CONSTITUTION AMENDING POWER OF THE PARLIAMENT

Chapter 1

INTRODUCTION & CONCEPT OF CONSTITUTION

1.1 Introduction:

There are many acts which have discharged by the parliament. The parliament of Bangladesh exercises various important functions within the ambit of the constitution. In the parliamentary form of government, it is the duty of the Parliament to enact law for the benefit of the people of Bangladesh and it is also the function of the parliament to amend the constitution to govern the country. The constitution itself empowers the parliament to amend it by the lawful way in the lawful manner. When the constitution is to amend by the parliament, it is expected that the amendment should be brought up for the welfare of the society, country as well as the citizen of Bangladesh. But most of the time it has been shown that the amendment is to bring up for the benefit of the government as well as a particular political party. Most of the time refection of human aspiration was avoided. There are fifteen times the constitution is amended by the authority of the different ruler.

1.2 Meaning of Constitution:

Constitution is the supreme law of the land. Article 47 of the constitution states that constitution is the supreme law and if any law is inconsistence with the constitution, to the extent of such inconsistency shall be void. According to Black law Dictionary, “Constitution means, The fundamental and organic law of a nation or state that establishes the institutions and apparatus of government, defines the scope of governmental sovereign powers, and guarantees individual civil rights and civil liberties. There is two types of constitution are existed in the worlds which are discussed below.

4     Written constitution

5     Unwritten constitution

1.2.1 Written Constitution:

Written constitution is that constitution which provisions are written down in a book. Written constitution is considered as rigid constitution that means, the written constitution cannot be altered by ordinary law making process. To amend the written constitution special measure has to be followed.

The constitution of Bangladesh, India, Pakistan, and USA are the example of written constitution. Article 142 (a) (ii) of the Bangladesh constitution states that to amend the constitution two-third votes of the total number of members are required. Article 5 of the USA constitution states that, without the consent of the three fourth’s state legislature or through constitutional convention the constitution cannot be amended. So, from the above two example it can be said that amending the written constitution is not so easy like unwritten constitution, because two-third or three-fourths votes are very difficult to collect in amending the constitution.

1.2.2 Unwritten Constitution:

Unwritten constitution is that type of constitution which provisions are not written down in a particular book. According to Black law Dictionary, “The custom and values, some of which are expressed in statutes that provide the organic and fundamental law of a state or country that does not have a single written document functioning as constitution. In British constitutional law, the constitution is a collection decrees, conventions, traditions, customs and royal prerogatives. Documents and statutes include Magna carta (1215), the bill of rights 1689, the petition of rights (1628), the European community’s Act (1972)”

The unwritten constitution is flexible constitution because to amend the unwritten constitution special procedure need not be followed. The parliament can amend the unwritten constitution at anytime by ordinary law making process.

1.3 Meaning of Constitutional Amendment:

Constitutional amendment means that amendment by which the constitution is to amend. When it is deemed to the government that the constitution is required to amend, then by the votes of the two-third Mps of the parliament, the constitution is to amend, which is called constitutional amendment.

Constitutional amendment is to complete by the following ways.

  1. Amendment by adding
  2. Amendment by inserting

iii.       Amendment by striking out

  1. Amendment by substituting

1.3.1 Amendment by adding:

An amendment that places new wording at the end of a motion or of a paragraph or other readily divisible part within a motion, which is called as a amendment by adding some authorities treat amendment by adding as a form of amendment by inserting.

1.3.2 Amendment by inserting:

An amendment that places new wording within or around a motion’s current wording, some authorities distinguish amendment by adding, which places new wording after the current wording, from amendment by inserting.

1.3.3 Amendment by striking out:

An amendment that removes wording from a motion’s current wording is called amendment by striking out. 

1.3.4 Amendment by Substituting:

A Special type of amendment by striking out and inserting that replaces an entire main motion or a paragraph or other readily divisible part within a main motion, which is called amendment by substituting.

1.4 Authority of Amending the Constitution:

When necessity of amendment of the constitution arises, the question arises who has the authority to amend the constitution. Article 142 of the constitution states that it is the function of the parliament to amend the constitution. The parliament can amend the constitution when two-third majority of the total parliament to amend the constitution, but as the guardian of the constitution. Supreme Court has the Jurisdiction to declare any amendment, if it is inconsistent with the any provisions of the constitution. Article 7 and article 26 of the constitution states that if any law is inconsistent with the constitution, to the extent of such inconsistency become void.

