The Constitution is both a success and a failure in protecting the democratic rights of the people of Bangladesh. Before the International Covenant on Human Rights came into force, the Constitution of Bangladesh included a chapter on human rights, i.e. Chapter 3. Although drafted earlier, two important international agreements entered into force in 1976. Still our constitution was enacted in 1972. In other words, I would say, our constitution is an excellent document on human rights or rights of citizens. Yet in the same constitution there are some contradictions and ambiguities. There are some provisions which have a negative impact on democratic rights. But these were added long after the original constitution was written.
The Special Powers Act for repressive detention was enacted in 1974. Significantly, in 1973, the constitution was amended (second amendment) so that the parliament could pass this law. If this amendment had not been passed, it would have been easy to challenge their law in court, saying it was contradictory to fundamental rights or democratic rights. Along with this, the provision to declare a state of emergency was also added to the constitution. Some fundamental rights like law and freedom of expression can be suspended by the executive power in case of emergency. Our constitution hands over a blank check to the government in this regard. Although some fundamental rights can be encroached upon during a state of emergency, but there are limits. But the way it is practiced in our constitution is contrary to international law.
There are some provisions in the constitution which work against the democratic rights. In this sense, there are some failures of the Constitution. But broadly speaking, it is not the constitution but our political culture that is responsible for this. Basically it is our executive – government, administration or law enforcement agencies – which is responsible for violation of fundamental rights or democratic rights.
Parliament is also responsible to some extent for the erosion of our democratic rights. Some laws which are contrary to human rights or fundamental rights have been passed by the Parliament. The latest example of this is the Digital Security Act. In some cases there has also been failure of the court. So overall, the responsibility of not being able to protect democratic rights lies on the executive, legislature and judiciary.