Drafting a New Constitution: The Easier Part of Constitution-Making for Bangladesh

?

Constitution-making is one of the most profound and transformative processes any nation can undertake. It shapes the legal framework, defines the relationship between the government and the people, and encapsulates the nation's core values. As Bangladesh faces the possibility of constitutional reform in the wake of Prime Minister Sheikh Hasina’s ouster, a familiar challenge emerges: Should the country amend its existing constitution or draft a new one? For many, the prospect of starting fresh seems daunting. Yet evidence suggests that rewriting a constitution may be far easier—and more successful—than attempting to push through amendments to the old one.

The Perils of Constitutional Amendments

Bangladesh's constitution, like those of many other nations, has evolved through amendments over time. Amendments are necessary to keep a constitution relevant, responsive to changing times, and reflective of the people's will. However, pushing through amendments can be a challenging process for several reasons.

First, amendments often involve tinkering with foundational elements of the Constitution. These elements can be deeply ingrained in national consciousness, intertwined with political interests, or supported by influential groups. This makes even the smallest changes contentious and ripe for opposition. Any change, no matter how necessary, must navigate through political deadlock, legal scrutiny, and public opinion—each of which can act as a roadblock.

Second, amendments are usually framed as modifications to an already accepted system, which can lead to resistance from those who benefit from the current status quo. If an amendment challenges established power dynamics, political elites may mobilize to resist it. Similarly, segments of the public that are suspicious of change may view amendments as attempts to disrupt stability or undermine their interests.

Moreover, according to a 2019 study, 40% of referendums aimed at approving constitutional amendments fail. This failure rate reflects the inherent difficulty in achieving consensus when altering an existing framework. Amendments are often seen as piecemeal or incomplete, which can lead to public confusion or dissatisfaction. In such cases, voters may reject the amendment outright, fearing unintended consequences or simply preferring the familiarity of the status quo.

Drafting a New Constitution: An Easier Path?

In contrast, drafting an entirely new constitution is often perceived as a clean slate, offering a chance to correct historical wrongs, modernize legal frameworks, and set a fresh course for the future. A new constitution can incorporate the lessons learned from past mistakes while offering a more holistic, forward-looking vision.

In Bangladesh’s case, a new constitution could address long-standing issues such as political instability, corruption, social inequality, and economic development. It could also reflect global shifts, such as the rise of digital economies and the need for stronger environmental protections.

But why would drafting a new constitution be easier than amending the current one? A key reason lies in the psychological and symbolic power of new beginnings. When citizens are presented with an entirely new constitution, the process feels more substantial and aspirational. It’s not just about modifying old rules—it’s about creating a new vision for the nation. This sense of renewal can galvanize public support, as people may be more willing to embrace change when it’s packaged as a fresh start.

The Power of Referendums in Approving Constitutions

Referendums provide a direct mechanism for citizens to participate in constitution-making. According to the same 2019 study, 94% of referendums to approve new constitutions succeed. This high success rate suggests that voters tend to view new constitutions as opportunities for national progress, unburdened by the complexities and limitations of the existing framework.

If Bangladesh were to draft a new constitution and submit it to a referendum, there’s a strong likelihood that it would succeed, especially if it were seen as a necessary step toward addressing the nation’s current challenges. The very act of drafting a new constitution signals a willingness to embrace significant reforms, which could resonate with a population seeking change in governance, policy, and justice.

Moreover, new constitutions are often viewed as representative of the will of the people. The drafting process typically involves consultations with a wide range of stakeholders—political parties, civil society organizations, academics, and the public. This inclusive approach fosters a sense of ownership and legitimacy, increasing the likelihood of public support during a referendum.

Bangladesh’s Constitutional Reform Following the Ouster of Prime Minister Sheikh Hasina

As Bangladesh contemplates its future, the question of constitutional reform has become even more pertinent in light of recent political changes. Following the ouster of Prime Minister Sheikh Hasina, an interim government led by Nobel laureate Muhammad Yunus has taken up the mantle of governance. One of the interim government’s most pressing priorities is constitutional reform, and they have already formed a panel tasked with either amending or rewriting the constitution.

However, this process is anything but straightforward. Bangladesh’s political landscape remains deeply divided, complicating efforts to reach a consensus on the way forward. Constitutional reform in such a polarized environment is challenging, as different factions push for their interests while the public watches warily, wary of potential instability.

International experts have weighed in on the process, emphasizing the need for the government to engage all relevant stakeholders. From political parties to civil society, business leaders to grassroots organizations, it is essential that any new or amended constitution be built on broad-based support. Without this inclusivity, any reforms made are unlikely to endure. Experts also caution against rushing the process, urging the interim government to avoid crafting an overly ambitious document that may be difficult to implement or enforce.

Drawing Lessons from Global Experiences

Bangladesh can draw valuable lessons from other countries that have undergone similar constitutional processes. Nations that have succeeded in drafting or amending their constitutions have done so through careful planning, gradual reforms, and most importantly, public involvement.

For instance, South Africa’s post-apartheid constitution-making process was seen as a model for inclusive constitutional dialogue. It involved widespread consultations and negotiations, ensuring that diverse voices were heard, from political elites to everyday citizens. The resulting constitution became a unifying document that addressed the country’s deep historical divides.

On the other hand, countries that have rushed their constitutional reforms or failed to secure stakeholder agreements have faced prolonged instability. For example, Egypt’s 2012 constitution, hurriedly passed amid political turmoil, was short-lived and contributed to ongoing unrest. Experts advise Bangladesh to avoid making similar mistakes by ensuring that any constitutional process is well thought out and widely accepted.

?

A Path Forward for Bangladesh

For Bangladesh, drafting a new constitution may indeed prove easier than amending the current one. The country faces significant challenges—economic, political, and social—that a new constitution could help address. However, the success of such a process will depend on the ability of the interim government to involve all stakeholders and ensure that the new document reflects the will of the people.

As the panel formed by Muhammad Yunus deliberates on the future of Bangladesh’s legal framework, the country stands at a crossroads. Will it take the opportunity to draft a new constitution that could inspire unity and progress? Or will it fall into the trap of pushing through divisive amendments that could deepen its political fractures?

The answer may lie in how carefully—and inclusively—Bangladesh approaches its constitutional reform. Drawing from the successes and failures of other nations, the country has an opportunity to craft a constitution that not only reflects its aspirations but also sets the stage for a more stable and democratic future.

?

Human AI-generated