Amendment of the Constitution of Bangladesh

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“Amendment of the Constitution of Bangladesh”

Chapter 1

INTRODUCTION

The constitution is the supreme law of the republic. The entire legislative, executive and judicial activities of the state are guided and regulated by the constitution. In all countries here where constitutionalism prevails, ordinary men and women are more or less knowledgeable about their country’s constitution and are vigilant and vocal to a man to assert and preserve the constitution and their constitutional rights. They do not leave their constitution in the hands of constitutional lawyers judge and academicians. Each citizen is a defender of the constitution. So that it becomes almost impossible to make an open breach of it. Article 21 of the constitution says that “it is the duty of every citizen to observe the constitution and the laws, to maintain discipline, to perform public duties and to protect public property.” Constitutional development is no doubt an evolution of the constitution through judicial decisions, but judicial decisions on the constitution are the outcome of dedicated lawyering backed b intensive academic studies.

Chapter 2

HISTORICAL BACKGROUND

In order to understand the constitutional law of a country we must not only refer to the laws and principles that exist outside the constitution, we must also acquaint ourselves with its historical background. There are usually many provisions in a constitution which can be properly understood and applied only if we know the historical facts which led to the adoption of the scheme and the formation of those provisions of the constitution.

Partition of India

India was being governed by the government of India Act 1935 when it was partitioned in 1947. This Act provided for a federal parliamentary form of government, though the Governor General was the repository of power as the representative of the British sovereign. While partitioning the country, the British parliament amended this Act and passed the Indian Independence Act, 1947 creating two dominions- India and Pakistan and two constituent Assemble for the two Dominions.

Delay in framing constitution in Pakistan

The constituent assembly of India promptly enacted a constitution which came into operation in January 1950. The constituent assembly of Pakistan could not complete its work for quite a long time. In 1950 the Prime Minister, Liaquat Ali, was murdered. Khawaja Nazimuddin, who became the Governor General on the death of M.A. Jinnah, became the Prime Minister and Ghulam Mohammad, an ex-civil servant holding the office of Finance Minister, became the Governor General. In April, 1953 Ghulam Mohammad dismissed Khawaja Nazimuddin and his cabinet. He appointed Mohammad Ali of Bogra as the Prime Minister. Under the circumstances, Ghulam Mohammad, only a titular head, had no constitutional authority to dismiss the Prime Minister and to assume the role of a sovereign.

Dissolution of Constituent Assembly

Ultimately the making of the constitution reached the final stage. The draft constitution based on the objectives Resolutions adopted by the constituent Assembly had been prepared with the assent of the leaders of various political parties in the constituent Assembly. The Prime Minister announced that the constitution for Pakistan would be pat into operation in December 1954.

S.19 of the Government of India Act, 1935:

S.19 of the Government of India Act, 1935 as originally enacted, confessed power on the Governor General to dissolve the federal legislature, while amending the Act to bring it in line with the Indian Independence Act, this power of dissolution was omitted from S.19. Tamizuddin Khan, the president of the constituent Assembly, filed a writ petition under S/223-A of the Government of India Act in the Sind Chief Court Challenging the dissolution of the Constituent Assembly Mainly on the ground that the Governor General had no power of dissolution.

Constitution of 1956:

East Pakistan had a population larger than the population of the four provinces off West Pakistan taken together. East Pakistan was entitled to a larger representation in the federal legislature. In order to avoid the situation, the four provinces of West Pakistan were merged into one province of West Pakistan and the principle of parity between the two units of Pakistan was introduced. The new Constituent assembly adopted a constitution based on the principle of parity. In the meanwhile Iskander Mirza succeeded Ghulam Mohamrnad as the Governor General He refused to assent to the constitution unless .the members of the Constituent Assembly agreed to make him the President and he became the first President of Pakistan using the threat.

Martial Law of 1958 and demise of the constitution:

Though the constitution came into operation in March, 1956, no election was held under it to compose the federal legislature with the representatives directly elected by the people. When it was decided that an election would be held in 1959, Iskander Mirza had little chance of being elected as the President by the newly elected federal legislature. He with Ayub Khan abrogated the constitution, dissolved the National and Provincial Assemblies and imposed Martial Law throughout the country by a Proclamation on 7 October 1958. Ayub Khan was appointed the Chief Martial Law Administrator. On 1.0 October 1958 Iskander Mirza issued the Laws (Continuance in Force) Order which provided that notwithstanding the abrogation of the constitution and subject to any order of the President or Regulation made by the Chief Martial Law Administrator, the country would be governed as nearly as may be in accordance with the abrogated constitution. On 13 October 1958 the now famous case of State v. Dosso came up for hearing before the Supreme Court.

Constitution of 1962, its demise and birth of Bangladesh:

Ayub ban set up a Constitution Commission to make recommendations for the future constitution of the country. Even though no election was held under the constitution of 1956 to give the parliamentary form of government prescribed by that constitution a fair trial, the Commission was asked to find out the causes of failure of parliamentary form of government. The constitution framed by him came into operation on 7 June 1962. This constitution of 1962 introduced a system which was euphemistically called a presidential form of government even though the normal checks and balances of such a form of government to prevent one-man rule were not incorporated in the constitution. It, in fact, prescribed an authoritarian rule by one who occupied the position of the President. The President and the members of the National and Provincial Assemblies were to be elected by the members of the Electoral College who were to be elected by the people. Towards the end of 1968, an agitation was started ail over Pakistan by the main political parties-against the despotic rule of Ayub Khan and-the undemocratic constitution imposed by him. The agitation gathered momentum day by day and was accompanied by wide-spread disturbances- throughout the country. On 31 March 1969 Yahya Khan promulgated the Provisional Constitution Order which substantially followed the pattern of the Laws (Continuance in Force) Order, 1958. On 30 March 1970 Yahya Khan promulgated the Legal Framework Order and under its provisions elections were held in December, 1970 to the National and Provincial Assemblies on the basis of adult franchise. After a good deal of political manoeuvring, a session of the National Assembly was summoned by Yahya Khan on 3 March 1971 at Dhaka. But the Peoples Party led by Z.A. Bhutto which emerged with majority seats in West Pakistan refused to attend the session at Dhaka and Yahya Khan postponed the session indefinitely. The Awami League led by Sk. Mujibur Rahman which won almost all the seats in East Pakistan and held a clear majority in the National Assembly reacted sharply and in protest of the action taken by Yahya Khan virtually took over the administration in East Pakistan. To meet the situation, Yahya Khan had talks with the important political leaders in Dhaka which subsequent events clearly indicated was a ruse. The ruling junta really intended to take serious military action in East Pakistan to suppress all dissidents for all times. Yahya. Khan started his military action with unprecedented brutality, gunning down hundreds of innocent people in Dhaka and other places in East Pakistan in the night of 25 March 1971. The people of East Pakistan took this as an act of betrayal. Sk. Mujibur Rahman made a declaration of independence at Dacca on March 26 1971 and urged the people of Bangladesh to defend the honour and integrity of Bangladesh”.Thousands took up arms to fight against the Pakistani Armed Forces to liberate the country, Bangladesh. The members of the National and Provincial Assemblies elected in the 1970 election from East Pakistan proclaimed independence of Bangladesh on 10 April 1971 and formed the Government of Bangladesh with Sk. Mujibur Rahman then in custody in Pakistan, as the President and Syed Nazrul Islam as the Acting President till the release of Sk. Mujibur Rahman.

Independence of Bangladesh:

The war of liberation continued for about nine months, at the end of which war broke out between the Pakistan Armed Forces on the one side and the Indian Armed Forces and the Bangladesh Freedom Fighters on the other. On 16 December, 1971 the Pakistan Armed Forces surrendered and Bangladesh became fully liberated.

Constitution of Bangladesh, 1972:

Sk. Mujibur Ranman was released by the Government of Pakistan in January, 1972 and he returned to Dhaka on 10 January 1972. The next day he, in his capacity as the President of Bangladesh, issued the Provisional Constitution of Bangladesh Order, 1972 providing for a parliamentary form of government in the interim period and constituting the Constituent Assembly with the members of National Assembly and East Pakistan Provincial Assembly who were elected by the people of East Pakistan in December 1970 for giving, the country a democratic constitution. The Constituent Assembly adopted a constitution which came into operation on 16 December 1972, exactly one year after the liberation of Bangladesh.

Chapter 3

FEATURE OF THE BANGLADESH CONSTITUTION OF 1972

3.1 Origin and character:

The Constitution of Bangladesh is hot the outcome of a negotiated settlement with a former colonial power, nor drawn up with the concurrence or approval of any external sovereign power. It is the fruit of a historic war of independence making it a class apart from other constitutions of comparable description. In the Constitution the people feature as the dominant actors and it is a manifestation of what is called ‘the people’s power’.

3.2 Sovereign Republic:

The Constitution established Bangladesh as a sovereign unitary Republic. It created one government composed of representatives chosen by the people in contrast to the rule of one man, as in kingship, or one class of men, as in aristocracy. The term ‘sovereign’ indicates that Bangladesh is subject to no external authority and the term ‘Republic’ denotes that the Head of the State is not a monarch, but an elected functionary. The Constitution declares that the sovereignty lies with the people and the Constitution is the embodiment and solemn expression of the will of the people.

3.3 Preamble and Fundamental Principles of state Policy:

Having regard to the constitutional misadventures of the past and usurpation of power by unauthorized persons, the framers of the Constitution thought it necessary to spell out the objectives of the Constitution in the preamble in some detail. Declaring the people to be the source of power and the Constitution, the preamble referred to the national liberation struggle and pledged that the high ideals of nationalism, socialism, democracy and secularism shall be the fundamental principles of the Constitution. The Constitution sought to establish a welfare State and the preamble declared the fundamental aim of the State to be the realization through democratic process of a socialist society, free from exploitation– a society in which the rule of law, fundamental human rights and freedom, equality and justice would be ensured.

3.4 Territory:

The Constitution defined the territory of the Republic be the territories which immediately before the proclamation of independence constituted the territory of East Pakistan and such other territories as may become included in the Republic. When Bangladesh entered into an agreement with India giving up its claim to Berubari and retaining Dahagram, the Appellate Division held that the agreement involved cession of territory which could not be done except by constitutional amendment. As a result, the Constitution (Third Amendment) Act, 1974 was passed to give effect to the agreement.

3.5 Supremacy of the Constitution:

The Constitution declared the supremacy or the Constitution and sought to establish a limited government in the sense that every authority in the Republic had power prescribed and limited by the Constitution.

3.6 Separation of powers:

The Constitution provided for separation of powers between the three organs of the State – executive, legislature and judiciary. It was not a separation of powers of the type practiced in the American jurisdiction. What the Constitution did can be said to be an assignment or distribution of different powers of the Republic to the three organs and it provided for separation of powers in the sense that no one organ could transgress the limits set by the Constitution.