In Anwar Hossain Chowdhury v. Bangladesh case Justice B.H. Chowdhury stated in a Paragraph that- “A constitution is mechanism under which laws are to be made and not mere Act which declares what laws are to be. The power to amend the constitution is there within itself, namely, Article 142 of the constitution is the original and supreme will. The powers of legislatures are defined and limited and these limits may not be mistakes or forgotten when the constitutions is written.

Chapter 2

NECESSITY OF AMENDMENT

2.1 Why Constitution is to Amend

Constitution is the supreme law and supreme will of the republic, to implement the supreme will of the people, sometimes some situation arises where the constitution is required to amend. There are some reasons for which the constitution is to amend which are amending which are discussed below.

  • To mitigate social demand

Society is constituted by the persons of different opinion. And the society is changeable in nature. Now a day which types of society are existed, it may not be existed in future. Because the demand of present time may not be same as for future time.

When in 1972 the constitution of Bangladesh has been first effected, then the government of then the government of then period thought that there is no exhaustive law to trial the offender of the war. So it was the demand of that period the war criminal had to be prosecuted. To mitigate that situation, in 15th July 1973 the first amendment had been brought up.

This amendment inserted provisions 47 and 47A in Article 47 of the constitution. Article 47(3) of the constitution states that nothing anything contained in the constitution, no law nor any provision there of providing for detention, projection or punishment of any person. Who is a member of any armed or defense or auxiliary forces or any individual, group individuals or organization or who is a prisoner of war, for Genocide, Crimes against humanity or war crimes and other crimes under international law shall be deemed void or unlawful or ever to have become void or unlawful, in the ground that such law or provision of any such law is inconsistent with or repugnant to, any of the provisions of this constitution. It was the supreme will of the majority persons of Bangladesh that the war criminal would prosecute. The brave martyrs sacrifice their lives in the national liberation struggle and the war criminal tried not to be independent of Bangladesh. So, they are the emery of nation, that’s why to convict the war criminal the first amendment had been brought up.

It was the social demand of that period that the war criminal had to be prosecuted, that’s why in article 47A it is stated that the war criminal shall not be entitled equal protection of law under article 31, protection against trial under ex-post facto legislation under article 35(1) and the war criminal shall also not to be entitled article 35(3) of the constitution, where it has been inserted that every accused of criminal offence shall have the right to speedy and public trial by an independent and impartial court or tribunal established by law.

Article 47 (A) of the constitution has been inserted in this view that on the plea of human rights, as it the war criminal does not away from the trial and article 47A of the constitution stated that the war criminal shall not enforce their human rights under article 44 of the constitution, that means the war criminal shall not be entitled to file writ petition under article 102 of the constitution. This rigid provision was only inserted to punish the war criminal. After the first amendment within one week. The international crimes Tribunal Act, 1973 has been passed to prosecute the war criminals or crimes under international law.

The constitution under article 47A restricted some fundamental human rights of the war criminal but it doesn’t mean that they cannot enjoy any rights of human, section 17 of the International crimes tribunal Act, 1973 empowers the war criminal to give any explanation relevant to the charge made against him, to conduct his own defense before the tribunal or to have the assistance of counsel and the accused shall have the right to present evidence at the trial support of his defense and to cross examine any witness called by tb prosecution.

So, the person who criticism that the trial of war criminal has violated human rights of war criminal, they should release this section.

  • For political purpose

The subject matter of the polities’ is to general people and acquiring the ruling power of that people. Actually people are the capital of politics in democratic system of government. The disguise address of the politics is well fare of the people as well as the country. Every political party asserted that they will govern the country well than the other political party, that’s why when they formed the government; they tried to amend the constitution to concrete their governing power.

Non-party care-taker government was the result of revolution in 1996 and it was sought in of this view that under the political government, the free and fair election is not possible the political party does not believe one another. That’s why the then government was bound to agree to amend the constitution for insertion the provisions relation care-taker government. But to appoint a particular person as chief advisor, the age of the judge of the Supreme Court has been extended by amendment. By fourteen amendment of the constitution, the age of sixty five years of the judge of the Supreme Court has been extended to sixty seven years. It has been done only for appointment a choice full person as chief advisor to implement political purpose.

