The constitution is the supreme law of the republic. The entire legislative, executive an 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.
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”1 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”.1Thousands 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, 19722 providing for a parliamentary form of government in the interim period2 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.
Features of the constitution of 1972
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.1 In the Constitution the people feature as the dominant actors and it is a manifestation of what is called ‘the people’s power’.
The Constitution established Bangladesh as a sovereign unitary Republic.2 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.
Preamble and Fundamental Principles of state Policy:
Having regard to the constitutional misadventures of the past and usurpation of power by unauthorised 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.
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.1 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.2 As a result, the Constitution (Third Amendment) Act, 1974 was passed to give effect to the agreement.
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
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 practised 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.
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.’
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.
The Constitution stipulated that the State encourage local government institutions composed of the representatives of the area concerned and that the Republic shall be a democracy in which effective participation by the people through their elected representatives in administration at all levels shall be ensured.
The guardianship of the Constitution was given the Supreme Court. The Supreme Court. The Supreme Court was given the power of judicial review. Save in some specified situation, the Supreme Court, in exercise of that 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.1
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.
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.
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.
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.
Amendment of the Constitution of Bangladesh, 1972
According to the article 142(1) Notwithstanding anything contained in this constitution :
a) Any provision there of may be amended by way of addition, alteration, substitution or repeal by Act of parliament.
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.
Procedure of Amendment:
1) 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.
2) 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).
So far there has been 13 amendments to the constitution of Bangladesh. Detail discussion will follow here a summery of all the amendments.
Summary of 14 Amendments :
|Summery of substance|
15th July 1973
|To make way for prosecution of genetic crime against humanity and war crimes committed in the liberation war of 1971.|
22nd September, 1973
|Inclusion emergency provision suspension of fundamental rights and preventive detention.|
28th November 1974
|To give effect to the boundary line treaty between Bangladesh and India.|
25th January, 1975
|One party dictatorial system was subsisted for a responsible parliamentary system.|
6th April, 1979
|Legalising all acts done by the first Military Authority|
10th July, 1981
|To make way for the Vice President to be a candidate in president election.|
10th November, 1986
|Legalising all acts done by the 2nd Military Authority.|
9th June, 1988
|Setting up six permanent Benches of the High Court Division and making ‘Islam’ the state religion.|
11th July, 1989
|Direct election of the president and the Vice-President simultaneously.|
23rd June, 1990
|Period for reservation of 30 women members seats in the parliament was extended for 10 years.|
10th August 1991
|Legalising the appointment of Shahabuddin Ahmed, Chief Justice of Bangladesh as Vice President of Bangladesh and his all activities as the Acting President and then the return to his previous position of the Chief Justice of Bangladesh.|
18th September, 1991
|Reintroducing the parliamentary system.|
28th March, 1996
|Provision for Caretaker Government.|
16th May 2004
|Provision regarding women in the parliament|
First Amendment :
This amendment was made to face a special situation. There was no special law the country to prosecute those who committed war crimes, crime against humanity, genocide and other crimes under international law during ‘he liberation war in 1971. Again, the provisions of fundamental rights in the Constitution did not allow their separate trial. By this amendment a new clause in Article 47 was inserted (clause 3) which allowed the parliament to make any law for the trial of war criminals. By inserting a new Article 47A in the Constitution certain fundamental rights were made inapplicable to those who would be tried under that law. The rights which were made inapplicable to them were following.
- Right to protection of law (Art.-31)
- Protection against trial under expost facto.1 law [Art. 35(1)]
- Right to a speedy and public trial by an independent and imparity tribunal 9Art. 35(3)].
- Right to enforce fundamental rights. (art. 44)
So, it is seen that that amendment was very necessary to ensure the punishment of the war criminals.
It is-worthy to mention here that under the authority of this amendment the parliament passed within a week the International Criminal (Tribunal) Act for the trial of 195 prisoners of wars, although it was succeeded.
The original Constitution of Bangladesh had two most significant, negative features—first, the absence of provision for preventive, detention and second, absence of provisions for emergency and suspension of fundamental rights. During the British colonial role and then 23 years constitutional history of Pakistan the arbitrary application of preventive detention’ law’ and emergency was so bitter that it left a good teaching to the AL that such provisions which are contradictory to the concept of nourishing living democracy, would never allow to build normal democracy system. After partition the two Governor-Generates of Pakistan Golam Mukammad and Iskander Mirza used the power of emergency to perpetuate their rule and thereby destroyed all the political institutions. The emergency imposed by Ayub Khan in 1965 was not lifter till 1969 when he was forced to leave power. During this continued emergency opposition was suppressed and hundreds of citizens were put into prison for years together without trial. This bitter experience led the AL to make an avowed commitment since the formation of United Front in 1954 to repeal not only these black laws but also to remove any scope or prerogative enabling an individual to retard the process of democracy.1 With this experience and commitment in mind, the AL government in Bangladesh did not want to leave any scope: for such exercise of power by the president. As a result, in the original Constitution of Bangladesh no provision of emergency nor any of for preventive detention was inserted. The decision was praiseworthy and conducive to the nourishment of living democracy. But sooner than 9 months had passed provisions for emergency and preventive detention were inserted in the Constitution by the 2nd Amendment to the Constitution.
Subject matter of the Amendment:
Four types of fundamental changes were introduced in the constitution by this amendment. They are following
1. A new part IXA was added to incorporate (Article 141A, 141B, 141C) emergency provision.
2. Article 33 was substituted so as to empower the parliament to pass law relating to preventive detention.
3. Provision for enacting laws inconsistent with fundamental rights were- incorporated by adding two new clauses—clause 3 of Article 26 and clause 3 of Article 142. This was not any illogical or undemocratic something, for the government was not given any power, without amending the constitution itself, to enact any law inconsistent with fundamental rights. Article 26(2) of she original, constitution reads :
“The state shall not make any law inconsistent with any provisions of this part (i.e. Fundamental Right part) and any law so made shall, to the extern of such inconsistency, be void”.
Though the usual interpretation of the term law’ used in this Article means a positive law passed by the parliament in its ordinary legislative process and not necessarily an amendment Act in its constituent amending power, an apprehension arose chat the court might declare even an amendment Act purporting to amend, the; provisions of fundamental rights illegal. The reason behind such an.: advance apprehension was the controversial judgment of the Indian Supreme Court. Golaknath’s case.1 It was decided in this case that the term ‘law’ in Article 13(2) of Indian Constitution corresponding. to Article 26(2) of the Bangladesh Constitution includes amendments to the Constitution and consequently, if an amendment Acs abridges or takes away a fundamental right the amending Act itself would be void. This amendment gave rise to an acute, controversy. It was apprehended that the fundamental rights in the-Constitution would become static creating hindrances in the way of enactment of socio-economic legislation required to meet the needs of a developing society. To get over this problem created by Golaknath case the Indian parliament passed the Constitution (24th) Amendment Act, 1971 which laid down that parliament might in the exercise of its constituent power amend any provision of the constitution, be it of fundamental rights or of any other one. To avoid such a possible situation the Constitution of Bangladesh was amended in advance. A new clause (clause 2) was added in Article 26 which reads :
“Nothing in this article shall apply to any amendment of this Constitution made under article 142.”
To remove all doubts a double check was provided by inserting another clause (clause 2) in article 142 which reads:
“Nothing in Article 26 shall apply to any amendment made under this Article.”
4. The interval between two sessions of the parliament was extended from 60 days to 120 day. This change virtually weakened the spirit of responsible government. Because tt extend the period between two sessions of parliament is to keep the parliament in abeyance for a longer period, in other words to get the government out of its responsibility in the parliament. Secondly, so lone the parliament will not be in session the government will get an easy-hand to-promulgate ordinances by passing the parliament. Thus what, was done by extending the period between two sessions was to give government an easy way to be dictatorial.
This second amendmentwasthe first destructive blow on a democratic constitution. It was an irony of fait for Bangladesh that the party which led an indomitable movement for 23 years against all black laws and oppression there under has now, only to consolidate their power, proceeded for more harsh laws and political repression sacrificing the lofty idealism embodied in the Constitution by this very party. As a commentator says—
“in order to consolidate their political position further the high degree of idealism embodied in tho-1972 Constitution was at last sacrificed. ….. With such a meagre number of members in Opposition the Amendment Bill was passed within a short lime without much debate. The opposition’s proposal including that of Mr. Ataur Rahman Khan to refer the Bill to elecit public opinion was rejected. The new ‘tv Minister Monoranjari Dhar, however, attempted to make out a case arguing that these provisions for preventive detention and proclamation of emergency were in the constitutions of all demo vatic countries of the world and they were being kept to meet the emergency situation of the county. He argued that these provisions were not incorporated in the Constitution when it was framed arid that now this amendment was introduced to up that ‘omission’.”
“When preventive detention and emergency provisions were inserted,” as Badrul Haider Chowdhury, C.J. says, “in the constitution, to put it simply what was given by one hand was taken away by the other.”
Like the first one the third amendment was made to face a practical situation, it made changes in Article 2 of the Constitution and gave effect to an agreement between Bangladesh and India relating to some changes in boundary lines between these two countries
Of all the amendments made so far the 4th Amendment has been the most debatable one. This amendment has played the most devastating role in the development of Constitutionalism in Bangladesh. It altered and virtually destroyed the basic and essential features of the Constitution.
After the national independence the people of Bangladesh were presented a well-written and much improved constitution over all the existing constitutions of the sub-continent. The Constitution, to a large extent, reflected the aspirations of the people nurtured for nearly two decades. But only after 3 years of its/life the same AL government which had adopted it transformed it, by the 4th Amendment, beyond any resemblance with the original. Ft virtually turned the Constitution, a best one, into the worst one in the world.
