Ever since the fall of the Awami League-led government that ruled Bangladesh for 15 years, one of the burning questions that has featured in the post-uprising, non-partisan atmosphere is whether the country needs a new constitution, or will an amended constitution suffice to capture the aspirations of the republic, and if so, to what extent it needs to be amended.

A new constitution would require a new constituent assembly, that would need to be elected. For the 1972 constitution, it was decided that those who were elected in the Pakistani elections of 1970 (that too was intended to form a constituent assembly - Pakistan wouldn't have a constitution till 1973) from the then-East Pakistan would form that assembly. This time, we don't have that luxury.

This would bring up various questions regarding when it would be held. And given the current state of play, one party is likely to dominate the process given an electoral engine that far surpasses that of any other party or group.

The real question is to what extent the constitution was used by the last government to establish its autocracy. And there is no doubt it was used. But was it the entire constitution that aided the process? Or certain parts of it?

There are those who feel it is the 15th amendment to the constitution, that was passed by the Awami League-led government in June 2011, that lies at the heart of the gradual descent into autocracy that was witnessed in Bangladesh.

Descent into autocracy

Against the backdrop of a High Court ruling regarding the abolition of the 5th amendment to the constitution, on July 21, 2010 a special parliamentary committee was formed to amend the constitution. Syeda Sajeda Chowdhury was made the chairperson and Suranjit Sengupta the co-chair of the 15-member committee, 12 of whom were important Awami League leaders. The remaining three were leaders of parties within the Awami League alliance. A proposal was made to include one BNP member, but they refused.

Although the special parliamentary committee was formed to implement the court order cancelling the 5th amendment and preventing unlawful takeover of power, the committee reviewed the entire constitution and recommended it to be amended. In its 10-month tenure, the committee held 26 meetings and consulted 104 experts, intellectuals, and politicians. Then on May 29, 2011, it recommended a constitutional amendment with the caretaker government intact, giving it a three-month time limit. As the head of the Awami League delegation, the prime minister at the time also made the same recommendation on April 27, 2011 in front of the special committee.

But on May 30, the day after the unanimous recommendation was made to keep the caretaker government system in place, the committee changed its decision after a meeting with the prime minister. Though the unanimous recommendation of the special parliamentary committee formed by the parliament was rejected by the head of the executive, not a single member of the committee protested. This history is retold in secretary of Shujan Badiul Alam Majumder's book 'Tatyabdhayak Sarkar Bebostha Batiler Rajniti'(Politics of cancelling the caretaker system).

The day after the meeting of the special parliamentary committee, on 31 May, 2011 the prime minister told a press conference that the court had revoked the caretaker government system, if the rule of law was to be followed, then the court ruling had to be followed.

What she was referring to was the fact that after the 13th amendment was passed in 1996, two cases were filed challenging its legitimacy. Two benches of the High Court dismissed this ruling that the caretaker system of government was legitimate. But based on an appeal against the High Court ruling, on May 11, 2011 - that is, less than three weeks earlier - a majority of the Supreme Court's Appellate Division judges headed by Justice ABM Khairul Haque passed a short order declaring the 13th amendment unconstitutional for the future.

The court at the same time ruled that as a transitional measure, in the interests of the state and the people, the upcoming 10th and 11th national parliament elections could be held under a caretaker government. In its observation, the court left it to the parliament to take a decision and to keep the judiciary away from the caretaker government system. But on June 8, 2011 in a report sent to the Speaker, the committee recommended that the caretaker government system be dropped, based on which the 15th amendment was passed on June 30 unilaterally in parliament and with no significant debate. The BNP boycotted the vote, but the AL and its allies had the needed two-thirds majority in parliament.

Abolishing the caretaker government and opening the path to the Awami League's 15-year rule was not the only thing the 15th amendment did. Among other things, after article 7 it inserted articles 7(a) and 7(b) in a bid to end take over of power through extra-constitutional means. Article 7(a) would deem the kind of movement that culminated on August 5, 2024 as illegal. Section 7(b) declared the basic provisions of the constitution "non-amendable". Section 7(b), it has been noted, makes almost one-third of the constitution non-amendable. It also abolished the referendum system from the constitution.

