A constitutional amendment is a modification of the constitution of a polity, organization or other type of entity. Amendments are often interwoven into the relevant sections of an existing constitution, directly altering the text. Conversely, they can be appended to the constitution as supplemental additions (codicils), thus changing the frame of government without altering the existing text of the document.
An amendment to the Constitution is an improvement, a correction or a revision to the original content approved in 1788. To date, 27 Amendments have been approved, six have been disapproved and thousands have been discussed.
Why Constitution is to Amend
Constitution is the supreme law and supreme will of the republic, to implement the supreme will of the people, sometimes some situation arises where the constitution is required to amend. There are some reasons for which the constitution is to amend which are amending which are discussed below.
To mitigate social demand
Society is constituted by the persons of different opinion. And the society is changeable in nature. Now a day which types of society are existed, it may not be existed in future. Because the demand of present time may not be same as for future time.
When in 1972 the constitution of Bangladesh has been first effected, then the government of then the government of then period thought that there is no exhaustive law to trial the offender of the war. So it was the demand of that period the war criminal had to be prosecuted. To mitigate that situation, in 15th July 1973 the first amendment had been brought up.
This amendment inserted provisions 47 (3) and 47A in Article 47 of the constitution. Article 47(3) of the constitution states that nothing anything contained in the constitution, no law nor any provision there of providing for detention, projection or punishment of any person. Who is a member of any armed or defense or auxiliary forces or any individual, group individuals or organization or who is a prisoner of war, for Genocide, Crimes against humanity or war crimes and other crimes under international law shall be deemed void or unlawful or ever to have become void or unlawful, in the ground that such law or provision of any such law is inconsistent with or repugnant to, any of the provisions of this constitution. It was the supreme will of the majority persons of Bangladesh that the war criminal would prosecute. The brave martyrs sacrifice their lives in the national liberation struggle and the war criminal tried not to be independent of Bangladesh. So, they are the emery of nation, that’s why to convict the war criminal the first amendment had been brought up.
It was the social demand of that period that the war criminal had to be prosecuted, that’s why in article 47A it is stated that the war criminal shall not be entitled equal protection of law under article 31, protection against trial under ex-post facto legislation under article 35(1) and the war criminal shall also not to be entitled article 35(3) of the constitution, where it has been inserted that every accused of criminal offence shall have the right to speedy and public trial by an independent and impartial court or tribunal established by law.
Article 47 (A) of the constitution has been inserted in this view that on the plea of human rights, as it the war criminal does not away from the trial and article 47A of the constitution stated that the war criminal shall not enforce their human rights under article 44 of the constitution, that means the war criminal shall not be entitled to file writ petition under article 102 of the constitution. This rigid provision was only inserted to punish the war criminal. After the first amendment within one week. The international crimes Tribunal Act, 1973 has been passed to prosecute the war criminals or crimes under international law.
The constitution under article 47A restricted some fundamental human rights of the war criminal but it doesn’t mean that they cannot enjoy any rights of human, section 17 of the International crimes tribunal Act, 1973 empowers the war criminal to give any explanation relevant to the charge made against him, to conduct his own defense before the tribunal or to have the assistance of counsel and the accused shall have the right to present evidence at the trial support of his defense and to cross examine any witness called by tb prosecution.
So, the person who criticism that the trial of war criminal has violated human rights of war criminal, they should release this section.
For political purpose
The subject matter of the polities’ is to general people and acquiring the ruling power of that people. Actually people are the capital of politics in democratic system of government. The disguise address of the politics is well fare of the people as well as the country. Every political party asserted that they will govern the country well than the other political party, that’s why when they formed the government; they tried to amend the constitution to concrete their governing power.
Non-party care-taker government was the result of revolution in 1996 and it was sought in of this view that under the political government, the free and fair election is not possible the political party does not believe one another. That’s why the then government was bound to agree to amend the constitution for insertion the provisions relation care-taker government. But to appoint a particular person as chief advisor, the age of the judge of the Supreme Court has been extended by amendment. By fourteen amendment of the constitution, the age of sixty five years of the judge of the Supreme Court has been extended to sixty seven years. It has been done only for appointment a choice full person as chief advisor to implement political purpose.
