Founding Values and the Development of the Idea of Unamendable Provisions

If anything in any given constitution should deserve continuity and hence protec­tion from amendment, it is the constitutional identity or the fundamental cores of the constitution.^[802] When Bangladesh’s Constitution was being drafted and deba- ted,^[803] the framers’ minds were fully fresh with memories of scourge and savage of the country’s liberation war of 1971 and of the causes for which the people had been struggling for many years.^[804] This awareness is reflected, among other things, in the second paragraph of the preamble of the Constitution regarding the national constitutional vision, which states as follows:

Pledging that the high ideals of nationalism, socialism, democracy and secularism, which inspired our heroic people to dedicate themselves to, and our brave martyrs to sacrifice their lives in, the national liberation struggle, shall be the fundamental principles of the Constitution.

In effect, the very drafting process began with guidance from the Constituent Assembly regarding the general principles on which the new Constitution was to be based. By a resolution, the Assembly declared that the ‘high ideals of nationalism, socialism, democracy and secularism’ would be the fundamental principles of the Constitution. The Drafting Committee ultimately instilled^[805] these four ideals into the Constitution as the newly emerged nation’s identity principles or the founding values.^[806] Article 8 of the Constitution provided that these four constitutional fun­damentals,^[807] together with the principles derived from them,^[808] shall constitute the fundamental principles of state policy as well as the bases of legislation, the interpretation of law and the Constitution, and the actions of the State and its citizens. In addition, popular sovereignty and the constitutional supremacy are also fortressed as basic features of the Constitution in article 7.^[809]

The political and historical contexts in which Bangladesh emerged as a sover­eign nation state after having fought a bloody war confirm the founding fathers’ intention to give to the above-mentioned principles an entrenched status.

[The Constitution of Bangladesh] has not been imposed upon by any outside power but has originated from a Constituent Assembly that could sit as people’s forum only after millions had sacrificed their lives. Those sacrifices were made for a cause, for certain ideals, for certain values which as the sacred will of the people found abode in the Constitution framed by the Constituent Assembly in 1972. Certainly those ideals, and they were first of all ideals of democracy and secularism, history has the record, formed the basic features of the Constitution of Bangladesh. They have taken roots from [...] blood of the people. They cannot be changed.^[810]

Since Independence, however, the identity of the Bangladesh State has remained continuously contested. In particular, its cultural Bengali identity and the religious-orientation of the majority Muslims are what have become known as ‘contested identities’.^[811] Although the country began its journey on a secular basis of nationhood, ‘religion soon became an important component’.^[812] According to a historical account of Bangladesh’s identity formation, there are three streams of political philosophy about national identity: (i) Islamic, (ii) secularism and social­ism and (iii) nationalist (territorial) and democratic philosophy.^[813] Again, in view of this narrative, there is a lack of conciliation among these streams. While the extremely right and religion-based forces seek to attain the Islamic philosophy, the Awami League, the party under whose leadership the war of liberation was fought, believed in socialism, secularism and Bengali nationalism. By contrast, the Bangladesh Nationalist Party, a post-1975 political party, is the staunch follower of Islamic ideal/identity and ‘Bangladeshi’ nationalism as opposed to Bengali nationalism.

In short, the conflict about the national identity of Bangladesh continues to remain unsettled, and the identity discourse is fraught with persistent disagree­ments. The concept of national or constitutional identities in effect remains vague everywhere, especially in a plural, multinational society.^[814] As Kabeer puts it, the ‘brutal war of liberation was fought in 1971 to defend what Bengali Muslims believed to be their own distinct national identity: a fusion of Bengali culture and humanist Islam’.^[815] Somewhat similarly, Khondker notes that secularism in Muslim majority Bangladesh has a historical root^[816] and ‘has never been threatened seri­ously’, and ‘has a future as long as democratic norms of tolerance and pluralism are strengthened’. Other scholars, however, find a conflict between tradition or culture and the religiosity of majority Muslims in Bangladesh. Rashiduzzaman, for example, thinks that Islam is an unyielding political identity in Bangladesh that is impossible to ignore, while Karim claims that the placement of secularism in the 1972 Constitution was ‘the second contradiction’ in the construction of the state identity, after Bengali nationalism.^[817]

The framers of the Constitution, by contrast, were cautious in choosing Bangalee nationalism and secularism as fundamental principles. The founding leader of Bangladesh, Bangabandhu Sheikh Mujibur Rahman,^[818] was ‘aware of the religiosity of the people’ himself, and reassured them that secularism did not mean the absence of religion, but that religions could not be used for political ends.^[819] This normative meaning of secularism that inspired the drafters is reaffirmed by Dr. Kamal Hossain, the Chairperson of the Constitution Drafting Committee, in these words:

The principle of secularism that was embodied in the Constitution was very carefully worded so as to make clear that it did not stand for hostility to religion. The constitution-makers were fully conscious that the majority of the [Bangalee] people were practising Muslims.

