The Unmaking

The Constitution of 1972 was hailed by its sponsors as the ‘most progressive constitution' of its time.^[1384] The initial years under the new Constitution, however, were chaotic.

A. Assault on the Parliamentary System

While the 1972 Constitution's foundational basis was laid through a mass mobi­lised liberation war, the political will of a chosen few - especially that of the country's founder Bangabandhu Sheikh Mujibur Rahman - shaped the priorities of the Constitution-makers. Personalising tendency was apparent at almost every step - minor or major - of the post-war state-building process. The Provisional Constitution Order 1972, drafted at the personal behest of Sheikh Mujib, consti­tuted an inviolable structural and philosophical prescription for a 34-member Constitution Drafting Committee. The Committee worked mainly on the details of the texts. The Constituent Assembly's capacity to assist the process through its regular legislative works was also absent. As mentioned earlier, under the Provisional Constitution, Sheikh Mujib's Government exercised legislative power during the constitution-drafting period. By the time the Constitution came into force in December 1972, the edifice of Bangladesh's administrative and public laws was built at the sole discretion of one leader - Sheikh Mujib.^[1386] During that period, the Government promulgated 202 Orders which were ‘varied and all-embracing in scope and content and may be said to have laid the foundation of the new legal order in Bangladesh'.^[1387]

Though AL emerged as a mass-based political party during the Pakistani regime, the party did not evolve through a process of the intra-party democratic process.

In January 1975, Prime Minister Sheikh Mujibur Rahman brought the Fourth Amendment Bill to switch the parliamentary system into a presidential one.^[1391] Mujib dissolved AL and all other political parties and introduced a one-party (BAKSAL) state.^[1392] Admittedly, Sheikh Mujib attempted the drastic change with­out mobilising enough intra-party consultation and consensus.^[1393] The dissenters were silenced, and the Fourth Amendment was passed in the Parliament with­out any backbench input and literally within minutes of tabling it on the floor. The pro-Pakistani elements of the army, AL's disgruntled faction, and the pro­China leftists seized the opportunity of Sheikh Mujib's deteriorating public appeal.^[1394] He was brutally killed along with almost all his family members on 15 August 1975. For the next 15 years, Bangladesh was governed by direct military authoritarians who amended, abolished, or substituted the Constitution at their sweet will.

B. Tearing Up the Four Foundational Principles

In 1972, an important requirement of the parliamentary system - conservative­liberal bipartisanship was conspicuously missing in the newly independent Bangladesh. The conservative political forces of undivided Pakistan coalesced around the ML and Jamaat Islami (JI), both of which actively opposed the liberation of Bangladesh. They lost their right to exist in the newly independent country.

Soon, the Constitution’s ethnolinguistic ‘Bangalee Nationalism' was discarded for a territorial and citizenship-based identity called ‘Bangladeshi nationalism’.^[1396] [1397] [1398] Bangladeshi nationalism was a thinly veiled attempt to distinguish Bangladesh’s majority Muslims from West Bengal (India)’s majority Hindus (both are Bangalees). The Islamist parties enthusiastically embraced the newly coined identity. To their further satisfaction, the military regime deleted secularism and added a principle of ‘Absolute trust and faith in the Almighty Allah’^71,72 instead. ‘Bismillah-Ar-Rahman-Ar-Rahim (In the name of Allah, the Beneficent, the Merciful)’ was added at the beginning of the Constitution. A separate constitu­tional provision was inserted to prioritise Bangladesh’s closer relationship with the Islamic states worldwide.^[1399] In 1988, the second military regime further amended the Constitution to declare Islam as the ‘State Religion’ of Bangladesh.^[1400]

In the 2000s, after the return of AL to power, the Supreme Court of Bangladesh invalidated all those constitutional amendments in different cases.^[1401] Following the judgments, the AL Government tried, with limited success, to restore the original versions of the nationalism and secularism clauses.^[1402] AL had to accept the ground reality created by decades of religious polarisation this time. It decided to revive the original texts partially and retain the Bismillah and State Religion clauses.^[1403] In 2016, a division bench of the High Court Division of the Supreme Court refused to hear a challenge to the State Religion clause.^[1404] Presumably, the Court was influenced by the same political development that forced the AL Government to compromise.^[1405]

The post-1975 military regimes also favoured a capitalist economy over the original Constitution’s socialist ideal.