On 28th December, 1974 emergency was declared throughout the country suspending fundamental right guaranteed in the Constitution. While justifying such an action it was mentioned in the government hand on that a group of people who were opposed to the independence and Emergence of Bangladesh as a sovereign state were active in various subversive-activities and they were joined by others who failed to attain power through constitutional means. It also disclosed that some collaborators were subverting the state and were engaged in activities which were creating impossible conditions in the country for attaining normal political stability and orderly economic progress. Though the emergency was proclaimed with a view to bringing the deteriorated economic situation under control by arresting and punishing the hoarders, black marketers, smugglers, armed bandits etc. It was not the real reason behind. The main aspect of it way to create conditions which would be congenial for a smooth ushering of a stem which Mujib by that time had already decided to introduce the party dictatorial system in the Constitution. Accordingly, on 25th January, 1975 only 27 days after the emergency was proclaim the country went through the most significant and rascal change in the Constitution.1 The infamous Fourth Amendment. Bill to the Constitution was introduced in the parliament and the parliament passed the Bill into an Act at a speed unprecedented in the history of law making. Within half-an hour the crucial Bill which was of the greatest importance, was passed through- and no discussion or debate-was allowed. “The way the Bill was adopted demonstrated the omnipotence of Sheikh Mujib’s leadership. A constitutional dictatorship was established which formally buried parliamentary democracy and the growth of constitutionalism in Bangladesh”.
Subject matter of the Amendment
The major changes introduced by the Amendment have been discussed below along with their effects and consequences over constitutionalism in Bangladesh—
1. In place of parliamentary system the so-called presidential system was introduced.
Firstly, an essential element of the presidential system is the principle of separation of powers. And the separation of powers must be a balanced separation as opposed to absolute separation of powers. To maintain the separation of power as a balanced one there must be the principle of checks and balances which prevent any organ of the government form becoming arbitrary and dictatorial. Bin the presidential system as introduced by the 4th Amendment was adopted without any of these two important principles. In true presidential system, as there is the doctrine of separation of power, no minister can be a member of parliament. But in the 4th Amendment it was provided that the President could appoint Ministers from among the members of the parliament or from outside [Art. 58(3}]. There was left, therefore, no separation of power.
Secondly under the Amendment, the President was to be elected by “the people in a direct election (Art. 48). So the new President under the amended system were to face and be elected in a direct election. But by inserting a special provision in the 4th Schedule Sheikh Mujib was made President by operation of law. As the provision goes:
“(b) Bangabandhu Sheikh Mujibur Rahman, Father of the Nation, shall become, and enter upon the office of the President of Bangladesh and shall, as from such commencement hold office as President of Bangladesh as if elected to that office under the Constitution as amended by thes Act”,
Thirdly, as the whole system was changed it was essential to hold a new general election. But like the life of the President the life of the parliament was also given an auto-extension by operation of law. A special prevision was made in uk 4th Schedule which read :
“Notwithstanding anything contained in the constitution, the parliament functioning immediately before the commencement of this. Act shall unless sooner dissolved by the President, stand dissolves in the expiration of the period of five years from such commencement.
Thus completely in an extra-constitutional way the lives of both the President and parliament were extended. These two incidents may be termed as a silent coup d’ etat1 in the constitutional history of Bangladesh.
Fourthly, the earlier provision was that no person could hold the office of the President for more than two terms. Likewise in US presidential system no person can be President for more than two terms. But under the 4th Amendment no such restriction was mentioned meaning that under the new system the president could hold the office of the president for an unlimited number of terms.
2. The 4th Amendment made the impeachment and removal of the President unprecedented difficult.
With regard to the impeachment and removal of the President on the ground of physical or mental incapacity the number of votes required in both the cases of initiation of motion and passing the resolution was raised, under the 4th Amendment, to two-thirds and three-fourths respectively which were previously done by a simple majority and two thirds (Art. 53 & 54). So the President was placed above the supreme law of the land, for the amendment of the constitution needed two-thirds majority whereas, the precedent’s impeachment or removal needed three-fourths majority. Actually the provisions were made to leave no scope for impeachment or removal of -the President.
To be mentioned here that such a stringent procedure for the impeachment was introduced in Pakistan Constitution of 1962 made by Ayub Khan. There the provision was that to impeach the President a resolution was to be moved by written notice of not less than one-third of total members and to be passed by not less than three-fourths majority. It was also provided that if less than one-half of the total members of the National Assembly voted in support of the resolution all the members giving notice of the resolution should cease to be members of the assembly. Such a stringent provision is made in a dictatorial system so that no one dare raise any voice to remove or impeach the President. Though the impeachment procedure in Ayub Khan’s Constitution was a stringent one, there was no one party system. But the interesting point here s that the 4th Amendment introduced one party and the President was to be the leader of that one party. There was no opposition who would try to impeach the President. So it seems that President Sheikh Mujibur Rahrnan had no confidence even in his own party men. Such a stringent procedure for impeachment particularly in one party system can nowhere in the world be seen.
If is also worth mentioning here that to impeach the President under the US Constitution a resolution thereto must be moved in the House of Representatives by one or more members. If the resolution is supported by majority members of the House, it then goes to the Senate for trial. When the trial is held it is the Chief Justice of USA and not the regular speaker who presides so that an impartial trial may be held. If the charge is supported by votes of two-thirds of the members present, the president shall vacate his office.
Present Position: This provision concerning the President as introduced by the 4th amendment is no longer in force. The 12th Amendment has reintroduced the provisions of the original Constitution of 1972.
3. The 4th Amendment turned the Parliament into a powerless secondary rubber-stamp body.
The Amendment turned the parliament into a useless forum. In the original Constitution the legislature was given the status of supreme and sovereign law-making body. It was the source of law and authority and the fountain of power sanctioned by the people. In presidential system though the President and his ministers are not responsible to the parliament, the parliament still retains strong checks and control (under the doctrine of checks and balances) over the cabinet through committee functioning and particularly in law-making the parliament in every system, be it parliamentary or Presidential one. is considered supreme and sovereign. In every system it is a rule of law that a bill passed by parliament cannot transform into an enforceable law unless it is assented by the President or the head of the state. But if the president is armed with the power to use absolute veto then a bill which is opposed by the president cannot come-into-a Saw. And in-such a situation the law-making power virtually gets itself trapped or strangled at the hand of the president and parliament as a law-making body becomes meaningless; it turns into a secondary rubber stamp body. It is for this, in democratic countries the veto power of the President is given either in a limited form (e.g. in USA under Art. 1 Sec. 7 of the US Constitution) or is abolished (e.g. in the UK the veto power is abolished by convention).
It was provided in the original Constitution that the President, within 15 days after a Bill was presented to him, should assent to the Bill. Without giving assent he could return the Bill to the parliament for its reconsideration. If he failed to do so the Bill was deemed to have duly assented by him after the expiration of 15 days. Thus like the US Constitution the original constitution of Bangladesh armed the president with suspense veto as opposed to absolute veto.
But under the 4th amendment the President could now withhold assent to any Bill passed by the parliament. Thus the President was now armed with absolute veto and-once he vetoed a Bill that Bill could never come out as a law. The President was, therefore, given an unfettered legislative power; he was placed above the parliament, and as a result, virtually “the importance of parliament was entirely gone and it was turned into a secondary rubber-stamp body in the new political system”.1
It is pertinent-to mention here that even in Ayub. Khan’s Constitution of 1962 mere was no provision for absolute veto power. The President could use suspense veto only. It was provided in Article 27 that in case the President withheld his assent from a Bill, the parliament was empowered to reconsider the Bill and if the Bill was again passed by the Assembly-by votes of two-thirds majority, it was again presented to the President for his assent and it was deemed to have duly assented after the expiration of 10 days. Thus even in Ayub Khan’s Constitution particularly in the matter of law-making the principle of checks and balances between the President and the parliament was maintained.
It isalso noteworthy here that in the US system the President has no power to absolute veto. He has the power to use suspense veto in the sense that he may, within 10 days return a Bill, to the Congress for reconsideration. And when such a Bill is reconsidered and again passed by votes of two-thirds majority in both the Houses, it becomes automatically a law.
Present Position: Provision relating to veto as was introduced by 4th Amendment is not in force. The provision of absolute veto was deleted in 1978. Now the whole provision is a democratic one as was introduced in the original Constitution of 1972.
Secondly, in the original Constitution, the interval -between the two sessions of parliament was 60 days. But the Second Amendment extended this period to 120 days and by 4th Amendment the provision was made that “there shall be at least two sessions of parliament in every year” (Art. 72). Thus the role of the parliament was reduced to a minimum. Of course, there are countries where sessions are held only once or twice a year. In Britain parliament session is held only once a year; usually in November the session starts and it lasts for the whole year except some recesses and two weekly holidays. In India under Article 85 of the Constitution parliament session may be held only twice a year but usually parliament holds 3 sessions per year (Budget session, Monsoon Session and Winter Session) and the average number of sitting days in a session is 35.1 Thus making provision for at least two sessions a year by the 4th Amendment was nothing undemocratic. However, the intention behind was to keep parliament away from its functioning, for no session in the first parliament in Bangladesh did last for more than 7 days in average.
Present Position: This undemocratic provision is no longer in force. The provision of the original Consecution has been revived.
