As Bangladesh pursues constitutional reform, international legal experts say a consensus-based process is vital for creating an enduring charter and ensuring political stability in South Asia’s third most populous nation.
The ouster of Prime Minister Sheikh Hasina in August pushed her Awami League party out of power, raising concerns that a key player could be excluded from a process shaping Bangladesh’s future.
In response, the nine-week interim government, led by Nobel laureate Muhammad Yunus, recently formed a constitutional reform panel, part of a broader effort to strengthen institutions and avert a return to authoritarian rule.
The panel, one of six reform commissions, faces a dilemma: amend the country’s 52-year-old constitution or begin afresh. A constitutional rewrite could tackle the issues raised by the recent protests that toppled Hasina’s government. Amending the document is quicker but might leave key problems unresolved. Complicating matters, key provisions of the constitution are not amendable.
Regardless of the path Bangladesh takes, the lesson from other countries that have implemented change is unmistakable: Experts say successful reform requires the involvement of all major stakeholders.
“The main task of constitutions is to channel group decisions away from violence into politics,” said Tarun Khaitan, a professor of public law at the London School of Economics. “So, what do you do if you’re a group which has no share in political power and no hope of sharing political power any time in the future? You will take to violence.”
Yet in a country as deeply divided as Bangladesh, building consensus over a new constitution is a tall order. Two parties — the Awami League and the Bangladesh National Party, or BNP — have dominated politics since its founding in 1971.
Except for two rare moments of unity in the 1990s, each party has “tried to game the system and lock the other out of power,” making Bangladesh perennially unstable.
“I think that is the issue that any constitutional settlement has to resolve,” Khaitan said.
Three global lessons
Richard Albert, an expert on constitution-making and constitutional design at the University of Texas, noted three lessons that Bangladesh can learn from other parts of the world.
First, the process matters more than the document itself. This means that citizens must be engaged in every step, from providing input to enacting the Charter, Albert said.
“We know that when people are involved in the constitution-making process… that sets the stage for a stronger, more enduring, more legitimate constitution,” Albert, who sits on Jamaica’s constitutional reform committee, said in an interview with VOA.
Second, resist turning the constitution into a wish list. Many countries make the mistake of including too many promises that they cannot deliver.
The rules enshrined in a constitution, Albert said, “must mean something when they’re written in the text of the country’s higher [or highest] law.”
Third, the people are the ultimate source of legitimacy for a constitution, Albert said. The document must embody the values and aspirations of the citizens.
“They don’t have to be involved in the writing, the drafting, the deliberation of the constitution, but the people must feel and believe that the constitution represents them,” Albert said.
There are other lessons too. While public participation is important, the consent of major social and political groups is paramount, Khaitan said. Without a “consensual process,” he said, minority groups can find themselves left out.
Case in point: Nepal, where the minority Madhesis were sidelined despite broad public participation in the making of the 2015 constitution.
Lesson from Chile
Elsewhere, a lack of consensus has led to outright rejection of a constitution. Among legal scholars, Chile is the poster child for how not to do constitutional reform. In recent years, two successive governments — one left-leaning, the other right-wing — tried and failed to replace a Pinochet-era constitution with a new one stacked with ideological priorities.
To some constitutional experts, the South American country’s experience suggests that wholesale constitutional overhauls can fail in deeply polarized countries such as Bangladesh.
“Pursuing constitutional replacement processes in such an environment can become an opportunity to fuel intolerance,” Aldo Valle, a Chilean lawyer and former vice chairman of the country’s constitutional council, wrote in a blog post in 2023.
Bangladesh’s constitution gives parliament the power to enact amendments.
A 2011 amendment, however, bars changes to basic provisions, from citizens’ fundamental rights to Islam’s designation as the state religion.
Such “constitutional unamendability” is increasingly common around the world, with countries like Turkey and France making certain constitutional provisions unchangeable. In Bangladesh, however, the constitution allows “one to become incredibly powerful and it has some paths for creating autocracy,” making a rewrite necessary, Ali Riaz, the country’s constitution panel chief, told The Daily Star newspaper prior to his appointment earlier in September.
Waris Husain, an adjunct professor of law at Howard University, said drafting a new constitution is the easier part of constitution-making, and there are many successful models that Bangladesh can draw on. The real challenge, Husain said, is securing the buy-in of all stakeholders.
“One of the things that you wouldn’t want to happen is if you quickly pass a constitution and then subsequently there are so many issues that are raised about it and people haven’t bought into that constitution,” Husain said in an interview with VOA.
If Bangladesh were to draft a new constitution and put it to a referendum, it would likely have a higher success rate than pushing through an amendment. According to a 2019 study, 94% of referendums to approve a constitution succeed, while 40% of referendums to amend an existing document fail.
“If the plan in Bangladesh is to have recourse to a referendum, the data will be important to consider,” Albert said.
As it nears its second month in office, the interim government faces growing pressure to deliver results. But experts say constitutional reform cannot be rushed through — it took Nepal seven years to enact a new charter.
Yet Bangladesh’s “constitutional moment,” a period marked by political turmoil and calls for significant change, can prove fleeting, experts say.
“Public appetite for grand, substantial changes typically remains short-lived,” said Khaitan. “Bread and butter issues tend to come to dominate very quickly.”