In 2006, it has been observed that to appoint chief advisor from amongst the judges of the Supreme Court who was the follower of a particular political party, the constitution has been violated by the government of 18th parliament. Without looking the for the judge of the supreme court for the post of chief advisor, the president of 8th parliament appointed himself as the chief advisor of the non party caretaker government which was denied by most of the political party, as a result one-eleven was taken place for which for the four tines the army backed government was formed. They tried to vanish the political party with the assistance of then chief advisor. Actually two major political party was fronted by then government. When the ninth parliament election has been held and the government of ninth parliament formed. This government has required number of parliament members for the amendment of the constitution.

But technically the government did not struck down the provisions relating non-party caretaker government. The government challenged the constitutionality of non party caretaker government and the Supreme Court declared that the nonparty caretaker government is unconstitutional but they advised that the next two general elections should be held under the authority of the caretaker government. When by thirteenth amendment the provisions relating to non party caretaker government has been inserted, then was a provision in Article 58C that chief advisor of the nonparty caretaker government would be the person who retired last as the chief justice of supreme court and is the last chief justice is not available or is not willing to hold the office of the chief advisor, then the president shall appoint as chief advisor the person who among the retired chief justices of Bangladesh retired next before the last retired chief justice.

This act could be done the government by amendment, because the government had two third majorities to struck down the nonparty caretaker government. The government did not do it because this nonparty caretaker government was the result of their revolution.

When the caretaker government sought, the political party who denied the necessity of caretaker government in 1996, it this time it is sought by that political party. They argued that without caretaker government no free and fair election is possible, that’s why they claiming by amendment of the constitution, the nonparty caretaker government has to be survived.

So, it can be said that only political purpose, the government who has required number of majority in the floor, they try to amend the constitution for implementations of their political wish.

2.1.3. To control revolution

Because of revolution many countries adopt constitution, however many countries amend their constitution. Thirteenth amendment of Bangladesh constitution is the example of controlling revolution. In 1996 the sixth parliamentary government was bound to amend the constitution” for public pressure and finally they inserted the provisions 58A, 58B, 58C, 58D and 58E relating to non party caretaker government. The main object of bringing this concept is to avoid rigging and unfairness in the parliamentary Elections of Bangladesh.

2.1.4. To establish the fundamental principles of the constitution

In the original constitution which had been adopted in 1972, there the fundamental principles of the constitution were nationalism, socialism, democracy and secularism. The principle secularism was inserted in article 12 of the original constitution but in 1978 by the second proclamation in its order 4 of schedule 2, the article 12 was omitted and it has been inserted in the preamble and in article 8 of the constitution that in line of secularism absolute trusts and believes to the all mighty Allah shall be principle of the constitution. But the question arose that in Bangladesh not only Muslim resided but also resided the persons of other religious, o why the absolute trust and faith to the all mighty Allah would be existed. When the liberation war started the persons of all religious had been joined it and fought for the national independent. So, it is the valid claim of the persons of all religion that the fundamental principle of the constitution would be secularism. That’s why, by the fifteenth amendment article 12 of the constitution has survived and in the preamble it has been stated that democracy, nationalism, socialism and secularism shall be the fundamental principles of the constitution.

2.1.5. To use religion as the shield of politics

From time to time constitution had been amended on the basis of religious feelings. Some arbitrary government had been used the religions as the shield of the politics. The ruler of that period has been thought that Islam is the religion of majority persons of Bangladesh. So if they insert “Bismillahir Rahmanir Rahim” and “The state religion shall be Islam” in the constitution, they will get support the people of Islamic mind. That’s why, the former president Ziaur Rahman in 1978 by the second proclamation in its order of schedule-2 “Bismillahir Rahmanir Rahim” has been inserted at the beginning of the constitution. And by the Eighth amendment former president Ershad has been inserted in article 2A that the state religion shall be Islam.

Chapter 3

AMENDMENTS TO BANGLADESH CONSTITUTION: A CRITICAL REVIEW

3.1 First Amendment

First Amendment was brought up in 15th July 1973. This amendment was brought up to implement of the public demand. The persons who committed genocide, crimes against humanity, war crimes at the time of liberation war, to prosecute them there was no exhaustive law existed in Bangladesh. If they were prosecuted under the existing law, there was possibility to escape from the trial on the plea of human rights. By the first amendment article 47(3) and Article 47(A) were inserted.

The provision of article 47(3) is that-

Notwithstanding anything contained in this constitution, no law nor any provision there of providing for detention, prosecution or punishment of any person, who is a member of any armed or defense or auxiliary forces who is a prisoner of war, for genocide, crimes against humanity or war crimes and other crimes under international law shall be deemed void or unlawful, or ever to have become void or unlawful, on the ground that such law or provision of any such law is inconsistent with, or repugnant to, any of the provisions of this constitution.