There is a school of thought that revoking the 15th amendment would solve most of our problems from a constitutional standpoint. A new constitution wouldn't need to be all that different to the present constitution minus the amendments brought about by the AL-led governments since 2011, starting with the 15th amendment.

The constitution was used as a tool; it wasn't the main reason for the country's descent into autocracy over the last 15 years. Rather it was our political culture. The authoritarian trend resulted from the lack of confidence and trust between the two major political parties, a lack of democracy within the parties and the unwillingness of the party in power to relinquish power.

A possible remedy

Since the fall of the Hasina government, the High Court has issued a rule questioning the constitutionality of the 15th amendment. The HC asked the respondents to the rule to show reasons why the Constitution (Fifteenth Amendment) Act, 2011 should not be declared unconstitutional, and why the previous actions and deeds done or taken in any manner under this act should not be treated as transactions past and closed.

Secretaries at the ministry of law and Jatiya Sangsad Secretariat were made respondents to the rule. An HC bench of Justice Naima Haider and Justice Sashanka Shekhar Sarkar issued the rule following a writ petition challenging the legality and constitutionality of the 15th amendment.

Speaking to reporters after the issuance of the HC rule, Attorney General Md Asaduzzaman said Bangladesh was taken towards autocratic rule through the 15th amendment to the constitution.

During the hearing on the petition, Sharif Bhuiyan, counsel for the petitioners, told the HC bench that the basic structures of the constitution -- democracy and elections -- have been damaged by the 15th constitutional amendment.He held up the history pertaining to how the 15th amendment abolished the caretaker government system, paving the way for the one-sided elections the country has seen since then.

Sharif said the 15th amendment states that the president would conduct a referendum within seven days from the date of the amendment bill presented to him, but no such referendum was held and therefore the 15th amendment is illegal.

The provision of the 15th amendment, which said that basic structures of the constitution cannot be amended, is unconstitutional as it has damaged the sovereignty of parliament which is elected by the people, the lawyer argued.

Five conscious citizens -- Badiul Alam Majumdar, secretary of rights organisation Shushashoner Jonno Nagorik, Tofail Ahmed, M Hafizuddin Khan, Md Jobirul Hoque Bhuiyan and Zahrah Rahman -- submitted the petition as a public interest litigation to the HC on August 18.

They stated in the petition that following the abolition of the nonparty caretaker government system through the 15th amendment act, the nation saw three consecutive failed elections in 2014, 2018 and 2024 and it ultimately led to the July 2024 uprising by students and ordinary people and the fall of the government on August 5, 2024.

It was argued that the 13th amendment (caretaker government provision) was incorporated in the constitution to ensure free and fair election and strengthen democracy and therefore, the 13th amendment became part of the basic structure of the constitution since 1996. The 13th amendment represented the "will of the people" and a "political consensus and settlement" as it was made in the context of the demand of major political parties, and the public, including civil society, the petitioners stated.

A conversation begins

Speaking at a dialogue hosted by Centre for Governance Studies (CGS) this week, Interim Government Adviser AF Hassan Ariff said the Constitution serves as a vehicle for democratic reform and since the aspirations of 1971 remain unfulfilled, the mass uprising of 2024 has brought forth the need for change.

"For this reason, we should consider establishing a second republic while preserving the essence of the first," said the Adviser who is looking after the Ministry of Local Government, Rural Development and Cooperatives and the Ministry of Land. He said insights from constitutional debates in other countries can guide them.

"A continuously amended constitution does not hinder democratic progress; rather, it remains a dynamic document. Our primary focus should be on democratic reconstruction, incorporating diverse perspectives to rebuild democracy effectively," Arrif said.

Distinguished Professor of Illinois State University, USA Dr Ali Riaz stated that the core question is whether the current constitution can truly support a democratic society.

"Over the past 15 years, we've witnessed an autocratic regime that the constitution has effectively sustained," he said. He believes significant reforms are necessary to achieve genuine democratic change.

"The concentration of power in the prime minister's office is a major concern, with the PM holding both executive and presidential authority," Prof Riaz said. The current regime operated entirely within the Constitution, meaning that future leaders will inherit the same extensive powers.