3.7 Fundamental rights:

The Constitution enumerated a number of rights as fundamental rights and no law could be made which was inconsistent with these rights and no action could be taken by the government in derogation of such rights. To that extent, the power of Parliament and the executive was limited. However, certain laws were set apart which could not be challenged on the ground of violation of fundamental rights.

3.8 Parliamentary form of government:

The Constitution introduced a parliamentary form of government with the President of the Republic as the constitutional head elected by the members of Parliament. The members of Parliament were to be directly elected by the-people on the basis of adult franchise. The President would appoint a member of Parliament who commanded the support of the frivolity of the members of Parliament as the Prime Minister and would appoint ministers on the recommendation of the Prime Minister. The executive authority of the Republic vested in the Prime Minister who, and also the Cabinet, were responsible to Parliament and through Parliament to the ultimate sovereign, the people.

3.9 Local government:

Participation by the people through their elected representatives in administration at all levels shall be ensured.

3.10 Judicial review:

power, could not only review the State actions to ensure that it did not contravene any provision of the constitution or the laws of the land, but also could strike down any law for inconsistency with any provision of the Constitution including the provisions guaranteeing fundamental rights.

3.11 Independence of judiciary:

For guardianship of the Constitution and for the establishment of rule of Saw independence of judiciary is necessary. Provisions were made to ensure the independence of the Judges of the Supreme Court, subordinate judicial officers and the magistrates exercising judicial functions.

3.12 Election:

To ensure free and fair election which is an indispensable pre-requisite for the success of democracy, the Constitution- provide for an independent Election Commission upon which the duty of holding election of the President and the members of Parliament was cast.

3.13 Civil Service:

The civil service maintains the continuity of the government and the success of the government to a great extent depends on the efficiency of the civil service. So to ensure recruitment of efficient persons in the services of the Republic, the Constitution provided for public service commissions. To obtain the best service it is necessary to have secure and satisfied civil servants and the Constitution guaranteed equality of treatment and security of tenure to them.

3.14 Amendment of the Constitution:

Parliament was given the power to amend the constitution. Art.142 provided for a special procedure for such amendment and prescribed that no Bill for amendment should be presented to the President unless it was passed by the votes of not less than two-thirds of the total number of members of Parliament.

Chapter 4

AMENDMENT OF THE CONSTITUTION OF BANGLADESH, 1972

4.1 Definition:

According to the article 142(1), notwithstanding anything contained in this constitution:

Any provision thereof may be amended by way of addition, alteration, substitution or repeal by Act of parliament.

Provided that-

i) Bill for such amendment shall be allowed to proceed unless the long title thereof expressly states that it will amend a provision of the Constitution; ii) No such Bill shall be presented to the President for assent unless it is passed by the votes of not less than two-thirds of the total number of members of Parliament; When a Bill passed as aforesaid is presented to the President for his assent he shall, within the period of seven days after the Bill is presented to him assent to the Bill, and if he fails so to he shall be deemed to have assented to it on the expiration of that period. So, to adopt with the changing situation or to make contemporary the provision of amendment is inserted. Because, the law maker of the constitution does not know or assume what will happen in future. So, to improve existing law/arrangement this provision is inserted.

4.2 Procedure of Amendment:

According to our main constitution article 142, If we want to change any provision we have to bring a bill writing what articles are changed. According to main constitution it is needed the support of 2/3 majority of the total number of parliament to amend any article. In 1978, the president Ziaur Rahman said to change some articles; it is not enough the support of 2/3 but it is also needed referendum. Those are preamble, article 8, 48, 56, 142(1A).

Constitutional Amendment:

So far there have been 15 amendments to the constitution of Bangladesh. Discussion will follow here a summery of all the amendments.

4.3 Summary of 15 Amendments:

4.4 Constitutional Amendments: Legislative v Judicial

As of 2012 the Constitution of the People’s Republic of Bangladesh has been amended by the Parliament fifteen times by its fifteen Constitutional Amendment Acts. It is to be noted that of these fifteen Amendments, the first three amendments are still valid and exists in the Constitution without any substantial change. However, with regard to the rest of the ten amendments (4^th to 14^th) there have been two types of changes:

Legislative changes (by way of constitutional amendments); and Judicial changes (by way of judicial declaration with judicial declaration with judicial review power).

4.5 Legislative Changes:

The parliament by way of subsequent amendment Acts under Article 142 has either made a whole Amendment or part of the amendment ineffective and redundant. The parliament brings these changes in two ways: implied repeal and express repeal. For instance, 12^th Amendment has made the whole of the provisions of 9^th Amendment Act and most of the provisions of 14^th Amendment invalid (impliedly overriding effect). Likewise, the provisions of 10^th Amendment has been made redundant by the 14^th Amendment and again, the many of the provisions of the 14^th Amendment have been made redundant by the 15^th Amendment Act. Similarly, the 15^th Amendment Act has expressly omitted the 11^th and 13^th Amendment Acts (express repeal).

4.6 Judicial Changes:

Where there is a written constitution the balance of power is usually retained by the Supreme Court. The Supreme Court is to strike the balance of constitutionally between the executive and the legislature. The Supreme Court or the protector of the judiciary is considered to be the guardian, guarantor and protector of the Constitution. The power of judicial review which is ingrained in all written constitutions is the balancing power at the hand of the judiciary. The US Supreme Court first assumed this power in 1803 in the historic case Marbury v. Madison. The ground of such assumption was that the Constitution being the supreme law it should be the duty of the judiciary to see whether the two organs of the government act in accordance with the Constitution.

