Constitutional Amendments, Bangladesh
CONSTITUTION The fundamental law, written or unwritten, that establishes the character of a government by defining the basic principles to which a society must conform; by describing the organization of the government and regulation, distribution, and limitations on the functions of different government departments; and by prescribing the extent and manner of the exercise of its sovereign powers. A legislative charter by which a government or group derives its authority to act. The concept of a constitution dates to the city-states of ancient Greece.
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The philosopher Aristotle described a constitution as creating the frame upon which the government and laws of a society are built: A constitution may be defined as an organization of offices in a state, by which the method of their distribution is fixed, the sovereign authority is determined, and the nature of the end to be pursued by the association and all its members is prescribed. Laws, as distinct from the frame of the constitution, are the rules by which the magistrates should exercise their powers, and should watch and check transgressors.
In modern Europe, written constitutions came into greater use during the eighteenth and nineteenth centuries. Constitutions such as that of the United States, created in 1787, were influenced by the ancient Greek models. During the twentieth century, an increasing number of countries around the world concluded that constitutions are a necessary part of democratic or republican government. Many thus adopted their own constitutions. Constitutions, whether written or unwritten, typically function as an evolving body of legal custom and opinion.
Their evolution generally involves changes in judicial interpretation or in themselves, the latter usually through a process called amendment. Amendment of a constitution is usually designed to be a difficult process in order to give the constitution greater stability. On the other hand, if a constitution is extremely difficult to amend, it might be too inflexible to survive over time. The Constitution of The People’s Republic Of Bangladesh is the supreme law of Bangladesh.
It declares Bangladesh as a sovereign popular republic and lays down the framework defining fundamental political principles, establishing the structure, procedures, powers and duties, of the government and spells out the fundamental rights of citizens. Passed by the Constituent Assembly of Bangladesh on the eighteenth day of Kartick 1379 B. S. corresponding to November 4, 1972, it came into effect from December 16, 1972, the day commemorated as victory day of Bangladesh.
The constitution declares Bangladesh to be a unitary, independent and sovereign Republic, founded on a popular struggle for national liberation, which will be known as the People’s Republic of Bangladesh. It pledges nationalism, secularity, democracy and socialism as the fundamental principles defining the Republic and declares the pursuit of a society that ensures the rule of law, fundamental human rights and freedoms and the equality and justice to its citizens.
It contains 153 articles, 1 preamble and 4 schedules; out of which the Second Schedule was omitted by the Constitution (Fourth Amendment) Act 1975. In 1972, the 300 members elected to the East Pakistan Legislative Assembly in the 1970 elections, were made members of the Constituent Assembly of Bangladesh held its first session on April 10, 1972. An all-party committee (except Islamic fundamentalist parties) headed by Dr.
Kamal Hossain, the Minister of Law in the new government, was tasked to draft the constitution of the new country. The constitution drafting committee consisted of members of all parties in the constituent assembly, including the Awami League, National Awami Party, Jatiya Samajtantrik Dal and the seven independent lawmakers and the leading Bengali intellectuals and nationalists Rehman Sobhan, Govinda Chandra Dev, Mohammad Shamsuzzoha and Tajuddin Ahmad.
When enacted in 1972, the Constitution of Bangladesh was hailed by international jurists and legal historians and as one of the most progressive and democratic constitutions in modern history and one that inspired progressive political aspirations among third world countries and populations struggling for self-determination. However, amendments during socialist one party and military rule in Bangladesh radically altered the secular and liberal democratic nature of the constitution. THE CONSTITUTION OF THE PEOPLE’S REPUBLIC OF BANGLADESH
AMENDMENTS & CONSEQUENCES The original Constitution of Bangladesh introduced a parliamentary form of government with the President as its constitutional head. It provides a responsible executive, a non-sovereign legislature and an independent judiciary with appropriate separation of powers, and checks and balances among them. The supreme law of Bangladesh, the Constitution, confers only limited law making competence on Parliament. Parliament does not possess any intrinsic law-making power, which derives from the constitution.
The parliament cannot make any law in contravention with the provisions of the constitution. The Constitution embodies the principle of ministerial responsibility, both individual and collective, to the parliament and ultimately to the people, the source of “all powers in the republic”. Bangladesh started its journey with a parliamentary form of democracy, derailed afterwards from the fundamental aspiration of democratic governance by introducing one-party political system with an ‘all powerful head of the state – the President’.
There have been ongoing controversies and debates on some aspects of the current Constitution, there are Fourteen Amendments made so far in the Constitution of Bangladesh since its adoption after in 1972. Many good words and sentences can be written in the Constitution, but this by itself does not guarantee a system of democracy and good governance, unless the rule of law and justice providing equal opportunity for all religious and ethnic communities are practiced. When rights will be guaranteed, scopes for social responsibilities will be widened.
