“Amendment of Bangladesh Constitution and Basic Structure Doctrine”


Introduction:

The Constitution of Bangladesh is the highest ruling of Bangladesh. It represents Bangladesh as a democratic republic nation where all the power is in the hands of Bangladeshi people[1] and characterizes basic political principles of the state and stands for the fundamental rights of citizens. It was approved by the Assembly of Bangladesh on November 4, 1972; it was exercised from December 16, 1972. The constitution stands as the most powerful evidence to state Bangladesh as a unitary, independent and Republic, founded on a struggle for national liberation, and that is how we achieve the People’s Republic of Bangladesh. It lays a strong foundation of nationalism, secularity, democracy and socialism as the essential ethics that stands for the Republic and declares the quest of a society that gives its citizens- the rule of law, fundamental civil rights and independence as well as fairness and evenhandedness, political, economic and social.

The Constitution of Bangladesh was written by international personals and other experienced people. However, amendments during socialist one party and military rule in Bangladesh drastically changed the material and moderate democratic character of the constitution. In August, 2005, the Bangladesh High Court approved a pointer finding that states constitutional amendments in military ruling as unlawful and also unconstitutional, so completely invalid. in January, 2010, after several protest  the Bangladesh Supreme Court eventually agreed that the famous judgment of the High Court will be upheld.[2]

Throughout this whole paper I will try to explain all the amendments of the constitution with their timely significance while give appropriate weight to all of the 14 amendments. Here I will also try to draw a blue print of its basic structure.

Amendments

The Constitution of the People’s Republic of Bangladesh is been amended 14 times. Most of the amendments are will always be under deliberate because of the dirty nature of the Bangladeshi politics.Significantly, 4th, 5th, 7th, 8th and 14th amendment. What actually happens is whatever change one political party in power makes the other political party instantly starts searching a loop hole not for the betterment of the country but just to fool the illiterate people of the county with irrational logics for their supports. It is also true that many times different political parties just only looked for their own advantages by amending the constitution. But still this issue should be analyzed for the betterment of the nation not to fool the illiterate people for their supports.

The following is a brief account of these amendments,

First Amendment Act: The Constitution Act 1973 was voted for on 15 July 1973. It amended Article 47 of the constitution by insisting a supplementary section which permitted trial and punishment of any individual accused of ‘genocide, crimes against humanity or war crimes and other crimes under international law’. After Article 47 it inserted a new-fangled Article 47A specifying inapplicability of certain primary rights in those cases.

Second Amendment: The actual Constitution did not have any prerequisite for declaration of state of emergency and defensive detention. By the Constitution  Act 1973, Article 33 was amended on condition that for defensive detention and Part IXA was inserted conferring authority on Parliament and the administrative to deal with emergency state and providing for postponement of enforcement of the fundamental privileges during the episode of emergency.

Third Amendment Act: The Constitution (Third Amendment) Act 1974 was added on 28 November 1974 by bringing in changes in Article 2 of the constitution with a outlook to giving outcome to an agreement between Bangladesh and India in deference of exchange of certain enclaves and fascination of boundary lines between India and Bangladesh.

Fourth Amendment: The Constitution Act 1975 prepared foremost changes into the Constitution. The presidential system of the government was introduced in place of the parliamentary system; a one-party system instead of a multi-party system was the main important part; the authority of the Parliament were shortened; the Judiciary lost much of its liberty; the Supreme Court was underprivileged of its command over the protection and enforcement of basic rights. This Act (i) amended Articles 11, 66, 67, 72, 74, 76, 80, 88, 95, 98, 109, 116, 117, 119, 122, 123, 141A, 147 and 148 of the Constitution; (ii) was alternated by Articles 44, 70, 102, 115 and 124 of the Constitution; (iii) amended Part III of the Constitution out of existence; (iv) altered the Third and Fourth Schedule; (v) absolute the term of the first Jatiya Sangsad; (vi) ended unique supplies relating to the office of the President and its serving; (vii) inserted a new part, i.e. part VIA in the Constitution and (viii) inserted Articles 73A and 116A in the Constitution.[3]

Fifth Amendment: The Constitution Act was accepted by the Jatiya Sangsad on 6 April 1979. This Act amended the Fourth agenda to the Constitution by adding a new Paragraph 18 thereto, which offers that all amendments, add-ons, adjustment, replacement and oversight made in the Constitution during the stage between 15 August 1975 and 9 April 1979 (both days inclusive) by any public statement or Proclamation Order of the Martial Law Authorities had been dependably made and would not be called in query in or before any court or tribunal or power on any ground whatsoever. The phrase ‘Bismillah ar-Rahman ar-Rahim’ was added before the preface of the Constitution. The idiom ‘historic struggle for national liberation’ in the introduction was swap by ‘a historic war for national independence.’ One party government was replaced by multiparty parliamentary government. Essential principles of state policy were ended as ‘absolute trust and faith in the Almighty Allah, nationalism, democracy and socialism meaning economic and social justice.’