4.7 Legislative Amendment and Judicial Review:

As mentioned above, Judicial change with regard to legislative amendments takes effect by way of judicial declaration- a declaration that parliament’s legislative amendment is either directly in violation of the constitution or indirectly affects its basic features. Both the parliament and the Supreme Court are creations of the Constitution and both operate their functions within the constitutional limits. How can the Supreme Court exercises a super power over the parliament? The answer to this question has given rise to some fundamental principles of constitutionalism paving way to the rise of judicial supramacism. Central to this development of judicial supremacy is the theory of ‘living constitution’. An early twentieth century doctrine in the US constitutionalism which influenced over time the judicial minds of many developing countries resulting in an wider expansion of judicial review. The Basic Structure doctrine developed by the Indian Supreme Court which has been recently applied by the Supreme Court of Bangladesh is an extension of judicial review.

4.8 Judicial Review of Substance of the Constitutional Amendment

Can a constitutional court review the substance of constitutional amendments? The answer to this question will depend on whether there is any substantive limits in the constitution with regard to amending power of the parliament or not. If there are limits, then review of amendments is possible. On the other hand, if there are no such limits, such review is not possible.

4.9 Substantive Limits in for of ‘Eternal Clauses’:

Sometimes constitutions provide some “immutable principles” or “eternal clauses” by prohibiting the amendment of some of its provisions. For example, under Article 89 of the 1958 French Constitution, Article 139 of the1947 Italian Constitution, Article 288 of the 1975 Portugal Constitution, the principle “republican form of government” cannot be object of a constitutional amendment.

In Bangladesh the Constitution as amended by the 15^th Amendment Act, 2011 prohibits amendment of large number of articles (about 50) in Part-I, Part-II, Part-III and Article 150. It is contended that the legal validity of these substantive limit in the form of eternity clause is beyond any dispute because they were laid down in constitution by the constituent power. Therefore, the amending power, being a power created and organized by constitution, is bound by the limits provided by the constitution. Consequently, in countries where the constitutional amendments can be reviewed with respect to their procedure by constitutional courts, they can be also reviewed with respect to their compatibility with these substantive limits. In other words, a constitutional court can examine the question of whether the substance of constitutional amendments conforms to the immutable provisions of constitution, as well as the question of whether the constitutional amendment was adopted by the majority of the parliament as provided in the constitution.

Bangladesh:

The Constitution of Bangladesh as amended by the 15^th Amendment Act, 2011 has inserted a new (7B) in the Constitution which provides that certain parts of the Constitution including more than 50 articles cannot be amended by parliament in any case. These stringent provisions in article 7B have blocked the amending power of the parliament and at the same time nullified the power of judicial review of the Supreme Court.

Chapter 5

THE FIFTEENTH AMENDMENT OF THE CONSTITUTION: AN EVALUATION

5.1 Background of the Amendment:

In December, 2008, following two years of a military-backed caretaker government, the Awami League secured a landslide victory with 229 of 300 votes in parliament and AL-led alliance achieved 262 seats. The election was widely acknowledged to be the fairest election in the country’s history and the AL had its 15 pages ‘Charter for Change’ as its election manifesto with avowed commitment of bringing positive changes to all institutions, politics and culture etc. in the country. With its assumption in power in January 2009, three specific juridical developments came to supplement the strength of the AL in favour of bringing Constitutional changes: (i) Judgment of the 5^th Amendment case upholding the invalidation of the 5^th Amendment of the Constitution (which legitimized the 1975 coup and subsequent military rule by General Ziaur Rahman up until the election of the second parliament); (ii) Judgment of 7^th Amendment Case upholding the invalidation of the 7^th Amendment of the Constitution (which had legitimised the 1982 coup), thus invalidating General Ershad’s decrees under martial law; and (ii) the Judgment of 13^th Amendment Case declaring the provision of caretaker government- an instrument of free and fair election- void. With these three judgments in hand another factor worked as back-up strength and that was the sending most of the killers of Sheikh Mujib, the founding President of the Republic to gallows which dealt a body blow to the counter-revolution. It is pertinent to mention here that by declaring the two periods of military rule unconstitutional and void and then declaring the provisions of Caretaker Government unconstitutional, the Supreme Court has played significant role in facilitating the change in the Constitution. Following this; many subsequently felt that the momentum was high for truly progressive secularization and democratization of the Constitution. There was scope once again to reinstate the four principles of the 1972 institution and in this regard, left parties sent letter to JS body Chief for consideration also. Expectation was high among liberalist group of people and columnists who even wrote that we could soon be going back to secularism through some needed changes into constitution much trifled with over decades. Mr. Mahmudul Islam stated in his book that with these changes the stage was set for democracy to bloom but none is there to avail the opportunity.

5.2 Formation of Parliamentary Committee:

The AL-led alliance government formed a 15-member Parliamentary Special Committee for Constitutional Amendment on July 21, 2010, in order to make amendments to the Constitution. The Committee headed by Sayeda Sajeda Chowdhury consisted of only AL-led ruling alliance law makers; the main Opposition, BXP had no representation in it. It is contended that the ruling party should have an all party parliamentary committee for this purpose. The manner of the ruling Awami League’s approach to the Opposition did not meet the standards of respect and decency that democratic politics demands. The BNP was given only a 24-hour period in which to come up with the names of its representatives. This lacked sincerity and seriousness on the part of the ruling party. More importantly, in such a serous constitutional matter it was incumbent upon the Leader of the House to personally approach the Leader of the Opposition either verbally or through a formal letter. In this case no such procedure was followed. Question was also raised with regard to judicious selection of its Chairperson and other members of the Committee. The Chairperson of the Committee should have been someone fully cognizant of legal realities and armed with constitutional expertise.The Committee had 27 meetings. It had exchanged views from 3 ex-chief justices, 10 experts on Constitution, 18 intellectuals, 18 editors of daily newspapers. But the report did not say anything about substance of these expert opinions and whether opinions of all these experts were accepted at all or not. Moreover, opinions from political parties, a group of experts and professionals were taken. It is contended that the Committee finalized its report without incorporating all recommendations given by them or explaining the reasons for exclusion which suggests that the amendments are essentially based on partisan thought and articulates a divisive line of politics.After working almost a year the Special Committee came up – 51 point recommendations. This report was placed before parliament on 8^th June, 2011. Placing the report Sajeda Chowdhury stated that although the CTG system is reality in the country’s political context, it is certainly against democracy and Committee was recommending for abolition of CTG in line the judgment of the apex court.

