Introduction:

A lot of concerns arise when the questions of reforms to a constitution comes into light, sometimes it encircles as the failures of the text of the running constitution, or failures in the implementation of the running constitution. In light of all the relevant areas, I will be highlighting some areas of key interest and including some analysis. I will also shed light onto how some constitutional concepts may be instated, in connection with existing texts and applications. This discussion shall not be an exhaustive list of debate regarding all possible aspects in conjunction with reforms to the current constitution, however a significant number of areas shall come to light. Some parts of this write up might seem more in-depth than others, this is not to signify pertinence or priority, rather since this is not an exhaustive or entirely finished piece there are more pieces to the puzzle.

Place of revolutionary spirit in the constitution:

A constitution must reflect the revolutions which occurred within their territories, our constitution includes our glorious liberation war of 1971 and now it should also contain the spirit of the great July Revolution of 2024. Alongside the recognition of the July Revolution, seeing the overwhelming involvement of the youth in the 2024 People’s Uprising and Revolution in Bangladesh, we may look towards the Algerian Constitution to have some ideas, the preamble of which recognizes its youth in the following manner, “In recognition of the enormous energy they represent, the participation of the youth of Algeria— with their aspirations and determination to rise to the political, economic, social, and cultural challenges—is necessary to build all this and to protect the interests of future generations and guarantee a quality education for them by the family and the school.”, and the first Preamble of the Sudanese Constitution following its 2018 Revolution, “Drawing inspiration from the Sudanese people’s struggles over the course of history and during the years of the former dictatorial regime from the time that it undermined the constitutional regime on 30 June 1989; believing in the principles of the glorious September 2018 Revolution; honoring the lives of the martyrs and affirming the rights of the victims of the policies of the former regime; affirming the role of women and their active participation in carrying out the revolution.”

Long vs. short constitution:

Taking into consideration our cultural context, we require a longer Constitution. There is a debate surrounding whether we should adopt a longer or shorter Constitution. The truth is, jurisdictions which thrive on shorter Constitutions like the US Constitution have judicial and political cultures which are not like ours, and which have allowed for the organic growth of their Constitution. In Bangladesh, we search for laws, we search for explicit mentions in the Constitution and this practice has been engraved throughout our legal culture. Hence, our cultural context beckons a longer and more prescriptive Constitution to better meet the needs of our people along with our judicial and political culture.

Human rights provisions in the Constitution:

From conceptual recognition to human rights catalogue

Human rights exist within the constitution and the constitutional framework in multiple forms sometimes conceptually and sometimes in the form of an extensive catalogue, these trends are quite evident throughout the world’s history of constitutions. Earlier constitutions tended to incorporate conceptual frameworks to amalgamate human rights, as opposed to prescriptive catalogues. While later constitutions picked up the baton and moved towards more extensive catalogues, evident clearly in the uptick in human rights provisions in newer constitution, this brought to light human rights which would not have seen the light of day had they not been documented in the form of catalogues. For example, the right to environment, albeit inherently within the periphery of wider human rights spectrums, could not be identified before it was incorporated into human rights catalogues. It is, however, imperative for these lists to be adaptive, and to be able to incorporate changes and advancements in human civilization. If this adaptive nature of catalogues is absent, it becomes harmful for human rights regimes, often barring the possibility for newer human rights to emerge as it closes the gates for delving beyond the boundaries prescribed by the catalogue.

Hybrid approach for Bangladesh: conceptual recognition and catalogue:

As seen in the catalogue provided by Part 3 of the Constitution of the People’s Republic of Bangladesh, which was subsequently barred from amendments by Article 7B, sealing the cap on lists of human rights is detrimental for the conservation of human rights in all their forms. Article 7B, which bottlenecked the possible adaptive nature of Part 3 of the Constitution goes to show exactly what should not be done to preserve human rights in their true essence. For Bangladesh the way forward should be a hybrid approach, firstly with the conceptual recognition of the widest sense for human rights, and secondly a catalogue approach with the inherent characteristic to adapt to changes as necessary in the future to better fit the needs of the citizens of Bangladesh. Because the Bangladeshi political, judicial and legal cultures are not mature enough to withstand the responsibilities which emanate from the conceptual recognition of human rights, a prescriptive form is necessary in parallel so that they may have a catalogue to abide by.

Number of human rights:

In the inception of the Bangladesh Constitution in 1972, it incorporated a higher number of rights than the global average at that point in time, however as the constitutional gene pool expanded and advanced throughout the years, the current Bangladesh Constitution has fallen to the global median for number of rights in the Constitution. This is a wake-up call that our Constitution must adapt to the rising needs of the people and engulf advanced jurisprudence in relation to rights. (Source: Constitute Project)

Constitutional recognition vs. constitutional protection of human rights:

Distinction needs to be made between constitutional recognition of human rights and constitutional protection of human rights. In the case of constitutional recognition of human rights, it eats away at the original function of the state, it is restrictive in the sense that all humans are born with human rights. The attainment of certain human rights should not be dependent on whether a constitution has recognized them or not, but rather exist from the second that a human is born. One of the issues of a constitutional framework which only resides with providing a catalogue for human rights is that it then confiscates the birthright of every human to all human rights and seeks to identify a handful of rights which the state recognizes. This is a problematic approach as it alienates one from their rights from the get-go. Specific recognition of rights should not be the approach of the constitution or the state, rather their approach should be to strive to achieve better protection of human rights through the incorporation of a human rights catalogue but at the same to inherently recognize the omnipresent nature of all human rights. The original United States Constitution did not include an explicit provision for human rights, rather later on they introduced amendments which related to human rights, but here is the interesting thing, each time they explicitly mentioned a human rights they made sure to mention that that mention did not prejudice the rights that were not mentioned, hence recognizing the omnipresent nature of all human rights and at the same time documenting a specific human right for the purposes of enforcement by the law. The definitions and elaborations of human rights in the amendments to the US constitution are not catalogues per se, however they all have the common characteristic that while prescribing a human right they mention that all other human rights which have not been explicitly mentioned exist as well. Mentioning the characteristics of the human rights regime in line with the US constitution is not to say that Bangladesh should follow suit in the US model, as I have previously mentioned that owing to the contextual nature of Bangladeshi culture in regards to politics, the judiciary and law explicit and extensive catalogues are a necessity in order to maintain consonance with actual human rights practices, with the inevitable possibility of organic developments in the area.The fact that all humans are born with all human rights, and that the state shall not interfere with them regardless of whether they are prescribed or unprescribed by the constitution, needs to be diligently affirmed in the Bangladesh Constitution moving forward. Furthermore, the state should explicitly affirm both the existence of all rights and their duty to protect these rights to the best of their abilities through performing all sorts of relevant obligations.Zachary Elkins and Tom Ginsburg in their article ‘How many rights is enough?’, after analyzing the uptick in trends for world constitutions to have a higher number of rights as each year passes, highlighted how there are different ways to conceptualize rights and that there is a contextual element when it comes to determining the human rights regime of a constitution. They used examples of Portugal’s 2005 Constitution which shot up the number of rights significantly from their original 1976 version, at the start of the article on another note they mentioned the Bolivian Constitution of 2009 which contains a staggering 88 rights, while at the same time France’s post-war document was less rights-heavy. The learning from here is that the number of rights to be textually incorporated into a constitution depends on the context that country lives in at that point in time. Seeing gross human rights violations in Bangladesh, coupled with the shaky judiciary when it comes to human rights violations and the conception that the constitutionally provisioned rights are the only rights, it is more than pertinent that a wider area of rights is incorporated into the Bangladesh Constitution. Bangladesh’s Constitution sits nestled amongst the average number of rights in today’s constitutions at 49 rights according to data collected and aggregated by the Comparative Constitutions Project. This metric takes into account 117 rights found in national constitutions and analyzes which constitution has how many, and out of these 117 rights the current Bangladesh Constitution has a mere 49 which puts it at 41.88% of the possible periphery of rights possible incorporated into constitutions. This also puts Bangladesh at the 93rd place amongst the 190 constitutions in the study, in Bangladesh’s defence only 5 out of the 92 constitutions above it were enacted before it was enacted in 1972, 26 of those are enacted after 2000 and a whopping 43 were enacted in the decade between 1990-2000. The boom of the creation of constitutions in the 90s can largely be attributed to the fall of the Soviet Union, however even though the Bangladeshi constitution did not come after the 90s, the country did indeed exist during that time. And the fact that the majority of the constitutions of the world which have more rights than Bangladesh vested in their texts (69 out of 92) came within the time frame of 1990 till now, shows that there is a clear uptick in the textual mentions of human rights, as observed by Elkins and Ginsburg as well. It also shows that Bangladesh is falling behind, and has not yet adapted to the changes in the constitutional law gene pool.Now the question may rise, whether the textual incorporation of rights is the final bell on the cat, the answer is no, but contextual factors must play a role when it comes to cataloguing human rights in the text of a constitution. No country in the world currently has all 117 rights, the highest being the Ecuadorian Constitution (99), and this is not to say that just the mere inclusion of rights into the texts of constitutions yield a better rights regime, but it is to say where necessary rights must be incorporated into the texts of constitutions. Seeing the horrible state of things in the Bangladeshi human rights regime, especially during the July Revolution of 2024, it is incumbent that the rights of the people are better protected, and it is the duty of the State to do so. Owing to the reluctance of the State to do all that is available in their abilities to protect rights unless there are strict constitutional provisions beckoning for it, then we must increase the periphery of rights vested by the text of our Constitution through carefully crafting detailed provisions as to newly emerged rights such as the right to science, environment, climate justice, crimes against future generations, amongst many others in congruence with latest developments in their respective fields. We have seemingly enlarged the periphery of right to life in order to incorporate so many newer rights, this is required tireless judicial activism whereas global constitutions have beautiful incorporations of modern rights like Article 225 of the Brazilian Constitution, “Everyone has the right to an ecologically balanced environment, which is a public good for the people’s use and is essential for a healthy life. The Government and the community have a duty to defend and to preserve the environment for present and future generations.”, and Article 14 of the Ecuadorian Constitution which says, “The right of the population to live in a healthy and ecologically balanced environment that guarantees sustainability and the good way of living (sumak kawsay), is recognized. Environmental conservation, the protection of ecosystems, biodiversity and the integrity of the country’s genetic assets, the prevention of environmental damage, and the recovery of degraded natural spaces are declared matters of public interest.”, and Clause 1 of Article 30 of the Nepalese Constitution which enumerates, “Each person shall have the right to live in a healthy and clean environment.”