First Amendment: (Jul. 15, 1973) Backdrop(s): There was no conventional course of action in our judiciary system to prosecute the war crime criminals, who committed offence against humanity in our liberation war, 1971. This amendment was required to prosecute the accused before the Court. Amendment(s): The Constitution (First Amendment) Act, 1973 was passed on 15 July 1973 introducing scope to try the offender of war crime criminals through the amendment of following in the Constitution: •Insertion of Article 47(3) and 47A
It amended Article 47 – Saving for certain laws of the constitution by inserting an additional clause (3) which allowed prosecution and punishment of any person accused of ‘genocide, crimes against humanity or war crimes and other crimes under international law’. After Article 47 it inserted a new Article 47A – Inapplicability of certain articles, specifying discretion of certain fundamental rights in those cases whereby any law providing for the detention and trial of war criminals were kept out of the purview of the provision of Part III relating to fundamental rights as of, Article 31 – Right to protection of law;
Article 35(1) and Article 35(3) – Protection in respect of trial and punishment; and Article (44) – Enforcement of fundamental rights. Consequence(s): Though an amnesty was declared after the war for collaborators who were not directly involved in monstrous crimes but it did not cover those who had specific charges or evidence of crimes against them. The International Crime Tribunal Act, 1973 had been passed within a week on the basis of this amendment. Bangladesh set up a war crime tribunal consists of three High Court judges for long-delayed trials of people accused of murder, torture, rape and arson during the 1971 independence war.
The government also appointed six retired civil, police and military officials to investigate war crimes charges. The tribunal will conduct quick trials under a 1973 act outlining prosecution and punishment for people accused of genocide, crimes against humanity, war crimes and other crimes under international law like The International War Crimes Tribunal Act, 1995 and if found guilty, some of those tried could face the death penalty. It was not immediately clear if the tribunal intended to question or prosecutes any non-Bangladeshis. Second Amendment: (Sep. 2, 1973) Backdrops: The original Constitution was out of the provision of proclamation of state of emergency and preventive detention. The Constitution (Second Amendment) Act, 1973 providing for preventive detention and inserted conferring power on Parliament and the Executive to deal with emergency situations and providing for suspension of enforcement of the fundamental rights during the period of emergency which resulted in the amendment of Articles 26, 33, 63, 72 and 142 of the constitution: Amendment(s): •Substitution of Article 33, Article 142 (1)(a); The insertion of Article 26(3), 142(2) and a new PART IXA; •Omission of Article 63(2) & 63(3), the proviso of Article 142(1)(a)(i); •Amended the Article 72 and •Renumbered the Article 142 as clause (1) of the same in the constitution. Consequence(s): Without having the provision of preventive detention in the Constitution, could put the state under emergency withholding the enforcement of fundamental rights of the people. But under the Constitution Act (second amendment) 1973, Article 26(3) & 33 of the Constitution were amended making provision for preventive detention.
Preventive detention is completely inconsistence with the Article 33(1) & (2) – Safeguard as to arrest and detention with the clauses of the same Article 33(3) and clauses (3), (5) & (6) of Article 35 – Protection in respect of trial & punishment, the fundamental rights. Part III of the Constitution describes the fundamental rights of the people of which Article 26(1) ensures the same to enjoy those rights with out any impediment of any law, even Article 26(2) ensures that the state shall not make any law inconsistent with any provisions of this Part and any law so made shall to the extent of such inconsistence, be void.
While a proclamation of Emergency is in operation, the fundamental rights described in the Articles 36 – Freedom of movement, 37 – Freedom of assembly, 38 – Freedom of association, 39 – Freedom of thought and conscience and of speech, 40 – Freedom of profession and occupation, 42 – Rights to property and 44 – Enforcement of fundamental rights shall be remain suspended. According to the section on fundamental rights, all citizens are equal before the law, without discrimination based on religion, race, caste, sex, or place of birth.
The Constitution also guarantees the right to assemble, holds public meetings, and form unions. Freedom of speech and of the press is ensured. Persons who have been arrested must be informed of the charges made against them, and they must be brought before a magistrate within twenty-four hours. The Constitution, however, adds that these guarantees are subject to “any reasonable restrictions imposed by law,” leaving open the possibility of an administrative decision to revoke fundamental rights.
After all, with having inconsistencies, suppressing and concealing the fundamental rights, this amendment creates a way to initiate The Special Powers Act, 1974 to be enforced & enacted as a black law of the laws in Bangladesh, where there is a provision for “preventive detention” of up to six months. Those being held under preventive detention do not have the right to know the charges made against them, nor to appear before a Magistrate, and a legal advisory board may extend this form of detention after seeing the detainee.
The Constitution does not define the circumstances or the level of authority necessary for the revocation of constitutional guarantees or for the enforcement of preventive detention. During the many occasions of civil disorder or public protest that have marked Bangladeshi political life, the incumbent administration has often found it useful to suspend rights or jail opponents without trial in accordance with the Constitution.