Article 47 A of the constitution stated that- (1) The rights guaranteed under article 31, clauses (2) and (3) of article 35 and article 44 shall not apply to any person to whom a law specified in clauses (3) article 47 applies.

Sub article (2) of 47A stated that notwithstanding anything contained in this constitution, no person to whom a law specified in clause (3) of article 47 applies shall have the right to move the Supreme Court for any of the remedies under this constitution.

From the above discussed article 47(3) and 47A, it can be realized that the war criminals cannot get remedy from the Supreme Court for violation of certain fundamental human rights.

3.2 The Second Amendment Act

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 providing for the proclamation of Emergency. Article 142(l)(a) was amended by explaining the meaning of amendment.

This amendment inserted four provisions in the Bangladesh constitution which are discussed below:

4    Provisions relating to proclamation of emergency.

5    Provision relating to preventive detention.

6    Provision relating to ant- fundamental human right.

7    Provision relating to enhance the interval between two parliamentary sessions.

Provisions relating to proclamation of emergency

Article 141 A, 141B and 141C was inserted as to the proclamation of emergency by the second amendment.

Article 141A has provided the elements of proclaiming emergency which are Satisfaction of president.

If any of the above mentioned criterions arise the president may proclaim emergency with the counter signature of prime minister but signature of chief advisor of the care taker government is not needed to proclaim emergency.

Article 141B of the constitution restricted some fundamental human rights of human such as rights guaranteed under 36, 37, 38,39and 40 and 42 of the constitution.

Article 141C of the constitution prohibits going to court to enforce rights guaranteed under 36, 37, 38, 39, 40 and 42 of the constitution.

Emergency and the Constitution of Bangladesh

It is interesting to note here that the Constitution of Bangladesh as adopted in 1972 did not stipulate provisions for a state of emergency. It was through a constitutional amendment in 1973 that the constitutional provisions granting the executive emergency powers were first introduced. According to the newly inserted Article 141A of the Constitution, the President may proclaim a state of emergency if he is “satisfied that a grave emergency exists in which the security or economic life of Bangladesh, or any part thereof, is threatened by war or external aggression or internal disturbance”. Such a state “shall cease to operate at the expiration of one hundred and twenty days, unless before the expiration of that period it has been approved by a resolution of Parliament” Importantly, however, in order for it to be valid, the Presidential Proclamation of Emergency needs to be countersigned by the Prime Minister except when a care-taker government is in charge of the country.

In Halima Khatun V. Bangladesh Case

The legality of the Proclamations etc. was not the issue but inclusion of a property in the list of abandoned properties was challenged in the High Court. The Rule was discharged on the ground that the question as to whether the relevant property was abandoned or not is a disputed question of fact.

On appeal question arose before the Appellate Division, whether in view of the provisions of the Abandoned Properties (Supplementary Provisions) Regulation 1977, (MLR No. VII of 1977) the aforesaid writ petition abated. This appeal was decided on 4 January 1978. Bangladesh was at that time under Martial Law. In appeal the property was held as abandoned property and Halima khatun was deprived prom her right to property.

Provision Relating to Preventive Detention:

By the second amendment of the constitution article 33 was inserted in to the constitution of Bangladesh .Article 33 of the constitution provides the provisions relating to preventive powers Act-1974 are the weapon to control the disparate leaders of the opposite party.

Anwar Hossian(Md) and others v.state and others:

In this case it-was decided that a preventive detention is the deprivation of the liberty of the citizens,-which rights should not be taken away in an arbitrary manner .So this court enjoys power to review the actions of the detaining authority under articles 102(2)(b)(l) of the constitution and under article 491 of the CRPC 1898. Golok nath case in 1967

The Supreme court of India held that-

Amendment power of parliament in case of fundamental human right was questioned before the court and the court decided that the parliament have no authority to amend constitution by infringement of fundamental right.

3.3 The Third Amendment Act –

The Constitution (Third Amendment) Act 1974 was enacted on 28 November 1974 by bringing in changes in Article 2 of the Constitution with a view to giving effect to an agreement between Bangladesh and India in respect of exchange of certain enclaves and fixation of boundary lines between India and Bangladesh.