5.3 The Report of the Special Committee:

The report has 23 paragraphs in its background 3^rd and 9^{th paragraphs} place emphasis on killing of Sheikh Mujib and institutional take over by Military dictators and its effects on politics but it does not say anything on the 4^th amendment, its background and effects on Bangladesh politics. Paragraph 4 of the report states that the Amendment of the Constitution was necessary because of recent judgment by the Supreme Court on declaring Constitution Amendment illegal unconstitutional. Para 11 of the report speaks of judgment on 13^th Amendment declaring CTG unconstitutional and as such amendment of the Constitution was necessary. Paragraph 11 of the report seems very critical on one-eleven incident and caretaker government system. It states that caretaker government system is against the concept of democracy although important in the political context of Bangladesh.

Passage of the Bill:

The Cabinet approved the recommendations of the Committee on 20^th June, and these recommendations were tabled in the Parliament as a Bill ((the Constitution (15^th Amendment) Bill, 2011)) on June 25, 2011. The parliament sent the Bill to the Standing Committee on Law, Justice and Parliamentary Affairs on the same day to report back to the House in two weeks after scrutiny. Although two weeks time was allowed, the Committee spent only 3 days to complete its report and on June 29, it placed its report in the House recommending a total of 55 changes to the Constitution. The next day, June 30, 2011, the Fifteenth Amendment Bill was passed within five days after being tabled in Parliament. Such unnecessary haste in passing the Bill was reacted by many with confusion and inconfidence on the intention of the government move. In a reaction to this drastic fundamental changes Dr. Kamal Hossain, one of the architects of the original 1972 Constitution termed this Amendment a worst-ever alteration in the history of Bangladesh and he also urged the country people to stand united to forge a “peoples Commission”. The Bill was passed with huge margin of 291 to 1 votes. It was signed by the President on 3rd July. The Bill with so many fundamental changes in the Constitution was passed in Parliament ignoring protests by the main Opposition, other political parties and various civil society organisations. The process of passing amendments was made through two occasions of division votes. 291 MPs voted in favour of the Bill and only 1 MP voted against the bill. Although such amendments were made as per verdict of the Supreme Court, regarding cancellation of the fifth, seventh and thirteenth amendments, however, the complete judgments regarding the seventh and thirteenth amendment from the Appellate Division have not been published yet.

.No White Paper/ Public Opinion:

The 15^th Amendment is one-sided and unilateral amendment by the government. Government did not publish any white paper although it was with such fundamental changes in the constitution. As a result people did not have any chance to see possible changes and neither were they in a position to send their feedback. Bills with such important changes were passed within a week and the bill was voted within 5 days.

5.4 Direct Effect of the Amendment:

“(i) Imposing a ban on amending power over 50 articles of the Constitution (Article 7B).

(ii) Maintaining ‘Islam’ as state religion and restoration of secularism blended in Islam (Articles 2A, 12, 38 and the Preamble) and at the same time retaining “Bismillah-ar-Rahman-ar-Rahim”.

(iii) Introduced as many as 55 changes in the constitution (It amended Articles 8, 19, 25, 42, 47, 65, 66, 72, 80, 82, 88, 93, 117, 118, 122, 123, 125, 129, 139, 141A, 147, 152, 1^st Schedule, 3^rd Schedule, 4^th Schedule; it substituted Articles 2A, 4A, 6, 9, 10, 12, 38, 44, 61, 70, Chapter I of Part VI, 116, 142, 145A, 150; it inserted new Articles 7A, 7B, 18A and 23A in the Constitution; and it added three new Schedules in the Constitution: 5^th Schedule, 6^th Schedule and 7^th Schedule).

(v) Abolished the provision of Caretaker Government System (the whole chapter IIA-Non-Party Caretaker Government has been omitted); and general election to be held under existing cabinet and parliament (Article 123(3)).

(vi) Highest punishment for constitutional sedition, i.e., unconstitutional usurpation of state power and aiding, abetting or inspiring of such usurpation (article 7A).

(vii) Constitutional acknowledgement of Sheikh Mujibur Rahman as the Father of the Nation and to include his historic March 7 speech in the Constitution (Articles 4A, 150, 5^th Schedule and 6^th Schedule).

(viii) Mandatory display of the portrait of the Father of the Nation Bangabandhu Sheikh Mujibur Rahman in all government and statutory offices (Article 4A).

(ix) Reinstatement of Bangalee nationalism in the Constitution; identification of Bengalee and citizenship as Bangladeshi (Article 6).

(x) New provision for safeguarding and developing the environment and wildlife under which the state will protect natural resources, biodiversity, water bodies, forest and wildlife and preserve and develop the environment for the present and future generations (Article 18A).

(xi) The state will ensure participation of and equal opportunity for women in all spheres of life (Article 19(3)).