‘economic and social justice’.^[1406] Most of Mujib's nationalised industries were de-nationalised. State-owned banks, financial institutions, and trading concerns have fallen to private hands. The shares until recently held by the Government in many enterprises were sold to private individuals or companies.^[1407] The discard of ‘socialism’ permanently shaped Bangladesh’s economic policies and priorities. Even the AL coming back to power in 1996, continued the privatisation process and quietly gave up on its socialist commitment. The original Constitution’s vision for a socialist state was essentially forgotten, and Bangladesh moved permanently towards a market-based capitalist economy.^[1408]

C. The Era of Competitive Bi-Partisan Authoritarianism

Bangladesh restored the 1972 scheme of the parliamentary system in 1991.^[1409] A joint manifesto of the political alliances staging street agitation against the mili­tary regime agreed that rubber stamp parliaments working under the military’s presidential regimes (1975-1990) must be replaced with a Parliament having insti­tutional power to hold the Government accountable.^[1410] However, the second life of Bangladesh’s parliamentary system would soon fall into a new round of illiberal, bipartisan and competitive authoritarianism.^[1411] It was because, at that juncture of Bangladesh’s political history, the survival of parliamentary democracy depended on other issues directly impinging upon the system.^[1412]

First, prolonged military intervention in politics substantially weakened the prospect for civilian leadership and parliamentary oversight of the civil-military bureaucracy.^[1413] Second, by the 1990s, Bangladesh’s party system got firmly dynastic and patriarchal roots. Sheikh Mujib’s daughter Sheikh Hasina was now placed at the helm of AL. The first military ruler, Ziaur Rahman’s widow Begum Khaleda Zia got a similar hold over BNP.

This period of competitive authoritarianism led to a purposeful decon­struction of the country’s electoral institutions. As mentioned earlier, the Constitution-framers paid remarkable attention to the functional independence of the Election Commission. However, the biggest threat to its institutional inde­pendence lurked within the Government’s unrestricted appointment power.^[1416] As per the Constitution, the Chief Election Commissioner (CEC) and other election commissioners are appointed by the President, acting on the Prime Minister’s advice.^[1417] Successive political governments had captured the Commission by using its appointment power. Though there had been a recent practice of convening a search committee for finding and recommending the CEC and other election commissioners,^[1418] the process proved broadly farcical.^[1419] The search commit­tee found its legal footing through the Chief Election Commissioner and other Election Commissioners Appointment Act 2022.^[1420] The committee’s mandate and powers, however, remained in the shadows. Though the 2022 Act requires the committee to work in a ‘transparent and neutral way’,^[1421] there are substantial doubts about its capability to ensure transparency.^[1422] With the President’s consti­tutional obligation to act upon the Prime Minister’s advice intact, the 2022 Act cannot offer a binding force to the search committee’s recommendations.

Once constituted, the Commission must depend on the government bureau­cracy, including the law enforcement agencies.^[1423] The Constitution is silent about a separate Election Commission secretariat. It requires the executive branch (the bureaucracy) to ‘assist’^[1424] the Commission. In 1984, military ruler Ershad brought the secretariat under the President’s direct supervision. After 1990, it continued to be attached to the Prime Minister’s office. The Commission’s principal administra­tive officer, the Secretary, was appointed on deputation from the Prime Minister’s office. Thus, the Election Commissioners led an organisation they could not command.