Indicating the internal connectivity between secularism and Bengali nationalism, Hossain further argues as follows:

Nationalism represented an assertion by the people of their identity, which evolved during the course of its historical struggle into the right to their language, culture, traditions and history. In declaring independence, the people of Bangladesh had emphasised that they were exercising their right to self-determination to create a nation state. [.] Now that Bangladesh had been established as a nation state, and was recognised as such by the world, their national identity could no longer be questioned.^[821]

Hossain, however, acknowledges that the adoption of Bangalee nationalism ‘led to smaller ethnic communities, in particular, those living in the Chittagong Hill Tracts, feeling excluded’.^[822] Bangladesh is a country of rich pluralism—cultural, ethnic, religious and political. As such, not addressing the issues of ethnic identity and linguistic distinction within the purview of national identity continued to be a significant source of discontent in the later years. As will be noted below, there has been a kind of mitigation of this problem recently, with the 15th amendment’s confirmation that the citizens will be known as ‘Bangladeshis’ and the people collectively as ‘Bangalee’ as well as the revival of ‘secularism’. These changes have been recently assessed by a leading scholar of legal pluralism with a positive note: ‘I read these new developments as a fresh effort to rebalance the kite [of the four founding ideals] of Bangladesh when it comes to minorities of whatever kind’.^[823] Indeed, constitutional identities, as Rosenfeld has argued in the US context, ‘are dynamic [and are] bound to evolve after they are initially formed’.^[824]

Despite the limited ability of constitutional amendment procedures to achieve changes in the domain of constitutional identities and despite their evolutionary character, however, basic tenors of constitutional identities should have an essential degree of permanence for the sake of constitutional durability.^[825] It is reasonable, therefore, that once any given constitution identifies its fundamentals, Parliament’s power to destroy them becomes curtailed ipso facto.^[826] Among the leading drafters of the Constitution of Bangladesh were the finest jurists of the country, and they were certainly aware of the idea of supra-constitutional fundamentals that was being developed gradually by the top courts in South Asia at the time.^[827] Arguably, therefore, the framers meant the constitutional cores to be durable, although they refrained from entrenching them in the earnest. It is beyond the scope of this chapter to inquire whether the non-entrenchment of the above principles in 1972 was a mere accidental lapse or an act of deliberate pragmatism.

Whether or not for the absence of an eternity clause concerning the constitutional fundamentals or the identity of the State, the higher principles of nationalism, socialism, democracy and secularism became assailed or were completely aban­doned not too long after the commencement of the Constitution. In August 1975, the founder of Bangladesh was most brutally assassinated. The assassination of the founding leader was followed by a declaration of martial law, which subjugated the Constitution to military decrees. Quite ironically, however, the assailment of con­stitutional fundamentals, in particular of the democratic character of the govern­ment, first came during the term of the post-1972 constitutional government through the 2nd and 4th amendments of the Constitution. The 2nd amendment introduced provisions for the state of emergency and preventive detention, while the 4th amendment converted the system of parliamentary democracy into a one-party authoritarian rule overnight and made the judiciary a subservient forum.^[828] These amendments, especially the 4th amendment, thus drastically changed the basic structure of the Constitution.^[829]

The first martial law regime (20 August 1975-9 April 1979) amended the Constitution by issuing military decrees, called proclamations, and began a process of Islamization of the Constitution that ‘gained legitimacy in 1977 when Martial Law Administrator Zia[ur] Rahman (1977-81) proclaimed that the secular consti­tution would now include the words “absolute trust and faith in Almighty Allah”’.^[830] Zia amended the preamble and article 8 to replace the fundamental principle of ‘secularism’ with the principle of ‘absolute trust and faith in Almighty Allah’, and the principle of ‘socialism’ with ‘socialism meaning economic and social justice’. Zia also replaced Bengali nationalism with Bangladeshi nationalism, proposing the terminology of ‘Bangladeshi’ to describe citizens of Bangladesh.