Thirdly, under Article 70 of the original Constitution, a seat of a member of parliament was to be vacated for two reasons — (i) if he resigned from the party which nominated him as a candidate ; or (ii) if he voted in the parliament against that party. But the 4th Amendment inserted an explanation to the meaning of “voting in the parliament against the party” providing that even abstaining from parliament session or abstaining ones from voting ignoring the direction of the party would be deemed to be voting against the party. Thus the provision was made more rigid to debar members from raising any voice against the party and this provision has become a permanent obstruction for the development of responsible government in Bangladesh. This provision exists still today and by 12th Amendment it has been made more stringent.
Fourthly, under the original constitution Article 76 provided for the parliament to appoint certain standing committees at the first meeting of each session. By the 4th Amendment this provision of ‘at the first meeting of each session’ was deleted. It reduced the importance of parliament even further. Because now the parliament was not bound to appoint committees at its starting, it now had the option to pass away most of its life without framing standing committees. These undemocratic provisions still exist.
The above discussion makes it clear that the 4th amendment made the parliament completely ineffective though it-was the House of the representatives of the people.
4. The Amendment took away the power of the High Court Division to enforce fundamental rights.
The original Constitution of Bangladesh provided for 18 fundamental rights and the High Court Division of the Supreme Court was empowered to enforce these rights. Article 44 guaranteed the right to move the High Court Division of the Supreme Court and this court could enforce these rights under the authority of Article 102. But this power of the court was taken away by the 4th Amendment which provided in Article 44 that “Parliament may by law establish a Constitutional court, tribunal or commission for the enforcement of fundamental rights.” Thus unlike earlier now no one had the right to go to the Supreme Court to have his fundamental rights enforced. It was a constitutional court or tribunal which would enforce fundamental rights. But the constitutional trickery done by the makers of the 4th Amendment was a terrible one.
“Firstly; all the fundamental rights as enumerated in the Constitution now turned into a mere show a set of so-called fundamental rights. Though they were still termed as fundamental rights, they were virtually transformed into ordinary rights for their enforcement now depended on the implementation of an ordinary law.
Secondly, another trickery is that it was not mentioned in the amended Constitution as to what would be the nature or constitution of the Constitutional court or tribunal; who would chair that court or tribunal; what would be their qualification etc. Thus the body which was to enforce fundamental rights was not a constitutional body ; it was a forum to be made by an ordinary’ law and like’ the department of Ombudsman the parliament was not constitutionally bound to make and implement this forum immediately.
Thirdly, Article 102(1) was deleted so that the High Court Division might not make any question or issue any order or direction for fundamental rights. Since the sinister-looking purpose was to take away all fundamental rights from the jurisdiction of the Supreme Court, it is needless to say that the Constitutional court or tribunal as stipulated in Article 44 under the Amendment would never be air impartial body.
Thus the fundamental rights as enumerated in the Constitution lost their all significance and sanctity. In almost all legal systems with constitutional supremacy the Supreme Court is regarded as the guardian, guarantor and protector of fundamental rights. But this traditional jurisdiction of the Supreme Court – the role of a-sentinel on the qui vive for fundamental rights was snapped away. It is unprecedented in the history of the sub-continent that the jurisdiction of the Supreme Court to enforce fundamental rights was taken away.
Present Position: This draconian black provision was repealed and the democratic provision of the original Constitution was restored by President Sayem on 28th may, 1978 by the 2nd Proclamation (Seventh Amendment) Order.
5. The Amendment completely curtailed the Independence of Judiciary
The independence of judiciary depends principally on the following there conditions:
a. Appointment Procedure.
b. Security of Tenure; and
c. Adequate. Remuneration and Privileges.
a. Appointment procedure :
As to the appointment procedure it was provided in the original’ Constitution that the Chief Justice would be appointed by the President and other judges would be appointed after consultation with the Chief Justice (Article 95). But by the 4th Amendment the provision of “consultation with the Chief Justice” was withdrawn. Obviously the purpose was to make appointments on the basis of political consideration and favoritism not of qualification and merit. The appointment now depended completely on the sole wish of the President. Such an unchecked nomination of judges by the executive is not recognized in democratic countries; an objective assessment from the Chief Justice or consultation with the Judiciary is essential so that men of keen intellect, high legal acumen, integrity and independence of judgment from among the lawyers can be taken to ensure independence and impartiality of the judiciary on the one hand and to develop, on the other hand, the standard of judicial; review, But the 4th Amendment did away with all these making the higher judiciary completely subservient to the executive.
Present Position: These undemocratic provisions still exist.
b. Security of Tenure
Security of tenure is the most important condition for maintaining the independence of judiciary. If the judges do not feel secured in discharging impartial judgment the independence of judiciary is gone. For better security of tenure judges should be appointed for a definite period and the power of transfer and removal must be a difficult one to obviate the abuse of power and its capricious operation by the executive. It was provided in the original Constitution that a judge could not be removed unless the parliament passed a resolution supported by a majority of not less than two-thirds of the total members of parliament on the ground of proved misbehavior or incapacity [Art. 96(2)]. So the original Constitution provided for full security of tenure and the judges were fully independent in discharging their functions. In the 4th Amendment deleted the provision of impeachment and provided that the President could now remove a judge including the Chief Justice simply by an order on the ground of misbehaviour (Art. 96). Now the incapacity or misbehavior need not be proved: President’s subjective intention became everything to remove a judge. Thus the President became both the appointing and removing authority of the judges.
Present Position: This undemocratic provision was repealed and the provision of the original Constitution was restored by President Justice Sayem on 28th May, 1976 by issuing a proclamation. Afterwards President Zia on 22nd April, 1971 introduced the provision of Supreme Judicial Council. This provision still exists and it is a healthy provision for the security of tenure of judges.
As to the appointments in subordinate courts it was provided in the original Constitution that—
- District judges would be appointed by the recommendation of the supreme court.
- Other judicial officers including Magistrates exercising judicial functions would be appointed by the President after consulting the Public Service Commission and the Supreme Court (Art. 115)
Again, as the security of tenure of judges in the lower courts it was provided that the control (including the power of posting, promotion and grant of leave) and discipline of judges and magistrates would vest in the Supreme Court (Art. 116). Thus both the appointment procedure and security of tenure in subordinate judiciary were more or less democratic and healthy.
But the 4th Amendment made both the elements executive depended article 115 was amended to the effect that “appointments of persons to offices in the judicial service or as Magistrates exercising judicial functions shall be made by the President in accordance with the rules made by him in that behalf.” Likewise, article 16 was amended 10 the effect that “the control (including the power of positing promotion and grant of leave) and discipline of persons employed in the judicial service and Magistrates exercising judicial functions shall vest in the President.”
From the above discussion it becomes clear that the whole judiciary now came under the absolute grip of the President. He now became the maker and unmaker of the judges. “The whole judiciary which traditionally held a special position in every Constitution of the sub-continent as a basic organ for the functioning of rule of law was now made completely subservient to the executive …. The Amendment changed the entire institutional context of the judiciary which for a long time played an important role in striking a balance between the excesses of the executive and their victims, between law and its application. …… The Amendment not only demolished the sanctity of the service but also the institution of the judiciary itself.”1In words of Justice Abdur Rahman Chowdhury if the government can select judges suitable to itself then that would be the end of the judicial system which is the last resort of the people against unconstitutional laws and arbitrary executive action. Experience, however, teaches us that while it is desirable to inject justice into politics, it will he disastrous to inject politics into justice. Once Judiciary becomes subservient to the executive and to the ruling party’s philosophy, no amount of enumeration of fundamental rights in the constitution can be of any avail to the citizens because the court of Justice would then be turned into courts of government. It has been rightly said —’If the salt has lost its savour wherewith shall it be salted’.1 In the light of all the changes made in respect of the judiciary as a whole one can easily understand how illusory then to say that all persons employed in the judicial service and all Magistrates shall be independent in the exercise of their judicial functions” (Art. 116A). It was really the greatest Constitutional bluff on the part of the maker of 4th Amendment.
Present Position : The undemocratic provisions introduced by 4th Amendment relating to appointment of judges and Magistrates of the subordinate judiciary still exist. Even the 12th Amendment did not correct it.
In relation to control and discipline of the subordinate judge the undemocratic provisions introduced by the 4th Amendment were repealed and the healthy provision “in consultation with the Supreme Court” as was provided by the original Constitution was revealed in 1978 by the Second Proclamation.
It is pertinent to mention here that the provisions as to adequate remuneration and privileges as indicated in Article 147(2) was kept untouched.
6. The Amendment introduced one-party political system.
The most significant and far-reaching aspect of the 4th Amendment was the provision for a single national party in the state. A-new part VIA with a new article 117A was created for this purpose. According to the new arrangement the creation of the National Party was left with the subjective
satisfaction of the President. It was provided that in order to give full effect to any of the fundamental principles of state policy set out in part II of the Constitution, the President could—
“direct that there shall be only one political-party in the state. Once the President made an order for one party under Article 117A—
i) all political parties of the stale would stand dissolved and the president would take all necessary steps for the formation of the National Party.
ii) the President by an order would determine all matters relating to the nomenclature, programme, membership organisation, description, finance and function of the National Party.
iii) once the National Party was formed each member of the parliament would have to join the party within a time fixed by the President ; otherwise be would cease to be a member of parliament and his seat would become vacant.
iv) none would be qualified for election as president or as a member of parliament if such was not nominated as candidate, by the National Party.
v) a person in the service of the Republic” shall be qualified to be a member of the National Party.”
As the arrangement for one party system was incorporated some sinister-looking features are noticeable.
