No one should be allowed to play with Constitution

After former Prime Minister Sheikh Hasina resigned and left the country in the face of student protests, a political vacuum was created. In this context, an interim government led by Dr. Yunus took charge of the state's administration. Essentially, it was the protesting students who have been controlling the interim government. The nature of this new government has raised doubts in many minds.

The current interim government of Bangladesh cannot be called a constitutional government, nor can it be termed a revolutionary government. This is because our constitution does not have any provisions for an interim or caretaker government, even though the advisers have taken an oath before the constitutionally elected president. Furthermore, the interim government has not annulled the existing constitution. In fact, they do not have the authority to annul the constitution. Only the elected national parliament or a referendum can nullify the constitution. In normal circumstances, there is no other way to annul the constitution. If martial law is imposed in the country, the relevant authorities may have the power to annul the constitution. Therefore, in the future, this government may face challenges regarding constitutional legitimacy. An easy way to overcome this situation would be to amend the existing constitution.

It seems that the interim government is moving in this direction. However, the main responsibility of the current interim government is not constitutional reform, but to hold a national election that is as widely accepted nationally and internationally as possible and transfer power to the elected government in the shortest possible time. The appropriate authority for constitutional amendment is the national parliament. However, despite this, the interim government has taken the initiative to amend the constitution. The question has arisen whether the existing constitution, which was obtained through the sacrifice of the blood of 30 lakh martyrs, should be amended or rewritten. Some, in their emotional fervor, have proposed the complete annulment of the current constitution and its rewriting. As a result, a debate has emerged over whether the existing constitution will be amended/modified or whether the entire constitution will be discarded and a new one will be drafted.

Our current constitution, which was obtained through the blood of 30 lakh martyrs, should not be rewritten. Such an attempt would be a sheer audacity, and the people of Bangladesh would never accept it. After all, are there capable individuals in Bangladesh who can draft a new constitution? The current constitution was drafted in 1972, following independence. While there may be disagreements regarding Dr. Kamal Hossain's personal political stance, he played the most crucial role in the formation of the constitution. Dr. BR Ambedkar is regarded as the father of India's constitution, and in the case of Bangladesh’s constitution, Dr. Kamal Hossain's role was similarly significant. Therefore, those who are calling for the rewriting of the constitution are essentially living in a fool's paradise. The constitution is a dynamic process. A state or its people are not created for the constitution; rather, the constitution is created for the welfare of the state and its people. It is not uncommon for any provision or clause of the constitution to be amended, changed, added, or deleted according to the needs of the state. However, wanting to rewrite the constitution altogether is indeed an act of audacity.

For a long time, there have been questions regarding the capacity of the existing constitution of Bangladesh to fulfill the aspirations of the people. The constitution that was drafted in 1972 may have met the demands of that time, but today there is no room for following it strictly. The ruling class has repeatedly altered and amended the core constitution, making it ineffective. The changes and amendments have been made in such a way that they have allowed the ruling class to become authoritarian. The current constitution has become a tool to serve the interests of the rulers, rather than serving the welfare of the people. Therefore, the existing constitution may need to be amended. The amendments must reflect the aspirations of the people. It is important to clearly define the scope and terms of reference for the commission that has been formed to amend the constitution.

In the context of constitutional reform, the first focus should be on the process of holding national elections. There needs to be a permanent system in place for how national elections will be conducted. Since the independence of our country, none of the national elections held under party-based governments have been free from controversy. These elections have had no credibility at both the national and international levels. The only five national elections that were relatively free and fair were those held under the caretaker government, which gained acceptance both nationally and internationally. In 2013, the previous government abolished the caretaker government system, citing a court ruling. During the five national elections held under the caretaker government, no political party was able to stay in power for two consecutive terms.

Political scientist Machiavelli once remarked that no government can fully fulfill the expectations of the people. Therefore, in subsequent elections, the general public tends to want to bring a new party to power. If no suitable new party can be found, they often bring back the previous political party or the “immediate past” government to power. I see a remarkable reflection of this quote in Bangladeshi politics. Therefore, the constitution must be amended to establish an electoral system where no party government remains in power during the election period.