In the case of Mukhlesur Rahman v. Bangladesh

The agreement between India and Bangladesh signed by Bangabandhu Sheik Mujibur Rahman and Sreemoti Indira Gandhi, in respect of retaining Dhahgram and Angorpota and giving up Berobari was challenged. In light of the decision of the Appellate Division, this amendment was brought in Article 2 to give constitutional recognition to the Agreement.

3.4 The Fourth Amendment Act

The constitution (Fourth Amendment) Act 1975 was passed on 25 January 1975. Major changes were brought into the constitution by this amendment. The presidential form of government was introduced in place of the parliamentary system. A one-party system in place of a multi-party system was introduced. The powers of the Jatya Sangsad were drastically curtailed. The Judiciary lost much of its independence. The Supreme Court was deprived of its jurisdiction over the protection and enforcement of fundamental rights. This Act-

  • Amended Articles 11, 66, 67, 72, 74, 76, 80, 88, 95, 98, 109, 116, 117, 119, 122, 123, 141 A, 147 and 148 of the constitution;
  • Substituted Articles 44, 70, 102, 115 and 124 of the constitution;
  • Amended Part III of the Constitution;
  • Altered the Third and Fourth Schedule;
  • Extended the tenure of the first Jatiya Sangsad;
  • Inserted a new part, i.e., Part VIA in the Constitution and
  • Inserted Articles 73A and 116A in the Constitution.

The impact of the Fourth Amendment may be summed up as follows:

  • In place of Parliamentary system, Presidential system was introduced by substituting Chapter I and II of Part IV of the Constitution.
  • The impeachment and removal of the President was made tougher.
  • The power of the Parliament was reduced by amending Article 80.
  • The power of the High Court Division to enforce fundamental rights was curtailed by substituting Article 44.
  • The independence of judiciary was curtailed by amending Article 95.
  • One-party political system was introduced by adding part VIA in the constitution.

Actually the Fourth Amendment of the constitution impairs the structure of democratic nature of the government. Freedom of press has been curtailed. Only four daily news papers had permission to publish news. This amendment curtailed the power of the supreme for ensuring the fundamental human rights under article 44&102 of the constitution. It was inserted by the Fourth Amendment that parliament shall constitute constitutional court or Tribunal to deal with the case relating to fundamental human rights. One of the purposes of 4th amendment was to curtail the power of the HC that’s why sub article (1) of 102 was struck down.

The 4th amendment of the constitution had been violated with the philosophy of the constitution and it amended the basic structure of the constitution. It crossed the constitutional limits of amending the constitution.

3.5 The Fifth Amendment Act

On 5 April 1979 the 5th Amendment was passed. This amendment of the constitution was also inconsistent with the norms of democracy. After the demise of Bangobondhu till 1979 how many martial law proclamations were made, all became the part of the constitution. This amendment is different from others amendment of the constitution because it did not struck down any provisions of the constitution but it gave validity of all Martial law proclamations, Orders till 1979. By the 5th amendment the then government tried to give the legal shape of the activities of that period.

In the morning of August 15 1975 the Father of the Nation Bangabandhu Sheikh Mujibur Rahman and his family members were brutally killed by a group of disgruntled army people. They instilled Khandker Moshtaq Ahmed in the office of the President. On September 26 Mushtaq promulgated an Ordinance called Indemnity Ordinance 1975 and granted indemnity to all those responsible for the killing of Bangabandhu by prohibiting taking ‘any legal or other proceeding in respect of certain acts. The Indemnity Ordinance-1975 was given the validity by the 5th amendment of the constitution,

The Major Changes Brought in the Constitution By The 5th Amendment:

The major changes brought in the Constitution by 5th Amendment during martial law period may be summed up as follows:

By the Proclamation Order No 1 of 1977, ‘Bismilla-Ar-rahman-Ar-Rahim (In the name of Allah, the Beneficent and the Merciful)’ and ‘pledging for the High ideal of absolute faith in the Almighty Allah’, etc, was substituted in the Preamble of the Constitution.

By the Proclamation Order No I of 1977, Article 8(1) was amended to omit secularism as was provided in original. Instead of secularism ‘the principle of absolute trust and faith in the Almighty Allah was substituted. A new sub Article (1A) containing the words “Absolute trust and faith in the Almighty Allah shall be the basis of all actions” was added in Article 8(1).

By the Proclamation Order No 1 of 1977, the concept of Bangladeshis in place of ‘Bengalis’ was introduced in Article 6(2) and Article 9 describing the principles of Bangle Nationalism was deleted from the Constitution altogether. Article 9 was substituted with a non significant provision to ‘encourage’ local government institutions.

