Backwardness of Bangladesh constitutions impact on rule of law
A constitution is a set of rules for government—often codified as a written document—that enumerates and limits the powers and functions of a political entity. These rules together make up, i.e. constitute, what the entity is. By limiting the government’s own reach, most constitutions guarantee certain rights to the people. The term constitution can be applied to any overall system of law that defines the functioning of a government, including several unmodified historical constitutions that existed before the development of modern codified constitutions.<href=”#_ftn1″ name=”_ftnref1″ title=””>
We know that State is a political organization. It is administered by a group of person or body which is known as government. A government is formed by three types of organs, namely, the executive, the legislative and the judiciary. These three organs cannot run the State according to their whim and caprice. There must be some rules and principles on the basis and under the authority of which the government can run the State. This set of rules or principles are known as Constitution, the governing wheel of the State.
There is an enormous and profound relationship between democracy and the Constitution of Bangladesh, because the Constitutional basis of the Constitution of Bangladesh is democracy. Moreover, democracy is the solemn expectation of the citizens of the country. Constitution gets a sole and unique form and deserves a full sanctity where there is a democratic country. The people of a democratic country have freedom in every sphere of their daily life. So it is the aspiration of the people that their country will be a democratic one, specially the people of the third world country.<href=”#_ftn2″ name=”_ftnref2″ title=””>
Therefore, the people of Bangladesh fought about a long period of twenty four years (1947 – 1971) to be a citizen of a sovereign and democratic State through an ideal democratic Constitution. And at last we got our freedom and the exclusive Constitution for the bright future of our nation.
The Constitution of Bangladesh is the supreme law of Bangladesh. It declares Bangladesh as a sovereign people republic and lays down the framework defining fundamental political principles, establishing the structure, procedures, powers and duties, of the government and spells out the fundamental rights of citizens. Passed by the Constituent Assembly of Bangladesh on November 4, 1972, it came into effect from December 16, 1972, the day commemorated as Victory Day in the country, marking the defeat of the Pakistan Army in the Bangladesh Liberation War.
The constitution declares Bangladesh to be a unitary, independent and sovereign Republic, founded on a popular struggle for national liberation, which will be known as the People’s Republic of Bangladesh. It pledges nationalism, secularity, democracy and socialism as the fundamental principles defining the Republic and declares the pursuit of a society that ensures its citizens- the rule of law, fundamental human rights and freedoms as well as equality and justice, political, economic and social.<href=”#_ftn3″ name=”_ftnref3″ title=””>
When enacted in 1972, the Constitution of Bangladesh was hailed by international jurists and legal historians and as one of the most progressive and democratic constitutions in modern history and one that inspired progressive political aspirations among third world countries and populations struggling for self-determination. However, amendments during socialist one party and military rule in Bangladesh radically altered the secular and liberal democratic nature of the constitution.<href=”#_ftn4″ name=”_ftnref4″ title=””> In August, 2005, the Bangladesh High Court passed a landmark judgment that declared constitutional amendments during military rule as illegal and unconstitutional, and hence nullified. After several legal protests, the Bangladesh Supreme Court, in January, 2010, ultimately announced that the historic verdict of the High Court will be upheld. The judgment of Bangladesh’s highest courts paved way for the return of the original nature of the constitution that defines Bangladesh as a secular, democratic state.<href=”#_ftn5″ name=”_ftnref5″ title=””>
The original Constitution of Bangladesh introduced a parliamentary form of government with the President as its constitutional head. It provides a responsible executive, a non-sovereign legislature and an independent judiciary with appropriate separation of powers, and checks and balances among them. The supreme law of Bangladesh, the Constitution, confers only limited law making competence on Parliament. Parliament does not possess any intrinsic law-making power, which derives from the constitution. The parliament cannot make any law in contravention with the provisions of the Constitution. It is the reflection of people’s wishes and desires. The government should think very carefully before making any fundamental changes in it.
It should refrain from making major changes unless a national consensus is reached. The original Constitution of 1972 which was the aspiration of the people has undergone so many changes that the purity of the original can hardly be seen. Not all the changes are made for public good. Therefore, purity of the Constitution is now been questioned. In this dissertation, we will discussion about the drawbacks of our Constitution and scope for improvements in the subsequent chapters.<href=”#_ftn6″ name=”_ftnref6″ title=””>
Background and Spirit of the Bangladesh Constitution
Historical Background of Bangladesh
Bangladesh was established after East Pakistan broke away from Pakistan in 1971 after a twenty five year union that saw widespread economic and political discrimination against the ethnic Bengali majority; suppression of the secular Bengali culture and linguistic heritage; and military rule. In the early years of Pakistan’s independence, Bengalis protested against attempts by West Pakistan to impose Urdu, a language remote to the eastern Indian subcontinent, as the sole state language of Pakistan. The subsequent Bengali Language Movement in 1952 gave rise to Bengali linguistic and cultural nationalism in the province of East Bengal, as opposed to Islamic nationalism in the rest of Pakistan.