Firstly, the entire scheme of having one National Party in the country was made linked with the fundamental principles of state policy. Though the declaration of one National Party abolishing all existing parties in the state depended solely on the subjective satisfaction of the President it was conditioned that he was to justify his declaration of one party by saying that formation of one party was necessary to give effect to any of the fundamental principles of state policy. This was completely a Constitutional bluff, for in no way the formation of one party keeps any connection with the implementation of fundamental principles of state policy. The implementation of fundamental principles depends on the-economic development.
Secondly, all civil and military bureaucrats who should work-for the cause of the nation being above politics were now given the right to take part in politics,
Thirdly, members who got directly elected by the people were now liable to lose their membership by operation of law, if they did not join the National Party. So the peoples aspiration and mandate came to be trampled and demolished under one man’s (President) order.
Fourthly, the National Party was not in a real sense a political party. It was more than a mere political party. Because it became an integral part of the Constitution; its declaration and organisation were to publish through extra-ordinary gazette notification. It was, therefore, a part of the government.
Formation of One Party
In accordance with the provision of “the Article- 117A as introduced by the 4th Amendment the President declared the formation of a new National Party for the country under the name and style “Bangladesh Krishak Sramik Awami League” (BAKSAL) on February 24, 1975. As a result existing political parties instantly stood dissolved. In June the government promulgated the Newspaper (Annulment of Declaration) Ordinance which allowed only 4 newspapers1 to continue publication and banned the rest. But all these 4 newspapers were to be owned and managed by the state. It brought the whole news met completely under the absolute control of the government. Thus a new system was introduced where no political opposition or press freedom was visualised.
Present Position : The provision of one party system no longer exists. The whole part VIA of one Constitution was omitted by issuing a proclamation on 8th November, 1975 by President Sayem.
7. The Amendment buried the whole concept of local government
Local government is one of the most important institutions of democracy. Modern state administration is almost unthinkable without devolution of power to the local governments. Due to increase of population as well as to huge expansion of governmental activities certain matters of policy and administration concerning national and international interests are reserved for central administration and the rest, wide range of governmental functions are vested in local authorities. In modern state administration the bulk of public services are actually provided by local authorities rather than by Central departments. It may even be said that, at least from day to day a citizen would seem rather more likely to be directly a fected by actions of his local authority, than in respect of activities of central government.2 Local Governments are elected with a view to ensuring governance from the grass-roots level and participation of the local people in the development and formulation of solution of their own problems and needs. In developed countries like US, UK there an extensive network of local governments, the history of which dates back many centuries. Local governments in democratic countries are given the responsibilities for the welfare or their communities in providing for policing, highways and public utilities such as gas, water and electricity. The system of local government helps in different ways bring transparency and efficiency within the state administration. First, it helps solve local problems locally and relives the central government much of its responsibility to deal with trifle and local matters. It, therefore, allows the central government to employ more methodic and prodigious effort to solve national and international problems; second, it relieves much of burden of local responsibilities which people usually expects from MPs. It therefore, allows them to concentrate more in national legislation, committee functioning and controlling the central government; Third, it decentralises administrative functions, responsibilities and powers and as a result channel-based corruption and red-tapism by the bureaucracy become impossible; Fourth, as it allows MPs employ more times in committee functioning the central bureaucracy will come under the direct control of parliament. Fifth, it allows the government to reduce its size; Sixth, if local government are institutionalised, they will help develop leadership from the grassroots level giving gradually a strong-base in democracy.
Our Constitution-makers have provided for accountability of both the central government and bureaucracy which is to be ensured through the proper functioning of parliament and its committee system. Similarly with regard to local administration, the express intention of the Constitution-makers was also to make them, accountable to the elected functionaries. Provisions were made in Articles 59 and 60 of the Constitution to devolve the responsibility for both development activities and administration into the hands of the elected representatives of the local government bodies. The Constitution-makers envisaged the newly independent Republic to be a democratic order in which, effective participation by the people through their elected representatives in administration at all levels shall be ensured'(Article 11).
But all these aspirations of the Constitution-makers were removed at a stroke of pen by the 4th Amendment. The entire chapter II of Part IV of the Constitution dealing with ‘Local Government’ was deleted. Also democratic provisions of ‘effective participation by the people through their elected representatives in administration at all levels -shall be ensured’ in Article 11 was deleted. Thus the intention was to uproot the entire democratic base from local levels.
Present Position : The democratic provisions of local government have been re-introduced by the 12th Amendment.
The 4th Amendment undermined the spirit of liberal Democracy in Bangladesh.
The evolution of the concept of liberal democracy or political liberalism can be traced form the declaration of Rights of Man and Citizens in 1789 after the French Revolution and the American Declaration of Independence, 1776 where it was said that the civil and political rights of the people must be guaranteed and the government must be formed by consent. Liberal democracy is, therefore, possible in a system-where liberty and rights of citizens are guaranteed and the government is formed with the consent of the governed. A governmental system with liberal democracy must have the following elements.
Firstly, the government must be representative i.e., it-must be formed with the consent of the governed. In other words, the government must be elected directly or indirectly by the people. Professor Hood Phillips says that representative government implies that the electors are free to organise themselves into political parties, to express their views and to creticise the policy of the government..
Secondly, the government must be responsible. This responsibility of the government may be direct as in the parliamentary system or indirect as in the presidential system.
Thirdly, people’s freedom and civil and political rights must be guaranteed and such a guarantee means principally that—
– People have, the right to organise themselves into political parties.
– There is the right to criticise the government.
– There is the right to freedom of thought and press.
– There is a national-tribunal-or court-which exercises the independence to enforce basic rights and freedoms of the people.
This is why Sir Ivor Jennings says that “to find out whether there is political liberalism it is necessary to ask if there is an opposition”. So liberal democracy is possible both in Presidential and parliamentary form of government. But in one party dictatorial system it cannot be thought of, for the concept of liberal democracy itself emerged as a necessary outcome of struggle against autocratic and dictatorial regime. So what is necessary for the success of liberal democracy is that there must be free political oppositions, freedom of press, guarantee of civil and political rights and above all freedom to criticise the policies of the government so that the government can be kept responsible to the governed.
Let me now proceed to evaluate how the 4th Amendment undermined the spirit of liberal democracy in Bangladesh.
Firstly, the Amendment introduced one party system banning all opposition.
Secondly, freedom of press was taken away when, under the shield of 4th Amendment, all except four newspapers were banned and that four papers were declared as government owned-papers. It therefore, left no scope to criticise the government through press.
Thirdly, the Amendment took away the power of the Supreme Court to enforce fundamental rights, and it left no scope for the guarantee of rights and personal liberty.
Fourthly, the Amendment made the parliament a useless forum; its life and death came to the grip of the President. There left, therefore, no scope to make the government responsible.
Fifthly, though the Amendment did not abolish the process of electing members of parliament and the President, it left no scope for electing true representatives of the people. Because under the new system people had no option but to vote in favour of a candidate nominated by the one National Party as envisaged in the constitution.
Thus the system introduced by the 4th Amendment left no scope for liberal democracy in the country
In a military coup led by a group of army officers Mujib was killed brutally along with his family members on 15th August, 1975. With his killing his new system of one party BAKSAL had gone. The first martial law regime got its firm start in Bangladesh governance which continued till 6th April, 1979. Though martial law was declared on 15th August, 1975 the Constitution was not abrogated; it was kept alive in subordination, though it was the supreme law “which allowed no means of martial law. The Constitution was changed several times by various martial law proclamations and orders. From the constitutional point of view all these changes to the Constitution were illegal, for the Constitution did not allow such a process of amendments; constitutionally it is the only body parliament which can amend the Constitution. However, the. marital law was declared and the Constitution was amended in an extra-constitutional way which has been a frequent phenomenon in politics of developing countries with new start of democracy. The second parliamentary election was held in 1979 while martial law administrator Zia’s party secured a two-third majority. The first session of the parliament was convened on 1st April, 1979 and on 6th April a constitutional Amendment Act (5th Amendment) was passed which legalised all the activities of the martial law government made and done during the period between 15th August, 1975 and 9th April, 1979. The Act amended the 4th Schedule to the Constitution by an addition of new paragraph 18 thereto which provided, inter alia, that all amendments, additions, modifications, substitutions and omissions made in the constitution during the period between the 15th August, 1975 and the 9th April, 1979 by any Proclamation or Proclamation Order of the Martial Law Authorities were ratified and confirmed and were declared to have been validly made and would not be called in question in or before any court or tribunal or authority on any ground whatsoever. Through four major Martial Law Proclamations and various Proclamation Orders made there under the Constitution was amended several times according to the wishes of the Martial Law government. After the 5th Amendment Act was adopted the overall Constitution came to be a different one, though not completely an uprooted one, from one introduced by the 4th Amendment.
Changes made by the 5th Amendment:
The 5th Amendment brought about, inter alia, the following important changes in the Constitution.
1. Part VIA of the Constitution dealing with one party system as introduced by the 4th Amendment was omitted.
2. The independence of judiciary which was completely destroyed by the 4th Amendment was restored partially (Articles 96 and 116).
3. The jurisdiction of the High Court Division of the Supreme Court to enforce fundamental rights was restored to its original position as was in the original constitution (Article 44 and 102).
4. Provision of Supreme Judicial Council in respect of security of tenure of the judges of the Supreme Court was inserted (Article 96).
5. The provision of absolute veto power of the President introduced by the 4th Amendment was abolished (Article 80).
6. Provisions of referendum in respect of amendment of certain provisions of the Constitution was inserted and to that end a new clause IA was created in Article 142.
7. Religious words “Bismiliahir Rahmanir Rahim” was inserted in the beginning of the Constitution i.e. above the preamble.
