ALL parties engaged in reforms process at a meeting with the national consensus commission on July 15 agreed on a mandatory two-thirds majority support in the parliament for constitutional amendments and a national referendum to amend specific provisions of the constitution. The specific provisions that would require a national referendum include the preamble, the state’s fundamental principles, provisions for the president, the prime minister and the cabinet as laid out in Article 48 and 56 and the powers to amend any constitutional provision laid out in Article 142. The provisions for a non-partisan caretaker government, laid out in Articles 58B, 58C, 58D and 58E of the 13th amendment, would require a national referendum if they were to be reinstated. The proposal for the provision for a constitutional amendment arrived at, however, missed the point, as clearly stated in the preamble, is that the constitution is ‘the embodiment of the will of the people of Bangladesh’ and any and all changes must, therefore, be finalised through people’s direct consent. There is no scope for a selective use of referendum when it comes to constitutional amendments.
The emphasis on a mandatory two-thirds majority support in the parliament for constitutional amendments, as proposed, assumes that people’s will on a particular amendment is extracted through elected representatives. This assumption carries a number of risks of betraying people’s will. First, elected representatives work under the guidance of the constitution and they cannot authorise an amendment to the constitution that governs them. Hence, there lies a direct conflict of interest. Second, in a political context in which a particular political party dominates the parliament, as witnessed under the authoritarian rule of the Awami League, a mandatory two-thirds majority support for any amendment is not immunity against abusive constitutionalism. For an example, the removal of the caretaker government system from the constitution through the 15th amendment was done without a pre-existing consensus for the change. People did not consider the provision undemocratic or problematic in any way and did not, therefore, give consent to the change that eventually led to major electoral crises. Finally, the universal practice regarding constitutional amendments also emphasises people’s consent elicited through national referendum.
Given the political history and culture of amending the constitution and the way it has contributed to the consolidation of authoritarian rule and political crisis, the proposal for a provision for constitutional amendments with few exceptions appears rushed and requires more thought on how the constitution will continue to embody people’s will. Any changes in the constitution must reflect people’s will extracted through national referendum. Anything otherwise is not conducive to constitutionalism.