Bengali resentment aggravated over the years as the democratically elected provincial governments in East Bengal were dismissed, the name of the province was changed to East Pakistan, greater discrimination prevailed in recruitment and promotions in the civil services and armed forces, harsher restrictions were imposed on secular Bengali culture, economic disparity between East and West Pakistan widened and the increased suppression on Bengali political parties and leaders by the Pakistani military and its Islamic fundamentalist allies.<href=”#_ftn7″ name=”_ftnref7″ title=””>
In the late 1960s, the main Bengali political party, the Awami League, proposed the Six Point demands as the basis for a new constitution in Pakistan. Drafted by leading Bengali intellectuals and nationalists Rehman Sobhan, Govinda Chandra Dev, Mohammad Shamsuzzoha, Kamal Hossain and Tajuddin Ahmad, the six points envisioned Pakistan as a parliamentary democracy where supremacy lies with a legislature directly elected on the basis of universal suffrage. The Six Points were also based on the Two Economies Theory coined by economist Rehman Sobhan.
The theory argued that West and East Pakistan have essentially two different economies lying in different regions and with different characteristics, and therefore power cannot be vested with the central government. It argued that the survival of the union between East and West Pakistan depended on establishing a federation that guaranteed considerable economic and political autonomy for each province. But the Two-Economies Theory also evoked, among Bengalis, a nationalistic reminiscence similar to that of the Two-Nation Theory that drove the founding of Pakistan. It served as the economic justification for Bengali nationalism and independence from the feudal and military establishment of West Pakistan.
The Six point movement would be spearheaded by the charismatic Awami League leader Sheikh Mujibur Rahman in a popular movement that engulfed the entire province of East Pakistan. Afterwards, Sheikh Mujib along with senior leadership of the Awami League, would be arrested and tried for treason in the Agartala Conspiracy Case. Sheikh Mujib also placed the proposals at a meeting in 1966, between President Ayub Khan and all other opposition parties. The proposals were rejected by Ayub Khan and all major West Pakistan based political parties.<href=”#_ftn8″ name=”_ftnref8″ title=””>
The tensions provoked by the Six point movement would contribute to the fall of the Ayub Khan regime and lead to the 1970 elections, which were overwhelmingly won by the Awami League. The subsequent refusals by the Pakistani military to hand over power to the Awami League eventually culminated in the Bangladesh Liberation War. During the war the Pakistani military again imposed martial law and committed wide spread atrocities against the Bengali population. They were aided by Islamic fundamentalist parties and militias.
The war ended in December, 1971 with the victory of Bengali nationalists and emergence of Bangladesh. In 1972, the 300 members elected to the East Pakistan Legislative Assembly in the 1970 elections, were made members of the Constituent Assembly of Bangladesh. An all-partpy committee (except Islamic fundamentalist parties) headed by Dr. Kamal Hossain, the Minister of Law in the new government, was tasked to draft the constitution of the new country. The constitution drafting committee consisted of members of all parties in the constituent assembly, including the Awami League, National Awami Party, Jatiya Samajtantrik Dal and the seven independent lawmakers.<href=”#_ftn9″ name=”_ftnref9″ title=””>
The Proclamation of Independence
The Pakistan Army crack-down on March 25, 1971 the declaration of independence of Bangladesh was broadcasted from the Shadhin Bangla Betar Kendra (Free Bengal Radio Station) in Chittagong. The declaration was an informal announcement since till then it was East Pakistan and no revolutionary government was formed to turn the so-called East Pakistan into Bangladesh and to give the declaration a legal basis. So from the viewpoint of
the international law, to legalize the declaration as well as to legalize the independence war of Bangladesh it was essential to form a revolutionary government.<href=”#_ftn10″ name=”_ftnref10″ title=””>
A formal Proclamation of Independence was drafted and adopted on 10th April 1971 with retrospective effect from March 26th March 1971. Under this Proclamation the representatives constituted themselves into a Constituent Assembly for Bangladesh and declared Bangladesh as a Sovereign Peoples’ Republic. Under this very Proclamation the Bangladesh Government-in-exile was legalized though it was formed earlier with the leading initiative of Tajuddin Ahmed. The Government-in-exile of Bangladesh formally took their oath on 17th April 1971 at Meherpur in Kustia District. The Proclamation was a Constitution because it outlined the nature of the State, structure of the government, declared Bangladesh as the Peoples’ Republic.
It provided for Presidential system of government and declared that the President-
1. Shall be the Supreme Commander of all the Armed Forces of the Republic.
2. Shall have power to appoint a Prime Minister and such other Ministers as he considers necessary.
3. Shall have the power to levy taxes and expend money.
4. Shall have the power to summon and adjourn the Constituent Assembly; and
5. Shall exercise all legislative and executive powers of the Republic including the power to grant pardon.
Though the President was empowered with all uncontrolled powers like a dictator, it was nothing unusual and undemocratic since it was a war time.<href=”#_ftn11″ name=”_ftnref11″ title=””>
The Proclamation of Independence read with the Provisional Constitution of Bangladesh Order, 1972
On 16th December, 1971 Bangladesh achieved its full formal independence. The Government-in-exile came to Bangladesh on December 22, 1971 and took the administration of the new born State. The State administration was being run according to the Proclamation of Independence. On 8th January 1972 Sk. Mujibur Rahman who was till then the President of Bangladesh under the Proclamation was released from Pakistani Jail and returned to Bangladesh on 10th January 1972. The same day, to keep in line with his earlier commitments, Sk. Mujibur Rahman expressed his intention not to act as President but chose to be the Prime Minister of Bangladesh in line with a Westminster type Parliamentary system.