The Election Commission plays a crucial role in organizing free and fair elections. Therefore, it is necessary to establish a completely independent Election Commission, free from the influence of the previous government. The commission should consist of individuals who are nationally acceptable and have no accusations of corruption or bias in their personal or professional lives. There should be no interference or influence from the outgoing government in the formation of the Election Commission. The nomination of election commissioners can be made through the recommendations of an investigation committee, consisting of individuals who are nationally recognized and respected.

The current constitution does not specify how many times a person can become Prime Minister or Minister. In the upcoming constitutional amendments, a clear provision could be added that no individual can serve as President, Prime Minister, or Minister for more than two terms. Additionally, a person should not hold both the position of head of government and the leader of a political party. This is because when a person is appointed as Prime Minister, they should be the Prime Minister of the entire country, not just the Prime Minister of a specific political party.

There are those who argue for banning the Awami League on charges of crimes against humanity; however, this argument is not at all acceptable. A political party is an abstract entity, and a political party cannot commit crimes against humanity. It is the political leaders who manage the party who commit such crimes. Therefore, it is the leaders who should be banned, not the political party itself. If a leader of a political party commits visible crimes against humanity while in power, they can be permanently banned from engaging in any political activities. If someone in a position of power commits a major crime, their assets can be seized, and they can be banned from joining any political party.

If a political party is banned instead of banning the leader, that leader may establish a new political party under a different name or join another political party. A political leader or leader’s character does not get tainted because of the party, but rather because of their own wrongdoings. If any political leader—whether from the ruling party or the opposition—amasses wealth or assets through corruption and irregularities, or funnels them abroad, their immovable and movable properties can be immediately seized by the state. If, later, through a legal process, the person proves their innocence, only then should the seized properties be returned.

Moreover, when a political leader is charged with a case and that political party later comes to power, it is unacceptable for the case to be withdrawn. If a case is filed, the accused must prove their innocence in court. If the case is proven false, the person who filed the case can be given exemplary punishment.

In the appointment of personnel in various statutory bodies and constitutional institutions, priority should be given to merit over party loyalty. Institutions like the Public Service Commission, Election Commission, and National Revenue Board must not be politicized in any way. For the appointment of certain officials and judges, the Prime Minister's recommendation is required. This provision could be abolished, as the Prime Minister may prioritize party loyalty over competence when recommending individuals for such positions. To maintain the integrity of the judiciary, transparency must be ensured in the appointment process.

There is a noticeable trend of widespread politicization in state-owned enterprises. If any officer or employee working in a state-owned institution becomes involved in politics directly or indirectly, they should be immediately dismissed and punished. Even if the concerned individual retires, provisions could be made to confiscate their movable and immovable properties. According to reports, there are 55,000 individuals with fake freedom fighter certificates who were born after 1971. These individuals must be identified and brought to justice. Those who have secured jobs using fake certificates should have their salaries and allowances confiscated in favor of the state, as they have tarnished the legacy of the freedom fighters for personal gain.

A provision in the constitution prohibits elected members of parliament from voting on issues outside of their party's position. As a result, even if a harmful or objectionable proposal is raised by the party, members are compelled to support it. This violates the freedom of expression of individual parliament members. This provision should be abolished. Additionally, whenever a vote is needed on an issue, it should be conducted through a secret ballot rather than a show of hands, as the latter method may prevent members from expressing their true opinions freely.

If any provision or clause of the Constitution is found to be against humanity or not in the interest of public welfare, it can be amended. The Constitution is a crucial document of the state, and it is based on which the government governs and works towards the welfare of the people. Therefore, no one should be allowed to treat the Constitution lightly or make it a subject of trivialization.

ZI Khan Panna: Freedom Fighter, Senior Lawyer, and Chairman of the Ain o Salish Kendra (ASK).