Civil and Political Rights: Negative and positive model:

There are two models when it comes to the incorporation of civil and political rights in a constitution, either through a positive model or a negative model. A glistening example of the negative model is the First Amendment of the US Constitution which says, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” Enunciating the inability of the legislature to encroach upon the freedom of religion, speech, press, peaceful assembly and the freedom to seek remedy. Currently a hybrid model exists in the Constitution of the People’s Republic of Bangladesh, wherein Article 26 displays the negative model and each iteration of a separate right in Part 3 of the Constitution is a positive assertion using the positive model. This mixed model is a proper approach to the enforcement of civil and political rights, especially in relatively weak democracies the positive model serves as a beacon of hope for the people and reaffirms the commitment of the state towards the preservation of civil and political rights.

Civil and Political Rights: Text and content

When we bring into consideration rights to include into our Constitution, we cannot just look at the number of rights but also towards the contents of the rights, for example when enumerating the freedom of speech, it does not suffice to merely pronounce the freedom of speech. Our experience in Bangladesh shows that any criticism of the government was met with the stringent and draconian practice of the law and the person would be struck down by claims of treason. While the crux of freedom of speech is to be able to question and criticize the government it was a universal truth in Bangladesh that the freedom of speech did not extend to this in application. We can look towards Article 57(II) of the Constitution of Azerbaijan, 1995 (as revised in 2016) which says that ‘Citizens of the Republic of Azerbaijan have the right to criticize the activity of government organs, their officials, political parties, professional unions, other public unions and individuals.’, which shows that there is a possibility to incorporate specificities when it comes to certain areas of applications of rights so that they can be better protected.Or in the case of freedom of association, the 1972 Constitution granted this right and subsequently the 4th Amendment to the Constitution established a one-party system which promulgated mandatory allegiance to one political party for all. Keeping this experience in mind, we might look at Article 4 of the constitution of Belarus which says, ‘The ideology of political parties, religious or other public associations, social groups may not be made mandatory for citizens.’ The purpose of including the aforementioned examples is to say that when we are drafting our catalogue of rights, we should take into consideration the global constitutional gene pool and study on each and every nuance of each and every right in order to ensure that our rights have proper content.

Civil and Political Rights: do we need a guideline for reasonable restriction?

It is a common norm to impose reasonable restrictions on human rights, and it is submitted that it might be somewhat of a necessary evil and that these rights cannot become arbitrary in nature. However, despite their import being founded in good faith, in practice their application is far from it. The 50 years of Bangladesh have been marked with misuse of these provisions for reasonable restriction. Often, instances which would have been hallmarks expressions of the freedom of speech were struck down in the name of reasonable restrictions. Freedom of speech is not there to protect someone’s speech in relation to how the weather is terrible in the monsoon but to protect someone’s speech in regards to legitimate criticism of the government. The misuse of reasonable restrictions did not stop at being reasonable, the prerogative became as if there were restrictions of human rights, this is what was perpetrated by the government and known by the people. If the basis of a human right is attacked through a reasonable restriction provision, then that human right ceases to exist. Hence, owing to the necessity of reasonable restriction provisions and to the foul nature of Bangladeshi politics and misuse of the law, the constitution can look towards assigning as to what counts as reasonable since the previous prerogative was that this restriction was at the will of the ruling party. There is merit into delving into whether the constitution can prescribe the definition of reasonable restrictions.

Economic, Social and Cultural Rights: Three models:

When it comes to the incorporation of ESC rights there are three different opinions. Firstly, that the constitutional inclusion of ESC rights is not necessary, like the US Constitution which has not generally provided constitutional protection to ESC rights. Secondly, that ESC rights will be included into the constitution but they will be enumerated as judicially unenforceable, as seen in the Irish, Indian, Pakistani, Bangladeshi and other South Asian Constitutions. Thirdly, that the incorporation of ESC rights will be amongst the judicially enforceable catalogue of rights found in a constitution, alongside Civil and Political rights and other rights. For example, the South African Constitution of 1996, adopted in the post-apartheid era.

Economic, Social and Cultural Rights: From Ireland to Bangladesh:

The 1937 Irish model was flexibly adopted by the 1972 Constitution, which was fundamentally similar to the Indian Constitution. However, in India, an economic trajectory was adopted which in the future enabled them to, through judicial direction, to adopt the right to education as a judicially enforceable right, the Supreme Court moreover nudged the government multiple times as to the necessity of this trajectory and endeavor. This model was referred to during the creation of the 1972 Constitution as well, during the Constituent Assembly debates. However, this model has failed in Bangladesh since we were not able to pick up on any trajectories at all. Adding salt to the wound, Article 7B acted as a guillotine, stunting any possibility of growth in any aspect of the rights regime in Bangladesh.