‘Socialism’ as mentioned in original Article 8(1), was given a new complexion to mean only ‘economic and social justice.’ Original Article 10 of the Constitution which guaranteed democracy and human rights through a socialist society was substituted by a new provision for ensuring ‘participation of women in national life’

Shariar Rashid Khan v. Bangladesh

In this case it was question before the parliament that whether Martial law proclamations and orders are the part of the constitution or not –

The argument on behalf of the petitioners was that the Indemnity Ordinance (Repeal) Act was ultra virus the Constitution. It was a legislation protected by the Paragraphs 3A and 18 of the 4th Schedule of the Constitution. As a protected Ordinance it needed 2/3 majority in the Parliament to repeal the Ordinance.

Attorney General submitted that by the Paragraphs 3A and 18, it was protected at best as ‘any other law’ not as part of the Constitution. Nowhere in the Constitution were the Ordinances etc declared to be the part of the Constitution to attract Article 142 procedure for the amendment. As an ordinary law of the land, it continued to remain in force as per the 4th Schedule. But it remained in force subject to the ‘alterations, amendment or repeal made by the competent authority. The Attorney General showed at least 12 different Ordinances promulgated after August 15, 1975 which were subsequently repealed by the Act of Parliament or even by the Ordinances. Say for example, the Supreme Court Judges (remuneration and privileges) Ordinance 1978 was amended by several other Ordinances from time to time. The High Court Division accepted the arguments of the Attorney General to hold that the Repeal Act was a valid piece of legislation.

In the same cases in Appeal In the words of ATM Afzal CJ:

All that is conferred upon the Indemnity Ordinance by Paragraph 3A and 18 is the stamp of validity and immunity from challenge. It all means is that the Constitution proclaims that the Indemnity Ordinance was validly made and shall not be questioned on any ground whatsoever. That is the mandate of the Constitution and no farther. To say that the Ordinance has become a part of the Constitution attracting Article 142 for its repeal is to read something which is clearly not there.

The subsidiary argument that without necessary amendment of paragraphs 3 A and 18, the Ordinance could not be repealed is also equally untenable. The heart of the argument seems to be that since approval was given to the Ordinance by a process of amendment of he Constitution, the same process is required to be gone through for its repeal. We don’t agree to the proposition. To give approval to a law is qualitatively different act from enacting the law itself. An Ordinance when approved in the Constitution remains an; it does not become a part of the Constitution.

Fifth Amendment case:

The judgment in 5th Amendment case declaring the 5th Amendment to the Constitution illegal delivered in 2005 by a Division Bench of the High Court Division has so far raised little hue and cry until May 4th 2009 when the Attorney General surprisingly moved a petition for withdrawing the leave-to-appeal petition in such a case having grave constitutional implications and interpretations. As the present government has decided not to continue the appeal any more, the Appellate Division has allowed filing of petitions for leave to appeal by Khandker Delwar Hossain and other two interveners. Apart from declaring the 5th Amendment illegal and ineffective, the judgment has also declared illegal and void the martial law proclamations, including the Martial Law Regulation 7 of 1977 that deals with abandoned property, and all actions done under the martial law between 15th August, 1975 and April 1979.

The court held that usurpation of the state power through martial law proclamation, particularly by Khondoker Mostaque Ahmed, Justice Abu Sadat Mohammad Sayem and Major General Ziaur Rahman was unconstitutional.

Justice A.B.M. Khairul Hoque held categorically in the judgment:

All acts and things done and actions and proceedings taken during the period from August 15, 1975 to April, 9, 1979 are condoned as past and closed transactions but such condonations are made not because those are legal but only in the interest of the Republic in order to avoid chaos and confusion in the society, although distantly apprehended, however, those remain illegitimate and void forever.

The preamble, Articles 6, 8, 9, 10, 12, 25, 38 and 142 remain as it was in the original Constitution. No condo nation is allowed in respect of these provisions of the Constitution. Besides, Article 95, as amended by the Second Proclamation Order No. IV of 1976 is declared valid and retained. Various Ordinances passed during the period between August, 1975 and April, 1977 are condoned.

Thus it is clear that on question of condo nation the court has adopted the method of pick and chooses. While declaring the whole amendment illegal and then accepting part of it as legal; condoning all laws passed by way of ordinances and then retaining the provisions in Article 95 as amended by the 5th Amendment seem irrational and needs further scrutiny by the Appellate Division.

