Constitution reform commission: A triumph of rational thinking

Illustration: TBS

A constitution reform commission has been announced that puts to rest the much more serious idea of making a new constitution abrogating the current one.

Rational thinking prevails with the announcement made by Chief Adviser professor Muhammad Yunus in his televised address before the nation on Wednesday.

His government's agenda for reforms in judiciary, election system, police, public administration and anti-corruption system has also got a start through formation of five other commissions besides the constitutional one for each institution.  

The demand for a new constitution has been in discussion after the fall of the Sheikh Hasina regime on 5 August as some have been of the opinion that the constitution itself gave rise to an autocratic government. The allegation is partly correct, but it is not the whole truth.

Let's start with the more radical idea first.   

A new constitution is not easy

Making a new constitution is easier said than done.

This is the task of a new Constituent Assembly that needs to be formed. A national election must be held first for the formation of the constituent assembly. Then a committee may be formed consisting of the newly elected members that will come up with a draft constitution. Then it will be debated in the Constituent Assembly before its adoption. There is a concern in this process as many political and constitution analysts fear such a move may open a new window for controversy to accommodate the demands from various quarters.
It's a long and tortuous path. In 1972, it took ten months though a general election was held before the war of liberation and formation of the then constituent assembly was among the easiest tasks.   

Those in power forgot their "sacred duty to safeguard, protect and defend the Constitution and to maintain its supremacy". They brought changes in the constitution mostly in their partisan interests. 

What is most urgent now—a new constitution or pulling the country out of the institutional wreckages to save the country's economy and people from an impending crisis in almost every sector?

Hasina, who resigned and fled the country, left behind the legacy of her 15-year tyrannical rule: An ailing economy and an politicised administration that still remains controversial.   

Priority of the government clarified

Formation of the six reform commissions sent a clear message about the priority of the interim government which is repairing the state through rebuilding the institutions.

The chief adviser in his address made his government's goal clear. "We are committed to formulating an outline of a democratic Bangladesh for our children so that we don't fall into the hands of any dictatorship and we can say we live in a democratic country...so that we all can claim that this country is ours - we're working towards this goal."

It should be kept in mind that merely a new constitution is not a guarantee that it would prevent the rise of another autocrat in future. Bangladesh and Pakistan are examples of such failures. Both the countries began their journey with new constitutions. What happened to them in later years is now history.

Rebuilding key institutions

The best antidote against a potential dictator is to build the key political and economic institutions that are inherently democratic in nature and function. The reforms agenda unveiled by the interim government signals its correct bearing.

Those who are arguing in favour of a new constitution to uphold the spirit of 5 August uprising and to block the rise of another dictator, have overlooked the fact that the 1972 Constitution had been formulated upholding the spirit of the Liberation War despite having some defects in it such as excessive concentration of powers in the hands of the prime minister and making captive MPs through article 70.

The pledges made in the preamble of the Constitution reflected the will of the people of the time.

"It shall be a fundamental aim of the State to realise through the democratic process a socialist society, free from exploitation, a society in which the rule of law, fundamental human rights and freedom, equality and justice, political, economic and social, will be secured for all citizens," pronounces the preamble.

The preamble states: "We, the people of Bangladesh" affirm "that it is our sacred duty to safeguard, protect and defend this Constitution and to maintain its supremacy as the embodiment of the will of the people of Bangladesh so that we may prosper in freedom…"

Unfortunately, the degeneration process began in less than a year. Those in power forgot their "sacred duty to safeguard, protect and defend the Constitution and to maintain its supremacy". They brought changes in the constitution mostly in their partisan interests. The present constitution is a mangled version. 

Removing structural flaws

The formation of the six commissions that would come up with the proposals for required reforms in constitution, judiciary, police, public administration, electoral system and anti-corruption system in the next three months delivered the clear message that now is time to move forward by removing the structural flaws in distribution of the state powers and strengthening the mechanisms ensuring a healthy system incorporating checks and balances.