Economic, Social and Cultural Rights: Possible Transplant of South African Model in Bangladesh:

For Bangladesh it would be beneficial to have a bill of rights which will have economic, social, cultural, civil, political and emerging rights. In this aspect, the South African model can shed light, including other countries which have adopted similar models. It is understood that there are debates surrounding these models as well, however there are substantial arguments and counterarguments instated in this regard in global constitutional literature (further reading: Sandra Liebenberg, Malcolm Langford). Taking all into consideration, this model still stands as the most appropriate for Bangladesh. (further reading: Haque, Muhammad Ekramul. “Chapter 24: Economic, Social and Cultural Rights under Modern International Human Rights Law: Transformation of the Non-justiciable Moral Statement in the UDHR to Justiciable Rights”. In Human Rights after 75 Years of the Universal Declaration of Human Rights, (Leiden, The Netherlands: Brill | Nijhoff, 2024) doi: https://doi.org/10.1163/9789004517967_025; Muhammad Ekramul Haque, Economic, Social and Cultural Rights: Transformation of Non-justiciable Constitutional Principles to Justiciable Rights in Bangladesh, in The Constitutional Law of Bangladesh: Progression and Transformation at its 50th Anniversary, Springer Singapore, pages 337-351, DOI: https://doi.org/10.1007/978-981-99-2579-7_19, Springer Website of the publication: https://link.springer.com/chapter/10.1007/978-981-99-2579-7_19; Muhammad Ekramul Haque, Constitutional protection of economic and social human rights: Intention of the constitution-makers and judicial interpretations, in A History of the Constitution of Bangladesh: The Founding, Development, and Way Ahead (Ridwanul Hoque and Rokeya Chowdhury, eds.), Routledge, Taylor and Francis weblink of publication: https://www.taylorfrancis.com/chapters/edit/10.4324/9781003276814-15/constitutional-protection-economic-social-human-rights-muhammad-ekramul-haque?context=ubx&refId=c175c4ea-7779-446a-9b4a-9fa8b338843c, DOI: https://doi.org/10.4324/9781003276814. Justiciability of Economic, Social and Cultural Rights under International Human Rights Law, Dhaka University Law Journal, Special Issue for the commemoration of 100 years of the Faculty of Law, University of Dhaka (2021) https://www.banglajol.info/index.php/DULJ/article/view/57179/40155; Multifaceted Dimensions of Human Rights, Dhaka University Law Journal, The Dhaka University Studies Part-F, Volume 28, 2017, pages 21-34, University of Dhaka http://law.du.ac.bd/en/wp-content/uploads/2018/10/Dhaka-University-Law-Journal-Volume-28-2017.pdf ; Economic, Social and Cultural Rights versus Civil and Political Rights: Closing the Gap between the Two and the Present International Human Rights Regime, Dhaka University Law Journal, The Dhaka University Studies Part-F, Volume 29, 2018, pages 41-54, University of Dhaka. https://heinonline.org/HOL/LandingPage?handle=hein.journals/dkauvylw29&div=6&id=&page=; In search of origin of recognition of economic and social rights as constitutional principles: from Ireland to Bangladesh, Volume 23, Issue 2, 2012, pages 79-84, Dhaka University Law Journal, The Dhaka University Studies Part-F: Journal of the Faculty of Law, University of Dhaka. https://journal.library.du.ac.bd/index.php/DULJ/article/view/1693)

Form of State: Unitary or Federal:

It was instated as a unitary state in 1972, in the meantime the population as increased many folds, hence there are claims of whether the change of the government system into that with a federal state are becoming more and more prominent. It is not to say that since there is a larger population, there should be a federal state, but that there is significant merit in bringing this discussion into light. There are different forms of federal states, and even examples of hybrid models, it cannot be blown out of the water on the sole counterargument that Bangladesh is a small country by land mass. A federal system could ensure better access to public resources, resulting in better access to justice, dissemination of healthcare and governance, it is worth exploring the benefits this system can bring from Bangladesh.

Form of Government: Presidential or Parliamentary:

During the drafting of the 1972 constitution, justification for the parliamentary form was that the presidential form would give rise to dictatorship, this was the argument which was raised and largely supported by the constituent assembly. Throughout the 50 years of the country, we have seen all possible permutations and combinations of both forms, where all forms have evidently failed to the greatest possible extent and have given rise to some of the worst dictators of the 20th and 21st century. The main enemy here seems to be not the adoption of either form, but the concentration of power when it comes to the adoption of either form. Hence, dissolving the concentration of power through spreading power between the two forms may be a possible way out of the tumultuous past that Bangladesh has had to endure in the last 50 years. In that case, in order to make the President a representative of the will of the people, a direct election needs to take place in order to elect this President instead of the current system of the President being voted in by the Members of Parliament, in order to ensure the proper dissertation of democratic principles resulting in higher levels of representation, participation and power of the President.The United Kingdom enumerates the Westminster Model of parliamentary system of government. Although there is a ‘higher degree of fusion of executive and legislative power’ in the UK, eventually the parliament plays the most effective role (Jenny S. Martinez, Oxford Handbook of Comparative Constitutional Law 556). Germany and South Africa on the other hand, are examples of ‘constrained parliamentarism’ (Jenny S. Martinez, Oxford Handbook of Comparative Constitutional Law 556-7). The 1972 constitution of Bangladesh did not introduce the British Westminster Model of parliamentary system. It was new type of parliamentary form system of government, which was different from both the UK and German models. There are several established criticisms of the 1972 model of parliamentary system, like the lack of effective voice of the members of parliament in making decisions and an excessive concentration of power in the hands of the prime minister. Bangladesh has given birth to one of the worst autocratic systems of parliamentary form of government in practice veiled with the name of a ‘Westminster Model of parliamentary system.’The classic example of presidential system of government is the US model of presidentialism which does not seem to be a suitable option for Bangladesh. The transplantation of this model in different constitutional systems, including Asian, Middle Eastern and African countries, did not work as well as the United States of America. While I am talking about introducing a hybrid system of government, the French system which is generally known as a ‘semi-presidential’ system can be considered to generate some ideas for Bangladesh. We may think about remodeling this French system giving more power to the parliament for Bangladesh. For the purpose of the justification of curtailing the powers of the parliament (this point is especially significant for those who strongly believe in parliamentary form of government solely) by spreading that to the President and other authorities, I fundamentally agree with Anthony W. Bradely and Cesare Pinelli (Oxford Handbook of Comparative Constitutional Law 657) who said that ‘democracy is no longer to be identified with parliamentarism.’ I am raising this point taking into consideration the fact that the Constituent Assembly of Bangladesh (CAB) 1972 over glorified the ‘parliamentary form of government’ and disproportionately established a nexus between parliamentary form of government and democracy. In doing so, a member of the CAB even made a case of abusive constitutional borrowing with reference to the US presidential form of government. (CA Debate, p). The trend of the recent constitutions is in favor of adopting a hybrid system allowing division of powers instead of vesting absolute power in a single authority.