The period between the two sessions of Parliament extended up to 120 days instead of 60 days as in the original by amending the proviso of Article 72(1), which limits the power of the Parliament and responsibility of government towards it. Government may issue non democratic rules through ordinance, without having any debate on it through the opposition. The main objectives of the Parliament have been diminished through the prolonging time between sessions. Third Amendment: (Nov. 28, 1974) Backdrop(s): Just after the independence of Bangladesh there were some disputes regarding the boundary and related maters with our neighbor country India.
Agreement between the Government of the Republic of India and Government of the People’s Republic of Bangladesh concerning the demarcation of the land boundary between India and Bangladesh and related matters took place in May 16, 1974. Amendment(s): The Constitution (Third Amendment) Act 1974 was passed to give effect to the agreement with India giving up the claim in respect of Berubari and retaining Dahagram and Angorpota through the amendment of the following: •Amendment of Article 2(a) •Insertion of the Article 122(2)(c); and •Omission of sub-clause (e) of Article 66(2) and sub-clause (e) of Article 122(2)
The territory of the Republic is re-chalked after the settlement with India according to their claim through a boundary agreement (May 16, 1974) excluding the territories referred to as excluded territories in that Act where the boundary of the Republic changed in 15 places. •Mizoram-Bangladesh Sector •Tripura-Sylhet Sector •Bhagalpur Railway Line •Sibpur-Gaurangala Sector •Muhuri River (Belonia) Sector •Remaining Portion Of Tripura – Noakhali Comilla Sector •Fenny River •Rest Of Tripura-Chi’itagong Hill Tract Sector •Beanibazar-Karimganj Sector •Hakar Khal •Baikari Khal •Enclaves •Hilli •Berubari •Lathitilla-Dumabari
Consequence(s): India will retain the southern half of South Berubari Union No. 12 and the adjacent enclaves, measuring an area of 2. 64 square miles approximately, and in exchange Bangladesh will retain the Dahagram and Angarpota enclaves. India will lease in perpetuity to Bangladesh an area of 178 metres x 85 metres ijear ‘Tin Bigha’ to connect Dahagram with Panbari Mouza (P. S. Patgram) of Bangladesh. The Indian enclaves in Bangladesh and the Bangladesh enclaves in India should be exchanged expeditiously, excepting the enclaves mentioned in paragraph 14 without any claim to compensate for the additional area going to Bangladesh.
Fourth Amendment: (Jan. 25, 1975) Backdrop(s): The Constitution (Fourth Amendment) Act 1975 made major changes into the Constitution. The presidential form of government was introduced in place of the parliamentary system; a one-party “BAKSHAL” system in place of a multi-party system was introduced; the powers of the Parliament were curtailed; the Judiciary lost much of its independence; the Supreme Court was deprived of its jurisdiction over the protection and enforcement of fundamental rights. Amendment(s): Amended Articles 72, 74, 80, 88, 98, 109, 117, 119, 122, 123 and 147; •Substituted Articles 44, 70, 95(1), 95(2), 115, and 124 of the Constitution; •Substituted the proviso of Article 74(3) and 116; •Omission of Article 66(2)(f), 66(3), 102(1), the proviso of Article 11, 67(1)(a), 76(1), 141A(1), 148(2) and the Second Schedule of the Constitution; •Amended Part III of the Constitution out of existence; •Altered the Third and Fourth Schedule; •Extended the term of the first Parliament (Jatiya Sangsad); •Made special provisions relating to the office of the President and its incumbent; •Inserted a new PART VIA in the Constitution; and Inserted Articles 73A and 116A in the Constitution. Consequence(s): Proviso of the Article 11, “and in which effective participation by the people through their elected representatives in administration at all levels shall be ensured”, omitted by the Fourth Amendment as hindrance of democracy and human rights of effectual participation of the people in administrative sectors of the country. The rule of being the Ministers can not be a Member of Parliament as of the system of Presidential form of government was overlooked in this amendment.
The President has to be elected by the direct vote of the citizen as of amended, required elections both for the president and the new Parliament neglected through an amendment in the Fourth Schedule of this Constitution as a silent coup d. etat in the constitutional history of Bangladesh. Impeachment and removal of the President became an unprecedented difficult task ever through this amendment where to produce a proposal of impeachment has to be signed by the two-third number of the total Members of Parliament and the sign of three-fourth number of Member of Parliament required to pass the same.
The President had the power to exercise absolute veto to a proposed bill presented to him through the Parliament and could not be endorsed as an Act. The fourth amendment took away the power of High Court Division to enforce the fundamental rights through the amendment of Article 44 and omission of Article 102(1). The fourth amendment completely curtailed the independence of judiciary by the amendment of Article 95, 96(2), 115 and 116; the President had the absolute power to appoint, dismiss or transfer the Judges of the entire judiciary.