8. In the original Constitution it was provided in Article 6 that the citizens of Bangladesh would be known as ‘Bangalees’. But this was changed and it was provided now that citizens would be known as ‘Bangladeshis’.
9. One of four major fundamental principles of state policy ‘secularism’ was omitted and in its place a new one ‘the principle of absolute trust and faith in the Almighty Allah’ was inserted (Art. 8).
10. One of four major fundamental principles of state policy ‘socialism’ was given a new explanation to the-effect-that-socialism would mean economic and social justice (Article 8).
11. A new article 145A was created where it was provided that all international treaties would be submitted to the President who should cause them to be laid before parliament.
12. Another new Article 92A was created whereby the President was given power to expend public moneys in certain cases.
13. Article 58 was amended to the effect that four-fifths of the total number of ministers should be taken from among the members of parliament. It was also provided that the President would appoint as Prime Minister the member of parliament who appeared to him to command the support of the majority of the members of parliament.
Merits of the Amendment:
To compare with the 4th Amendment the 5th Amendment introduced some important democratic provisions to pave the way, albeit in a limited sphere, for constitutionalism.
- Firstly, dictatorial one party system which had been a permanent block to constitutionalism was abolished and multi-party democratic system as was adopted in the original Constitution was restores which again opened the door of liberal democracy and constitutionalism
- Secondly, all fundamental rights which were reduced into meaningless versions of the Constitution were now again given their full life and enforcement by reverting Article 44 of the Constitution to its original position of 1972.
- Thirdly, the independence of judiciary specially the constitutional status and sanctity of the Supreme Court was restored. Though the unhealthy provisions introduced by the 4th Amendment relating to appointment of judges were left untouched, the provisions for security of tenure which is the first and the most important condition of independence of judiciary was restored by providing a healthy device of Supreme Judicial Council. Moreover, in respect of control including the power of posting, promotion and grant of leave and discipline of the subordinate judges and magistrates which was vested absolutely. In the President under the 4th Amendment, it was provided that the President should exercise that control in consultation with the Supreme Court. Thus constitutional aspect of independence of both higher and lower judiciary was restored.
- Fourthly, the undemocratic provisions of absolute veto power of the President introduced by the 4th Amendment were abolished. Thus the democratic principle of check and balance between the President and the parliament particularly in the matters of law-making was restored.
- Fifthly, insertion of the provision of referendum in respect of certain important provisions of the Constitution is a healthy one. Because it now provides a check on the parliament to make any abrupt but fundamental change in the Constitution overnight as was done by the 4th Amendment. Now a party even with two-thirds majority in the parliament will have to think twice before making a fundamental change in the Constitution.
Demerits of the Amendment:
- Firstly, as regards the composition of the parliament, the number of reserved seats for women was increased from 15 to 30 and the period this provision was to remain in force was extended from 10 to 15 years. This provision enabled the Zia Government to manage two-thirds majority in the parliament. On the other hand, this provision undermined the spirit of representative government in Bangladesh, for these reserved seats of women members in the parliament works as a balance of power and the ruling party in the parliament use them as tools to satisfy their undemocratic political purpose.
- Secondly, this Amendment inserted a new Article 145A relating to international treaties. It provided that all treaties with foreign countries should be submitted to the President who should cause them to be laid before parliament but there was a significant sub-clause that ‘no such treaty should be so laid if the President would consider it to be against the national interest so to do. This proviso has virtually curtailed the parliament’s power in relation to international treaties, for it actually armed the President with dictatorial power to take decisions in matters of international treaties ignoring the-parliament. In a true presidential system as it exists in the USA the President cannot make any treaty without the approval of the parliament.
- Thirdly, a new Article 92A was created by this Amendment and this Article curtailed the parliament’s power over the financial matter and the President was given power to get money from the Consolidated Fund and to expend it without the parliament’s approval. In a true presidential system as it exists in the USA the parliament exercises the supreme controlling power over the public money. The US president has no power to expend even a penny from the public purse without the approval of the Congress. “This curtailment of the power of the legislature in matters of finance was, therefore, a serious set-back in the evolution of constitutionalism and democracy in Bangladesh.1
- Fourthly, religious words ‘Bismillahir Rahmanir Rahim’ was inserted in the beginning of the Constitution i.e. above the preamble. This was done necessarily with a political end. It was a constitutional tricks played by Zia especially to get quick blind support from a large section of people who are religious but politically unconscious. Likewise one of four major fundamental principles of state policy ‘secularism’ was omitted and in its place principles of absolute trust and faith in the Almighty Allah was inserted. This was also done with the same political end.
- Fifthly, in the preamble the words, ‘historic struggle for national liberation’ were replaced by words ‘historic war for national independence.’ Thus the spirit of the struggle which continued for long 24 years against Pakistani colonialism and exploitation, the growth and role of political parties and political leaderships, the role of cultural workers, intellectuals, teachers,students and professional groups and that of common people were undermined, ignored and concealed. The army factor in the 1973 liberation struggle was only brought into prominence though the war, in most cases, was fought by the common people.1
Nature of the Governmental System after the 5th Amendment:
The above discussion makes it clear that the 5th Amendment actually modified and somewhere liberalised the relations among the institutions of the government introduced by the 4th Amendment. It did not change the fundamental structure of the constitution as introduced by the 4th Amendment. Nor did it make the whole system a democratic one to pave the full way for constitutionalism. And also that cannot be expected particularly from a military government who comes to power completely in an illegal way. The governmental system as it stood after the 5th Amendment was neither a true presidential system as is practised in the USA nor a parliamentary one as is practised in the UK. Neither was it the same presidential system as is practised in France where the Prime Minister and his cabinet are collectively responsible to parliament.2The presidency as modified by the 5th Amendment was much more powerful than the presidency under the French Constitution. It was really a class apart, an all powerful executive ridden presidential system which armed the President with all devices to administer his dictatorial rule. This model bore similarities to that of Ayub Khan of Pakistan. The executive authority was vested with the president, who was directly elected by the people for a period of five years although without a limit to the number of terms in office. Once, elected it was quite impossible to remove him from office, for the
impeachment procedure as introduce-by the 4th amendment was unprecedentedly a difficult one. The amendment also did not repeal any of the extraordinary constitutional devices like emergency, ordinance making, preventive detention etc, through which the president was capable of exercising almost dictatorial power. The President was also the chief legislative initiator though his power to address and power of dissolution of parliament. Also the power of the parliament was kept restricted in many important cases. Zia’s system was, therefore, neither a fully democractic responsible government; nor was it an ever hated one party dictatorship as introduced by Mujib. It was a multi-party president system blended of democratic and autocratic features
On May 30, 1981 President Zia was brutally killed in an unsuccessful army cop. On his death justice Abdus Sattar, the then Vice-President assured the role of Acting President. Under Article 123 of the Constitution the presidential vacancy caused by death was to be filled by an election within 180 days of the vacancy occurring, Acting President Safe was nominated by BNP as a presidential candidate in the election. But a constitutional problem arose respecting the method of Sattar’s nomination, for the Constitution did not permit him to contest the election as he was holding an office of Profit. Under Article 50 of the Constitution the President could appoint Vice-President any person qualified for election as a member of parliament Under Article 66 (dd) a person would be disqualified for election as a member “of parliament if he was holding an office of profit in she service of the Republic other than an office which is declared bylaw not to disqualify-such holders. There was no law stating that the office of Vice-President.was not an office of profit. On the other hand, under Article 66(2A) some persons were exempted from holding an office of profit—such as Prime Minister, Deputy Prime Minister, Minister, Minister of State and Deputy Minister. It was, therefore, clear that the office of the -Vice-President continued to be an office of profit and this debarred Sattar from contesting in the election. To overcome this problem, on July I, 1981 a Bill called the Sixth (Constitution Amendment) Bill was introduced in the House. On 8th July the Bill was passed which now enabled Sattar to contest the election without resignation from his office. This Amendment amended Articles. 51 and 60 excluding, inter alia, the office of President, Vice-President. Acting President free from being office of profit. This Amendment was, therefore, made to face a real situation. No sinister-looking political purpose worked behind it.
After the brutal killing of Zia the presidential election was held on 15th November, 1981. Justice Abdus Sattar, the then Acting President arid nominee of the ruling party BNP won a landslide victory and became the next President of Bangladesh to Zia. But in the early hours of 24th March, 1982. 128 days after the presidential election was held, a military intervention led by Hussain Muhammad Ershad, the then Chief of Army Staff took place. This is known as the bloodless coup of March, 24. Through this coup Ershad seized power ousting Sattar. Martial law was declared for the second time in Bangladesh; parliament was dissolved; the Constitution was suspended and political activities were banned. Ershad first assumed the office Chief Martial Law Administrator and he nominated Justice Ahsan Uddin Chowdhury as a phantom president. Later on Ershad assumed the offices of both CMLA and president. Ershad kept martial law in force for four years and seven months beginning from 24th March, 1982 to 11th November, 1986. On 11th November, 1986 the Seventh Amendment to the Constitution was passed in the third parliament. By this Amendment Ershad’s seizure of power in 1982 and his long term action as CMLA were legitimized. In the Fourth Schedule to the Constitution a new paragraph 19 was added which provided, inter alia, that all Proclamations, Proclamation Order, CMLA’s Order, Martial Law Regulation Order, Ordinance and other laws made during the period between 24th March, 1982 and the date of commencement of the Constitution (7th Amendment) Act, 1986 had been validly made and. would not be called in question in or before any court or tribunal or authority on any ground whatsoever.