Division and sub-division of legislative and executive powers and separation of powers:

Whatever model of system of government is chosen, it is important to carefully craft the division and subdivision of legislative and executive powers. In order to prevent autocratic practices to grow and to protect different institutions collapse working under centralized authority, subdivision of powers among different state authorities and making independent decision makers in independent institutions are crucial. (for further discussion on this, may read Jenny S. Martinez, Oxford Handbook of Comparative Constitutional Law 561-567 and Anthony W. Bradely and Cesare Pinelli Oxford Handbook of Comparative Constitutional Law 657-670).

Duties given by the Constitution:

Obsolete duties, duties which have been prescribed by the Constitution but have not been carried out in the 50 years of the Constitution, are nothing but dead letters of the law and a burden to our Constitution. There is no substantial point in dishing out duties which shall not be followed, and we should endeavor to make sure that no such duties exist in the Constitution which are inherently not followed or carried out. For example, the creation of an Ombudsman and the attributing of certain duties to them has turned out to be utterly pointless since none of them were virtually ever carried out by the government. Article 95 of the Constitution instated some qualifications to qualify as a judge of the Supreme Court, and increased the periphery to legislative measures as required to be enumerated by the Parliament, the Parliament however has never made any such law pertaining to the requirements to attain the position of a judge of the Supreme Court. This was a duty imposed upon the government by the Constitution in order to ensure the proper intake of qualified judges, however the subsequent inaction of the legislative or government led to only the minimum requirements being cemented as the only requirements. These are only two case studies amongst multiple obsolete duties which were expected to be carried out by the government. The subsequent failure of all governments so far to meet the expectations as set out by the Constitution has indeed harmed the intention of the drafters of the Constitution, and as dead letters of the law they need to be trimmed so that no part of the Constitution can be said to not be implemented. The approach moving forward could be that we prescribe specifically what is expected of the government to prescribe in accordance to the constitutional provisions which asserted duties.

Separation of Power and Judicial Independence:

The constitutional provision which seeks to enunciate the doctrine of separation of power and enumerate judicial independence, Article 22, falls under Part 2 of the Constitution, Fundamental Principles of State Policy, which renders it judicially unenforceable according to Article 8 (2). The very article which is supposed to be a cornerstone of successful democracy and a pioneer of democratic principles has been veiled by judicial unenforceability as far back as the 1972 Constitution. This is in direct violation of democratic practices, the doctrine of separation of power is pivotal to the smooth running of a democratic government of a democratic state by preventing concentration of power and it keeps in check many evils of a corrupt government and ensures that power-hungry fascists and dictators cannot gather all the states organs in their little pantry in search of an authoritarian state. The judicial unenforceability of this provision directly enables governments to go against the will of the people and instate an authoritarian state, the further unamendable nature of Part 2 of the Constitution in lieu of Article 7B ensures that there is no check and balance system at all and that the very concept of separation of power becomes obsolete and a toothless provision. Therefore, moving forward, the judicially enforceable nature of the constitutional provision regarding separation of power and judicial independence must be a part of the Constitution. Furthermore, in order to ensure true independence of the judiciary, it must be freed from the shackles of the executive. The requirements to qualify as judges must include parameters which ensure that they are both qualified and have “internal independence” so that the principles of justice are upheld in the court of law. Both systems for appointment and removal of judges needs to be revisited, in congruence with the principles of judicial independence from both the legislative and the executive. The Rt Hon Lady Arden DBE of Heswall, Former Justice, UK Supreme Court, mentioned at a Harvard Law School LL.M. Centennial program, about the method of appointment of justices in the United Kingdom where the appointment of judges is independent of parliament and the executive, it is done through an independent commission where there is no politician and no parliamentarian in that body, hence justices are chosen on merit not political allegiance as required by statute. Our constitution beckons forth statute just like this, but the application of these necessary duties still remains absent.

Local Government :

In order to ensure good governance, through increasing their executive prowess, limiting the periphery of Members of Parliament so that the duties of the local government can be carried out with greater rigor and so that there isn’t a concentration of power in the hands of MPs. In order to strengthen local governments, the constitution can better prescribe their functions, powers and duties so that they are empowered directly by constitutional provisions. Multiple studies have shown that empowering of local governments have resulted in good governance, effective and efficient deliberation of executive powers.This can be done through the allocating of more robust budgets to local governments, the World Bank in a report in 2016 recognized how local governments in Bangladesh are highly dependent on the central government system and noted how only minimal percentage of the gross domestic product (GDP) went towards funding local governments, they noted that less than one percent of the country’s GDP goes towards boosting local government funds, while these governance systems themselves raise quite low amounts of money. They go on to signify that the raising of such low amounts of money is not common to all low-GDP countries, it just so happens that Bangladesh has lacked specifically in this sector.