The chief adviser hit the nail on the head as he said, "It has become necessary to complete some national reforms in order to implement the aspirations and prevent the recurrence of fascism or autocratic rule in Bangladesh and introduce a state system based on people's ownership, welfare-oriented and dedicated to public interest."

Guarantee of a free and fair general election every five years, a functional parliament and independence of judiciary are the key antidotes to prevent a potential dictator from raising their head. Other institutions will evolve gradually if the key antidotes work effectively.  

Ending politics of confrontation

It is an undeniable urgent need to begin the process for bringing a change in the culture of confrontational politics and impunity. And for a meaningful change, the rule of law matters most. Good laws only in books mean nothing. Even a new constitution, if it is made or reformed, will not mean anything if those changes are not begun.

Laws are abundant in numbers, both good and bad. Abusive enforcement of laws tarnished them. It is time to get rid of such laws. It's time to ensure enforcement of existing laws.

Examples are better than precepts. So, take some examples of existing good laws.

The Penal Code made by the British colonial rulers in 1860 introduced a maximum punishment for defamation, two years in prison. It explained well what actions would not constitute an offence of defamation. Moreover, in the Code of Criminal Procedure in 1898 an extraordinary clause was introduced to prevent misuse of the defamation law. That section 198 still exists barring filing defamation cases by any random persons other than the person aggrieved. This provision however was brutally trampled in 2016 by the then ruling party men who filed more than five dozen defamation cases against Mahfuz Anam, editor of The Daily Star, in various districts of Bangladesh two years after the one-sided 2014 parliamentary election through which Hasina made sure to be unassailable in power.

Both the magistrates and ruling party men ignored the law in filing and recording the defamation cases against Mahfuz Anam under sections 499 and 500 of the Penal Code.

Did any successive government make a better law dealing with defamation than the one made by the colonial ruler? The answer is a big No and the records tell a story of a horror show created by the cyber laws namely the section 57 of ICT Act, Digital Security Act and Cyber Security Act.

Take the example of another good piece of legislation. The Torture and Custodial death (prevention) Act enacted by the Jatiya Sangsad in 2013, which the Supreme Court in a verdict, termed as one of the finest law the parliament has ever made.

Lauding the law, the apex court said "By this law, the safeguards of human dignity, personal liberty, undue harassment and torture of a detainee at the hands of law enforcement agency, deprivation of life and liberty, honour and dignity have been protected."

But the reality is opposite to the spirit of the law. Custodial death, torture and harassment of people at the hands of the law enforcement agencies marked the decade after the enactment of the anti-torture law. Why? There was little or no enforcement of this law. Culture of impunity finally transformed the law enforcement agency into a "monster."

Rule of law needed

Non enforcement of the rules also has made the parliament ineffective to exercise its financial control over the government. The rules of procedure of the Jatiya Sangsad empowers the Public  Accounts Committee to scrutinise the supplementary budget to determine the reasons behind failure of some ministries to deliver on their budgetary proposals approved by parliament and also reasons behind cost escalation by some ministries. But the supplementary budget, after being placed in the parliament, has never been sent to the committee for scrutiny.

Take one more example for the reform to change political culture.

Before the 2008 parliamentary election, legal provisions were made through sweeping electoral reforms introducing an election system at all levels of the committees of the registered political parties. Another provision empowered grassroots level leaders to nominate their parliamentary candidates by sending a panel to be nominated through secret ballots to the party's central parliamentary board.

None of the proposals aimed at ensuring intra-party democratic practice has been followed. They only exist now in the election law book. Political parties are unable to act as a gatekeeper to prevent the rise of a despot. 

It is not necessary to cite more examples to highlight the acute deficiency of the rule of law in Bangladesh. In such a situation, meaningful reforms and their successful implementation are the only ways to rebuild the key political and economic institutions to make a difference in every sector which can uphold the spirit of the 5 August uprising.