Preamble and Bismillahir Rahmanir Rahim:

The original constitution did not use these religious words in the preamble of the constitution. These words, inter alia, were inserted by Proclamations (Amendment Order) Order, 1977 by late President Ziaur Rahman and in the very first edition of my book on Constitution, Constitutional Law and Politics this writer commented that these religious words were inserted with a political end. It was a constitutional tricks played by Ziaur Rahman especially to get quick support from a large section of people who are religious but illiterate and politically unconscious. The 5th Amendment judgment is completely silent about this meaning that if this judgment is upheld, Bismillahir Rahmainr Rahim will no longer be in the constitution although the law Minister is advocating that this would not be so.

Finally, if the judgment in the 5th amendment case is upheld, some important decisions by the Appellate Division in Halima Khatun V. Bangladesh, Sultan Ahmed V. Chief Election Commissioner, Haji Jaynal Abedin V. State, Jamil Haque V. Bangladesh, Nasiruddin V. Bangladesh, Khandakar Mostaque Ahmed V. Bangladesh, Khandker Ehtesamuddin Ahmed V. Bangladesh, Bangladesh V. Mahbubur Rashid, Presidents Secretariat V. K. Mahtabuddin Ahmed, Nasir Kader Siddiqui V. Bangladesh will be affected as these judgment accepted that martial law proclamation, regulation etc, were supreme law and the Constitution lost its character as supreme law.

3.6 The Sixth Amendment Act

After demise of President Ziaur Rahman, justice Sattar became the acting President of Bangladesh. But the question arose as to the validity of his post. Because, under articles 50 & 66(2) of the constitution a person cannot be the president of Bangladesh who holds the office of profite. According to article 66 of the constitution Prime minister, Vice-prime minister, minister of state and deputy minister were not the post of office of profit. That’s why it was required to amend article 66 of the constitution to give validity the post of Acting President Justice sattar and finally on 8th July 1981 the 6th Amendment was passed and inserted 66(2A) Article in to the constitution where it was stated that the post of President, Vice-president, prime minister, vice prime minister, minister, state minister and deputy minister shall not be treated as office of profit and can be the president of Bangladesh.

3.7 The Seventh Amendment Act

On March 24, 1982 HM Ershad overthrew President Sattar and suspended the constitution by proclamation. While such suspension covered even the basic features of the Constitution i.e. Article 1 (the Republic), Article 2, (the territory of the Republic), Article 3 (sate Language) and Article 4(national flag and anthem), the Country was called Bangladesh by courtesy. On 15 January 1985 by Chief Marital Law Administrator’s Order No 1 of 1985, the Constitution was partially revived. Articles 28, 29, 30, 34, 40, 42 and 102 were revived subject to certain conditions and modifications. On 10 November the proclamation of March 1982 was revoked and Martial law was withdrawn. 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.

Bangladesh High Court declares 7th amendment illegal

High Court ruled illegal the constitutional amendment that had legitimised the military rule by the theri army chief Lieutenant General Hussain Muhammad Ershad. General Ershad came to power in a military coup overthrowing the democratically elected government of the late president Justice Abdus Sattar on March 24, 1982. He proclaimed Martial Law and eclared himself the chief martial law administrator (CMLA), seizing powers of the chief executive and head of the government. Through the 7th amendment not only did he reinstate the constitution but also legitimised all his actions under martial law, regulations and orders. A two-judge bench comprising Justice AHM Shamsuddin Chowdhury and Justice Sheikh Md Zakir Hossain pronounced the verdict declaring the seventh amendment illegal on the ground that the said amendment is violated with the Constitution, but the actions under the laws, which were not detrimental to public interest, were condoned.

Actually this judgment allows that activities which were not detrimental to public interest and declared illegal that which is detriment to the rights of the citizen as well as the constitutional provisions.

The court went on to say:

The former President Ershad cannot avoid the liability as being a usurper, but the government holds the authority for awarding any suitable punishment for his acts.

3.8 The Eighth Amendment Act

This Amendment Act was passed on 7 June 1988. It amended Articles 2, 3, 5, 30 and 100 of the constitution. This Amendment Act

  • Declared Islam as the state religion;
  • decentralized the judiciary by setting up six permanent benches of the High Court Division outside Dhaka; The Supreme Court subsequently declared the amendment of Article 100 unconstitutional since it had altered the basic structure of the constitution.
  • amended the word ‘Bengali’ into ‘Bangla’- and ‘Dacca’ into ‘Dhaka’ in Article 5 of the constitution;
  • Amended Article 30 of the constitution by prohibiting acceptance of any title, honors, award or decoration from any foreign state by any citizen of Bangladesh without the prior approval of the president.