The insertion of a new PART VIA with the Article 117A introduced a one-party “Bakshal – Bangladesh Krishak Sramik Awami League” in Feb. 24, 1975 which smashed and banned the existence of all other political parties in Bangladesh. The President had the right to hold his office for a term of indefinite period. The fundamental right of the freedom of thought and conscience and of speech and the freedom of press [Article 39(2)(b)] was ceased through an ordinance of Annulment of Declaration in Jun. 1975.
It had been a 13 minutes session wherein the Leader of the House alone had his edict announced and passed without having gone through due process of debate and all that needed. Based on that violation of norms the amendment lacked normal legality of parliamentary democratic process with an ill motive to become lone dictator for life having there none in opposition to him, much less any opposition party in the national Parliament in such haste that he allowed none to speak in the floor against his undemocratic romantic venture.
Thus the fourth amendment put the country in an autocratic ruling instead of democracy. Fifth Amendment: (Apr. 6, 1979) Backdrops: The Fifth Amendment Act legitimated the consequence of the changes made through the three consecutive Martial Law Proclamations. The Constitution (Fifth Amendment) Act was passed by the Parliament on 6th April 1979. This Act amended the Fourth Schedule to the Constitution by adding a new Paragraph 18 – Ratification and confirmation of Proclamations, etc. hereto, which provided that all amendments, additions, modifications, substitutions and omissions made in the Constitution during the period between 15th August 1975 and 9th April 1979 (both days inclusive) by any Proclamation or Proclamation Order of the Martial Law Authorities had been validly made and would not be called in question in or before any court or tribunal or authority on any ground whatsoever. Amendment(s): This Act amended and suspended the proviso of some Articles through The Martial Law Proclamations which result the transforms in the Constitution: The expression ‘Bismillah ar-Rahman ar-Rahim’ was added before the Preamble of the Constitution; •The expression ‘historic struggle for national liberation’ in the Preamble was replaced by ‘a historic war for national independence’; •Substitute the former Article 6 – Citizenship, where the citizen of Bangladesh shall be known as Bangladeshi; •Fundamental principles of state policy were made as ‘absolute trust and faith in the Almighty Allah, nationalism, democracy and socialism meaning economic and social justice’; •Restoration of the power of the Supreme Court and the liberty of its Judges; •Introducing of Supreme Judicial Council in respect of removal of it’s Judges; •Insertion of Article 142(1A), requirement of referendum to amend Article 8, 48,56, 58, 80 and 92(A); •The President’s power of absolute veto on a bill passed by the Parliament was suspended; •The regulation of public money and the moneys payable to public account of the republic assigned to the President in some respective cases; •All international agreement should be presented to the President and the same should be presented to the Parliament by the President himself; •The Ministers should be selected from the members of Parliament in ratio of the four-fifth of the total number of the members of the Parliament; •The President shall appoint as Prime Minister the member of Parliament who appears to him to command the support of the majority of the members of Parliament; •One party system was replaced by multiparty parliamentary system. •Legitimate the Indemnity Act, titled Indemnity Ordinance 1975; promulgated on September 26, 1975 in the form of an Ordinance by President Khondaker Mostaq Ahmad, a close political associate of Sheikh Mujib and a cabinet Minister. Consequences: This main objective of this amendment is to legitimate the martial law rulings covered by the sensation of the Islamic religion.
To introduce the multiparty politics, the government welcome Freedom party & Jamaat-E-Islami Bangladesh. In August, 2005, the Bangladesh High Court passed a landmark judgement that declared constitutional amendments during military rule as illegal and unconstitutional, and hence nullified. After several legal protests, the Bangladesh Supreme Court, in January 2010, ultimately announced that the historic verdict of the High Court will be upheld. The judgement of Bangladesh’s highest courts paved way for the return of the original nature of the constitution, that defines Bangladesh as a secular, democratic state. Casestudy:Bangladesh Italian Marble Works v. Bangladesh, 1972
The HC ruling itself has originated from an old case initiated by the Bangladesh Italian Marble Works on April 28, 1972, pertaining to the ownership of Moon cinema hall at old Dhaka. The case’s proceedings led the court to ask the government to explain why ‘ratification and confirmation’ of the Abandoned Properties Regulation 1977 (Martial Law Regulation VII of 1977) and Proclamation (Amendments) Order 1977 with regard to insertion of Paragraph 3A to the Fourth Schedule of the constitution (by the Fifth Amendment to the Constitution) would not be declared illegal. For decades since, the case had laid dormant, gathered dust, yet did not cease to lurk as a combustible powder keg waiting to explode upon certain remote controlled activation.