Sixth Amendment: The Constitution 1981 was approved on condition that, inter alia, that if the Vice President is elected as President, he shall be believed to have leaved his office on the date on which he enters upon the office of President.

Seventh Amendment: This Act was voted for on 11 November 1986. It revised Article 96 of the constitution; it also revised the Fourth Schedule to the constitution by placeing in a new paragraph 19 thereto, given that among others that all announcements, proclamation orders, Chief Martial Law Administrator’s Orders, Martial Law Regulations, Martial Law Orders, Martial Law Instructions, ordinances and other laws prepared during the period between 24 March 1982 and 11 November 1986 (both days inclusive) had been authentically made and would not be called in query in or before any court or panel or power on any ground whatsoever.

Eighth Amendment: The Constitution Act 1988 was agreed amending Article 100 of the Constitution and thereby setting up six permanent Benches of the High Court Division exterior the capital and authorizing the President to fix by noticing the territorial jurisdiction of the permanent Benches. By this Act, ‘Islam’ was made the state religion of Bangladesh. This Act also revised (i) the word ‘Bengali’ into ‘Bangla’ and ‘Dacca’ into ‘Dhaka’ in Article 5 of the Constitution, (ii) Article 30 of the Constitution by eliminating acceptance of any title, honors, award or medal from any foreign state by any citizen of Bangladesh without the prior approval of the President.

Ninth Amendment: The Constitution Act 1989 was approved in July 1989. This amendment presented for the direct voting of the Vice-President; it limited a person in holding the office of the President for two successive terms of five years each; it also provided that a Vice-President might be chosen in case of a vacancy, but the selection must be permitted by the Jatiya Sangsad.

Tenth Amendment: The Constitution Act 1990 revised, among others, Article 65 of the Constitution, stated for reservation of thirty places for the next 10 years in the Jatiya Sangsad entirely for women members, who will be elected by the members of the Sangsad.

Eleventh Amendment: The Constitution Act 1991 approves all actions taken by the caretaker government headed by Justice Shahabiuddin Ahmed. It also approves the appointment of Chief Justice Shahabuddin Ahmed as the Vice President who afterward becomes Acting President upon Ershad’s resignation. In addition, the Act also established and made possible the return of Acting President Shahabuddin Ahmed to his preceding   place as the Chief Justice of Bangladesh.

Twelfth Amendment: The Constitution Act 1991 re-established the parliamentary system of government; the President became the legitimate chief of the State; the Prime Minister became the executive chief; the cabinet led by the Prime Minister became liable to the Jatiya Sangsad; the post of the Vice-President was brought to an end; the President was compulsory to be voted by the members of the Jatiya Sangsad.

Thirteenth Amendment: The Constitution Act 1996 offered for a non-party Caretaker Government which, stand-in as an acting government would provide all potential aid and assistance to the Election Commission for holding the general election of members of the Jatiya Sangsad serenely, moderately and with detachment. The caretaker government, consist of the Chief Adviser and not more than 10 other advisers, would be communally accountable to the President and would stand on charge on the date on which the Prime Minister entered upon his office after the charter of the new Sangsad.

Fourteenth Amendment: The Constitutional Act 1994 was voted for providing, among others, the following provisions: reservation of 45 spaces for women on a comparative demonstration basis for the next 10 years; increase in the retirement time of Supreme Court Judges from 65 to 67 years; and put on view of portrayal of the President and the Prime Minister in all government, semi-government and autonomous offices and diplomatic missions out of the country.[4]

Basic Structure Doctrine

The basic structure doctrine is the judge-made rule that some features of the Constitution of India are beyond the limit of the influence of amendment of the Indian parliament. The doctrine was first expressed in ‘Kesavananda Bharati v. The State of Kerala’ mirrors judicial distress at the perceived risk to the moderate constitutional order caused by the Indian National Congress, in particular under Indira Gandhi. The basic structure doctrine is only relevant to the constitutionality of amendments and not to ordinary Acts of Parliament, which must go with to the whole of the constitution and not just to its basic structure.

On April 24, 1973, the Supreme Court ruled in Kesavananda that even though the Twenty-fifth Amendment of 1971 was suitable, the court still kept back for itself the judgment to reject any constitutional amendments passed by Parliament by asserting that the amendments cannot modify the constitution’s “basic structure”.