Accordingly on 11th January 1972 as the President of Bangladesh Sk. Mujibur Rahman issued the Provisional Constitution of Bangladesh Order whereby the entire character of the government was changed. The Presidential form was substituted by a form aiming at a Westminster type of Parliamentary system. The reason stated for changing the system was that it was the “manifest aspiration of the people of Bangladesh to establish a Parliamentary democracy” and so in order to achieve this objective the new system was introduced. The Proclamation of Independence 1971 alone with it the Provisional Constitution of Bangladesh Order 1972 acted as the single interim Constitution of Bangladesh till 16th December 1972. The Provisional Constitution of Bangladesh Order 1972 did not actually supersede the Proclamation of Independence 1971, nor was the Proclamation really abolished, nor was the Provisional Constitution Order any formal amendment to the proclamation.
The Provisional Constitution of Bangladesh Order 1972 changed only the character of the government i.e. from Presidential to Parliamentary form. A minute perusal of both the documents and the functioning of the then government would necessarily to give the idea that both the Proclamation and the Provisional Constitution Order were acting as the Constitution of the Country. Because though the Provisional Constitution Order changed the character of the government, it did not tell anything about the legislative power, nor did it give any power to the Constituent Assembly to control the cabinet, nor did it tell anything about the exercise of the executive power of the State. All the executive and legislative powers were being exercised by the President under the Proclamation in an uncontrolled way.
The main provisions of the Order, however, were as follows-
There shall be a cabinet of Ministers, with the Prime Minister as the Head.
The President shall in exercise of his entire functions act in accordance with the advice of the Prime Minister.
There shall be a Constituent Assembly comprising of the elected representatives of the people of Bangladesh who were elected as MNAs and MPAs in the elections held in December 1970, January 1971 and March 1971, not otherwise disqualified by or under any law.
The President shall Commission as Prime Minister of the Constituent Assembly, who commands the confidence of the majority of the members of the Constituent Assembly. All other Ministers shall be appointed by the President on the advice of the Prime Minister.
Under this system Justice Abu Sayeed Chowdhury became the President of the Bangladesh and Sk. Mujibur Rahman became the Prime Minister.<href=”#_ftn12″ name=”_ftnref12″ title=””>
Members of the Constitution Drafting Committee and national cabinet
The constitution drafting committee would take inspiration from the intellectual thought that drove the six point movement and the liberation war; the heritage of democratic struggle by Bengalis in the Indian Subcontinent, during both the British Raj and the Pakistan era; and the secular Bengali culture in formulating the constitution. The drafters of the constitution also identified the features of the Pakistani state that created widespread discontent in its population, particularly the Bengalis. One such feature was the religion based polity that gave opportunity to the military to influence politics. They also felt that religious nationalism failed to establish a sustainable state in Pakistan. Keeping in mind the lack of democracy and powerful influence of the military in Pakistan, the drafters of the constitution envisioned Bangladesh as a secular democracy, in order to establish a progressive and sustainable state. The secular nature of Bengali culture also served as an important motivation in inspiring a secular state for Bangladesh.<href=”#_ftn13″ name=”_ftnref13″ title=””>
The drafters would also base the constitution on the objectives of the Two-Economies Theory. The theory argued economic autonomy for East Pakistan in order to attain greater equity in the distribution of income, as the Pakistan’s economy was dominated by the West Pakistani feudal elite. Bengali nationalists felt the idealism of a “socialist” or “social democratic” society while waging movements against the feudal elite of Pakistan. Influenced by this idealism, the leadership of Bangladesh felt that greater equity in the distribution of income in the economy of the new country would be possible either through social democracy or democratic socialism. They also felt that the war ravaged country needed a strong public sector to drive initial economic development.<href=”#_ftn14″ name=”_ftnref14″ title=””>
The drafters of the constitution hence decided upon nationalism, secularity, democracy and socialism as the fundamental principles of the new state. The constitution also pays great attention to rural development, education rights and scientific temper, reflecting its commitment to rural Bengal as well as to modernization and progressivism. On November 4, 1971, the Constituent Assembly of Bangladesh adopted by the constitution and on December 16, 1972, the first anniversary of victory of the Bengali nationalist forces over the Pakistani Army, the constitution was signed into law.<href=”#_ftn15″ name=”_ftnref15″ title=””>
The Original Constitution of 1972
The beginning of the constitution-making process was made when the President issued the Constituent Assembly of Bangladesh Order, 1972 on 23 March 1972. The Order defined the Constituent Assembly and its functions in great detail.<href=”#_ftn16″ name=”_ftnref16″ title=””> Though the total number of members who were elected to the National Assembly and Provincial Assembly was 469, a few of them had died and some were disqualified. Only 404 took part in the proceedings of the Constituent Assembly. The Assembly held its first meeting on 10 April 1972. On the second day of the sitting a Constitution Drafting Committee of 34 members was formed with Dr. Kamal Hossain as its Chairmen. The Constitution Bill was introduced in the Assembly on 12 October for consideration. Its first reading began on 19 October and continued till 30 October. The second reading took place from 31 October to 3 November. The third reading began on 4 November and it was approved with 65 amendments. The Constitution was given effect to from 16 December 1972.<href=”#_ftn17″ name=”_ftnref17″ title=””>
The Constitution as adopted in 1972 contained a Preamble, 153 Articles divided into 11 parts, and four schedules. The main contents of the Constitution are:
The Preamble, which embodied the collective memories and national aspirations, affirmed that the “high ideals of nationalism, socialism, democracy and secularism that inspired our heroic people to dedicate themselves to, and sacrifice their lives in, the national liberation struggle”, would be the fundamental principles of the Constitution.<href=”#_ftn18″ name=”_ftnref18″ title=””>
(ii) New Nationhood
Part I of the Constitution was the definitive and formal manifestation of a new nationhood. It has declared Bangladesh as a sovereign unitary People’s Republic. It has defined the state territory, the state language, the national anthem, the national flag, the national emblem, the national flower and the national identity.