High Court bench comprised of Justice ABM Khairul Huq and Justice ATM Fazley Kabir made the ruling on August 29, 2005 after 33 years, and declared illegal and void the Fifth Amendment and the Martial Law regulations issued between August 15, 1975 and April 9, 1979. Sixth Amendment: (Jul. 10, 1981) Backdrop(s): The Constitution (Sixth Amendment) 1981 was passed providing, inter alia, that if the Vice President is elected as President, he shall be deemed to have vacated his office on the date on which he enters upon the office of President. Amendment(s): •Omitted the proviso of Article 38; •Substitute the proviso of Article 66(2A); and •Amendment of Article 51 Consequence(s): Having assassinated of the President Ziaur Rahman, the Vice-President Justice Abdus Sattar took the charge of the office as acting President.
The ruling party BNP nominated Justice Abdus Sattar as a President for the presidential election, which creates a break in accordance to the Article 66(2A) of the Constitution and this amendment took place mainly to overruled the existing law by saying that for the purposes of this Article that a person shall not be deemed to hold an office of profit in the service of the republic by reason only that he is a President, Vice-President, Prime Minister, Deputy Prime Minister, Minister, Minister of State or Deputy Minister. Seventh Amendment: (Nov. 10, 1986) Backdrop(s): After the decease of President Ziaur Rahman, Justice Abdus Sattar elected as the President of this Republic. Not more than 128 days, he removed from his office through a military coup on Mar. 24, 1982 leaded by Chief of Army Stuff Hussain M. Ershad, which generate the second era of martial law ruling in this Republic. Amendment(s): •Substitute the former Article 44 •Amendment of Article 96(1) The retiring age of the Judges of the Supreme Court was fixed at 65 in place of 62 through the amendment of Article 96(1). Consequences:
The Constitution (Seventh Amendment) Act 1986 was passed ratifying all the Proclamations and Proclamation Orders and the amendments made in the Constitution by such Proclamations and Proclamations Orders and all actions of the Martial law authorities and declaring those between the periods of Mar. 24, 1982 and Nov. 11, 1986, have been validly made and done by adding a Para 19 – Ratification and confirmation of the Proclamation of the 24th March, 1982, etc.. Casestudy:Siddique Ahmed v. Bangladesh, The High Court issued a rule on the government asking it to explain why the seventh amendment to the constitution which legalized the takeover of power by the former military ruler H. M.
Ershad along with the martial law instructions made between 1982 and 1986 should not be declared illegal. The bench of justices Md Momtazuddin Ahmed Naima Haider made the order following a petition filed by Siddique Ahmed, a resident of Chittagong, who had been convicted under martial law. The home secretary, law secretary, inspector general of prisons and Chittagong deputy commissioner are required to respond to the rule in four weeks. Dhaka, Apr. 5, 2010 (www. bdnews24. com) Eighth Amendment: (Jun. 09, 1988) Backdrops: Even after legalizing the martial law ruling through the seventh amendment, the opposition parties were not in a position to conform to the legality of the presence of H. M. Ershad as the legal head of the government.
He then took a chance to set ‘Islam’ as the state religion of Bangladesh to depress the hostility of the opposition and to get moral support in relation to the religious thought of the mass people of this Republic as of his predecessor. Amendments: •Inserted Article 2A and proviso of Article 109; •Substituted Article 30; •Substituted the proviso of Article 3, 5(1), 68 and 103(2)(b); •Restoration of Article 100 and 107(3); and •Omission of Article 30(1) & 30(3) and renumbered 30(2) as 30 with substitution. The Constitution (Eighth Amendment) Act 1988 was passed on Jun. 09, 1988 amending the following: •Declared Islam as the state religion [Article 2A]; Amended the word ‘Bengali’ into ‘Bangla’ [Article 3] and ‘Dacca’ into ‘Dhaka’ in [Article 5(1)] the constitution; •Prohibiting acceptance of any title, honors, award or decoration from any foreign state by any citizen of Bangladesh without the prior approval of the president [Article 30]; •Decentralized the judiciary by setting up six permanent benches of the High Court Division outside Dhaka [Article 100]; Consequences: Through the omission of the clauses (1) & (3) of Article 30, the citizens of Bangladesh are allowed to have title, award, honor from the Government of Bangladesh against the relevant fields as of admiration irrespective of prize(s) only. Through a martial law proclamation and the amendment of the Article 100, President H. M. Ershad, decentralized the Supreme Court and set six permanent benches each at Barisal, Chittagong, Comilla, Jessore, Rangpur and Sylhet. The Supreme Court subsequently declared the amendment of Article 100 unconstitutional through a verdict on Sept. 2, 1989 and since it had altered the basic structure of the constitution. Ninth Amendment: (Jul. 11, 1989) Backdrops: Presidential form of government was depicted through the Fourth Amendment; the President had to be elected by the direct vote of the citizens and could hold his office for irrespective period by the repeated elections. The post of Vice-President was selected and appointed by the President. Amendment(s): The Constitution (Ninth Amendment) Act 1989 was passed in July 11, 1989 though it came into effect on Mar. 01, 1991 with the following changes in the constitution: •Substitute the proviso of Article 50(2) and 125(b) Consequences:
This amendment provides the direct election of the Vice-President; it restricted a person in holding the office of the President for two consecutive terms of five years each; it also provided that a Vice-President might be appointed in case of a vacancy, but the appointment must be approved by the Parliament. Both the election for the President and Vice-President shall be in the same day and the elected person in holding the office of the Vice-President also for two consecutive terms of five years each and could be impeached by the vote of the three-fourth number of the total members of the Parliament. The Vice-President could not hold any constitutional power to exercise rather than to proxy the office of the President at the time of his absence. The process of removal the Vice-President through impeachment remained unchanged as of the removal of the President according to the fourth amendment and put both of them over the constitution.
