Introduction
The political upheaval in Bangladesh on August 5, characterized as a student-led mass uprising, necessitates a rigorous theoretical examination of constitutionalism, state formation, and democratic legitimacy. For undergraduate students of constitutional law, analyzing this juncture requires moving beyond a mere literal interpretation of constitutional texts to understanding the underlying political settlements that sustain—or fail to sustain—the constitutional order. Drawing upon contemporary theoretical frameworks and the historical trajectory of Bangladesh's state-building, this essay synthesizes the complex debates surrounding constitutional crises, the ontology of the constitution as a state-building tool, and the methodologies for achieving a durable political settlement.
I. The Anatomy of a Constitutional Crisis
To understand the current legal vacuum, one must first accurately diagnose the failure of the preceding order. Relying on the theoretical framework of scholar Jack Balkin, a constitutional crisis is defined as a perilous juncture where the constitution fails to perform its primary function: resolving political disagreements through ordinary politics, thereby failing to prevent violence, anarchy, or civil war.
Such crises manifest in several distinct typologies:
Executive Disobedience: A relatively straightforward crisis where political leaders explicitly refuse to abide by constitutional principles.
Abusive Constitutionalism and Over-Adherence: A more insidious form of crisis occurs when political actors exhibit extreme, formalistic adherence to a manipulated constitutional text ("অতিভক্তি" or over-devotion) to achieve anti-democratic ends. The January 7 elections serve as a prime example of this. The ruling regime utilized the constitutional machinery to hold an election strictly "by the book," yet this very adherence precipitated a failure of the constitution’s core task—delivering a fair, competitive electoral mandate—ultimately driving the state toward violent expression. This is an exercise in "abusive constitutionalism," where the constitutional design is continually manipulated (e.g., the disregard of the Supreme Court's directives in the 13th Amendment and the enactment of the 15th Amendment) to perpetuate executive power rather than manage political rotation.
Popular Rebellion: The third typology occurs when the general populace outright rejects the constitutional order. The August 5 uprising epitomizes this, where the masses exercised their inherent, extra-constitutional constituent power to issue a one-point demand for the resignation of a formally "constitutional" government, effectively stripping the regime of its legal legitimacy.
Attempting to resolve this profound rupture by merely seeking formalistic legal continuity for the ensuing interim government through the Supreme Court is a theoretically flawed endeavor; it fails to acknowledge that the constitution itself had fundamentally collapsed.
II. Beyond Legal Positivism: The Constitution as Gothontontro
A central flaw in the orthodox legal pedagogy of Bangladesh is the reductive definition of the constitution merely as the "supreme law of the land". While technically true, this hyper-legalistic view ignores the broader sociopolitical dimensions of constitutionalism.
From a historical and linguistic perspective, the terminology used to describe the constitution is revealing. While the post-1972 era popularized the term Songbidhan (emphasizing 'law' or 'rules'), the British colonial era and early founding debates frequently utilized Shashontontro (an instrument of governance and legitimization). More profoundly, a constitution must be understood as Gothontontro—the instrument that literally "constitutes" or forms the state, the society, and the overarching political order.
When a society views the constitution purely as a legal tool, it becomes vulnerable to executive manipulation; ruling elites continuously redesign the structural framework to secure their immediate political survival rather than facilitating a stable political order. Recognizing the constitution as Gothontontro demands an acknowledgment that it is the foundation of a nation's political life, requiring deep, underlying social agreements rather than mere judicial enforcement.
III. The Legacy of 1972: Legitimacy Deficits and Historical Echoes
Any attempt to draft a new political settlement must critically examine the foundational flaws of the 1972 Constitution. While celebrated as a revolutionary document, its promulgation was shadowed by substantial jurisprudential and political legitimacy questions.
The Mandate Disconnect: The Constituent Assembly of 1972 was composed of representatives elected in the 1970 Pakistani framework. Critics, including prominent leftist figures like Maulana Bhashani, argued that the demographic and psychological reality of the people had fundamentally transformed after the trauma and radicalization of the 1971 Liberation War. Therefore, an assembly elected for a provincial reality lacked the substantive mandate to frame a constitution for a newly sovereign, post-war populace.