(iii) Fundamental Principles of State Policy
Part II of the Constitution has contained a declaration of social and economic goals of the nation in the form of ‘Fundamental Principles of State Policy’. It has defined the four basic principles as mentioned in the Preamble. It has affirmed that ‘Bangali’ nationalism is rooted in the unity of the people from its identity of language and culture and attainment of independence through the determined struggle in the War of Independence (Article 9). Socialism has been defined as a ‘socialist economic system’ aiming at ensuring the attainment of a just and egalitarian society, free from the exploitation of man by man (Article 10). Democracy has been envisaged as a system in which fundamental human rights, freedom and dignity of persons would be guaranteed and effective participation of the people would be ensured through their elected representatives at all levels of administration (Article II).
Secularism has been defined as the elimination of all forms of communalism, abuse of religion for political purposes and discrimination on the basis of religion (Article 12). Moreover, emancipation of peasants and workers from all forms of exploitation; provision of such basic necessaries of life as food, clothing, shelter, education and medical care to all citizens; the right to employment with recreation and leisure and such other facilities to the citizens have been made the national goal. The Fundamental Principles of State Policy are mere pledges without any legal backing. It has been stated that the principles enunciated in Part II, though not enforceable in the court, should be applied by the state in the making of laws and should be a guide to the interpretation of the Constitution and other laws of Bangladesh.<href=”#_ftn19″ name=”_ftnref19″ title=””>
(iv) Fundamental Rights of the Citizens
Part III of the Constitution has dealt with the fundamental rights of the citizens. Article 26 of the Constitution has asserted that the state shall not make any law inconsistent with this part, and any law so made shall to the extent of such inconsistency be void. These include such rights as equality before law, equal opportunity in public employment or office, equal protection of law, right to life and liberty, safeguard against arbitrary arrest and detention, freedom of movement, freedom of assembly, freedom of association, freedom of speech and expression and of the press, freedom of religion and right to property. The right to move the Supreme Court for the enforcement of these rights has also been guaranteed (Article 102). Most of the fundamental rights have been subject to ‘reasonable restrictions imposed by law’ in the interest of ‘the security of the state’, or ‘decency’ or ‘morality’.
(v) Form of Government
(Executive, Legislature, Judiciary) Parts IV, V and VI of the constitution have mainly described the structure of Bangladesh Government. The form of government as provided for in the Constitution has been parliamentary democracy modelled on the British system. The head of the state is the President who would be elected by the members of the Jatiya Sangsad for a term of 5 years and removed only through impeachment by at least two-thirds majority of the members of the Jatiya Sangsad. Like the British King or Queen, he is the constitutional head. He would appoint as prime minister a member of the Jatiya Sangsad who appeared to him to command the confidence of members of the Sangsad. In the exercise of his functions, the President is required to act on the advice of the Prime Minister who, in fact, is the chief executive. The Prime Minister is the head of the cabinet, “central to its formation, central to its life and central to its death”. The cabinet is the executive arm of the government.<href=”#_ftn20″ name=”_ftnref20″ title=””>
A major theme of the Constitution is the supremacy of the unicameral Jatiya Sangsad. It consists of 300 members, to be elected from 300 single-member constituencies on the basis of universal adult franchise. In addition to this, there are another 15 seats reserved for 10 years for women to be elected by the members of the Sangsad. The Jatiya Sangsad is the supreme law-making body. The President has no veto power, although a bill passed by it requires the assent of the President to be an act. The Jatiya Sangsad is also the guardian of national finance, and no tax can be imposed without its sanction.
Judicial power has been vested in a judiciary with the Supreme Court at its head. The Court consists of two divisions, appellate and high court divisions. The Chief Justice of the Supreme Court is appointed by the President and holds office up to the age of 65 years. Other judges are appointed by the President in consultation with the Chief Justice. The control and discipline of the employees in the judicial service are vested in the Supreme Court. Administrative tribunals can also be established by law to deal with matters relating to the terms and conditions of persons in the service of the Republic.