(xii) Increasing the number of women reserved seats to 50 from 45 (Article 65).

5.5 Positive Aspects of the Amendment:

The amendment has brought about some positive changes and these are as follows:

(i) Grounds of floor crossing reduced (Article 70):

Before 15^th Amendment there were as many as six grounds of floor crossing for which an MP would have lost his seat. The 15^th Amendment has restored the provision of the original Constitution. Now there are only two grounds of floor crossing: (i) if a member resigns from his party; and (ii) if he votes in parliament against his party. Thus unlike before, now an MP is free to criticize government policies; he will have right to remain absent in protest; he will have right to abstain from voting being present in the parliament etc.

(ii) Protection and improvement of environment and bio-diversity (Article 18A):

The newly inserted article 18A provides for protection and improvement of environment and bio­diversity. It states in specific that the State shall endeavour to protect and improve the environment and to preserve and safeguard the natural resources, bio-diversity, wetlands, forests and wild life for the present and future citizens.

(iii) Women empowerment (Article 19(3)):

This Article specifies that the State shall endeavour to ensure equality of opportunity and participation of women in all spheres of national life.

(iv) Protection of culture of tribes etc. (Article 23A):

It states that the State shall take steps to protect and develop the unique local culture and tradition of the tribes, minor races, ethnic sects and communities. However, this article should be read in conjunction with changes brought about on minority rights”<href=”#_ftn4″ name=”_ftnref4″ title=””>[4].

5.6 Major Constitutional Changes

Following major constitutional changes have been introduced by this Amendment.

1. Amendment of the Preamble of the Constitution:

The 15^th Amendment has amended preamble of the Constitution with three basic changes: (i) insertion of “Bismillah-ar-Rahman-ar-Rahim ” in the beginning of the preamble; (ii) substituting “a historic struggle for national liberation” for “a struggle for national liberation”; and (iii) restoring four principles of nationalism, socialism, democracy and secularism in the preamble. The changes that have been brought into the preamble raises one important question from constitutional jurisprudence: Does the insertion of “Bismillah-ar-Rahman-ar-Rahim” in the preamble amount to destroying basic structure of the Constitution? The insertion of “BismiUah-ar-Rahman-ar-Rahim” should be explained and interpreted in line with changes in articles 2A, 12 and 38 of the Constitution. The Appellate Division held the 8^th Amendment case that parliament cannot amend the preamble with its amending power:

“This Preamble is not only a part of the Constitution; it now stands as an entrenched provision that cannot be amended by the Parliament alone. It has not been spun out of gossamer matters nor is it a little star twinkling in the sky above. If any provision can be called the pole star of the Constitution then it is the Preamble. The impugned amendment is to be examined in the light of the preamble.

2. Secular character of the State compromised:

Secularism and state religion are self-contradictory and these two concepts cannot go hand in hand but the 15^th Amendment has made it by force into the Constitution. Four specific changes have been brought in the Constitution in this regard:

First, in the beginning of the Constitution and above the preamble the following Islamic words have been inserted:“BISMILLAH-AR-RAHMAN-AR-RAHIM (In the name of Allah, the Beneficent, the Merciful)/ In the name of the Creator, the Merciful- “. Second, a new article 2A has been inserted in the following terms:

2A. The State Religion.- “The State religion of the Republic is Islam, but the State shall ensure equal status and equal right in the practice of the Hindu, Buddhist, Christian and other religions”. Third, Article 12 which has been revived from the original Constitution reads:

12. Secularism and freedom of religion.- “The principle of secularism shall be realised by the elimination of-

(a) communalism in all its forms;

(b) the granting by the State of political status in favour of any religion;

(c) the abuse of religion for political purposes;

(d) any discrimination against, or persecution of, persons practicing a particular religion. “. Thus now the state religion like state language has been selected by the Constitution itself. However, at the same time Article 12 (revived from the original Constitution) states that the State shall not grant political status in favour of any religion or abuse of religion for political purposes. Then again, Article 38 (a part of fundamental rights chapter) which had a simple proviso with the condition that no one to have a right to form association on the basis of religion in the original Constitution, has now four clauses in the proviso giving fundamental right in favour of forming religious association. Article 2A read with article 38 allows formation of political party in the country since the embargo-proviso inserted in the original constitution has been omitted by the 15^th Amendment.

“38. Freedom of association.-Every citizen shall have the right to form associations, unions, subject to any reasonable restrictions imposed by law in the interests of morality or public order: Provided that no person shall have the Right to farm, or be a member of the said association or union, if-

(a) it is formed for the purpose of destroying the religious, social and communal harmony among the citizens; (b) it is formed for the purposes of creating discrimination among the citizens, on the ground of religion, race, caste, sex, place of birth or language; (c) it is formed for the purposes of organizing terrorist acts or militant activities against the State or the citizens or any other country; (d) its formation and objects are inconsistent with the Constitution.”