Anwar Hussain .Vs. Bangladesh or 8th Amendment Case:[5]

The case of Anwar Hussain .Vs. Bangladesh widely known as 8th Amendment case is a famous judgment in the constitutional record of independence Bangladesh. This is the earliest judgment whereby the Supreme Court of Bangladesh as salient down an amendment to the constitution ready by the parliament. By two court order appeal the amended Art 100 & the notification of the Chief Justice were confronted as mega vires. A division bench of the HCD discharged the appeal instantly. Leave was established by the Appellate Division by a majority of 3 to 1 striking down the amendment.

8th

The standard argument of the judgment is that, the constitution rests on some fundamental main beliefs which are its structural supports which the parliament cannot amend by its amending power for; if these supports are discharged or damaged then the entire constitutional configuration will lose its validity.

Basic structures are:

Some crucial parts of the constitution only belongs to the people of the state like, Supremacy of the Constitution Democracy, Republican government, Independence of Judiciary, Unitary state and Separation of powers Fundamental rights.

These structural pillars of the constitution are place outside any change by amendatory procedure. If by implementing the amending power these principles is shortened more than one stable seat of the Supreme Court thus destroying the unitary quality of the Judiciary. The amended Art 100 is ultra vires for the reason has destroyed the vital limb of the judiciary by setting up adversary courts to the HCD in the name of permanent Benches presenting full jurisdiction, power and role of the HCD.

This amended Art 100 is conflicting with Art 44, 94. 101 & 102 also compact Art 108, 109, 110 & 111 of the constitution. It directly sullied Art 114 this amended is illegitimate since there is no provision of transfer which is essential obligation for relaxation of the rules of justice.[6]

If any provision can be identify the ‘pole star’ of the constitution, then its Preamble. The impugned amendment is to be observed on the sandstone of the preamble including or not including re-establishment to the doctrine of basic structure. The preamble is not only a component of the constitution; it now provides a well-established provision that cannot be amended by the parliament. Though this amendment it basically destroying the objectives of rule of law which is articulated is our preamble. These passages from the judgment build it clear that the main point, on which the greater parts relied to state the amendment illegal, which was the basic structure of the Constitution. The Doctrine of Basic Structure is not fine established opinion of the constitutional law; rather it is new drift in and a rising principle of constitutional jurisprudence. The idea of basic structure of the Constitution can be originate in the Sub-Continent, as Dr. Kamal Hossain proposed in the 8th amendment case, in a judgment of the Dhaka High Court. This result was persistent by the Pakistan Supreme Court in Fazlul Quder Chowdhury .Vs. Abdul Hague. But in its growth phase in Indian jurisdiction the earliest proper judicial formulation of this doctrine came out in Golak Nath. Vs. State of Punjab case, 1967. Where it was determined that parliament has no influence to amend fundamental right so as to take away any of them. The Indian Parliament approved 24 Amendment, 1971.Which was a lay down, the parliament might in the exercise of its constituent control amend any condition of the Constitution be it of fundamental right or of any other one. The validity of the amendment which shortened the power of judicial reviews was tested in Kesavananda .Vs. State of Cerala case, 1973.The court by preponderance overruled the Golak Nath’s case, apprehended that parliament had the authority to amend any or all the provision of the constitution. Following Kesavananda rule, the court in the case of Indian Nehru Gandhi .Vs. Raj Narayan, 1979 held that the 39 amendment exaggerated and ruined certain structure of the constitution.[7]

The range of the application of the doctrine of basic structure once more came up for argument in the case of Minerva Mills Ltd .Vs. Union of India, 1980. Thus proposal that parliament cannot amend the Constitution so as to destroy its fundamental features was again repeated and applied by the Supreme Court in Woman Rao .Vs. Union of India, 1980. The Doctrine of Basic Structure effectively approved the acid test in 5 cases in India. And Bangladesh court in the 8th Amendment case followed the Indian conclusion as consider the Doctrine of Basic Structure. Court seized that the Constitution Eighth Amendment shattered one of the essential features of the Constitution, namely the agreement and freedom of the Supreme Court (High Court Division), and thereby weakened the basic structure of the Constitution and was stated unconstitutional.

Other insites

In the context to our constitution there are two doctrines on prejudice most countries completely or unambiguously keep an article in the Constitution to rule against other articles. And in other cases, Judiciary within its legal power to provide motives to Constitutional Articles, rules a number of articles to have such prime power.

For another example, Article 7 and 26 of Bangladesh constitution exercise authority over Article 142 (even though it says in spite of anything contained in this Constitution, because many other articles employ such phrase too and if there is a disagreement, you know who has the precise to clarify).[8]

Which is why, under Article 142, if you make an amendment that disagrees with Article 7 or 26, that will be invalid.