(vi) Elections, Services and Audit
Parts VII, VIII and IX of the Constitution deal with elections, audit and civil services. The Chief Election Commissioner, comptroller and auditor-general, and chairman and members of the Bangladesh public service commission are independent in the exercise of their functions and can be removed ‘in the like manner and on the like grounds as a judge of the Supreme Court’ (Articles 118, 129 and 130).
(vii) Amendment of the Constitution
Part X of the Constitution is concerned with the amendment process. It has been provided that any provision of the constitution can be amended or repealed by an Act of the Jatiya Sangsad passed by not less than two-thirds of its members.
(viii) Miscellaneous Provisions
In Part XI of the Constitution there are some miscellaneous provisions. The first schedule contains a list of the laws that have been kept beyond judicial review; the second prescribes rules regarding the election of the President; in the third the proforma of oaths to be taken by persons of certain elevated positions has been inserted. The fourth one contains provisions for transition to constitutional government.<href=”#_ftn21″ name=”_ftnref21″ title=””>
Amendment of the Constitution and Its Impact
Article 142 of the Bangladesh Constitution<href=”#_ftn22″ name=”_ftnref22″ title=””>
Article 142 provides the Power to amend any provision of the Constitution
(1) Notwithstanding anything contained in this Constitution-
(a) any provision thereof may by amended by way of addition, alteration, substitution or repeal by Act of Parliament:
(i) No Bill for such amendment shall be allowed to proceed unless the long title thereof expressly states that it will amend a provision of the Constitution;
(ii) No such Bill shall be presented to the President for assent unless it is passed by the votes of not less than two-thirds of the total number of members of Parliament;
(b) When a Bill passed as aforesaid is presented to the President for his assent he shall, within the period of seven days after the Bill is presented to him assent to the Bill, and if he fails so to do he shall be deemed to have assented to it on the expiration of that period.
(1A) Notwithstanding anything contained in clause (1), when a Bill, passed as a aforesaid,, which provides for the amendment of the Preamble or any provisions of articles 8, 48 or 56 or this article, is presented to the President for assent, the President, shall within the period of seven days, after the Bill is presented to him, cause to be referred to a referendum the question whether the Bill should or should not be assented to.
(1B) A referendum under this article shall be conducted by the Election Commission, within such period and in such manner as may be provided by law, amongst the person enrolled on the electoral roll prepared for the purpose of election to Parliament.
(1C) On the day on which the result of the referendum conducted in relation to a Bill under this article is declared, the President shall be deemed to have-
|Summery of Substance|
|15th July, 1973||To make for the prosecution of genocide, crime against humanity and war crime committed in the liberation war of 1971.|
|22nd September, 1973||Inclusion the emergency provision, suspension of Fundamental Rights and preventive detention.|
|28th November, 1974||To give effect to the agreement with India giving up the claim in respect of Berubari and retaining Dahagram and Angorpota. That is it was made to give effect the boundary line treaty between Bangladesh and India.|
|25th January, 1975||One party Dictatorial system was substituted for a responsible parliamentary system.|
|6th April, 1979||Legalizing all acts done by the first Military Authority in Bangladesh.|
|10th July, 1981||To make way for the Vice President to be a candidate in president election.|
|10th November, 1986||Legalizing all the acts done by the 2nd Military Authority.|
|9th June, 1988||Setting up six permanent Benches of the High Court Division and Islam was made the State Religion.|
|11th July, 1989||Election for the President and the Vice President simultaneously.|
|23rd June, 1990||By the Amendment of Article 65(3), reserved seats for 30 women were further extended for ten years.|
|10th August, 1991||The Amendment legalized 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.|
|17th May, 2004||It made provision for 45 reserve seats for women members and increased the age of the retirement of the Judges of the Supreme Court.<href=”#_ftn23″ name=”_ftnref23″ title=””>|
Assented to the Bill, if the majority of the total votes cast are in favor of the Bill being assented to; or
(b) Withheld assent therefore, if the majority of the total votes cast are not in favor of the Bill being assented to.
(1D) Nothing in clause (1C) shall be deemed to be an expression of confidence or no-confidence in the Cabinet or Parliament.
(2) Nothing in article 26 shall apply to any amendment made under this article.
Summery of 14 Amendments
From the adoption of the Constitution of Bangladesh till now 14 amendments have been brought in it.<href=”#_ftn24″ name=”_ftnref24″ title=””> These amendments, changed provisions summary as follows-
Now we will discuss about some important amendment of the Bangladesh Constitution, which are given below-
The Constitution (First Amendment) Act 1973 was passed on 15 July 1973. It amended Article 47 of the constitution by inserting an additional clause which allowed prosecution and punishment of any person accused of ‘genocide, crimes against humanity or war crimes and other crimes under international law’. After Article 47 it inserted a new Article 47A specifying inapplicability of certain fundamental rights in those cases.
Subject matter changes by this amendment
By this Amendment a way was make for the prosecution of genocide, crime against humanity and war crime committed in the liberation war of 1971.
By the virtue of this Amendment Sub-Article (3) of Article 47 was inserted whereby any law providing for the detention and trial of war criminals was kept out of the purview of Fundamental Rights as enumerated in Part III of our Constitution. New Article 47A debars any person to whom a law specified in Clause (3) of Article 47 applies to move the Supreme Court for any of the remedies under the Constitution.