The accomplishment (19 months later than the bill passed) of this amendment demonstrated a clear awful intention of H. M. Ershad to hold the office of the President for more than two terms of five years each. The Twelfth Amendment changed the structure of regime to Parliamentary form of government and thus the above had been repealed and no post for the Vice-President exists. Tenth Amendment: (Jun. 23, 1990) Backdrops: Fifteen seats were reserved for the women members of the Parliament for next ten years after the enactment of the original Constitution, revised through the Fifth Amendment, the seats increased to 30 and the period extended to 15 years since 1972 which expires in the year of 1988.
There were no seats for the women member in the Fourth Parliament and mainly this issue prerequisite of this tenth amendment. Amendments: •Substituted Article 42(1), 42(2) and 117(c); •Substituted the proviso of the Article 118(5), 129(2) and 139(2); •Omitted of 147(4)(ee); •Inserted the proviso of Article 152(2); and •Amendment of the proviso of Article 65 The Constitution (Tenth Amendment) Act 1990 amended, among others, Article 65 of the Constitution, providing for reservation of 30 (thirty) seats for the 15 years (since 1972) in the Parliament exclusively for women members, to be elected by the members of the Parliament. Eleventh Amendment: (Aug. 0, 1991) Backdrops: The Constitution (Eleventh Amendment) Act 1991 ratified all actions taken by the caretaker government headed by Justice Shahabiuddin Ahmed. It also ratified the appointment of Chief Justice Shahabuddin Ahmed as the Vice President who later became Acting President upon Ershad’s resignation. In addition, the Act also confirmed and made possible the return of Acting President Shahabuddin Ahmed to his previous position of the Chief Justice of Bangladesh. Amendments: •Inserted Para 21(1) and 21(2) in the Fourth Schedule of the Constitution – Ratification and confirmation of the appointment of Vice-President, etc. Consequences:
It amended the Fourth Schedule to the constitution by adding a new paragraph 21 thereto which legalized the appointment and oath of Shahabuddin Ahmed, Chief Justice of Bangladesh, as the vice-president of the Republic and the resignation tendered to him on 6 December 1990 by the then President Hussain M. Ershad. This Act ratified, confirmed and validated all powers exercised, all laws and ordinances promulgated, all orders made and acts and things done, and actions and proceedings taken by the vice-president as acting president during the period between December 06, 1990 and the day (October 09, 1991) of taking over the office of the president by the new President Abdur Rahman Biswas, duly elected under the amended provisions of the constitution.
The Act also confirmed and made possible the return of Vice-president Shahabuddin Ahmed to his previous position of the Chief Justice of Bangladesh and the date of which he resumes such duties and responsibilities shall be deemed to be the period of actual service within the meaning of section 2(a) of the Supreme Court Judges (Leave, Pension and Privileges) Twelfth Amendment: (Sep. 18, 1991) Backdrops: H. M. Ershad introduced the second session of martial law in this Republic on Mar. 24, 1982 and accomplished, one President, two Parliament Elections and a referendum during his period of eight years and nine months. Just after the election of 1988, the opposition political parties tried to come into a single shade to protest against the ruling of President H. M. Ershad and twisted a united movement of his removal from his office. President H. M.