Strengthening and organization of state territory:

Even if the state goes for a unitary form of state with 174 million of people in Bangladesh, we must opt for decentralization of power by creation of new regional authorities and strengthening the existing local government institutions (for details on this idea, may read Sergio Bartole Oxford Handbook of Comparative Constitutional Law 609-627).

Amendment and Basic Structure:

Constitution cannot be made eternal and unamendable. Constitutional amendments may require two different processes, one could be by simple procedure (2-3 thirds majority), some can be done with more rigid procedures or referendums. Introduction of Article 7(B) is quite unusual and moreover undemocratic as it deprives the people of their power to amend the constitution by the expression of their will through their representatives. This type of promulgation of basic structure blocks the progress of human civilization as we know it, since it leaves the constitutional arena devoid of any adaptive change in accordance with the needs and wants of the people that a constitution governs. Worldwide constitutional literature heavily criticizes the concept of a basic structure, it is established that such methods are detrimental to the lifeline of a nation.

Presidential Prerogative:

The presidential prerogative is fundamentally against the concept of rule of law, the power to pardon was intended to be ornamental and ended up being largely misused. A lot of times a guideline was asked so that this prerogative could be somewhat governed, but even this was not met. When taking the decision of whether to ensure a proper and in-depth guideline or to remove the power fully, we must take into account contextual factors which have unearthed themselves in the last 50 years. Taking into consideration what we have seen so far, it seems as though it would be better if this power to pardon is removed completely.

Election and caretaker government:

Elections have been the biggest problems which have arisen under the rule of this constitution in the last 50 years. Due to the absence of free and fair elections everything from birthing dictators to harboring fascists have occurred in Bangladesh, causing the country to be drenched in crisis and turmoil over and over again. The entire election system needs to see reform, whether it is in regard to how the election takes place, inner workings of the actual election days, or proper monitoring for electoral manipulation. Many proposals can come up, like what the interval between two general elections would be. There is merit in discussing what effects are brought on by what system, since surely the 5-year system has not worked out splendidly for Bangladesh in the last 50 years.If the election-time government cannot work neutrally, then no free and fair elections can ever take place in Bangladesh. We must take lessons from our history and analyze where the issues were when it comes to election time governments. Hence taking into consideration contextual factors coupled with our history, a solution which incorporates a caretaker government or something of the sort will be the way forward. Maybe in a future time where firm democratic environment exists in Bangladesh, we might not need to provision for such a caretaker government. Many countries in the world are able to hold free and fair elections without caretaker governments, maybe if we are able to replicate their democratic environment then maybe we might be able to shift our focus from a possible caretaker alternative.

Parliament:

Whether to adopt a two house or one house parliament is an age-old debate, the concept of a two storied parliament is not a concept that we can overlook when we are thinking about the possible parliamentary system for Bangladesh. We might delve into the nuances of how each parliamentary system functions and which would be better for Bangladesh. It is not to say that the lack of good governance in Bangladesh can solely be attributed to the one house parliament, rather that since we have not attempted to adopt a bicameral parliament how would we know that that is not a good option for us. There are multiple proposals as to how the 100-seat upper house might be constructed, one is that it should be filled with experts and professionals, who will have lessened legislative duties and heightened decision-making duties for the good of the country. However, how these seats will be elected is another discussion, it could be that these seats will be elected through direct election, it could be that the members of parliament elect them, or it could be that they could be proportionate to votes received in the general elections. It must be noted that introducing the proportionate system might birth another evil, through instating the evil that we sore to destroy, a system which promotes popularity and belittles actual worth, a system which puts unqualified popular public figures or incapable persons on pedestals solely due to their allegiance to a political party. This would defeat the whole purpose of the upper house, instating it as another arm of the government that it wishes to populate with their own yes-men.

Political parties:

Considering the context of the activities of different political parties in Bangladesh for the last 50 years, a few provisions regarding political parties can be inserted in the Constitution. For example, article 15 of the Constitution of Bhutan 2008 says: ‘Political parties shall ensure that national interests prevail over all other interests and, for this purpose, shall provide choices based on the values and aspirations of the people for responsible and good governance. Political parties shall promote national unity and progressive economic development and strive to ensure the well-being of the nation. …’.The Constitution of Belgium (1831, revised in 2014) has recognized ‘the laws relating to the financing of political parties and the control of electoral expenditure.’There are instances of inserting provisions regarding political parties in a constitution, for example, the Constitution of Brazil 1988 (as revised in 2017) has provisions under a separate heading on political parties:“TITLE II. FUNDAMENTAL RIGHTS AND GUARANTEES > CHAPTER V. POLITICAL PARTIES > Art 17Creation, merger, incorporation, and dissolution of political parties is free, with due regard for national sovereignty, the democratic regime, multiplicity of political parties and fundamental human rights, observing the following precepts:Political parties are assured autonomy in defining their internal structure, organization and operation and in adopting criteria for choosing their regime of electoral affiliation, without requiring linkage among candidates in the national, state, district or county spheres. Party by-laws shall establish rules for party discipline and loyalty.After they have acquired legal capacity, as provided for in civil law, political parties shall register their by-laws with the Superior Electoral Tribunal.Political parties have the right to resources from party funds and to free radio and television time, as provided by law.Political parties are forbidden to utilize paramilitary organizations.”Again, Article 4 of the French Constitution says:“Political parties and groups shall contribute to the exercise of suffrage. They shall be formed and carry on their activities freely. They shall respect the principles of national sovereignty and democracy.Statutes shall guarantee the expression of diverse opinions and the equitable participation of political parties and groups in the democratic life of the Nation.”The Constitution of Germany has also separate constitutional provisions on political parties:“Article 21. [Political parties]Political parties shall participate in the formation of the political will of the people. They may be freely established. Their internal organisation must conform to democratic principles. They must publicly account for their assets and for the sources and use of their funds.Parties that, by reason of their aims or the behaviour of their adherents, seek to undermine or abolish the free democratic basic order or to endanger the existence of the Federal Republic of Germany shall be unconstitutional. The Federal Constitutional Court shall rule on the question of unconstitutionality.”Hence, it can be understood that promulgating in relation to political parties in the Constitution is natural and prevalent in world constitutions, despite its non-inclusion in the 1972 Constitution we can now look to include such provisions.

Explicit Public Interest Litigation provisions including locus standi and suo moto:

The roots of constitutional public interest litigation through liberalizing the age-old rigid principle of locus standi can be found in the Kazi Mukhlesur Rahman Case (1974), which was at the forefront of PIL developments in South Asia, in line with contemporary developments all over the world like the Blackburn Case. This concept was furthered by the Mohiuddin Farooque (1996), after which a series of cases were judged in this light by the court. At one point the Supreme Court recognized the concept of suo moto cases for the welfare of the people and to protect the constitution in appropriate cases. This periphery developed by judicial activism can be incorporated into the constitution now, giving textual recognition to locus standi and suo moto provisions in public interest litigation. There are instances in the global constitutional gene pool of these being textually incorporated into constitutions, resulting in clear cut references and standing when it comes to court proceeding without having to open the book of precedent cases and fight battles in court to establish locus standi in PIL cases. For example, Clause LXXIII of Article 5 of the Brazilian Constitution says, “any citizen has standing to bring a popular action to annul an act injurious to the public patrimony or to the patrimony of an entity in which the State participates, to administrative morality, to the environment and to historic and cultural patrimony; except in a case of proven bad faith, the plaintiff is exempt from court costs and from the burden of paying the prevailing party’s attorneys’ fees and costs;”

Referendum:

In line with the thought of Rousseau, we may think about fixing some issues to be settled by holding a referendum in order to take the mandate of the people directly. The constitution may identify those issues for referendum.

International law:

We need to make a clear constitutional statement regarding the status of international law in Bangladesh. Also, a strong statement regarding the commitment to observe the UN Charter.In the absence of a clear constitutional provision, there are several cases where the Supreme Court has tried to clarify the position of international law in Bangladesh. Bangladesh is generally a dualist state at heart when it comes to the application of international law in Bangladeshi courts. This means that for any piece of international law to be applied in the courts of Bangladesh, it must first be transformed into national law, evident from the lack of the words international law in the definition of law in Article 152 of the Constitution and the scholarly dispute in regard to whether the words ‘other legal instruments’ qualifies to accommodate international law and customary international law. Read in conjunction with the decision of Justice B. B. Roy Chowdhury in the Ershad case, where he proclaimed that international law is not directly enforceable in national courts without the prerequisite of being transformed into national law first. However, he upheld the importance of international laws and international obligations, hence set out two situations where international law could be used in domestic courts, the first being where there is a matter regarding which domestic laws are absent and the second being where they are unclear. Through interpreting Article 152 of the Constitution and the judgement of B. B. Roy on the Ershad case, we come to understand that Bangladesh is a dualist state. However, as identified by scholars there are scattered cases of creeping monism, that is not to say that Bangladesh is inching towards being a monist state, but certain actions by the court have characteristics of that of monist application of international law. This can be seen in cases related to Shipbreaking, where the courts relied on international law regarding shipbreaking. At the same time more importance needs to be given to international, while simultaneously keeping in mind the characteristics brought on by becoming a monist state, it is not my intention to suggest that Bangladesh should become a monist state starting tomorrow, but just that international law needs to receive more recognition in the Constitution. The 1972 Constitution diverted from the splendid practice the first constitution of Bangladesh, the Proclamation of Independence (POI), initiated as to the respect towards international law and adherence to the United Nations Charter. It is time to ponder the possible inclusion of such adherence mechanisms in our Constitution now as well. The 1972 Constitution backed off severely from Bangladesh’s bold stance in regard to international law, hence it will be beneficial for Bangladesh to move towards constitutional provisions which better enshrine the United Nations Charter, international human rights laws and international laws. Apart from this, developments which have happened in the meantime, for example in international human rights laws, like for example, Clause 1 of Article 30 of the Nepalese Constitution says, “Each person shall have the right to live in a healthy and clean environment.”, mirrors similar developments which have happened in the international law sphere with the recognition of the right by the United Nations Human Rights Council through a resolution passed in 2021 (A/HRC/RES/48/13) and subsequently the United Nations General Assembly resolution regarding the human right to a clean, healthy and sustainable environment (A/RES/76/300) to both of which Bangladesh voted in favor, since Bangladesh is indeed taking steps on the international level when it comes to international human rights law it is only natural that these rights will be safeguarded properly in Bangladesh itself. (Further reading: Use of International Law in Interpreting Constitutional Rights in Bangladesh http://dx.doi.org/10.1163/2772-8161_EPIL_COM_3010; Enforcement of Economic, Social and Cultural Rights: Implementation of International law in Bangladesh https://referenceworks.brillonline.com/browse/encyclopedia-of-public-international-law-in-asia-online; Constitutional Status of International Law in Bangladesh https://referenceworks.brillonline.com/browse/encyclopedia-of-public-international-law-in-asia-online ; Status of International law in the Legal System of Bangladesh: Dualism vs. Monsim http://dx.doi.org/10.1163/2772-8161_EPIL_COM_3010; Application of International Law in the Supreme Court of Bangladesh http://dx.doi.org/10.1163/2772-8161_EPIL_COM_3010 ; Domestic Implementation of International Human Rights Law in Bangladesh https://referenceworks.brillonline.com/browse/encyclopedia-of-public-international-law-in-asia-online).