After the introduction of state religion, several civil society organizations, women’s organizations, professional bodies and lawyers began a movement against the complete demolition of the secular identity of the State. Several constitutional challenges to the 8th amendment’s state religion clause, based on the ground of discrimination against minorities and women, were filed with the High Court Division of the Supreme Court.^[833] These events prove that the abandonment of the secularism principle and the embracement of ‘political Islam’^[834] by the military regimes did not go totally unchallenged.

During the first military regime, an interesting development concerning the amendment rules, especially concerning the idea of entrenched constitutional pro­visions, occurred. After having done away with ‘secularism’ and having changed the character of ‘nationalism’, some provisions including the preamble and article 8 that established the national identity principles were made subject to amendments only after a positive vote in referendum.^[835] Howsoever, controversial this referen­dum provision might be and whatever selfish interest might actually have influ­enced its introduction, this can certainly be seen to be pointing to the recognition of unamendability of certain basic provisions of the Constitution except through the popular means of referendum.

Bangladesh transited to democracy in 1991 and the Awami League came to power in 1996 through the second post-1990 general elections, but the party did not opt for any restoration of the constitutional fundamentals adopted in 1972. In the meantime, the Supreme Court in two separate decisions struck down the 5th and the 7th constitutional amendments that legitimized, respectively, the first and the sec­ond martial law regimes.^[836] This judicial intervention effectively meant that the founding values of ‘[Bangalee] nationalism’, ‘secularism’ and ‘socialism’ became restored in their original form.

Against such a backdrop, the second post-democratic-transition Awami League government (2009-2014) introduced the 15th amendment which reinstated ‘so­cialism’ and ‘secularism’ and introduced an extensive pool of unamendable pro­visions, replacing the requirement of referendum for the amendment of certain fundamental provisions. These sweeping changes need to be assessed in the light of a few other changes brought about by the 15th amendment. Interestingly, alongside the principle of secularism,^[837] the state religion clause has been kept intact albeit with new wordings.^[838]

The Bangladesh Nationalist Party (BNP), whose political philosophy is one of Bangladeshi nationalism blended with Islamic tradition and whose founder changed three of the four fundamental constitutional principles, did not consent to the enactment of the 15th amendment. Therefore, it may be argued, in all likelihood the national founding values will continue to remain contested. The fierceness of the possible contestation might, however, be of a lesser degree, in view of the 15th amendment’s new compromise between Bangladeshi and Bangalee nationalism and between secularism and the majority Muslims’ Islamic identity.^[839]

The amended state religion clause now guarantees freedom of other religions for the minorities and imposes a duty on the State to ensure an equal status for those religions. In the context of confrontational politics vis-a-vis the national identity, the coexistence of ‘Islam’ as state religion with ‘secularism’, although at first blush it appears contradictory, now seems to offer a uniquely skilled tool to navigate through competing claims of identity. This innovative formula is clearly informed of the pluralist frame of diverse faiths and religions in society. As Menski has insightfully remarked from a plurality-sensitive perspective,

‘ [t]here is [...] simply no contradiction in a Muslim-dominated country to have [an] explicit commitment to Islam written into [.] the national Constitution, provided that this same Constitution also contains strong and effective mechanisms for religious and other minorities’.^[840]

For the sake of constitutional pluralism and the durability of constitutional identities, as Menski has recently suggested, the relevant actors will have to con­tinually manage the nation’s wish kite (‘iccher ghuri’) of these high ideals.^[841] Menski's argument, based on a ‘respect for the various differences and hybridities that characterize the nation of Bangladesh [or its identity]', is worth quoting:

[The fundamental principles of] nationalism, democracy, socialism and secularism, are not only interconnected,^[842] but all present continuing complex challenges. [.]. [A] pluralist theoretical perspective [of the constitution and the law]. [as a method] can help all concerned to understand better to what extent and why the four major elements of the iccher ghuri have not been secured by now. In view of continuing troubles, the unfortunate foregone conclusion is that all four elements of the national vision remain contested. As this contestation often involves brutal force, rather than constructive discussion and democratic methods, the result is that the nation as a whole does not prosper as much as it might do otherwise. The concluding message is, therefore, that more efforts need to be made by Bangladeshis to learn to live together in a spirit of constructive engagement to facilitate mature national growth.^[843]

The following section discusses briefly how the Bangladeshi Supreme Court developed and entrenched the concept of unamendability of fundamental features of the Constitution.

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