This Amendment was made to face a special situation. Because there was no special law in the country to prosecute those who committed war crimes, crime against humanity, genocide and other crimes under International law during the liberation war in 1971.Under the authority of this Amendment the Parliament passed within a week the International Criminal (Tribunal) Act for the trial of 195 prisoners of war.
The Constitution (Second Amendment) Act 1973 was passed on 22 September 1973. This act resulted in the (i) amendment of Articles 26, 63, 72 and 142 of the constitution; (ii) substitution of Article 33 and (iii) the insertion of a new part i.e. IXA in the constitution. Provisions were made through this amendment for the suspension of some fundamental rights of citizens in an emergency.
Subject matter changes by this amendment
In the original Constitution of Bangladesh there was no provision of emergency or of any for preventive detention was inserted. But this Amendment was made to include the emergency provision, suspension of Fundamental Rights and preventive detention.
This Amendment brought the following changes-
A new Part IXA was added to incorporate emergency provision.
Article 33 was substituted so as to empower the Parliament to pass law relating to preventive detention.
Added two new Clauses – Clause 3 of Article 26 and Clause 2 of Article 142.
The interval between two sessions of the Parliament was extended from 60 days to 120 days.
According to Article 141A the President can declare emergency on three grounds. These are war, external aggression and internal disturbance. Among the three grounds first and second one is clear because these two terms have a definition in the International Law, but the last one is vague and indistinct, because there is no clear definition of internal disturbance. Thus emergency can be declared in the peace time to suppress the political oppositions. In the time of emergency the six Fundamental Rights would be suspended (Article- 36, 37, 38, 39, 40 and 42) which is so ridiculous. Another thing is that though the President declares emergency situation, counter signature of the Prime Minister is essential. So ultimately the right to declare emergency situation holds the ruling Party which has a chance to misuse.
The second part of Article 33 provides three Constitutional safeguards for a detention under preventive detention law-
Review by an Advisory Board.
Right to communicate of grounds of detention.
Right to representation against the order of detention
It is to mention here that the third right (right to make an effective representation) depends upon the second right (right to communicate of grounds). Because without knowing the grounds, information and particulars it is not sufficient for the person detained to make an effective representation against the detention order. But provision of Article 33(5) says that detaining authority may refuse to disclose facts which such authority considers to be against the public interest to disclose. Thus the second and third constitutional rights of the person detained become meaningless.
Most important thing is to mention here that under the authority of Article 33, Special Powers Act 1974 was enacted which provides preventive detention for all the times. This has been regarded as most democracy destroying draconian law.
The addition of two new Clauses- Clause (3) of Article 16 and Clause (2) of Article 142 is just a bluff. Because by this change the government which formed by attaining majority of two third of the total seats of the Parliament can amend the Constitution unconstitutionally, destroying the Fundamental Rights.
Extension of time of interval between two sessions of Parliament virtually weakened the spirit of responsible government. Because to 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 long 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 Amendment Act was passed by the Jatiya Sangsad on 6 April 1979. This Act amended the Fourth Schedule to the constitution by adding a new paragraph 18 thereto, which provided that all amendments, additions, modifications, substitutions and omissions made in the constitution during the period between 15 August 1975 and 9 April 1979 (both days inclusive) by any Proclamation or Proclamation Order of the Martial Law Authorities had been validly made and would not be called in question in or before any court or tribunal or authority on any ground whatsoever.
Subject matter changes by this amendment
It was made to ratify all the Martial Law Proclamations or Orders issued between 15th August 1975 and 9th April 1979. It was the first Military Authority in Bangladesh.<href=”#_ftn25″ name=”_ftnref25″ title=””>
The changes which were brought in the Constitution by this Amendment are as follows-
Part VI A of the Constitution dealing with one party system as introduced by the 4th Amendment was omitted.
The independence of judiciary which was completely destroyed by the 4th Amendment was restored partially (Art-96 and 116).
The jurisdiction of High Court Division of the Supreme Court to enforce the Fundamental Rights was restored to its original position as was in the original Constitution (Art-44 and 102).
Provision of Supreme Judicial Council in respect of security of tenure of Judges of the Supreme Court was inserted (Art-96).
The Provision of absolute veto power of the President introduced by the 4th Amendment was abolished (Art-80).
Provisions of referendum in respect of amendment of certain provisions of the Constitution were inserted and to that end a new Clause IA was created in the Article 142.
Religious words, “Bismillahir Rahmanir Rahim” were inserted in the beginning of the Constitution i.e. above the preamble.
In the original constitution it was provided in Article 6 that citizens of Bangladesh would be known as ‘Bangalees’. But this was changed and it was provided that citizens of Bangladesh would be known as ‘Bangladeshis’.
One of the 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).
One of the four major Fundamental Principles of State Policy, ‘socialism’, was given a new explanation that socialism would mean economic and social justice (Art-8).
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.
Another new Article 92A was created whereby the President was given power to expend public moneys in certain cases.
Article 58 was amended to the affect that four-fifths of the total numbers of the ministers should be taken from among the members of the Parliament. It was also provided that 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.<href=”#_ftn26″ name=”_ftnref26″ title=””>
This Amendment has some positive and some negative sides. That means the amendment has some merits and some demerits.