It is important to mention here that Eishad, unlike his two predecessors Mujib and Zia, did not, through this 7th Amendment, make any major constitutional changes. The reason behind may be that what constitutional structure Zia left was very much in favour of maintaining Ershad’s dictatorial rule. He inherited a system with all powerful dictatorial executive and a rubber stamp parliament, which in no way hampered rather it helped to the continuation of limited or controlled democracy.
Except the ratification clause in the 4th Schedule the 7th Amendment amended only one article and it was Article 96 where the age of the Supreme Court judges was increased from 62 to 65 years.
The Constitution (Eighth Amendment) Act was adopted by the Fourth Parliament on 7th June, 1988. It introduced the following changes in the Constitution :
1. The word ‘Bengali’ was replaced by the word ‘Bangla’ in. Article 3 of the Constitution.
2. The word ‘Dacca’ was replaced by the word ‘Dhaka’ in Article 5 of the Constitution.
3. A new Article 2A was created where it was provided that ‘the state religion of the Republic is Islam but other religions may be practised in peace and harmony in the Republic.”
4. Two sub-clauses [30(1) & 30(3)] of Article 30 were omitted.
.Now, therefore, there remained no bar for the state to confer title, honour or decoration.
5. Articles 100 and 107 were amended and provisions were inserted for setting up six permanent Benches of the High Court Division outside Dhaka. Judiciary was, therefore, decentralized. But this past of the Amendment was challenged. In the Supreme Court and the Appellate Division of the Supreme Court in the historic 8th Amendment case nullified the same as unconstitutional.
It is needless to say that this Amendment was done not to face any real situation; a sinister-looking political purpose of Ershad worked behind this Amendment. Though Ershad legalised his seizure :of power and long time actions as CMLA through an elected parliament, he was not treated as legitimate ruler by the opposition. The opposition from the very beginning began to look upon Ershad’s attempts with suspicion. There were continued movement against his regime. On the way to subdue this continued movement, he first, as a follower of Zia, took the religion ‘Islam’ as a handy weapon to use it as a posture of his activities so that he could gain the support of the largest section of illiterate population who are religious but politically unconscious. To that end in view he inserted ‘Islam’ as the state religion in the Constitution through the 8th Amendment. As a commentator says, frustrated by the failure to acquire legitimacy through electoral process, the regime resorted to widen its support-base by exploiting the religious sentiment of the country’s overwhelming majority of Muslim population. Because of the marginal representation of opposition in parliament and its leader known throughout the country as ‘loyal opposition leader’ the bill caused more uproar outside, the parliament than inside it. Almost all major opposition parties, including the ones propagating Islamic dogmatism opposed the Amendment Bill. It was opposed on such grounds as: (i) the bill was politically motivated; (ii) the amendment would constitutionally divide, the. nation, into majority and minority; (iii) it would have bad impact on the communal harmony in the country ; and above all, (iv) the parliament itself was illegal and therefore, had no more right to amend the constitution.1
The Eighth Amendment Case:
The case of Anwar Hussain Chowdhury V. Bangladesh [1989 BLD(SPL)!] popularly known as the 8th Amendment case is a historic judgment in the constitutional history of independent Bangladesh.
Background of the Case:
After martial law was imposed on 24th March, 1982, on 8th May the CMLA by amending the Schedule to the Proclamation of the 24th March, 1982 had set up six permanent Benches of the High Court Division at Chittagong, Commilla, Jessore, Barishal, Sylhet and Rangpur. By a further amendment of the proclamation by Proclamation Order no III of 1986 these permanent Benches were designated as ‘Circuit Benches’ and it was provided that when Article 100 of the Constitution would-be revived, the Circuit Benches should be deemed to be sessions of the HCD at Dhaka under that Article Martial law was withdrawn on 10th November, 1986 and the Constitution was fully revived on the same date. As the Constitution was revived the Proclamation Order III of 1986 was no longer operative and the Chief Justice under the revived Article 100 of the constitution with the President, proceeded to implement the provisions of six sessions benches in the same places where Circuit Benches were functioning during the martial law period. The Chief Justice issued six other notifications specifying the jurisdiction to be exercised by each session and the areas covered by them.
To be mentioned here that the Dhaka Bar Association led by the Supreme Court Bar Association began to protest the mode of decentralization of the HCD from the very day the-Martial law Proclamation was made to this effect. The Supreme Court Bar Association construed the bifurcation plan of the HCD as totally unjustified and a design to destroy the institution of the judiciary. In protest they boycotted the courts for-months, passed resolutions and staged demonstrations, openly accusing the Chief Justice of violating the provisions of the Constitution by constituting the benches and session outside Dhaka. The Court of Chief Justice was boycotted for years and the Chief Justice did not sit in any court for nearly three years. The judiciary was paralysed which diminished the image and prestige of the judiciary as a whole.1
However when the Chief Justice issued under the revived Article 100 six other notifications specifying the jurisdiction to be exercised by each session and the area covered by them, it added fuel to the fire and the lawyers became more agitated. Perhaps with a view to stopping this agitation and movement the government passed the Constitution (Eighth Amendment) Act, 1988 which substituted Article 100 by a new article creating permanent Benches of the High Court Division in the six aforesaid places.
The constitution (8th amendment) Case
By two writ petitions the amended Article 100 and the notification of the Chief Justice were challenged as ultra vires. A Division Bench of the HCD dismissed the petitions summarily. Leave was granted by the Appellate Division to consider the Constitutionality of the Amendment.
After a sound hearing the Appellate Division by a majority of 3 to 1 struck down the 8th Amendment as far as it related to the creation of permanent Benches outside Dhaka by substitution of Article 100. The ground shown by
the court was that the impugned amended Article 100 changed the character and nature of the function and jurisdiction of the HCD as envisaged in the Constitution. Such an amendment changing the basic structure of the Constitution was ultra vires and therefore not tenable in law.
This was a historic judgment in the sense that it was the first time since the birth of the nation that the Supreme Court of Bangladesh was striking down on amendment to the Constitution made by the parliament, the supreme and sovereign law making body under the Constitution. The judgment aroused serious controversies on the issue of parliaments’ authority to amend the Constitution and whether the Supreme Court could restrict the amending power of the parliament. And whether four or five judges sitting on a Bench could be more wise or have more authority than the 330 members of parliament elected by the people.1
Ninth Amendment :
This Amendment was passed on 10th July 1989 and it became a law on 11th July. But it was to come into effect on 1st march 1991. This Amendment amended Articles 49, 50, 51, 53, 54, 72, 119, 122, 123, 124, 148, 152 of and 4th Schedule to the Constitution. It also inserted a new article 53A in the Constitution. It introduced some important changes in the Constitution. Most significant features of this Amendment were following :
1. Provision for direct election for the Vice President.
2. Provision for the election of the President and Vice-president
3. Both President and Vice-President were to hold office for a term of five years.
4. No person was to hold office as President or Vice-President for more than two terms; whether or not the terms were consecutive.
The Amendment, therefore, sought to democratise the executive. But it carries no importance now for the 12th Amendment which reverted the governmental system to a parliamentary one has made all its provisions ineffective.
Tenth Amendment :
This Amendment was passed in the 4th parliament on 12th June, 1990. It mainly related to the reserved women seats in the parliament as provided for in Article 65.
The original Constitution provided for 15 reserved seats for women members and this provision was to remain in force for 10 years. But in 1979 through the 5th Amendment the number of reserved seats was increased form 15 to 30 and the period this provision was to remain in force was extended from 10 to 15 years. This period expired on 10th December 1987 and as such the 4th parliament did not have any reserved women seats. There were, therefore, debates and discussions within Ershad’s ruling party whether such a reservation was necessary or desirable. The mode of election for the women’s reserved seats and their role in the parliament had prompted a weekly to term these 30 ladies as 30 seats ornaments in parliament”.1 However Ershad and his ruling party decided to keep such reservation for another period of 10
years. To that end the Constitution (Tenth Amendment) Bill was introduced on 10th June and passed on 12th June, 1990. This Amendment reinserted clause (3) to Article 65 providing for 30 reserved women seats for a further period of 10 years beginning with the commencement of the next parliament i.e. from the 5th April, 1991 which was first day of the 5th parliament. Certainly this Amendment was done with political purpose, for as mentioned earlier, these reserved seats work as a balance of power or a vote-bank in the parliament. Therefore the 5th and 7th parliaments had 30 indirectly elected women members, however, the 10 years period expired with the expiry of the 7th parliament and hence the 8th parliament does not have any reserved seats for women.
Eleventh and Twelfth Amendment :
On 2nd July, 1991 two Bills, the Constitution (Eleventh Amendment) Bill, 1991 and the Constitution (Twelfth Amendment) Bill, 1991 were introduced in parliament by the BNP government. The Opposition Amendment Bill was introduced on July 4, 1991 by Abdus Samad Azad. On the same day four Amendment Bills were introduced by the Worker’s Party leader Rashed Khan Menon. In order to areas of difference Parliament decided on July 9 to send all these Bills to a 15 member Select Committee comprising the Treasury and opposition members. After much deliberation and discussion in 36 meetings the committee finalised its report and come to a unanimous decision on 28 July. 1991 and on that very day two Bills, the Constitution (Eleventh Amendment) Bill and the Constitution (Twelfth Amendment) Bill were introduced in the parliament. Then amidst cheers and jubilation they were passed shortly after midnight at 6th August, 1991. The Twelfth Amendment Bill was passed with 307—0 votes and the Eleventh Amendment Bill was passed with 278—0 votes. After the Bills were placed before the Acting President he, according to the amendment procedure under Article 142 of the Constitution, sent the Twelfth Amendment Bill for referendum before his assent. Referendum was held on 15th September. Though, the turnout of voters in the referendum was very low, 84% of those who voted favoured the Amendment. The-official results of the referendum through a gazette notification came out at 18th September. Thus the Twelfth Amendment came to be effective on 18th September, 1991. A fresh start of constitutionalism had begun in Bangladesh.