"A critical issue is the independence of the judiciary. The process for appointing members to constitutional bodies lacks transparency and must include open hearings," Prof Riaz said. As a result, the appointment of the election commission has been opaque, allowing the government to install its own appointees and conduct elections on its own terms.

"We also need mechanisms to prevent the tyranny of the majority in parliament, potentially through proportional representation or a bicameral system," he said.

Freedom of expression has been curtailed, as has been documented over the past four years with the misuse of the Digital Security Act and the Cyber Security Act.

"Given the structure of the current Constitution, even a party winning a majority of 300 seats cannot amend it. Therefore, in my view, the Constitution needs to be completely rewritten," Prof Riaz said.

One of the coordinators of the Students Against Discrimination Movement, Mahfuj Alam, stated that the ouster of Sheikh Hasina government led to the emergence of a new political community with people's will being reflected by the interim administration.

Mahfuj, now a special assistant to chief adviser Muhammad Yunus, argued that this newly formed political community would play a decisive role in shaping the future Bangladesh. He raised critical questions about how the interim government would continue to represent the people's will.

Critiquing the 1972 constitution, Mahfuj pointed out its ideological bias, which he said closely aligned with the principles of the Awami League, blurring the distinction between the party and the state's governing framework. This, according to him, eventually led to the public uprising that toppled the Awami League government.

Mahfuj rejected calls for the inclusion of the Awami League and its allies in the political process, arguing that these parties' ideologies must first be reformed to align with the people's will. He emphasised the need to reconnect with the broader populace, stating, "We have to reach out to the masses."

Supporting the drafting of a new constitution, Mahfuj claimed that it would not be a difficult task, as there was no fundamental difference between the will of the people in 1972 and that of 2024. He stressed the importance of bridging these two eras, noting, "We must connect the will of the people of 1972 with that of 2024."

The CGS hosted the dialogue to discuss the need for constitutional reform for the interim government at the Bangladesh Institute of International and Strategic Studies (BIISS) Auditorium.

CGS Executive Director Zillur Rahman initiated the dialogue by stating that for many years, the people of Bangladesh have harboured the unfulfilled dream of establishing a democratic nation. Instead, the past 15 years have seen Bangladesh under a dictatorship marked by enforced disappearances and a complete absence of freedom of speech.

CGS will organise a series of discussions both in Dhaka and beyond, culminating in a policy paper.

A similar roundtable titled 'Political and Constitutional Reform Proposals for the Establishment of a Democratic Bangladesh' was held midweek at the Prothom Alo auditorium in Karwan Bazar, Dhaka, organised by The Asia Foundation, the Refugee and Migratory Movements Research Unit of Dhaka University, and the Center for Political Studies.

Speakers at the roundtable presented several proposals, including preventing any individual from serving as prime minister more than twice, balancing the powers between the prime minister and the president, introducing proportional representation in parliament, establishing a bicameral legislature, and bringing a balance of power between parliament and the executive branch.

Joining the roundtable online, professor at the Department of Political Science at Dhaka University, Tasneem Siddiqui, delivered the opening remarks.

She said a new era has emerged, offering many opportunities. Efforts and spirit are working to move towards a new arrangement. Tasneem Siddiqui said the interim government has begun robust economic reforms.

"However, the main crisis is political. It is the responsibility of political scientists to scrutinise how steps are taken to resolve political problems," she said.

She also said whether the current government can amend the constitution or a constituent assembly will be needed can be discussed in the future.

On the other hand, Badiul Alam Majumdar has stated that the interim government must clarify whether it intends to reform or completely rewrite the Constitution.

"Once this decision is made, we can offer our recommendations. Clauses in the constitution that render one-third of the constitution untouchable do not constitute the basic structure and can be revised or removed," he said.

It is true that the country is in a state of flux at present. However, it has been freed from the yoke of authoritarianism. The direction it now chooses for itself will be crucial to its future. While it may be too soon to answer some of the questions it faces, we may expect some of the salient features to crystallise in the weeks and months ahead. Once that happens, it may be more straightforward to decide which of our aspirations for a new Bangladesh win out, and to work them into a new charter that more truly reflects the will of the people of Bangladesh.