These are as follows-
Dictatorial one party was abolished and multi-party system was restored. The Fundamental Rights were again given their full life and enforcement by reverting Article 44 of the Constitution to its original position of 1972.
The independence of judiciary specially the Constitutional status and sanctity of the Supreme Court was restored.
The undemocratic provision of absolute veto power of the President which was introduced by the 4th Amendment was abolished. Insertion of provision of referendum in respect of certain important provisions of the Constitution is a healthy one.<href=”#_ftn27″ name=”_ftnref27″ title=””>
As regards the composition of the Parliament, the number of reserve seats for women were increased from 15 to 30 and the period this provision was to remain force was extended from 10 to 15 years. This provision enabled the Zia Government to manage two-thirds 7majority in the Parliament.
The Amendment provided that all international treaties must be submitted before the President who should cause them to be laid before the parliament. But there was a significant sub-clause that ‘no treaty should be laid if the President would consider it to against national interest’. This Proviso has virtually curtailed the Parliament power in relation to International treaty.
A new Article 92A was created by the Amendment and this Article curtailed the Parliaments 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.
Using Religious Words are one sort of trap. By this there created a chance to get the favor religion minded people. This would be very fruitful during the time of election.
From the above discussion of the merits and demerits of the 5th Amendment, it is so clear to us that though the 5th Amendment made some positive steps but more or less there was the involvement of some political interests.<href=”#_ftn28″ name=”_ftnref28″ title=””>
This Act was passed on 11 November 1986. It amended Article 96 of the constitution; it also amended the Fourth Schedule to the constitution by inserting a new paragraph 19 thereto, providing among others that all proclamations, proclamation orders, Chief Martial Law Administrator’s Orders, Martial Law Regulations, Martial Law Orders, Martial Law Instructions, ordinances and other laws made during the period between 24 March 1982 and 11 November 1986 (both days inclusive) had been validly made and would not be called in question in or before any court or tribunal or authority on any ground whatsoever.
Subject matter changes by this amendment
This Amendment was made to legalize all the acts done by the 2nd Military Authority.By this Amendment Ershad’s seizure of power in 1982 and his long term action as CMLA were legalized. In the 4th 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, Ordinances and other Laws made during the period 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.
Unlike his two predecessors (Bangabandhu Sk. Mujib and President Zia), Ershad 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 favor of Ershad’s dictatorial rule. He inherited a system with all powerful dictatorial executive and rubber-stamps Parliament, which in no way hampered rather it helped to the Constitution of limited or controlled democracy.
The four party Government of Alliance could manage to adopt the constitution (Fourteenth Amendment) Bill, 2004 in the Parliament on last 16th May, 2004. They could get the Bill passed on the strength of their so called brute majority. For convenience of examination, the separate provisions having no relevancy with each other and incorporated in a single Bill in the form of a package may be discussed separately:
1. Insertion of new Article 4 A after Article 4 for preservation and display of the portraits of the President and the Prime Minister.
2. Amendment of clause (3) of Article 65 in the Constitution regarding reserved number of seats exclusively for women members in the Parliament.
3. Amendment of Article 96 (1), 129 and 139 of the constitution enhancing the retirement age of the Judges of the Supreme Court, Auditor General and Chairman & other members of Public Service Commission.
4. Amendment of Article 148 of the Constitution.<href=”#_ftn29″ name=”_ftnref29″ title=””>
Subject matter changes by this amendment
It made provision for 45 reserve seats for women members and increased the age of the retirement of the Judges of the Supreme Court. [Art-96(1)]<href=”#_ftn30″ name=”_ftnref30″ title=””>
It was made for the sole political interest of the ruling party. That the Ex-Chief Justice is the ruling party minded. After this Amendment the running Chief Justice will be at his office during the time of the general election and thus the previous retired Chief Justice becomes the Chief Advisor of the Caretaker government who can help them in the general election.
So, from the above discussion of all the Amendments, it can be said that without some specific Amendments, all the Amendments have been made for the political interest of the ruling parties those were in power time to time.<href=”#_ftn31″ name=”_ftnref31″ title=””>
Backwardness of the Constitution of Bangladesh
It is to be agreed that we cannot get absolute perfection in all of our works or acts, as we are human being. It depends upon certain circumstances. However, it is to say that our Constitution is not fully perfect. There are some reasons behind this imperfection. One of them is the post-war situation. We had an infant State after independence. In that condition there was the existence of an immediate necessity of Constitution for the formation of the new born country. The Constitution makers made the Constitution within an improper time to face the political situation. That is why there was a possibility to have some flaws in the Constitution and the same was happened.
Another reason for having backwardness in the Constitution is that the political intention. That is, different times, different ruling parties amended the Constitution for the favor of their own. Some of the amended provisions are omitted and some of them still exist.