Later in 2008, following a judicial order,^[1425] an Ordinance was issued separating the Commission Secretariat from the Prime Minister’s office. The Ordinance was made into law in 2009.^[1426] The law, however, failed to make any difference. The constitutional requirement to ‘assist’ the Commission^[1427] could not consolidate its position in practice. The Commission usually places numbers, for example, the returning officers, polling officers, support staff, etc before the President. Those staff, posted on deputation from other Ministries and departments, are practically not expected to perform their responsibilities in ways that might draw the ire of their political bosses.^[1428]

The Election Commission’s inability to effectively command the govern­ment administration was exposed in the very first election of the country.^[1429] It was laid bare by the military regimes’ day-light election-rigging^[1430] and result manipulation.^[1431] The situation did not change after the democratic revival of 1990 either.^[1432] Instead of addressing the Election Commission’s institutional weaknesses, the post-1990 political parties brought forth the concept of an election-time, care­taker government led by non-political personnel like the Supreme Court judges.

The concept of a caretaker government was first aired in 1994 as an oven-ready solution to the country's life-long problems with electioneering. The proponents of the model, mainly the then opposition party AL, looked back to the 1991 parliamentary election held under the then Chief Justice acting as an interim President.^[1433] AL and its allies were confident that the judges of the Supreme Court could fix the nation's electoral problem.^[1434] This disregarded Bangladesh's troubling past of the judges' controversial connivance with various extra-constitutional and martial law regimes.^[1435] Though the caretaker government has been able to oversee two parliamentary elections (1996 and 2001) relatively fairly, the judges' broker­age of an election-time government led to rampant politicisation of the judiciary, scandalisation of the judges and compromise of judicial independence.^[1436]

On the other side of the coin, the then ruling party BNP - forced to consume the system - framed it as a reluctant concession and tried, in every possible way, to weaken the caretaker Government's non-partisan leader vis-a-vis a partisan President.^[1437] Thereby, the BNP leadership devised a system of dual government that contained a looming threat of destabilising the election-time government.^[1438] One such incident happened just days before the seventh parliamentary election in 1996. BNP-appointed President Abdur Rahman Biswas exercised his military powers dubiously, almost inviting a third military coup and causing the fall of Justice Habibur Rahman's caretaker government.^[1439] Also, the heads of the 1996 and 2001 caretaker governments found their constitutional mandate unclear. They had often been forced to perform various balancing acts to fulfil the competing demands from major political parties.^[1440] The system, therefore, produced a ‘hotch­potch' that violated ‘the entire scheme of the Constitution'.^[1441]

Assuming the power again in 2001, the BNP-JI coalition amended the Constitution to ensure that a judge favourable to them would lead the caretaker

Government of 2006.^[1442] AL staged violent street agitation, and in response, the BNP-appointed President laj Uddin Ahmed staged a constitutional coup and usurped the leadership of the October 2006 caretaker government.^[1443] laj Uddin's action invited the third round of military intervention in Bangladesh politics. A so-called ‘military-backed caretaker government' continued for the next two years (2007-2008)^[1444] and conducted the ninth parliamentary election (2008).^[1445]

Later, in 2011, the Appellate Division of the Supreme Court declared the care­taker Government unconstitutional.^[1446] Still, the Court supported holding at least two further parliamentary elections under the caretaker Government system.^[1447] This time the AL Government seized on the opportunity and discarded the system altogether.^[1448] The (fifteenth) constitutional amendment was passed within minutes and without any substantial discussion on the floor.^[1449] Like Sheikh Mujib's fourth amendment, Sheikh Hasina's fifteenth amendment exposed the internal weak­nesses of Bangladeshi political parties and their falling hostages to the whims of the persons in leadership.^[1450] Thus, the caretaker Government's ‘unusual legal structure' was created and abolished as a mere elite preference rather than delib­erative and participatory decision-making.^[1451]