In USA the president always says after each speech “God Bless America”[9]. In Bangladesh we will say “Secularity Bless Bangladesh”. Before, “high ideals of absolute trust and faith in the Almighty Allah  … Fundamental principles of the Constitution” could not flatten our politicians from crime, corruption and exploitation of the nation.

I didn’t find any control on amending fundamentals of Constitution in a good number of countries. The only numerous situation made by our Judiciary in 1988 and in 2005 was India’s Basic Structure doctrine that came following “Kesavananda Bharati v. State of Kerala”.

Even argument on US constitutional amendment says–

“Its power derives from the people; it was adopted by the people; it functions at the behest of and for the benefit of the people. Given all this, if the people, as a whole, somehow demanded a change to the Constitution, should not the people be allowed to make such a change? As Wilson noted in 1787, “… the people may change the constitutions whenever and however they please. This is a right of which no positive institution can ever deprive them.”[10]

And I agree.

Conclusion

It is seen from the above abstract, that a few Amendments ended at one time under certain forceful situation were consequently detached by another Amendment, and also that numerous of these had a nationwide harmony. But a only some of the Amendments were endorsed without appropriate arguments and thorough discussions concerning all the pledge holders including people adhering to diverse, sometime differing, ideological or opinionated views. Amendments that were the consequence of unsophisticated thought, lack of esteem for democratic practices or suitability have clearly come under severe disapprovals, sometimes for suitable motives and sometimes for sectarian political ideas.

In conclusion, we have no hostility in enacting a new Amendment by the present or upcoming governments, but if and when this is complete, there must be occupied debates and contribution by all the political parties, intelligentsia and apprehensive citizens.

Reading the doctrine of basic structure for this research proposes various models by which the doctrine may be identified and evaluated came up. The three molds used to examine the doctrine are Basic Structure and the theory of Originalism, Basic Structure acts as balancing tool, and Basic Structure as a tool of growth. The tool is used to examine some of the limitations of the basic structure doctrine in the background of weak societies and proposes a deviating and progressive approach in judicial appliances of constitutional main beliefs.

References

1. ^ http://www.bdnews24.com/details.php?cid=2&id=175271&hb=4

2. ^ http://www.thedailystar.net/newDesign/news-details.php?nid=124641

3. ^ http://www.thedailystar.net/newDesign/news-details.php?nid=124640

4. ^ http://www.pmo.gov.bd/pmolib/constitution/

5. ^ http://www.thedailystar.net/newDesign/news-details.php?nid=120366

6. ^ http://www.thedailystar.net/newDesign/news-details.php?nid=124640

7. ^ http://www.newagebd.com/2005/dec/16/vd/01.html

8. ^ http://www.cpd-bangladesh.org/activities/rs_book_launch.html

9. ^ http://www.cpd-bangladesh.org/activities/rs_book_launch.html

10. ^ (Source G.W. Choudhury (1974) The last days of United Pakistan p128-129)

11. ^ (Source G.W. Choudhury (1974) The last days of United Pakistan p128-129)

12. ^ http://www.newagebd.com/2005/dec/16/vd/01.html

13. ^ http://un.org.pk/hdc/Speeches%20of%20Dr.%20Haq%20Folder/System%20is%20to%20blame.htm

14. ^ “Constitution of Bangladesh: Part II: Fundamental Principles of State Policy”. Chief Adviser’s Office. Prime Minister’s Office. Government of the People’s Republic of Bangladesh. http://www.pmo.gov.bd/pmolib/constitution/part2.htm#P2.

15. ^ http://www.banglapedia.org/httpdocs/HT/C_0336.HTM

16. ^ http://www.thedailystar.net/newDesign/latest_news.php?nid=21972

17. ^ http://www.thedailystar.net/newDesign/latest_news.php?nid=21979

18. ^ http://www.google.com/hostednews/afp/article/ALeqM5h_5T_bgbToWaGqK2gxXACMFuySog

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[1] http://www.bdnews24.com/details.php?cid=2&id=175271&hb=4

[2] http://www.thedailystar.net/newDesign/news-details.php?nid=120366

[3] http://en.wikipedia.org/wiki/Constitution_of_Bangladesh

Amendments>14 amendments in brief>Fourth Amendment Act

[4] http://www.banglapedia.org/httpdocs/HT/C_0336.HTM

[5] http://www.scribd.com/group/4344-law-and-order-bangladesh

[6] http://maitake.com/5FZIm3Qm8/

[7] http://huseyinatas.fastpage.name/historyofthe8thamendment/

[8] http://www1.umn.edu/humanrts/research/bangladesh-constitution.pdf

[9] http://www.usconstitution.net/const.html

[10] http://www.usconstitution.net/const.html