The Design
One of the framers’ four foundational pillars was democracy. To the framers, it meant ‘governance, at all levels, through the mandate of the people’.[1356] Accordingly, various provisions of the Constitution enumerated the republican nature of the state,[1357] parliamentary system,[1358] and elected local governance.[1359] Preference for the parliamentary system over the presidential one was particularly important.
Bangladesh’s revolutionary leader Sheikh Mujib and his party AL weighed political strife against the presidential dictatorships of the Pakistani military regimes. AL abhorred the presidential system and preferred a cabinet government answerable to the Parliament. The Constitution made the President a ceremonial head of state bound by the Prime Minister’s advice.[1360] The Prime Minister must be a member of the legislature and command the support of the majority of MPs.[1361] The Prime Minister and other ministers would answer the Parliament collectively.[1362] The Government must resign if it loses its confidence.[1363] However, a paradoxical provision was article 70 (anti-defection clause). It required the MPs to vote strictly on the party line or lose their parliamentary seats. It was a restraint upon the Parliament’s accountability power, and the clause has been the subject of constant constitutional debate since 1972.[1364] The framers, however, referred to the MPs’ abusive voting history during the Pakistani period and frequent fall of cabinet governments at the behest of Pakistan’s various interventionist presidents.[1365]Framers touted ‘socialism’ as the core constitutional principle of economic management. It was believed that a liberal democratic model of government could be applied towards achieving a ‘socialist society, free from exploitation’.[1366] The framers wanted to realise, ‘through the democratic process’, ‘a socialist economic system (....) ensuring the attainment of a just and egalitarian society, free from the exploitation of man by man’[1367] A part of the Constitution (Part II - fundamental principles of state policies) was dedicated to various socio-economic rights including guarantee of food, clothing, shelter, health care and education, equality, just compensation for labour, state acquisition of private property, etc.[1368] However, the fundamental principles were conceived as political aspirations rather than judicially enforceable rights.[1369] The socialist motivation of the framers was primarily guided by an eagerness to avoid the Pakistani military’s capitalist policies that saw a widening of the gap between the haves and have-nots and disproportionate channelling of public resources towards the benefits of civil-military bureaucracies and business elites.[1370] Accordingly, Article 42(2) provided for the acquisition, nationalisation or requisition of private property with or without compensation.
Sheikh Mujib’s Government nationalised the important service industries and permitted private ownership in the industrial sector subject to the possibility of an article 42 acquisition.The 1972 Constitution’s third and fourth principles - Bangalee nationalism and secularism - were deeply interlinked. Bangalee nationalism was touted as the new nation’s ethnocultural and language-based national identity. It was a clear rejection of Pakistan’s religion-based nationality. Article 6 of the Constitution read:
The unity and solidarity of the Bangalee nation, which, deriving its identity from its language and culture, attained sovereign and independent Bangladesh through united and determined struggle the war of independence, shall be the basis of Banglaee Nationalism.
Secularism was a natural upshot of language-based nationalism. It was presented as a mix of state neutrality and intervention in religion. Article 12 prohibited the establishment of any dominant religion in the state, guaranteed religious freedom and equality for the people of all faiths, undertook a responsibility to eliminate communalism in all forms, and banned the use of religion as a tool of politics.[1371] Article 38 of the Constitution expressly outlawed the formation of religion-based political parties.[1372]
Constitutional principles apart, the framers paid substantial attention to institutions like the Election Commission and the Judiciary. The Election Commission was the constitutional guarantee of regular and orderly transfer of power. Article 118(4) guaranteed the Commission functional and institutional independence from the Government. The Election Commissioners have assured a fixed five-year tenure[1373] and job security equal to the Supreme Court judges.[1374] They were also barred from accepting post-retirement benefits.[1375] The Commission was assured of necessary logistic and administrative support, and the Government was constitutionally bound to ‘assist’ the Commission in discharging its duties.[1376] Article 119(2) gave the Commission the plenary power of conducting the election ‘honestly, justly and fairly’.[1377] The Supreme Court has interpreted this power as wide enough to permit the Commission to act even in areas where the law is silent as to what is to be done or not to be done.[1378]
On the other hand, the judiciary was seen as the institutional guarantee of Bangladesh’s constitutional supremacy (as opposed to parliamentary sover- eignty).[1379] The Supreme Court was given the power to judicially review the parliamentary laws and enforce the citizens’ fundamental rights against state and non-state actors.[1380] The higher judiciary was given an express guarantee of independence.[1381] Judges were given security of tenure until they reached a certain age.
They could be removed only upon an impeachment resolution passed by a two-thirds majority in Parliament, which was equal to the threshold required for constitutional amendments.[1382] Regarding the subordinate courts, there was a constitutional commitment to separate them from the executive branch.[1383]V.