After the July Revolution and the fall of Awami League’s 15-year iron hand rule over Bangladesh, questions are now beig raised about the effectiveness of the current constitutional arrangement of Bangladesh. In particular, some quarters have suggested abandoning the existing constitution altogether and formulating a new one.
However, the idea of a new constitution is easier said than done. Under constitutional law, as observed by the Canadian Supreme Court in the case of Reference re Secession of Quebec, every citizen has the right to participate in democratic governance and this right includes the right to participate in constitution-making. This is a long and complex process involving “continuous process of discussion” and a duty to listen to “dissenting voices” and to seek “to acknowledge and address those voices.” Given the current status of the interim government, and keeping in mind the more pressing need of institutional reforms, such a mammoth task of a new constitution may not be feasible.
Despite the hurdles for a new constitution, it is widely acknowledged that the problems in Bangladesh’s political settlement and the rise of authoritarianism are fundamentally due to the existing constitutional structure. Therefore, surely something must be done to avoid any event similar to the July Revolution.
This series argues that some fundamental alterations to the current Constitution could reflect the current hopes and aspirations of the common people. This part deals with the proposition of a new (and additional) "preamble to the Constitution. Part two will deal with the powers of the prime minister under the Constitution and part three will discuss the solution to the anti-defection provision of Article 70 of the Constitution.
The preamble and its function
Greek philosopher Plato explained the functions of a preamble in the following words: “Just as a ‘free’ doctor explains the patient’s illness to him, and tries to make him understand the reasons for the measures to be prescribed, in order to gain his co-operation, so the legislator must explain and justify his laws. Hence every law must be headed by a preamble justifying its provisions; further, the preamble must be rhetorical in character: it must not only instruct, but persuade.”
Thus, a preamble to any legislation (including a constitution) is a prelude or preface that provides background or justification of the document. This “background” or “justification” can be on the basis or a combination of historical, religious, ideological, aspirational, or geographical matters.
For example, the preamble to the Constitution of the Federative Republic of Brazil captures the ideological base (democratic state) with aspirational (social and individual rights, liberty, security, well-being, development, equality, and justice) and religious values (under the protection of God). Our Constitution, on the other hand, captures historical (a historic struggle for national liberation), aspirational (socialist society, free from exploitation … in which the rule of law; fundamental human rights; and freedom; equality; and justice -- political, economic, and social -- will be secured for all citizens) and ideological (high ideals of nationalism, socialism, democracy, and secularism) matters.
Has the preamble outlived its function in Bangladesh?
We can say with some confidence that socialism never flourished in Bangladesh after independence. We are not, and never managed, to become a socialist society or country as envisaged in the Constitution. Economist Nurul Islam, the first deputy chairman of the Planning Commission, in his book Development planning in Bangladesh: A study in political economy, observed:
“The economic fortunes of the fixed income earners, including the civil servants and managers of public enterprises as well as industrial workers and the rural poor, all declined, while the economic position of traders, private industrialists … improved. At the same time, there was a marked increase in conspicuous consumption on the part of a limited number of high-income earners in the big cities. The promise for a broad consensus based on democracy and socialism remained unfulfilled.”
During the last 15 years of Awami League rule, we have witnessed a deeply divided society where the concepts of “nationalism” and “secularism” have been politically utilized by the previously ruling government to dislodge legitimate political opposition or to gain specific political advantage. Despite the clear mandate of secularism under the original Constitution, its fifteenth amendment did not remove article 2A, which was inserted by the Constitution’s eighth amendment making Islam the “State religion.” The ousted Awami League regime assumed an exclusive ownership of the “Bengali Nationality” and “Liberation War” narratives to the point that the now repealed (and infamous) Digital Security Act (DSA) 2018 and its latter dressed down (and equally draconian) version, the Cyber Security Act (CSA) 2023, have stipulated criminal sanctions for uttering narratives that may run counter to, among others, Muktijuddher Chetona, which, according to the statute, are the four ideological values written in the preamble (nationalism, socialism, democracy, and secularism).
In a report published by Centre for Governance Studies back in April titled “The ordeal, five years of the Digital Security Act 2018-2023,” it was stated that between October 8, 2018 and January 31, 2023, a total of 7,001 cases were filed under the now repealed DSA with around 39% being filed by the then ruling party supporters. Political tagging like “Razakar” -- a highly inflammatory and derogatory remark in Bangladeshi society due to its connection to collaborators of Pakistani military junta who participated in anti-liberation activities in 1971 -- by the former Prime Minister Sheikh Hasina, her cabinet, and political associates during the recent student movement was the impetus that led to the uprising and eventual downfall of her regime.
