again.
It is, therefore, not surprising that our proposals or efforts are concentrating on reforming the key state institutions so that we can erect, consolidate, and stabilize a democratic structure that would prevent us from reverting back to autocracy.
But the problem is, in doing so, we are forgetting that limiting the power of government is one of several goals of a Constitution and in no way is it the only goal. Constitution, “…refers to a set of norms delineating the basic organization of political power” but it is also about framing the relationship between state and society.
I want to go back to what Carlos Nino said in 1996 while talking about a higher purpose of Constitutions: “The fact that rules exist which define, in some way or another, the organization of power and the relation of the state to its citizens, and the fact that these rules are not subject to normal legislative processes, may provide citizens with some baseline guarantees against sheer governmental caprice.”
And thus, constitutional rules, in addition to finding a way to limit power must also explain the relationship between the state and the citizens.
My suggestion is, while designing or redesigning the Constitution, let’s consider the higher purpose or objectives of constitutions and let’s determine the fundamental principles of reforming constitutions. I propose four guiding principles.
De-concentration or dispersion of power
This is an acknowledgement of historical reality (how the gradual concentration of power gave birth to autocracy which eventually took the form of a totalitarian system) and a nod to the efforts or proposals developed so far.
The bi-cameral house with election through proportional representation (PR) in the upper chamber, public hearing before appointment of key positions including chairs of the constitutional and statutory bodies may lead to de-concentration of power.
Furthermore, I would also suggest that the president would appoint all the chairs of the institutions of accountability (Anti Corruption Commission, Human Rights Commission, Office of the Comptroller & Auditor General, Information Commission, Election Commission) subject to the approval of the upper house and these chairs will be appointed for a period of 8 to 12 years so that a chair of an institution of accountability appointed under one regime can actually serve under two more successive regimes.
I want an ACC chair appointed by one party to head the same ACC if and when another party comes into power. Their removal would be extremely difficult and would require two-third majority in both houses. This would provide another check on power.
Ensuring compromise in making policies or laws
Having a bi-cameral house or ensuring checks and balances will not work unless and until the structural changes encourage or force the ruling party and the opposition to find the route to compromise while designing legislative outputs.
Our history shows, in most cases, the party in power, using its majority, has always succeeded in passing whatever it wanted and the opposition either changed it quickly after coming back to power (causing policy instability) or used it to serve its purpose.
Therefore, a key purpose of constitutional reform should be to propose a mechanism that would encourage the parties to reach a compromise.
The proportional representation in the upper house, First Past The Post in the lower house, joint agreement of both the houses in passing a law, veto power of the president, and way to override that veto -- all can be part of the plan.
Irreversibility
There must be a mechanism that would make unnecessary policy changes difficult and constitutional amendment extremely difficult.
For instance, if overriding the president's veto in case of laws require majority in both the houses, constitutional amendment should require a three-fourth majority in both the houses followed by a referendum. In other words, unless and until there is a national consensus, constitutional amendment would be extremely difficult.
At the same time, we should also acknowledge that we need a value-laden understanding of democracy, a normative understanding of the concept. And here lies the problem, as per our principles and proposals mentioned above, citizens have only one role to play -- they would vote once in five years, let their representatives lead them and replace them if they fail to perform.
In fact, we are relying on appointed officials (members of the judiciary, institutions of accountability) to safeguard our very own version of democracy. There is no scope for direct participation for the citizens.
Now, what would happen if a policy or law crosses all the constitutional barriers and still denies the citizens their rights or endangers their rights? Surprisingly, in our vision of constitutional democracy, “demos” are missing.
Ensuring citizen’s participation in every step of decision making
I can see two ways to do that. The “minimalist” approach where a permanent, accessible and effective channel will be created for the citizens to get access to the institutions of accountability.
We can link them with the existing institutions and establish another institution in the name of a constitutional court (using the examples and experiences of Germany, Chile, or Argentina) which would work as citizens’ vehicle to re-examine the laws that violate their rights. The other alternative is empowering the society so that it can “guard the guardians.” This can be done by introducing referendums and a recall system.
It is important that we discuss and agree on the key principles that would guide our endeavour to reform or rewrite the Constitution. Furthermore, there cannot be a democracy if demos’ participation is not ensured and without that, we will once again have an incomplete constitution.
Asif M Shahan, PhD is Associate Professor, Department of Development Studies, University of Dhaka. E-mail: [email protected].