Structural Manipulation: The initial assembly size of roughly 167 members was artificially inflated to over 400 members through the Provisional Constitution Order, further complicating its legal standing.
The Constitutional Coup: The ultimate failure of the 1972 design was its inability to prevent its own destruction. The passage of the 4th Amendment in 1975, which instituted a one-party state, was not merely an amendment but a "constitutional coup". The structural design of the original document provided no robust checks to prevent this rapid slide into authoritarianism, a mechanism that subsequent military regimes exploited to legitimize their rule.
IV. Methodologies of Reform: Interim Mandates vs. Constituent Assemblies
The current political vacuum presents a critical question of methodology: How should the state redesign its constitutional framework? The debate fractures into varying viewpoints regarding democratic legitimacy:
Interim Government Action: If the current unelected interim government attempts to substantively amend or rewrite the constitution (perhaps validating it later via referendum), it will suffer from a severe democratic deficit, possessing even less constituent legitimacy than the flawed 1972 Assembly.
Parliamentary Amendment: Deferring constitutional reform to the next elected parliament relies on the perilous assumption that future political parties will act against their own hegemonic interests. History demonstrates that political parties routinely manipulate the constitution once in power to avoid electoral competition.
The Constituent Assembly (গণপরিষদ): The most jurisprudentially robust and democratic method is the election of a new Constituent Assembly. This mechanism inherently trusts the people's capacity to exercise their constituent power. A Constituent Assembly provides a formalized arena for the deepest political and ideological disagreements of the society to be debated and resolved through deliberation, thereby crafting a stable, predictable political order.
V. Opposing Viewpoints: Universalism vs. Indigenous Settlement
A vital theoretical debate within the current reform movement is the tension between adopting universal constitutional models and forging an indigenous political settlement.
On one hand, there is an argument for adopting universal liberal democratic norms. The structural language of human rights, fundamental liberties, and the separation of powers remains largely consistent across advanced democracies. Incorporating these advanced legal mechanisms can provide clear guidelines and empower the judiciary to prevent legislative overreach (such as draconian digital security laws).
Conversely, an opposing viewpoint cautions against treating the constitution as mere "window dressing" or adopting institutional "fashions" without underlying societal backing. A constitutional text, no matter how perfectly aligned with international human rights standards, is useless if the political elites and the masses lack a genuine, underlying "political settlement". The refusal to trust the public with direct constituent power, driven by an elitist fear that the "people might make a mistake," is critiqued as a form of "soft fascism". An enduring constitutional framework requires that the masses act as conscious agents of state-building, allowing them the democratic right to deliberate, err, and mature through political practice.
Conclusion
The constitutional history of Bangladesh is characterized by a recurring cycle of executive manipulation and institutional collapse. To break this cycle, the current transitional justice moment must not settle for superficial legal continuity. It must address the core issue of political order by viewing the constitution as Gothontontro—a fundamental state-building compact. By embracing a method that directly involves the people's constituent power, such as a Constituent Assembly, Bangladesh can potentially forge a legitimate and durable constitutional framework capable of sustaining a genuine democracy.
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Note:
The above is a summary of the lecture delivered as ছাত্র-জনতার গণঅভ্যুত্থান পরবর্তী নতুন রাজনীতি, নতুন অর্থনীতি ও নতুন রাষ্ট্র নির্মাণের জন্য জরুরি আলাপ (পর্ব ১১): গঠনতন্ত্র ও রাজনৈতিক বন্দোবস্ত organized by Bangladesh Institute of Research & Education on Sep 24, 2024. Full lecture is available at: https://www.youtube.com/watch?v=GndTks9trvo
This work is licensed under a Creative Commons Attribution-NonCommercial 4.0 International License.
The above is a summary of the lecture delivered as ছাত্র-জনতার গণঅভ্যুত্থান পরবর্তী নতুন রাজনীতি, নতুন অর্থনীতি ও নতুন রাষ্ট্র নির্মাণের জন্য জরুরি আলাপ (পর্ব ১১): গঠনতন্ত্র ও রাজনৈতিক বন্দোবস্ত organized by Bangladesh Institute of Research & Education on Sep 24, 2024. Full lecture is available at: https://www.youtube.com/watch?v=GndTks9trvo
This work is licensed under a Creative Commons Attribution-NonCommercial 4.0 International License.