The tenth parliamentary election (2014) was held without any caretaker government in charge, and BNP boycotted it. The majority of the MPs were elected uncontested even before the election day.^[1452] BNP participated in the eleventh parliamentary election (2018). This time, with an AL Government in power,^[1453] BNP supporters and activists were visibility suppressed by the politicised election commission, bureaucracy, and law enforcement agencies. AL activists captured most polling stations and stuffed the ballot boxes on the night before the election day.^[1454] This preventive approach of electioneering drives the political opponents and the people agonisingly away from the electoral process. Thus, the Bangladeshi people's widespread withdrawal from the electoral process in recent years appears a logical manifestation of the electoral system's credibility crisis.^[1455]

D. A Marginalised Judiciary under a One-Party Authoritarianism

While Bangladesh's judicial branch has been co-opted and marginalised by the political and military governments alike,^[1456] the current regime of one-party authoritarianism has taken the marginalisation to an unprecedented height.

The 1972 Constitution provided for the parliamentary removal of judges. In 1977, military ruler Ziaur Rahman substituted it with removal by the Judicial Council system. The Council comprised the Chief Justice and two other senior Supreme Court judges. Once activated by the President, the Council would inves­tigate any allegation and recommend necessary action, including the removal. In 2009, the Supreme Court declared Zia's accession to power and his constitu­tional amendments (the Fifth Amendment) unconstitutional.^[1457] It, however, condoned the Judicial Council system. It observed, without any further reasoning, that the council system was more transparent and pro-judiciary than the original one. Absent any other explanation; it appears that the judges were comfortable with the council members' (the judges themselves) exclusive power of investiga­tion and recommendation for the potential removal of any of their colleagues.

In 2014, the AL Government sought to revive the original parliamentary removal system through the sixteenth amendment.^[1458] While the AL Government preserved the council system in the fifteenth amendment (2011), its new initiative was perceived as a retaliatory move against a supreme court judgment touching upon the Parliament members' privileges.^[1459] This time the Supreme Court extra-ordinarily declared the original removal system unconstitutional.^[1460] The bullish response to the amendment led to a confrontation between the political and legislative branches.^[1461] In its judgment, the Court passed a scathing rebuke of the Parliament.^[1462] The High Court Division ruling of 5 May 2016 contained some derogatory remarks on the character and disposition of the MPs. MPs scrambled the House floor and aired heavy criticism of the Court for refusing to submit itself to the Parliament's removal power.^[1463] The High Court Division judgment was immediately appealed against, and the Appellate Division rejected the Government's appeal on 3 July 2017. Another round of infuriated criticism ensued on the House floor on 9 July 2017. The full text of the judgment of the Appellate Division came out on 1 August 2017. While the High Court Division's comments were already fuelling the fire, Chief Justice SK Sinha's opinion in the appeal verdict was full of attacks on the politicians and the Parliament.^[1464] It put him in a straight hot seat. He was accused of bias,^[1465] and a demand for his resignation started to echo on the political spectrum. While the AL Government was preparing for a review petition against the judgment,^[1466] stubborn Sinha tried to revive the pre-amendment council system within two days of publish­ing the full-text verdict by calling its meeting.^[1467]

In reaction, the Parliament unanimously passed a resolution for taking ‘proper' legal steps for ‘cancelling the verdict' and expunging Justice Sinha's ‘unconstitu­tional, objectionable and irrelevant' observations.^[1468] Scenes changed swiftly after that, and by 11 November 2017, Chief Justice Sinha was forced to leave the coun­try ‘for treatment' and later resigned as the Chief Justice.^[1469] A review petition against the Appellate Division judgment is still pending. The subsequent Chief Justices also did not call any meeting of the Supreme Judicial Council. Later, three judges of the Supreme Court facing misconduct charges were instructed by the then Chief Justice to refrain from their respective benches. Whether the Supreme Judicial Council would investigate them or whether they would be subject to the parliamentary removal process was not clarified.^[1470] So, the Constitution’s current position on judges’ removal is unclear. So is the state of judicial independence.

VI.