Ershad proclaimed the Emergency and imposed the Curfew to counter the movement of the oppositions on Nov. 27, 1990. On the massive movement of the opposition and the strike from different corner of the citizens of all class compelled the President to resign from his office on Dec. 06, 1990 and handed over the authority to Justice Shahabuddin Ahmed, selected by the opposition as the 9th Vice-President of this Republic. Amendments: The twelfth amendment bill was commenced to the Parliament on Aug. 16, 1991 referring the amendment of Article 48, 56 and 142, which introduce referendum and based on that result, the Constitution (Twelfth Amendment) Act 1991 enacted on Sep. 8, 1991, known as the most important landmark in the history of constitutional development in Bangladesh, with the following transforms in the constitution: •Substituted Chapter I & II (Article 48, 55, 56, 57, 58, 59 & 60 ) of Part IV; •Omitted the proviso of Article 66(2A); •Substituted the Article 70; •Substituted the former proviso of Article 72(1) & omitted the Article 72(4A); •Inserted the proviso of Article 73A(1)& 142(D); •Omitted the Article 88(aa), 147(4)(aa), 148(1)(1A); •Inserted of Article 92(3), 141A(1) & omitted the Article 92A; •Substituted the former Article 119(1), 124 & proviso of Article 142(1B), 145(A); •Omitted Article 122(3) & proviso of Article 122(1), 125(b), 142(1A), 152(1); •Substituted clause (1), (2), (2A), (2B) of Article 123 & 141C; Consequences:
Basically the Constitution (Twelfth Amendment) Act 1991 re-introduced the parliamentary form of government; the President became the constitutional Head of the State; the Prime Minister became the executive Head; the cabinet headed by the Prime Minister became responsible to the House of Nation; the post of the Vice-President was abolished; the President was required to be elected by the members of the Parliament. The president was required to be elected by the members of the Parliament. Moreover, through Article 59 of the constitution this act ensured the participation of the people’s representatives in local government bodies, thus stabilizing the base of democracy in the country. Thirteenth Amendment: (Mar. 28, 1996) Backdrops: The concepts of Care-taker government through political and constitutional enactments as practiced in several countries are of three kinds: •Presumed Care-taker Government; •Care-taker Government in special sense; and •Care-taker Government in true sense
Introducing of Care-taker government in Bangladesh, through The Constitution (Thirteenth Amendment) Act 1996 is of the Care-taker government in true sense. Resignation of the Members of the Parliament of opposition parties, continuous strikes; non-cooperative political movements, impatient political and social unrest for more than two years constrained the BNP government to take care of this issue. This bill was passed through 268-0 votes and enacted in the first session of the 6th Parliament on Mar. 28, 1996. Former Justice M. Habibur Rahman was selected the first Chief Adviser of this new innovative system. Amendments: •Inserted Article 58A, & Chapter IIA; •Inserted the proviso of Article 61, 99(1) & 152(1); Substitute the former Article 123(3), 147(4)(b) & 147(4)(d), 148 (1A); and •Amendment in the Third Schedule Consequences: The Constitution (Thirteenth Amendment) Act 1996 provided for a non-party Care-taker Government which, acting as an interim government, would give all possible aid and assistance to the Election Commission for holding the general election of members of the Parliament peacefully, fairly and impartially. The caretaker government, comprising the Chief Adviser and not more than 10 other advisers, would be collectively responsible to the President and would stand dissolved on the date on which the Prime Minister entered upon his office after the Constitution of the new Parliament.
Though there are several merits of this innovation but there is also a scope for the President to perform dictatorial movement. [Article 58B(2), 58E & 61] Independent Election Commission, appointments and removals of the Commissioners, staffs and relevant persons, effective election rules & regulations and the punishments for corruptions may put this concept invalid. Fourteenth Amendment: (May 16, 2004) Backdrops: The option of the reserve seat for women members of the Parliament elapsed in 2001, which was re-introduced with increase in number through this controversial Constitutional (Fourteenth Amendment) Act. This was done in more political than reality.
The ruling government made this amendment to increase the vote-bank rather than the will of participation of women in the national life. The Constitutional (Fourteenth Amendment) Act was proposed and passed by the four party alliance governments (BNP) and this was done within unbelievable shortest time and even without any meaningful discussions in the Parliament, 226 – 1, in the course of a boycott by the main Opposition party (AL). The only member who voted against the Bill was freedom fighter Quadir Siddiqui of the Krishak Sramik Janata League (KSJL). The Left parties, which have no representation in Parliament, have also opposed the Bill strongly.
Amendments: The Constitutional (Fourteenth Amendment) Act 1994 was passed; providing among others, the following provisions: reservation of 45 seats for women on a proportional representation basis for the next 10 years; increase in the retirement age of Supreme Court Judges, Auditor General and Chairman & other members of Public Service Commission from 65 to 67 years; and displaying of portraits of the President and the Prime Minister in all government, semi-government and autonomous offices and diplomatic missions abroad. This Act amends, •Insertion of new Article 4A; •Amendment of clause (3) of Article 65; •Amendment of Article 96 (1), 129 and 139; Amendment of Article 148 of the Constitution; and •Addition of Paragraph 23 in the Fourth Schedule. Consequences: The matter relating to hanging of portrait could be disposed of by an order of the Govt. or by an Act. The amendment of the constitution was not necessary. It was neither expedient nor needed to bring this amendment in the constitution. All the Public servants of the Republic had been demanding for a long time to enhance their retirement age. Persons holding some constitutional posts were also demanding the same. But, by ignoring the popular demand of the servants of the Republic, enhancement of retirement age of the three specific categories of persons rather than the other ervants of the Republic create grievances among them which actually emerge to be ill motivated and the ulterior intention of the alliance government was revealed though this amendment. The amendment of Article 148 was not only undermines the powers and status of the Speaker, but also undermines the Sovereignty of the Parliament as an Institution. It is also inconsistent with Para 5 of the 3rd Schedule of the Constitution. CONCLUSION: It is observed from the above summary, that a few Amendments made at one time under certain compelling circumstances were subsequently removed by another amendment, and also that several of these had a broad nationwide consensus.
