Who 'We, the People' are?

Source: MMR Jalal

Our Constitution starts with three words: “We, the People”. The words are simple but mighty. They are also revolutionary in nature.

They are mighty because they signify the collective mind of the nation. They are revolutionary because they represent a glorified moment of the Bengali nation's commitment for oneness. This oneness develops into an image of a document which we call the Constitution.

The Constitution, thus, is the 'embodiment of the will' of the people. How and when do people speak to express their 'will'? People speak and articulate their will only on rare occasions. In that rare moment people articulate a Constitution. That is called a 'constitutional moment'. No other moments are comparable with that moment. Other moments are those of normal politics and routine functioning of the mechanisms set out by the constitutional moment. The moment came for the Bengalis only once, forty-two years back, on 4 November 1972.

The day is an occasion for us to look back on the Constitution we 'adopted', 'enacted' and 'gave to ourselves'. We had plenty of promises to keep (democracy). We had dreams to accomplish (egalitarian society). We had visions to achieve (social justice). And you can name many more defining features of the constitution.

The constitutional feature that mostly strikes me is its devotion to popular sovereignty. This is what is widely referred to as 'power belongs to people' (article 7). But how is the power of the people to be applied? The Constitution relies on the doctrine of trust -- the power is exercised through their elected representatives. The constitution promotes the culture of popular sovereignty by giving the branch closest to the people -- the jatiya sangshad, a great deal of final say. Thus, the jatiya sangshad is the primary conduit of the people's will. But could we say that the will of the sangshad can always be taken to be the will of the people? If not, is popular sovereignty under the Constitution a misnomer?

Let us consider three propositions related to this issue. Firstly, it can be claimed that the Constitution presupposes a procedurally constrained popular sovereignty. Theoretically, any conceivable sovereign under the Constitution could be nothing but constrained. The people's sovereignty is manifested only at the time of national election that takes place once every five years. People have hardly any other constitutional device at hand to recall their representatives during this time. In this sense, popular sovereignty seems to concede an important set-back in an age when people's 'trust' needs to be renewed constantly. Sovereignty under the constitutional dispensation, therefore, seems to exclude the manner of functioning of the government.

The second proposition is related to the ascertaining of the intentions of the Constitution. We may recall that it was ultimately the framers of the Constitution who drafted the Constitution for the people. Therefore, in discovering the meaning of the Constitution we should have to look either at the writings of the framers or consult the works on which they relied. If their writings or the works relied upon are not readily available, there is every possibility that there will be confusion in ascertaining the intention of the Constitution. For example, what is meant by the words 'secularism', 'socialist society', 'progressive aspirations of mankind', 'religion', 'property'  and 'ownership' etc. used in the constitution? Yes, one can use a word but behind every word there is an idea. Was it the same idea of the people that the framers effectively sensed and passed into the words of the constitution? Above all, framers' idea also changes with the passage of time!

The third proposition is the people's apparent non-participation in the Constitution amending process. The Bangladeshi constitutional amendment practice effectively bypasses the people firstly by making a large part of the Constitution unamendable, secondly by omitting to take people's consent before any crucial constitutional amendment. Amendments, here, are sad records of ministerial pleasure (some rare exceptions may be noted). The unamendability begets two further questions: i) are we the same 'ourselves' that we were in 1972 when the Constitution was adopted? We were seven crores in 1972 and as of now we are more than 16 crores. Could it be said that our forefathers had decided everything by themselves to shape their future generation's destiny in every conceivable manner? Standing in 2014, is it not constitutionally desirable, to ensure 'intergenerational equity' in exploiting the natural resources we have in Bangladesh? ii) Have the successive constitutional amendments put a question markon our quest for a specific 'constitutional' identity for the Bengali nation?  For example, we still debate on the constitutional orientation of our cultural and political identity. 

All these three propositions sometimes tempt me to question: who actually 'We, the People' are -- whose sovereignty is compromised in one way or another? Are there people who are 'un-people' in the same country? There are practical answers to these, I know, which can be answered by many Ps: politics, plenty, poverty, property, people etc. But I want to be optimistic on this day of the Constitution.

We can attempt at least some theoretical responses to the above three propositions. As to the first, one device to ensure people's will is to confine the shangshad within the bounds of the people's will by means of accountability -- judicial review, for example. The court speaks for the people. If it sees that the parliament is transgressing the limits of the 'trust' entrusted by the people, it can declare a law unconstitutional. Of course, however, there is every doubt in Bangladeshi context about the ultimate successof this judicial device.

The second proposition takes us to the question of constitutional ambiguity. Ambiguity, however, in some cases may be a potent strength to attain probability. We have the beacon before us -- the proclamation of independence -- to help us to ascertain the meaning of the ambiguities in the light of the spirit of the liberation war. Ambiguities, in fact, help us focus our view on the nation's problems. Let me recall the words of political theorist Hanna Pitkin. Pitkin says that to understand what a constitution is one must look not to some crystalline core or essence of unambiguous meaning but precisely at the ambiguities, the specific oppositions that a particular concept helps us to hold in tension. The tension commences a dialogical interaction between the nation's foundational aspirations and evolving tenets of the people.

As to the third proposition: the unamendibility provisions are related to the nation's identity. A constitution acquires identity through experience. This identity represents a mix of political aspirations and commitments that are expressive of a nation's past, as well as the determination of those within the society who seek in some ways transcend that past (Jeffrey Jacobsohn: 2010). Democracy does not consist ideally of governance by present democratic will, but also, in fundamental part, of adhering to the nation's fundamental, self-given commitments over time. We need constantly to remind ourselves the basics of our nationhood.

Irrespective of the tensions and prospects mentioned above, at the end of the day it is “We, the People's”Constitution. And we should be proud of it. A constitution is like an old house -- to borrow the analogy of Joseph Raz, an American philosopher. Raz says about the American constitution: “it is still the constitution adopted two hundred years ago, just as a person who lives in an eighteenth century house lives in a house built two hundred years ago. His house has been repaired, added to, and changed many time since. But it is still the same house and so is the constitution.”

Raz's house analogy is also relevant for us.  It is 'we, the people' of Bangladesh who built the house with their blood, tears and sweat. It is ours. Let us celebrate it.

The writer is PhD Candidate at the Faculty of Law, Victoria University of Wellington.