It is pertinent to mention here that in the past every amendment to the Constitution has been considered by political observers to be Motivated by personal interest or Interests of certain quarters. But the Twelfth Amendment aiming to return to the parliamentary form of government seemed to raise above criticism, for all political powers reached a consensus on the future course of the nation.
Subject -matter of the Eleventh Amendment
The Constitution (Eleventh Amendment) Bill, 1991 was passed with a view to removing the Constitutional hurdles to the Acting President’s return to his previous position in the Supreme Court. While assumed the office of Vice President and then Acting President, he was constitutionally not in a position to hold that post. Because he was holding-a post of profit as he was the Chief Justice which debarred him from holding office of Vice President [Article 147(4)]. But without resigning from the post of Chief Justice Sahabuddin Ahmed, in accordance with the positive assurance given by the three alliances, welcomed the post of Acting President for an interim period on condition that after the transfer of power to a duly elected government he would be allowed to get back to his original post of Chief Justice. Therefore to legalise his appointment as Vice-President and his subsequent actions and to find out ways and means for his return to his former office the Eleventh Amendment Act was passed. This Amendment added a new paragraph 21 which, inter alia, legalised the appointment and oath of Sahabuddin Ahmed, Chief Justice of Bangladesh, as Vice-President of the Republic and also the resignation tendered to him on December 6, 1990, by the then President Ershad. Besides, this Act ratified, confirmed and validated all powers exercised, all laws, ordinances promulgated, all orders made, acts and things done and actions and proceedings taken by the Vice-President as Acting President during the period between the 6th December, 1990, and the day of taking over the office of the President by the new President Abdur Rahman Biswas, duly elected under amended provisions of the Constitution.
Moreover, this Act also confirmed and made possible the return of the Vice-President Sahabuddin Ahmed to his previous position of the Chief Justice of Bangladesh.
Changes Introduced by the Twelfth Amendment
It was the Twelfth Amendment which, like an unexpected beginning, reintroduced parliamentary system in Bangladesh paving die way for a fresh start of constitutionalism. After 16 years of existing dictatorial presidential system introduced by the 4th amendment in 1975 parliamentary system was reverted to for the second time by this Amendment. Except for a few Articles the spirit and language of the Twelfth Amendment are similar to those replaced by the Fourth Amendment. The fundamental changes to that end introduced in the constitution are following :
A. Position of the President
1. The President is now the titular head of the state while the Prime Minister is the chief executive as per the provisions of Articles 48 and 55 of the amended Constitution. The posts of Vice-president and Deputy Prime Minister have been abolished.
2. In the original Constitution the President was to be elected by members of parliament in a poll by secret ballot as provided for in the Second Schedule of the Constitution. But the Twelfth Amendment did not restore that Second Schedule. Now after this Amendment as per Article 48 the President is to be elected by the members of parliament in accordance with the law meaning that parliament may by law make provision for election by open ballot which actually imposes a bar on the exercise of personal freedom of members of parliament in electing the President.
3. Under the provisions introduced by the Fourth Amendment the President could remain in office for an unlimited number of terms. These undemocratic provisions have been abolished and now after the Twelfth Amendment it is provided in Article 50(2) that no President shall hold office for more than two terms, whether or not the terms are consecutive. It has, therefore, restored the democratic provisions of the original constitution.
4. Under the original Constitution the President could exercise only one function independently. But now after the Twelfth Amendment President can under Article 48(3) exercise independently two functions
(i) to appoint Prime Minister who appears to him to command the support of the majority of the members of parliament; and
(ii) to appoint the Chief Justice.
The extended power unlike in the original Constitution i.e., appointment of Chief Justice is a healthy provision in the sense that if it were to be exercised on the advice of the Prime Minister then political consideration would have hampered in the appointment procedure in the judiciary.
5. Compared to the original Constitution the Twelfth Amendment has imposed double check on the President’s power to summon, prorogue, and dissolve parliament by inserting a new proviso to Article 72 ” …… provided further that in exercise of his functions under this clause the President shall act in accordance with the advice of the Prime Minister tendered to him in writing” meaning that now the president shall summon, prorogue and dissolve parliament only under written advice of the Prime Minister and not otherwise. This double check has been imposed with a view to preventing undue and whimsical exercise of power by the President to dissolve parliament making a directly elected government unworkable as had occurred several times in Pakistan.
6. As to the declaration of emergency Article 141A has been amended to the effect that the proclamation of emergency shall require for its validity the counter signature of the Prime Minister before the emergency is proclaimed. Thus the whole power of declaring emergency virtually rests with the Prime Minister. This double check has also been inserted with the same view i.e. to safeguard the possible misuse of power by the president. The politics of united Pakistan left, bitter experiences of such an abuse of power by the presidents for their selfish end rendering the governmental system unworkable.
7. As to the suspension of enforcement of fundamental rights during emergency under Article 141C another double check has been imposed with the same view that the President shall, during emergency, suspend the enforcement of fundamental rights by order on the written advice of the Prime Minister.
8. As to the impeachment and removal of the President the provisions of the original Constitution have been revived i.e., both the cases of initiation of motion and passing the resolution need simple Majority and two-thirds majority respectively.
B. The “Prime Minister and the Cabinet
The cabinet headed by the Prime Minister has been reintroduced keeping similarities with the provisions of the original Constitution.
1. It has-been categorically provided in Article 55 that the executive power of the Republic shall be exercised by or on the authority of the Prime Minister/ And that the cabinet shall be collectively responsible to parliament.
2. The President shall appoint as Prime Minister the member of parliament who appears to him to command the support of the majesty members of parliament. Other ministers shall also be appointed by him as may be determined by the Prime Minister (Article 56).
3. Compared to the original Constitution of 1972 two changes have been introduced by the Twelfth Amendment as regards the cabinet.
(i) In the original Constitution under Article 56 ministers could be appointed from outside the parliament but the condition was that such a minister would have to be elected as a member of parliament within six months. But now after the Twelfth Amendment one-tenth of the total number of ministers can be appointed from outside parliament and they unlike as provided in the original Constitution, need not be elected as members of parliament but they must be qualified for election as members of parliament.
It is noteworthy that this provision of appointment of ministers from among non-parliamentary members is not recognized in true parliamentary system. But this is justified in the sense that it enables the government to utilize the service of technocrats. Because in most developing countries there is a shortage of capable and skill persons among members of parliament.
(ii) In question of tenure of the office of Prime Minister the original provision was that if the Prime Minister ceases to retain the support of a majority of the members of parliament, he shall either resign his office or advise the president to dissolve the parliament. But a new condition imposed by the Twelfth Amendment is that if the President is satisfied that no other member of parliament commands the support of the majority of the members of parliament only then he shall dissolve the parliament [Article 57(2)].
C. The Issue of Floor Crossing and Ministerial Responsibility
Compared to the provisions of Article 70 as it stood before the Twelfth Amendment, the Twelfth Amendment has introduced more stringent measures to prevent floor crossing. Two sub-sections have been added to Article 70. Section 70(2) now prevents forming any dissident group within the party. And section 70(3) provides that if an independent member joins any political party he will come under the preview of anti-defection provisions.
D. The provisions as to the intervening period between two sessions of parliament as provided for in Article 72 were reverted to that of the original Constitution. It has therefore, strengthened the role of parliament.
E. Chapter III dealing with the provisions of local government of Part IV of the Constitution which was omitted by the Fourth Amendment has been revived by the twelfth Amendment.
F. Compared to the original Constitution and the 5th Amendment the Twelfth Amendment has made a sort of improvement with regard to the power of parliament in respect of international treaties. A new Article 145A has been created which now provides that all treaties with foreign countries shall be laid before parliament by the President. Earlier the President could refuse to lay before parliament any of such treaty on the ground of national interest.
It should be pointed but that in true parliamentary from of government as in practised in UK, India, Australia etc. The power of dissolution is given to the King or President at his discretion and he uses this power in accordance with well-established traditions and conventions of parliamentary system. But as mentioned earlier this discretionary power of the President was misused during the Pakistan period which created cabinet instability and rendered government unworkable. Taking this bitter experience into consideration the framers of the constitution of Bangladesh provide for strict provisions without leaving any scope for the president to act arbitrarily.
It is also noteworthy that though the Twelfth Amendment has restored the conventional features of a parliamentary system as far as the powers of the President to dissolve parliament are concerned, that power has lost much of its importance due the barricade created by Articles 70 of the Constitution.