But a number of the amendments were enacted without proper debates and thorough discussions involving all the stake holders including people adhering to different, sometime opposing, ideological or political views. Amendments that were the result of one-dimensional thought, lack of respect for democratic practices or expediency have obviously come under severe criticisms, sometimes for valid reasons and sometimes for sectarian political purposes. A difficult journey towards constitutional governance, the whole process of institutionalization of democracy perhaps begins with the process of having representatives at various levels of governance.
Being under military rule for almost one-third of the period since the independence of the country, when the supreme law of the land- the Constitution was either suspended or parts of it remained in abeyance, the people of Bangladesh hardly had the opportunity to exercise democratic rights and practice freedom. The local government units have been routinely manipulated by all the previous governments. The purpose was to create respective rural support base for the ruling party. The effective participation by the people through their elected representatives in administration at all levels, as envisaged in article 11 of the Constitution, has not yet been ensured.
A Constitutional government is enshrined with a value system, which ensures societal change as well as justice. Every country has a constitution but may not have a constitutional government. A constitutional government requires primacy of rule of law. Bangladesh is abundant with constitutional provisions and statutory laws guaranteeing political freedom. However, the existence of a number of repressive laws undermines the ‘de jure’ pledges of freedom. Sadly the ‘hard earned democracy’ has not yet obtained an institutional shape. Bangladesh’s politics remain confrontational and inimical to reform. There is no system of accountability within the existing ‘political party mechanisms’.
The judiciary is still not functionally independent of the executive. The aspiration of the Constitution as reflected in Article 22 (“The state shall ensure the separation of the judiciary from executive organ of the state”) has not yet been materialized. With the installation of a newly elected government in power, it is the earnest hope of the people that they will act to preserve, protect and defend the Constitution both in letter and in spirit. Suggestions: Maximum amendments modify more than one segment of this Constitution at a time, subsequently substituted some portion by the next amendment with keeping of some scrap of the previous one; as they required at that time.
The present version of the Constitution, subject to all the fourteen amendments, except the current ratification through the verdict of the Supreme Court about Fifth Amendment, I have some suggestions to fabricate the Constitution more democratic: •The self contradictory Articles belonging to this Constitution should be removed [Article 27, 33(1) & 33(2) and Article 33(3), 33(4) & 33(5)] •Omission of the provisions of preventive detention [Article 33] or could be amended with provision of protection of law of the accused. •Amend of Article 55(3) to ensure the responsibility of the Ministers and the cabinet individually rather than collectively to the Parliament. Insertion the provision in Article 57 regarding the holding of the office of the Prime Minister not more than two terms; whether or not the terms are consecutive as of the President [Article 50(2)]. •Omission the provision of the non-party care-taker government system [Chapter IIA, Article 58A ~ 58E] with enforcing the independence and power of the election commission. •Enforcement of local government institutions with decentralization of powers, duties and responsibilities. •Amend the Article 66 to ensure the qualification of the Members of Parliament, who will be concerned only with the legislation and separate them from the local government involvement. Amend the Article 70 with a provision that this Act will be applicable only in the case of expression of confidence or no-confidence in the Cabinet or Parliament. •Independent and proper implementation of Ombudsmen and making rules & Regulations against the Article 77. •Ensure the Ordinance making power of the President should be more specific and reasonable [Article 93] •Amend Part VI to ensure the avoidance of the ascendancy of the ruling government over the higher Judiciary. • Prerequisite against the power to amend any provision of the Constitution [Article 142] should be more precise. •Insertion in the Schedules as amendment should be rectified as required to make the Constitution more democratic. Ensuring the proper and lawful pre-requirements in the Constitutional amendments and with strict relevance to Article 26 •Prevent the alteration of all kind of political ill-will or hostile motivation in the Constitutional amendments. References: 1. The Constitution of The People’s Republic Of Bangladesh 2. msweavb,mvsweavwbK AvBb I ivRbxwZtevsjv‡`k cOm? , †gvt Avayj nvwjg, CCB Publication, Ryb, 2009 3. Bangladesh: Contemporary debates for fundamental changes of its current constitution – Barrister Nazir Ahmed 4. Changes of Bangladesh Constitution: Dr. K. M. A. Malik 5. www. thedailystar. net 6. www. pmo. gov. bd 7. www. newagebd. com 8. www. cpd-bangladesh. org 9. www. sonarbangladesh. com 10. http://en. wikipedia. org 11. www. sonarbangladesh. com 12. www. banglapedia. org 13. www. bengaliwiki. com 14. www. hcidhaka. org 15. www. bdnews24. com