The implications of these amendments and substitution of three articles and preamble will be far reaching in the incoming trend of islamisation of politics in the country. First, while secularism has been restored as a state policy, insertion of “Bismillah-ar-Rahman-ar-Rahim“, retaining ‘Islam’ as state religion and granting indirectly a fundamental right to association on the basis of religion will have bewildering effect on secularism. One commentator goes on to say that by this Amendment Islam based politics has been given a new lease of life. A minority representative body has expressed concern that the amended provisions in the Constitution will move it away from one of its founding pillars of ‘secularism’ and becoming manifestly more discriminatory and communal in nature. It is a direct rejection of the full citizenship rights of the hundreds of thousands of people from diverse religions and beliefs who are Bangladeshis. Giving Islam the status of state religion and then providing for secularism in Article 12 makes the arrangement contradictory that both the Articles now severely undermine the foundation and fabric of the Constitution. This Amendment is itself an abuse of religion for political process. Second, Article 2A and 12 are contradictory both in terms and philosophy, although both the concepts have been given the status of basic structure of the Constitution. The irony is that this ‘internal contradiction of the Constitution’between secularism and ‘Islam’ as state religion has been maintained by a traditionally secular party Awami League. It is likely that this will open a floodgate for recognition of ‘Islamist’ parties in political discourse of the country. When the Special littee met Prime Minister Shiekh Hasina before finalization of their report Hasina announced her support for ling Islam as the state religion and keeping Bismillah-ar-lan-ar-Rahim in the preamble of the Constitution relinquishing articles in 1972 Constitution about secular nature of theState and in direct disregard to the judgment of the Appellate Division in 5^th Amendment case. Third, the Republic of Bangladesh has lost its secular character; it is now with a hybrid polity- a fusion of Islam and secularism- an ideological hotchpotch which is hardly based on any democratic principle. Fourth, ‘Islam’ alone cannot be the state religion as there are people who practice and follow other religions such as Hindu, Christian, Bouddha and Indigenous Practices. They said that it would turn people of other religions to second-class citizens. Fifth, the amendment has violated the judgment in 5^th Amendment case which did not provide any condonation with regard to provisions in the preamble and of secularism. Neither the Special Committee report nor the debate in the parliament while passing the amendment provide any reason for deviating the judgment of the apex court. Both the Prime Minister, AL, MPs, Ministers in the parliament and also the report of the Special Committee has avowed contention that provision of CTG has been scrapped on the basis of the judgment of the apex court (although the judgment has reservation that next two election may be held under CTG) but they do not have any contention on retaining Islam as State religion and distorting the nature of secularism. Sixth, both the AL and Sheikh Hasina as the Prime Minister and also as the Party head have an avowed gesture of impeaching the BNP which she terms a cantonment-grown political party and its activities. It is an irony that she, her government and also her party are retaining Islami secularism. Seventh, the eighth amendment to the Constitution, adopted by the military ruler General Ershad in 1988, made Islam as the state religion (Article 2A). This has been retained by the 15^th Amendment, although a constitutional challenge to this provision is pending in the Supreme Court. Now with the 15^th Amendment the state does not have any specific goal; its goal is now blocked with twin inconsistent purposes. It is not a case of secularism; its now Islami secularism, which is a defaced and distorted from of basic four principles adopted by the Constituent Assembly in 1972.

3. Religion based politics allowed:

Article 38 gives a fundamental right to form association and in the original constitution there was a proviso in this article which banned the use of religion for political purpose. The proviso with the condition that no one to have right to form association on the basis of religion in the original Constitution, has been substituted by the 15^th Amendment with four clauses granting right in favour of forming religious association or party. Article 2A read with article 38 allows formation of religious political party in the country as long as such formation is not- (i) for the purpose of destroying the religious, social and

communal harmony among the citizens; (ii) for the purposes of creating discrimination among the citizens, on the ground of religion, race, caste, sex, place of birth or language; (iii) for the purposes of organizing terrorist acts or militant activities against the State or the citizens or any other country; (iv) inconsistent with the Constitution. Article 12 prohibits religion based politics but this is a non-enforceable article and contradicts with articles 2A and 38.

4. Four Fundamental Principles in the Preamble:

As mentioned in the first heading above, the 15^th Amendment has amended preamble of the Constitution with three basic changes of which one is restoring four principles of nationalism, socialism, democracy and secularism.The four principles in the preamble have further been elaborated in Articles 2, 6, 8, 9, 10, 11 and 12 of the Constitution. These four principles are also called poll stars, goal or ideology of the state and these goals should not be deviated at any event. History dictates that our political leaders have miserably failed to steer the nation in accordance with these four ideologies. Nationalism coined with “Bangalees” has since its adoption in the original Constitution been one of fundamental points of difference and divergence between mainstream political forces in the country. This sensitive politics of nationalism has entered into its third chameleonic phasewith “Bangalee-Bangladeshi” hybrid nationalism by the 15^th Amendment despite the apex court’s ruling on reviving the original provision of secularism. Thus ‘Nationalism’ as a fundamental principle in the Constitution has lot its character and instead of being an ideal goal for the nation its has been turned into a silly matter of pull and haul at the hand of political parties for their vested interest. Likewise, socialism and secularism received a setback with the political change over in 1975. Socialism was amended by General Ziaur Rahman with qualification to mean ‘social and economic justice’. Secularism received so far three upside down setbacks: first, “absolute trust and faith in the Almighty Allah” was substituted for secularism by General Ziaur Rahman; second, further blow to secularism was received when General Ershad inserted ‘Islam¹ as State religion in the Constitution; and third, the 15^th Amendment has now given another death blow to secularism by reviving it and at the same time retaining ‘Islam’ as state religion and putting “Bismillah-ar-Rahman-ar-Rahim” in the beginning of the preamble. In the same way, democracy as an ideology did not have any opportunity to flourish because of weak leadership. The first blow to democracy was hit by the 4^th Amendment with one party dictatorship introduced by the very party which pioneered national freedom and the Constitution making. The second blow was stricken by General Ziaur Rahman and then by General Ershad through imposition of Martial law and putting the Constitution, the supreme law of the country, in subordination of martial law. Democracy had a fresh lease of life after 12^th Amendment in 3991 but again it was pushed to the ground by the then BNP Government and the President of the Republic in 2007 followed by emergency and military intervention. Struggle always followed to restore democracy by the opposition parties and once democracy or democratic environment piped through the widow of the Republic, it was again destroyed by the party in power for the party interest or power expectation. It was the Awami League which pioneered movement for free and fair election under CTG and ultimately it was achieved with huge enthusiasm. Ironically it is now Awami League which gave, by 15^th Amendment, the death-blow to CTG, an instrument of free and fair election- one of key components of democracy. It remains to be seen how the judiciary reconcile this distorted secularism in view of the judgment in the 8^th Amendment case in which the apex court held categorically that the preamble is not only a part of the Constitution, it now stands as an entrenched provision that cannot be amended by the Parliament alone.

