The Making

Bangladesh made a constitutional start with the Proclamation of Independence adopted on 10 April 1971. The Proclamation drew its validity from the People of East Pakistan, who elected the members of the East Pakistan provincial legisla­ture and Pakistan's central legislature in the 1970 general election.^[1342] Once the war broke out in 1971, the elected members constituted themselves into a Constituent Assembly for Bangladesh.^[1343] [1344] [1345] [1346] The Proclamation devised a presidential form of government and designated the nation's founding father, Bangabandhu Sheikh Mujibur Rahman, as the President.

At the end of the war, on 11 January 1972, Sheikh Mujib exercised his power to ‘give an orderly government for Bangladesh' and issued the Provisional Constitution of Bangladesh Order 1972. It changed the presidential system into a parliamentary one. A citizen challenged the President's power to fundamentally change the nature of the Government in the Supreme Court.²¹ The Court, however, upheld the presidential authority under the 1971 Proclamation.²²

The Constituent Assembly would exist for government accountability and the adoption of a new constitution.²³ The law-making powers were reserved for the Government. Understandably, there were questions about the democratic quality of the laws passed during those days and the rationality of denying the Constituent Assembly the power to legislate. The Government responded by arguing that the Pakistani Constituent Assembly's failure to adopt a constitution until 1956 (nine years after its independence) damaged its constitutional order and facilitated military intervention into politics.

Within the constituent assembly, a 34-member Drafting Committee was set up in April 1972 with Dr Kamal Hossain, the Minster of Law and Parliamentary Affairs as its Chairman. It also included four other top-ranking Ministers. Interestingly, all the members (including one woman) of the committee belonged to the ruling party Awami League (AL), except Sri Suranjit Sen Gupta, a lone opposition member from the National Awami Party (NAP). AL's Pakistan-era opponent - the Muslim League (ML), and other Pakistan-sympathising Islamist parties like Jamat-e-Islami (JI) were banned and hence excluded from the constitution-making process. The China-sympathising leftist political groups that either opposed or played the bystanders in the liberation war (China opposed Bangladesh's independence) were also excluded from the process. Excluded, though not banned, they questioned the validity of forming the Constituent Assembly based on the 1970 election. One of Sheikh Mujib's political secretaries dismissed the critique, claiming that the AL was morally and legally competent to frame the Constitution based on ‘an unquali­fied mandate' it received in the 1970 election.^[1351] As I argue later in this chapter, this exclusionary approach - though understandable in 1972 - would cause a signifi­cant strain on the political viability of the Constitution, particularly during the mid-1970s’ military intervention and revival of Pakistan-sympathising political parties.

The Drafting Committee held 74 meetings and took nearly 300 hours to complete its work. It invited ‘any institution or person interested’ to send their constitutional proposals. The invitation was publicised through the press, radio, and television, but only 98 memoranda were received. Some attribute the poor response to the fact that the fundamentals of the soon-to-be adopted constitu­tion were already set out in the Provisional Constitution Order, and the ruling party and its allied groups had differences only on matters of texts.^[1352] Though there was no open attempt to invite international expertise or consultation during the constitution-drafting process, the Chair of the Drafting Committee, Dr Kamal Hossain, personally drew from leading Indian lawyer Subrata Roy Chowdhury.

The Drafting Committee approved the final Constitution Bill on 11 October 1972. Conclusions were reached over most clauses by unanimous decisions and, in other cases, by a majority of the members present. On several matters, six committee members noted their dissents separately. Of those six dissenters, five belonged to the ruling party and one to the sole opposition party, NAP). Dr Kamal Hossain introduced the Constitution Bill in the Constituent Assembly on 12 October 1972. The Bill was then published in national dailies inviting public input into the draft. Other political parties and student organisations expressed their views through press briefings. Apart from the general debate on political principles, the process did not generate any concrete textual input. Parties largely talked along ideological lines - some questioning the legitimacy of the Constituent Assembly and others critiquing the foundational pillars of the Constitution. A ceremonial session of the Constituent Assembly was held on 14-15 December 1972 when Members of the Constituent Assembly (MCA) formally signed a decorated handwritten copy of the Constitution. Sri Suranjit Sen Gupta, the sole opposition member of the Drafting Committee, declined to sign the Constitution’s final draft on the ground that his demand for mandatory free primary education up to class eight was not accommodated. Yet he acknowledged, ‘The chance (of deliberations) I was given shall be a milestone in the history of democracy’.^[1355] The Constituent Assembly was dissolved on 16 December 1972. The Constitution came into force on that date.

Election to Bangladesh’s First Parliament was scheduled on 7 March 1973.

IV.