In 2006, it has been observed that to appoint chief advisor from amongst the judges of the Supreme Court who was the follower of a particular political party, the constitution has been violated by the government of 18th parliament. Without looking the for the judge of the supreme court for the post of chief advisor, the president of 8th parliament appointed himself as the chief advisor of the non party caretaker government which was denied by most of the political party, as a result one-eleven was taken place for which for the four tines the army backed government was formed. They tried to vanish the political party with the assistance of then chief advisor. Actually two major political party was fronted by then government. When the ninth parliament election has been held and the government of ninth parliament formed. This government has required number of parliament members for the amendment of the constitution.
But technically the government did not struck down the provisions relating non-party caretaker government. The government challenged the constitutionality of non party caretaker government and the Supreme Court declared that the nonparty caretaker government is unconstitutional but they advised that the next two general elections should be held under the authority of the caretaker government. When by thirteenth amendment the provisions relating to non party caretaker government has been inserted, then was a provision in Article 58C that chief advisor of the nonparty caretaker government would be the person who retired last as the chief justice of supreme court and is the last chief justice is not available or is not willing to hold the office of the chief advisor, then the president shall appoint as chief advisor the person who among the retired chief justices of Bangladesh retired next before the last retired chief justice.
This act could be done the government by amendment, because the government had two third majorities to struck down the nonparty caretaker government. The government did not do it because this nonparty caretaker government was the result of their revolution.
When the caretaker government sought, the political party who denied the necessity of caretaker government in 1996, it this time it is sought by that political party. They argued that without caretaker government no free and fair election is possible, that’s why they claiming by amendment of the constitution, the nonparty caretaker government have to be survived.
So, it can be said that only political purpose, the government who has required number of majority in the floor, they try to amend the constitution for implementations of their political wish.
2.1.3. To control revolution
Because of revolution many countries adopt constitution, however many countries amend their constitution. Thirteenth amendment of Bangladesh constitution is the example of controlling revolution. In 1996 the sixth parliamentary government was bound to amend the constitution” for public pressure and finally they inserted the provisions 58A, 58B, 58C, 58D and 58E relating to non party caretaker government. The main object of bringing this concept is to avoid rigging and unfairness in the parliamentary Elections of Bangladesh.
2.1.4. To establish the fundamental principles of the constitution
In the original constitution which had been adopted in 1972, there the fundamental principles of the constitution were nationalism, socialism, democracy and secularism. The principle secularism was inserted in article 12 of the original constitution but in 1978 by the second proclamation in its order 4 of schedule 2, the article 12 was omitted and it has been inserted in the preamble and in article 8 of the constitution that in line of secularism absolute trusts and believes to the all mighty Allah shall be principle of the constitution. But the question arose that in Bangladesh not only Muslim resided but also resided the persons of other religious, o why the absolute trust and faith to the all mighty Allah would be existed. When the liberation war started the persons of all religious had been joined it and fought for the national independent. So, it is the valid claim of the persons of all religion that the fundamental principle of the constitution would be secularism. That’s why, by the fifteenth amendment article 12 of the constitution has survived and in the preamble it has been stated that democracy, nationalism, socialism and secularism shall be the fundamental principles of the constitution.
2.1.5. To use religion as the shield of politics
From time to time constitution had been amended on the basis of religious feelings. Some arbitrary government had been used the religions as the shield of the politics. The ruler of that period has been thought that Islam is the religion of majority persons of Bangladesh. So if they insert “Bismillahir Rahmanir Rahim” and “The state religion shall be Islam” in the constitution, they will get support the people of Islamic mind. That’s why, the former president Ziaur Rahman in 1978 by the second proclamation in its order of schedule-2 “Bismillahir Rahmanir Rahim” has been inserted at the beginning of the constitution. And by the Eighth amendment former president Ershad has been inserted in article 2A that the state religion shall be Islam.