Reform Commission recommends repealing March 7 despite being upheld by HC

The High Court ruled to repeal the 15th Amendment to the Constitution on December 17 last year, upholding the historic March 7 speech of 1971, Bangabandhu Sheikh Mujibur Rahman's declaration of independence, and the Mujibnagar government's proclamation of independence during the great liberation war. However, in its final report to the interim government, the Constitutional Reform Commission has proposed to repeal Article 152(2) of the Constitution, which includes the historic March 7 speech, Bangabandhu Sheikh Mujibur Rahman's declaration of independence, and the Mujibnagar government's proclamation of independence.

In the report, the commission, formed by the interim government to reform the state, has recommended the amendment, modification or repeal of 64 articles, out of 153, of the constitution. In order to include 'student-people's uprising of 2024' in the preamble of the constitution, the commission also proposed to add four new articles maintaining the continuity of the 1971 Liberation War.

On Saturday (February 8), the Constitution Reform Commission, led by Professor Ali Riaz, submitted the full report to Chief Adviser Dr Muhammad Yunus. However, it did not say how these reforms of the constitution would be made.

According to the constitution, the constitution cannot be amended without a two-thirds majority in parliament. Only elected members of parliament can do so. Therefore, the national parliament is also needed to amend the constitution.

The Constitutional Reform Commission has asked to consider several issues with importance to ensure effective democracy, fundamental human rights and accountability. The proposals are – keeping 'equality, human dignity, social justice, pluralism and democracy' as the basic principles of the constitution and the state, reflecting the great ideals of the 1971 War of Independence and the popular aspirations of the '2024 People's Uprising'; establishing an institutional balance of power; reducing the exclusive power of the Prime Minister; specific proposals for an interim government structure; decentralisation of the judiciary; ensuring a strong local government system; expanding the scope of fundamental rights; and ensuring constitutional protection and enforceability.

The commission also recommended replacing the existing preamble to the constitution with a new text.

The recommended preamble highlights the great liberation war of Bangladesh and the united resistance against authoritarian and fascist rule to establish democracy.

The recommended preamble states, "We, by exercising the sovereign rights of the people, are writing and enacting a constitution for the people, adopting equality, human dignity, social justice, pluralism and democracy as the fundamental principles of the constitution, which constitution is the expression of the highest aspirations of the people of Bangladesh and which constitution will ensure joint national development in an independent entity and protect the rights of present and future generations. We firmly declare that this constitution will unite every citizen in the spirit of rights, duties and accountability towards each other, will always ensure public representation in the governance of the state, will follow the principles of international peace and cooperation and will uphold state sovereignty."

It has been proposed to formulate a ‘Charter of Fundamental Rights and Freedoms’ by combining the rights of the second and third parts of the constitution, which will be enforceable in the courts and will remove the existing differences between economic, social, cultural, civil, and political rights.

The recommendations also include the repeal of one of the most discussed articles of the constitution of Bangladesh, Article 70. According to Article 70, “If a person is elected as a member of parliament after being nominated as a candidate of a political party, and if he resigns from his party or votes against his party in parliament, then his seat in parliament shall be considered vacant.”

Bangladesh's unicameral parliament has a total of 350 seats, including 50 reserved seats for women. The commission's recommendation has proposed a bicameral parliament. It says, "The parliament can be two-chamber, with more than five hundred seats, and women's seats will also be voted on. The number of seats in the lower house of parliament will be 400. Along with this, the number of seats in the upper house will be 105.
Out of the 400 seats in the lower house, 100 will be women's seats. They will have to be nominated by their party, and elected directly."

The Commission report recommends, “A member of Parliament shall not hold more than one of the three positions – prime Minister, leader of the house or head of a political party – at the same time. In addition, members of the lower house, except for money bills, shall have full power to vote against the party nominating them and the chairpersons of the standing committees of the legislature shall always be nominated from among the opposition members.”

To involve the youth in politics, the Commission further recommended, “Political parties shall nominate candidates from among the youth for at least 10 percent of the total seats in the lower house and the minimum age to contest in parliamentary elections shall be 21 years. There shall be two Deputy Speakers in Parliament, including one nominated by the opposition party and any amendment to the constitution shall be subject to the approval of a two-thirds majority of both houses and subsequently, if the proposed amendment is passed by both houses, it shall be submitted to a referendum.”

To ensure transparency and accountability in state affairs and balance between state organs and institutions, it has been recommended to form a 'National Constitutional Council (NCC)'. Besides, the report has also recommended to appoint an interim government for a maximum period of 90 days after the end of the term of the legislature, or if the legislature is dissolved, until the next elected government takes oath.

The commission has recommended changing the system that the constitution has given to the Prime Minister, 'sole dominance and power', and establishing a balance of power between the Prime Minister and the President through an institutional structure.

The commission has recommended changing the system that constitutionally empowers the Prime Minister with ‘absolute authority and power’, establishing a balance of power between the Prime Minister and the President through an institutional framework.

The recommendation of the Constitutional Reform Commission states, “Each party will get a seat in the upper house according to the percentage of votes a political party received in the general election. This will pave the way for representation of all parties. If there is representation based on the percentage of people who voted for them, then all people will be represented in Parliament.”

Regarding the independence of the judiciary, it has been proposed that “the judiciary of Bangladesh was separated from the executive branch through a legal process in 2007. The aim was to make decisions free from political and other influences. However, in the past few days, allegations have been raised by opposition political parties and various sections of society that the judiciary is not actually independent but is run according to the will of the government. To ensure the independence of the judiciary institutionally, a separate secretariat for the judiciary needs to be established”.

The report recommends the decentralisation of the high courts to alleviate public suffering and the introduction of permanent seats of the High Court, with equal powers to the High Court, in all divisions of the country. It says, “However, the seat of the Appellate Division of the Supreme Court will remain in the capital.”

At the same time, the commission has also proposed to give full financial independence to the judiciary.

To reduce the dependence on the government or the executive branch, it has been proposed to bring financial allocation to the judiciary directly from the Consolidated Fund (independent fund).

Regarding local government, it has been said, “For almost a decade, local government elections in Bangladesh have also been held on party symbols. The involvement of members of parliament in local-level development, including the allocation of funds, has been increased. Due to these reasons, the local government system has become dependent on the central government. The executive branch completely controls even their budgets to such an extent that the local government can't do anything. In addition, members of parliament have taken responsibility for all development work. Therefore, local governments need to be given direct responsibility for development work along with independent allocation.”

In addition to food, education, medical care, housing and clothing, the Constitutional Reform Commission has also recommended the inclusion of some new rights in the constitution, such as access to the internet, access to information, voting rights, participation in the governance of the state, protection of privacy, consumer protection, child development, science and the rights of future generations.