Some positive provisions of the Constitution became meaningless because these provisions are not inaugurated in the proper Part of the Constitution. These provisions became meaningless in a sense that the Part which they belong has no judicial enforceability.<href=”#_ftn32″ name=”_ftnref32″ title=””>
Now, we are going to show the flaws and errors of the Constitution of Bangladesh:
Part II: <href=”#8.”>Fundamental Principles of State Policy
This Part has no judicial enforceability. The provisions of this Part act as the guiding star for the governance of the country. The government takes these provisions as programme. This Part is the directive Part, not obligatory or mandatory for the government. The provisions of this Part contain the economic, social and cultural rights of the people.<href=”#_ftn33″ name=”_ftnref33″ title=””>
However, this Part contains some self-contradictory provisions as well as some provisions those should not been placed in this Part. These provisions are given below-
This Article provides the Fundamental Principle of State policy. This Article says that, “the principles of absolute trust and faith in the Almighty Allah, nationalism, democracy and socialism meaning economic and social justice, together with the principles derived from them as set out in this Part, shall constitute the fundamental principles of State policy.”
Now the point is that this Article is self-contradictory, because ‘absolute trust and faith in Almighty Allah’ results an Islamic intention and indirectly it says that there should an Islamic country. If it is so, then why ‘nationalism’ has been inserted in this Article? This term ‘Islamic State’ totally opposes the term ‘nationalism’.
Another self-contradiction is in between the terms ‘democracy’ and ‘socialism’. There may be social democratic State, but where there is sole democracy there the socialism has no existence.
These provisions made the Article self-contradictory.<href=”#_ftn34″ name=”_ftnref34″ title=””>
Article 10 says that “steps shall be taken to ensure participation of women in all spheres of national life”.
This is a very much positive approach. But this Article becomes meaningless because it belongs to Part II. Ultimately, it lost its enforceability, due to its displacement. Sooner or later, it falls in the stage of discrimination of woman and we can say that it enumerated in this Part to discriminate the women. And in the end it contradicts the Article 28(1) which says that “the State shall not discriminate against any citizen on grounds only of religion, race, caste, sex or place of birth”. If the Article 10 has been put in the Part III then it would be appropriate and would not have any contradiction on the ground of discrimination.<href=”#_ftn35″ name=”_ftnref35″ title=””>
We know that Part II contains economic, social and cultural rights. But as far as Article 22 is concerned which discusses about the separation of judiciary does not depends upon the financial efficiency of the State. It depends upon the sole wish of the government.
If the judiciary is made independent than the government cannot act according to their wish and whim, they will fall under a check and balance. And that is why this Article is not placed in the Part III.
That is why the government is not implementing the 12 point directions given by the Highest Court of the land in Masder Hossain Case. The governments of Bangladesh used to say that they are not bound to implement these directions because they are directive not mandatory. They can say like that because of the placement of this Article in this Part.
However, after a long expectation, the last Fakhruddins’ Caretaker Government through an Ordinance passed by the President separated the Judiciary from the executive organ of the State. It abolished executive magistrates’ authority to take cognizance of offences for trial. The ordinances ceased to remain effective on 25 February 2009 for want of parliamentary approval. The incumbent government introduced a bill on the separation of judiciary in parliament on 2 March 2009 in a bid to continue the separation. Instead of endorsing the bill in its present form, parliament sent it for scrutiny by the parliamentary standing committee on law, justice, and parliamentary affairs. This committee has submitted its report to parliament on 18 March 2009 with recommendations for amending the bill to confer on the government sweeping discretion to authorize executive magistrates to take cognizance of offences for trial in any circumstances.
Empowering executive magistrates only to take cognizance without any authority to hold trial may not appear to be a pressing matter. But the cognizance of an offence entails the recognition and acceptance of that offence to be sent for trial, which is a judicial, not administrative, act. Moreover, the discretionary nature of executive governmental power to be exercised in any circumstances is not necessarily amenable to the rule of law and due process. These two factors conglomerate to potentially impinge on the constitutionally entrenched independent judiciary and the separation of power. Parliament on 7 April 2009 passed a crucial bill meant for continuation of separation of judiciary, allowing the government discretion to empower executive magistrates to take cognizance of offences in any situation for trial. In that case, the government will have to specify the reasons and period for empowering the executive magistrates, who are also admin cadres, to this effect. This provision was included in the bill ignoring the opposition of judicial service association and legal experts.<href=”#_ftn36″ name=”_ftnref36″ title=””>
Part III: Fundamental Rights
This Part contains civil and political rights for the people of Bangladesh. Any violation of any provision prescribed in this Part has the judicial enforceability. But this part, in fact, contains some negative provisions.<href=”#_ftn37″ name=”_ftnref37″ title=””>
These are as follows-
This Article states that “women shall have equal rights with in all spheres of the State and public life”.
This Article is another appositive step to ensure the women’s rights in public life and to reduce the tendency of discriminating them. But this Article has an inherent negative side. That is Article says about the rights of women in the State and public right but there is saying about their right in their private life. So as a result they become the victims of discrimination in their private life.<href=”#_ftn38″ name=”_ftnref38″ title=””>
This Article deals with “safeguard as to arrest and detention”. This Article provides one of the most debatable provisions so far Constitutional laws is concerned, because of some negative provisions as it contains.
This Article provides a provision for making law on preventive detention. And under this authority the Special Powers Act, 1974 was enacted which is the most draconian law. Every riling party abuses this Act to subjugate the oppositions.
Another thing is that this Article provides three Constitutional safeguards for a detention under preventive detention law-
· Review by an Adviso