Wednesday, May 18, 2011

A Fallacious Constituent Assembly

The state order of our people's republic needed to be constituted accommodating the interests of all sections of the people. The Constitution is for all the people, not for any particular group of people. Constitution- making, therefore, should not be biased towards any party, political interest or narrow outlook. It is imperative that all sections of people, different occupations and various shades of opinions are represented and involved in the constitution-making process, so that there is unanimity on the basic principles and there is no hesitation or controversy over constitutional practices. It may be mentioned here that for framing the Indian constitution, the constituent assembly where, provinces (states) were represented proportionately on population count, and the major religion, Hindu, Muslim and Sikh were also represented in the ratio of the sizes of their respective adherents. The 403 members of the Constituent Assembly of Bangladesh in 1972 were never elected specifically to prepare the constitution. Usually qualifications for a constituent assembly member differ from those required for a member of any normal legislative assembly. It is certainly desirable that constitutions are written by specially convened assemblies of qualified people and not by a legislative body, even more so that it shall not be dominated by a single group. Moreover, these are the same people who would be seeking party nominations soon after the constitution approved by them as constituent assembly was to be dissolved and new elections would be held. The 34- member committee which was constituted to prepare the draft constitution had only one member from the Opposition. Records do not show that the framing of any chapter or part of a chapter was entrusted to sub- committees to prepare the draft or to analyze the issues in depth for rationality. Evidence shows that in the recent past, countries which established the constituent assemblies to rewrite or prepare new constitutions chose constitution makers largely dominated by intellectuals, academicians, politicians, social workers, environmental specialists, leading human right activists, minority leaders, community leaders, business leaders and professionals which also include lawyers. In Bangladesh, a particular drawback in constituting state order was that too many lawyers dominated the process. Evidence shows that lawyers usually formulate phrases in an ambiguous manner to arrive at a consensus on any issue, keeping scope of manipulative arguments in their interpretation before Benches of higher judiciary. It was unfortunate that the main framers of the Bangladesh constitution were mostly lawyers-turned-politicians, and others only politicians. Hence, it is understandable why so much ambiguity, subjectivity and qualifications were incorporated in relation to fundamental rights, Iiberties, separation of powers, checks and balances, as well as non enforceability of fundamental principles of state. Various fundamental rights embodied in the Bangladesh Constitution phrased idiosyncratically. Every fundamental right was riddled with so many exceptions and qualifications that the provisos ate up the rights altogether. Apart from two basic motives, namely considerations of party interest and matters of self-interest the Bangladesh Constituent Assembly members had a third interest. It was to comply with the wishes of the supreme leader. Everyone knew that as soon as the constitution was approved and enacted, the constituent assembly would be dissolved. Since all the constituent assembly members were politicians and belonged to the same party, they needed the support of the Supreme Leader to be nominated for the next election. Therefore upholding the wishes of the Supreme Leader must have been the paramount concern of practically all the constituent assembly members. Evidence from many case studies overwhelmingly supports this hypothesis. For that reason even the most impartially-minded framer may have had to take into account partisan interests. By an order on 11 th January 1972 , the Constituent Assembly was established. The same order also changed the system of government from presidential to parliamentary. The impact on the psychology of the constitution-makers can easily be surmised. Changes in governance structure at such a crucial time must have prejudiced the minds of the constitution-makers as to the "form of government" suitable for the nation. This constitution was soon amended to transform the government to a Presidential System on 25 th January 1975. Had the process of making the constitution been free from constraints and democratic, possibly there would not have been the need for the Fourth amendment to be added to the constitution so soon afterwards. The constitution is the fundamental law, and that is the reason why it is also the supreme law. It is the source of legal and moral authority for the rule of men by men. It is also supposedly a dynamic document, but its amendment procedures need to be rigid. At least a two-thirds majority vote of the total number of members is usually needed to pass any amendment. In the recent past, in some countries where constitutions were rewritten, a three- fourths majority was necessary to pass a constitutional resolution. In Bangladesh, to approve the constitutional resolution required only a simple majority of total members of the constituent assembly. This is unquestionably unusual and it is difficult to find any previous example. It may be mentioned here that to approve the Indian constitution three-fourth majority of members of the constituent assembly were required. One of the fundamental requirements of a constitution is the process of debating the provisions, particularly on the fundamental principles of state, fundamental rights, issues related to freedom, type of government, separation of powers, checks and balances etc. The debate can be open or close-door. Either way, it is important to carry out a full-fledged debate and discussion, so that future generations can have high regard for the weight of ideas and thoughts that dominated the minds of the constitution makers. In many countries, the Supreme Court while deciding on constitutional issues regularly consults the proceedings of the various stages of relevant constitution-making to understand the reason, logic and philosophy of such wording and phrasing. In the making of the Bangladesh constitution, the proceeding of the committee debates is not to be found in any great detail. There is also evidence that all constituent assembly members were acting in a subservient manner to the supreme leader. Indeed members never debated the issues to determine what type of government would be suitable for a newly independent country or what type of separation of powers and checks and balances were necessary. Many articles in the constitution are vague and complicated. Too many administrative issues, details and procedures have been unnecessarily included in the Constitution, such as the Public Service Commission, the Election Commission, legislative and financial procedures and the services of Bangladesh. AII these items could have been regulated by laws enacted by the parliament. Many of these items can be traced to the Government of India Act, 1935 , which was designed essentially to rule colonial subjects allowing limited self-determination, not liberty.