5. The Issue of Bangalee Nationalism and Bangladeshi Citizenship:

The issue of nationalism may have different aspects but for the purpose of Constitution of Bangladesh this issue has been used with two dimensions: (i) as one of four fundamental principles or state policy in the preamble and also in Article 8; and (ii) nationalism in the sense of citizenship in Article 6 of the Constitution. Historically constitution making in the world suggests that few countries have adopted nationalism as the guiding principle of the nation. India<href=”#_ftn9″ name=”_ftnref9″ title=””>[9], Pakistan, USA, Philippines does not have nationalism as their basic principle. Nationalism is a given status to any nation-state having defined territory and most countries with written constitutions did not feel the need to embrace nationalism as an ideal because it was an accomplished reality after the creation of the country; once the countries became independent, nationalism as a motive force receded into the background and it becomes part of history. from keeping nationalism as a state policy in the preamble, Articles 6 and 9 of the original Constitution provide for a discriminatory and communal nationalism (Bangalee nationalism), i.e. “Citizens of Bangladesh shall be known as ‘Bangalees” and this nationalism was a type of imposed nationalism particularly over the tribal people of Bangladesh against their will. In the draft Constitution there was no provision of ‘Banglaee’ nationalism in the sense of citizenship; the clause that citizens of Bangladesh shall be known as ‘Banglaee’ was proposed by Md. Abdur Razzak Bhuyan before the Assembly during the time of voting. Since the issue of ‘Bangalee’ nationalism in the sense of citizenship was not included in the draft Constitution submitted before the Constituent Assembly, there was no scope of general discussion on it. An issue with such sensitive and political in nature should have been put on debate before voting. Even after enactment of the Constitution the explanation given by Mujib on point of Bangalee nationalism was also vague. Article 9 of the draft Constitution also did not have any provision ‘Bangalee’ nationalism in the sense of nationhood; the substitution of article 9 was proposed in the Constituent Assembly by General Md. Ataul Gani Osmani .The issue of Bangalee nationalism in the sense of citizenship is a matter absolutely out of constitutional consideration. It is difficult to find a democratic constitution except the Bangladeshi one where such specification as to nationalism in the sense of citizenship is incorporated. Both from the viewpoint of national law and international law the national identity as far as it relates to the matter of citizenship of the people of a particular state is determined by the adjective term of the name of that very state whatever might be the other facts or history as to their nationhood. For instance, the national identity of the people of Pakistan is Pakistani though there are many other communal and religious nationalism like Punjabi, Muslim, Baluchi etc. Likewise, the national identity of the people of India is Indian though there are many other communal nationalisms like Sheikhs. Tamil, Hindus, Muslim, Bangalee, Tribal people etc. The imposition of communal nationalism in the Constitution of Bangladesh substantiates not only poor understanding over the issue of nationalism but also the lack of democratic leadership with vision and respect. ‘Bangalee’ nationalism was essentially a cultural model of nationhood that invariably alienated the non-Bengali community from the mainstream politics of the state and subsequently they have adopted the rhetoric of nationalism and claim themselves to be a nation. Till now since independence this issue of ‘Bangalee’ nationalism has been one of fundamental points of difference and divergence between mainstream political forces in the country and the 15^th Amendment by inserting ‘Bangalee’ nationalism again in the Constitution has sown seeds of further divergence and confrontation in the politics of nationalism. The politics of nationalism in Bangladesh has now entered into its third phase in the body polity of the nation and it remains to be seen how the development will take place, a commentator states that the seeds of Jumma nationalism an identity that the PCJSS now claims for the Hill people had been sown by Mujib. Jinnah, through his attempt to impose the Urdu language upon the Bengalis had sown the seeds of Bangali nationalism. Likewise, Mujib, through his refusal to accept the Hill people as a separate community distinct from the Bengalees had sown the seeds of Jumma nationalism. It is contended that non-Bengalee people did not take part in the liberation war against Pakistan in 1972 and as such non-Bengali will not be included within the mainstream of the nationalism. This contention has demerits and has been rejected by tribal people as there is documentary evidence of contributions by many non-Bengalees towards the War of Liberation.\

6 Rights of Minorities undermined:

In Article 6 of the 1972 Constitution it was specified that “citizens of Bangladesh shall be known as Bangalee”. Subsequently, this ‘Bangalee’ nationalism was replaced by Ziaur Rahman with ‘Bangladeshi’ and ratified by the 5^th Amendment Act. Recently the Appellate Division in the judgment of the 5^th Amendment Case condoned the provisions in article 6 (“citizens of Bangladesh shall be known as Bangladeshies”) on the ground of wider public interest. However, the 15^th Amendment sidelined the judgment of the apex court by inserting dual identity of the people of Bangladesh and at the same time ignoring the recognition of minority people and their identity. 15^th Amendment has su