On the way to restoration of liberal democracy from the bondage of military autocracy the historic 5th Parliamentary Election was a milestone which was held under the Acting President Justice Sahabuddin Ahmed in 1991. An unprecedented degree of enthusiasm was shown by all quarters. The election was nationally and internationally recognised as free and fair. Winning majority seats in parliament the BNP formed government. But from the beginning of the BNP government the opposition parties in the parliament began to create pressure on the government so that it include provision for caretaker government in the Constitution. In 1993 first Jamat-i-Islam and the AL and JP submitted their respective Bills concerning caretaker government. Every Bill contained the same object-to make general elections free and fair and to make the whole process of election free from the government influence provision for caretaker government should be introduced in the Constitution. But this demand, of the opposition parties was treated by the government as unconstitutional and illegal. The Magura by election was the turning point for the movement of caretaker government. It was this Magura by-election in which the government party BNP took resort to an unprecedented-malpractice and rigging. This election manipulation of BNP government, as reported by most important dailies, defeated even the Ershad’s election manipulation in 1988 and it has got a title of ‘Election Magura’ in the election politics of Bangladesh. Before this Magura incident all the opposition parties made walkout from parliament in protest of a statement made by Information Minister Nazmul Huda concerning. Hebron Killing’ issue of Israel. And they made commitment that they would not return to parliament if the Information Minister did not expunge his statement. To this boycotting of parliament ‘Magura election” malpractices provided an extra strength and now the opposition parties got their direct way of demanding that they would not go back to parliament till a ‘caretaker government’ Bill was introduced in the House. The government did not pay a heed to this demand. On 28th December, 1994 about 147 MPs resigned in protest. When the government proceeded to hold by-election in 142 vacant seats the political impasse took more outrageous condition leading to continuous country-wide strike. On 24th November, 1995 the government dissolved the 5th parliament and the 6th Parliamentary Election was scheduled on 15th February, 1996. But since the government did not pay any heed to the demand of caretaker government by the opposition, all the opposition parties boycotted election. The ruling party BNP proceeded to contest the election with sudden hand-picked parties as the military director Ershad did. The announcement of the result of the election added fuel to the fire-like opposition movement. All the opposition parties launched their country-wide non-cooperation movement and demanded the fall of the government as well as the dissolution of 6th parliament. The whole politico-economic condition of the country was leading to a complete civil war. Lastly finding no other the way out BNP government introduced the Caretaker Government Bill (the 13th Amendment of the Constitution) on 21st March at the first session of the 6th parliament. The Bill was passed on 26th March, Then the 6th parliament after 7 days of its life was dissolved on 30th March and Justice Habibur Rahman was appointed, as the Chief. Adviser of the Caretaker Government as envisaged in the 13th Amendment of the Constitution.
The 13th Amendment of the Constitution
This Amendment was passed with 268-0 votes on 26th March, 1996 and it became law on 28th March. The Amendment added a new Chapter (Chapter IIA : Non-Party Caretaker Government) in part IV of the Constitution with 5 new Articles (58A, 58B, 58C, 58D and 58E). It also amendment Articles 61, 99, 123, 147, 152 and the Third Schedule of the Constitution.
Composition of Caretaker Government
According to Article 58C the caretaker government shall consist of not more than 11 members of whom one shall be a Chief Adviser and other 10 shall be Advisers
Qualification of the Advisers
Under Article 58C(7) the President shall appoint Advisers from among the persons who are-
a) qualified for election as members of parliament;
b) not members of any political party or any organisation associated with or affiliated to any political party.
(c) not, and have agreed in writing not to be, candidates for ensuring election of members of parliament;
(d) not over seventy-two years of age.
Status of the Members of the Caretaker Government :
The Chief Adviser shall have the status, and shall be entitled to the remuneration and privileges, of a Prime Minister and an Adviser shall have the status, and shall be entitled to the remuneration and privileges of a Minister.
(i) The non-party caretaker government shall discharge its function as an interim government it and, shall carry on the routine function of such government with the aid and assistance of persons in the services of the Republic and except in the case of necessity for the discharge of such functions it shall not make any policy decisions.
(ii) The non-party caretaker government shall give to the Election Commission all possible aid and assistance that may be required for holding the general election of members of parliament peacefully, fairly and impartially (Article 58D).
Evaluation of the 13th Amendment
In the constitutional development of Bangladesh the 13th Amendment of the constitution, in a sense, is a positive step for following reasons.
Firstly, the fundamental basis of formation of government in democracy is election. If this election is not free and fair, the formation of government cannot be said to fulfill the norms of democracy; and in this case the most celebrated maxim of democracy “alt power belongs to the people” becomes a mere farce. More the election process will be free and fair more the people will see their voting right, in other words, right to elect representatives meaningful. The most important positive merit of the 13th Amendment is that it has paved the way for making the elections free and fair, particularly free from government influence.
Secondly, it has been a common trend in the politics of almost all developing countries that during the election period the manpower makes the worst abuse of public purse and properties to get victory in their favour. This manipulation in the election process virtually creates an insurmountable stumbling block to the development of some important democratic institutions like the Election Commission, voting right, press, media and political party etc. Since the 13th Amendment provides interim separate caretaker government and no party government can continue in power during the general election, there remains no scope of manipulation of public purse and properties by the party in power.
Thirdly, coming to power every government now will have to think that once parliament is dissolved or its term is ended, it will automatically find itself out of power and then the public will have the fullest opportunity and atmosphere to exercise their right to elect representatives and of government. On the other hand, no government now will be in a position to think for manipulation in the electrons; rather it will think for doing material benefit to the people. There is therefore, possibility that the government will now be more responsive than in the past.
Demerits Of The 13ih Amendment
Firstly though the Chief Adviser of the caretaker government has been the status a Prime Minister, from legal point of view he has been made subservient to the President and he has not been given the full power as a Prime Minister in ordinary situation can exercise. According to article 58E the President is not bound to act in accordance with the advice of the Chief Adviser. Again, article 38B(2) stipulates that the non-party caretaker government shall be collectively responsible to the President. Thus President retains the power to cancel any decision of the caretaker government and even the caretaker government itself. Since the Chief Adviser along with all advisers of the caretaker government is non-political and non-partisan person and since he will exercise his powers only for three months to conduct a general election, no power-expectation will work within him, he should have been, for the sake of independent exercise of his function, given the same constitutional power as the Prime Minister does have.
Secondly, while the caretaker government is in power the unfettered power over the defence has been vested upon the President. During ordinary situations though the supreme command of the defence is vested in the President, he exercises this function only in accordance with the advice of the Prime Minister. But the 13th Amendment is silent about this matter. Thus the most powerful way to act in an arbitrary manner is retained with the President.
Thirdly, this interim caretaker government will be in power for 3 months only, they will not have any policy formulating functions and they will be in power without any prior experience of governing the country. So it is likely that this government may create obstacle in the smooth functioning and developments of policies initiated by the previous government.
This is, of course, the strongest argument against the concept of separate caretaker government. It is also true that very few instances can be found where after every 5 years or after every dissolution of parliament a separate politically inexpert government sits in power for conducting a genera! election. But the fact of the Bangladesh politics as far as it concerns its election politics is that a free, and fair election has been a far cry in the history of Bangladesh since its independence and the interim government of Justice Sahabuddin Ahmed after the fall of Ershad regime has made a historic success in holding a free and fair election and this success had turned the concept of caretaker government into a political reality which has, through the 13th Amendment, been a constitutional reality.
But if we analyse the Amendment from true viewpoint of constitionalism we will be bound to say that 13th Amendment is against the principle of institutionalization of democracy. Because as a result of this Amendment a wrong conception will always work in the minds of the people and young learners that the government in power cannot be above the corruption and manipulation of election process; secondly, the Election Commission as a constitutional institution of democracy for controlling, conducting and superintending the whole election process is inherently weak and cannot be made in a position to be institutionalized; thirdly, the whole governing process particularly the bureaucracy will get a swing on a regular interval which may hamper the smooth function of the administration. For institutionalization of democracy not a separate interim caretaker government but an independent Election Commission is essential.
The Fourteenth Amendment
This amendment was passed on 16 may, 2004, As mentioned above in Tenth Amendment, the last extension of 30 reserved seats for women members in parliament expired in 2001 and as a result the 8th parliament did not have reserved seats. However, after three years of the life of the 8th parliament, on 16 may 2004 the ruling BNP placed and passed the 14th constitution Amendment an Act to re-introduce reserved seats for women member have been increased from 30 to 45. The main provisions of the Act are as follows:
“65(3): Until the dissolution Parliament occurring next after the expiration of the period of ten years beginning from the date of the first meeting of the Parliament next after the Parliament in existence at the time of the Commencement of the Constitution (Fourteenth Amendment) Act, 2004, there shall be reserve forty fives seats exclusively for women members and they will be elected by the aforesaid members in accordance with law on the basis of procedure of proportional representation in the Parliament through single transferable vote,”
Insertion of new paragraph in Fourth Schedule:
“23. Temporary special Provision regarding women members in the Parliament.
(1) for the residual period of the Parliament in existence at the time of the Commencement of the Constitution (fourteenth Amendment) Act, 2004 there shall be reserved forty five seats exclusively for women members and they will be elected by members of the Parliament in accordance with law on the basis of procedure of proportional representation in the Parliament thought single transferable vote.
(2) During the period mentioned in sub-paragraph (1), the Parliament shall consist of the three hundred members mentioned in clause (2) of article 65 and the forty women members mentioned in sub-paragraph(1) of this paragraph.”
The 14th Amendment as a whole has more political ramification than real. The provision for 45 reserved women seats in the parliament has demoralized the idealism and spirit embedded in the original constitution of 1972 particularly articles 10. 19(1), 27, 28(1) 28(2) of it. The thinking of the constitution makers was to keep this vote bank system operative only ten years which has been extended from time to time by various governments by amendments. When the 8th Parliament increased the number of reserved seats for women from 30 to 45 with indirect election system and extended for another ten years, It is clear that the government’s aim is to strengthen stigmatic vote bank system rather than true democracy or woman representation.
We can conclude that, an easy procedure of amendment of the constitution is necessary for a new, idealistic and developing country like Bangladesh. But it may make the constitution the play thing at the hands of a brute majority of a party in power. There is no check or brake on it, no provisions for reconsideration, or revision, no scope for “an appeal to Philip drunk to Philip sober”. At least the president should have been given right to return it back to parliament for reconsideration.