Treaty:

The executive is given the duty to engage in contracts and deeds on behalf of the state, and as such under Article 145(1) the treaty making power lies with the executive in the name of the President. All treaties with foreign countries shall be submitted to the President according to Article 145A of the Constitution, which read along with the provision that the President needs to take decisions in accordance with the advice of the Prime Minister according to Article 48 (3) read in conjunction with Article 55 of the Constitution which says that “The executive power of the Republic shall, in accordance with this Constitution, be exercised by or on the authority of the Prime Minister”, hence the submission of international treaties to the President is thinly veiled by the necessity to consult in the name of the Prime Minister making it a paper provision. This is against the principles set out by the doctrine of separation of power and causes an improper concentration of power in the hands of the Prime Minister. Resulting in unchecked power of the Prime Minister while simultaneously veiling the power to make treaties behind a provision directed towards the President. (Treaty Making in Bangladesh: Power and procedure https://referenceworks.brillonline.com/browse/encyclopedia-of-public-international-law-in-asia-online/alphaRange/To%20-%20Tu/T ).The process of assigning a duty, as important as signing, ratifying and acceding to treaties, to the President and requiring assent thereto of the Prime Minister is an undemocratic process since it goes against the doctrine of separation of power. Despite the mention of “who shall cause them to be laid before”, this does not signify any distinct procedure as to what will happen in the parliament in regards to international treaties and further does not signify whether the parliament’s assent is necessary in order to ratify or accede to a treaty.In order to create a democratic environment, it should be that the parliament should accede or ratify a treaty. We can look at Clause 2 of Section 2 of Article 2 of the US Constitution, where it signifies the President’s power to make treaties “by and with the Advice and Consent of the Senate”, this both instates the treatymaking power as an executive power while keeping a unique check and balance system. Or towards Sub-Clause L of Clause 1 of Article 93 of the Constitution of the Dominican Republic which grants the power to their National Congress “To approve or disapprove the international treaties and conventions that the Executive Power endorses”. There are also instances where the treatymaking power rests with the President but a periphery of treaties only take effect upon approval and ratification by the national assemblies of their respective countries, for example the Chad Constitution Article 223 of which says, “The peace treaties, the defense treaties, the treaties of commerce, the treaties relative to the use of the national territory or to the exploitation of the natural resources, the agreements relative to international organization, those which engage the finances of the State or those which are relative to the state of persons, may only be approved or ratified after the authorization of the National Assembly.” The same article also brings into light the possibility that referendums are required in order to validate cessions, exchanges and additions of territory, this is also an example of prime people’s representation in the form of direct democracy.It might be argued that Article 145A requires a treaty to be laid before the parliament, however this is a mere constitutional formality as it does not indicate towards any duty of the parliament, it is to be noted that when the parliament is made to agree or disagree with treaties, it is mentioned within the duties of the parliament as textually enshrined in the constitutions of the countries which require as such. When it comes to the proper implementation of the requirement of the parliament to assent to treaties there should be a parliamentary standing committee to deal with this, which will have the participation of all political parties present with seats in the parliament alongside expert individual who will have the necessary acumen to agree, differ and disagree with international treaties.

Establishing a separate Constitutional Court:

We can assess the feasibility of establishing a separate constitutional court to give jurisdiction regarding some fundamental constitutional issues to a body of experts. The unique composition of the Constitutional Court will ensure the protection of the constitution. The history of the Supreme Court as a guardian of the Constitution in Bangladesh is not so satisfactory. Thus, we can utilize French, German, Korean and Indonesian experiences to establish a separate constitutional court.

(Disclaimer: This writeup is a culmination of scattered thoughts, and of course non-exhaustive from the perspective of bringing necessary reforms to the Constitution. This is an informal prose, born out of thoughts and ideas which have struck me at different times, during lectures and discussions. This text is the very first draft of some thoughts and ideas, without any stringent editing process. The opinions held and the analysis made have aggregated over the years and are not made in the capacity of the author as a Member of the Constitution Reform Commission 2024.

Acknowledgement: The author gratefully acknowledges the research assistance provided by Zaid Ekram, a 1st Year LL.B. (Hon’s) student at the University of Dhaka.)

Contributor