There is no doubt that the existing preamble contains lofty ideals for a country built on good governance. Indeed, the framers of the current Constitution, during the Constituent Assembly debates of 1972, predicted that these lofty ideals of the preamble will be fully realized by future governments. Asaduzzaman Khan, one of the members of the Constituent Assembly of Bangladesh, observed, “these principles must be followed by those who come to power in the future … [i]f they don’t agree, then they will have to answer to the people.”
But the sad reality is that successive governments failed to fully realize at least the four ideological values written in the preamble (nationalism, socialism, democracy, and secularism).
Is there a need to have a new or an additional preamble?
Attempts to make amendments to an existing preamble or adding a new preamble is not something new in the constitutional landscape of the world. In Australia, attempts were made to add a new preamble alongside the existing one in 1999 (to, among others, recognize Aborigines and Torres Strait Islanders as part of the preamble), which failed not so much for the very idea of it but due to its dreadful drafting and lack of adequate public engagement. However, during the preparatory stage, the Information and Research Services of the Department of the Parliamentary Library published Research Paper No 12 (1996-1997) titled “The need for a new preamble to the Australian constitution and/or a bill of rights,” where the following observation was made: “It would probably be widely agreed that the preamble is no longer fully representative of the views or the sentiments of the majority of the Australian people. … Many supporters … would argue that a new preamble is not only essential but could also provide symbolic support for other important initiatives …. There is a strong case to support the argument that the moral and political legitimacy … would be enhanced by the introduction of a new preamble that was a concise, lucid and memorable articulation of the democratic aspirations and common values of the Australian people.”
Can the same line of argument be made for Bangladesh? Can we say that the current preamble of the Constitution is no longer fully representative of the views or the sentiments of the majority of the Bangladeshi people? Can we not say that the historic July Revolution against tyranny and autocracy should be reflected in a new preamble, which may co-exist with the original?
I venture that of course the people of Bangladesh can. And we can do this despite the fact that the Constitution, through the 15th amendment, has inserted an un-amenable clause (article 7B) prohibiting amendment to, among others, the preamble, by way of insertion, modification, substitution, repeal, or any other means. This is because the un-amenable clause (article 7B) goes completely against the visions of the framers of the original Constitution, where Tajuddin Ahmad, while dealing with the future exigencies of constitution-making, observed: “Many people say that there is no such and such words in the Constitution, and it would have been beneficial if there were such words. But today, standing at the end of this 20th century, if I could understand what will happen in 100 years, what will happen in 50 years, what will happen in 25 years, and if I could add provisions about all that in this bill, then I could claim that I must have done a job. But that is not possible. What we consider very necessary today may become unnecessary in the future, and may become a hindrance in the progress of the nation.”
The above observation of Tajuddin Ahmad nearly 52 years ago can be viewed as prophetic. The wholesale weaponization of Muktijuddher Chetona, which, according to the erstwhile Awami League government, are the four ideological values written in the preamble, through insertion of these values in the statutes with penal consequences gives rise to the question about the bona fide of these values in the context in which these were used against the protesting students in the July Revolution.
Perhaps time has come to revisit the preamble and to write clearly that Muktijuddher Chetona generates its purity and authenticity when it is utilized to rise against oppression, corruption, and tyranny, as the July Revolution has demonstrated.
Structure of the new preamble
As Plato said, preambles must not only be instructive but equally persuasive. And it is equally important to remember that the current preamble should not be removed since there is a strong case for the “old” preamble to remain out of respect for the framers of the original Constitution and as a means of emphasizing the evolutionary nature of the document. The new preamble should come after the existing preamble because this would allow the original preamble to be preserved in full, and yet, would add those changes deemed to be representative of the principles which led to the struggle against tyranny in the July Revolution. For example, the preamble of the South African constitution captures a new societal order after the apartheid and declares that the people of South Africa “recognize the injustices of our past” and “honour those who suffered for justice and freedom in our land.”
The new preamble could also capture something similar.
The components of the new preamble should be added with the existing principles of nationalism, socialism, democracy, and secularism in article 8(1) and should also be explained by adding new articles between articles 12 and 13 of the Constitution.
Some may look at the Constitution, as Thomas Jefferson once wrote, “with sanctimonious reverence, and deem them, like the Ark of the Covenant, too sacred to be touched.” But that should not be the case. Things change with time and the Constitution is no exception. To quote Thomas Jefferson again, “manners and opinions change with the change of circumstances, and institutions must advance also, and keep pace with the times, and to not allow constitutional changes with changing times is like requiring a man to wear still the coat which fitted him when a boy …”
The July Revolution has been etched in the minds of Bangladeshis as a paradigm shift for the way Bangladesh will be governed in the future -- a moment of uprising against oppression, inequality, indignity, and autocracy. It is therefore axiomatic that the ethos and spirit of this great revolution is reflected in the principal document of governance of Bangladesh: The Constitution.
Junayed Chowdhury is an Advocate, Supreme Court of Bangladesh.