Eighth Amendment Case

The constitution (Eighth Amendment) Act, 1988, was passed amending article 100 of the constitution by setting up permanent Benches of the High Court Division outside the capital city Dhaka and the Supreme Court gripped with that constitutional issue which were challenged by two writ petitions on the ground that High Court division of the Supreme Court with judicial power over the republic is a basic structure of the constitution and that cannot be or damaged and therefore the impugned amendment is void. A division Bench of the High Court Division summarily dismissed the said two writ petitions. Leave was granted by the Appellate Division. This appeal along with other two appeals of Anwar Hussain Chowdhury v Bangladesh is popularly known as the constitution (Eighth Amendment) case.30 The power of amendment of the Constitution of the Republic of Bangladesh under Article 142 is not an unlimited power and that power conflicts with the concept of supremacy of the constitution provided by Article 7 of the Constitution. Article 7 of the Constitution has put an implied limitation on the power of amendment and therefore Article 7 is basic and unalterable. The counter argument was independence of judiciary and separation of powers is basic features of the constitution but the impugned amendment has not affected either of the two. And the power of amendment under article 142 is a constituent power not any ordinary legislative power.

B.H. Chowdhury, J.

Has listed 21 ‘unique features’ which are basic features of the constitution and they are not amendable. He finally held the impugned amendment violated the Articles 102 and 44 of the constitution.

Shabuddin Ahmed, J. further held that ‘constituent power’ in the sense of power to make a Constitution, belongs to the people alone and to vest the power to the parliament is a ‘derivative’ one and that derivative constituent power will not automatically make the amendment immune from challenge. And he further held that the impugned amendment has broken the ‘oneness’ of the High Court Division which is irreconcilable conflict with other Articles of the constitution relating to High Court Division. He listed sovereignty belongs to people, supremacy of the constitution , democracy , unitary state, separation of powers , independence of the Judiciary are the structural pillars of the constitution and they are, beyond any alteration or change by amendatory process. And the impugned amendment rendering the High Court Division virtually unworkable in its original form and shape.

Dissenting Judgment

Judgment of A.T. M. Afzal J. rejected the doctrine of basic structures on two grounds that it is unthinkable the makers of the constitution did not leave any option to the future generation but decided on all matters for all people. And secondly the makers of the constitution envisaged the so-called ‘basic features’ to be ‘permanent features’ of the constitution. He stressed on saying that sub Article (1A ) in article 142 provided the procedure of referendum which is more difficult to amend some provisions of the constitution which manifest*, ihat no other provision of the constitution is not basic that a referendum is required to be incorporated in the constitution. He feared that majority judgment in the eighth amendment case may be a ‘roadblock’for the future.

Despite that A.T.M. Afzal , J by restricting the basic features holds that the word “amendment” has a built -in limitation in that it does not authorize the abrogation or destruction of the constitution or any of its three structural pillars- executive, legislative and judiciary which will render the constitution unworkable. He also rejects the doctrine of implied limitation to the power of amendment and pursues to say that the limitation in Article 142 relates ‘only to procedure for amendment and not substantive’ in the sense that no article is beyond ‘he ambit of amendment.

Finally A.T.M. Afzal holds that the impugned amendment has not destroyed the High Court Division and the impugned amendment and notification not to be ultra virus on any grounds alleged.

 3.9 The Ninth Amendment Act

The Constitution (Ninth Amendment) Act 1989 was passed in July 1989. This amendment provided for the direct election of the vice-president; it restricted a person in holding the office of the PRESIDENT for two consecutive terms of five years each; it also provided That a vice-president might be appointed in case of a vacancy, but the appointment must be approved by the Jatiya Sangsad.

3.10 The Tenth Amendment Act

The Tenth Amendment Act was enacted on 12 June 1990. It amended, among others. Article 65 of the constitution, providing for reservation of thirty seats for the next 10 years in the Jatiya Sangsad exclusively for women members, to be elected by the members of the Sangsad.

3.11 The Eleventh Amendment Act

This Act was passed on 6 August 1991. It amended the Fourth schedule to the Constitution by adding a new paragraph 21 thereto which legalized the appointment and oath of Shahabuddin Ahmed, Chief Justice of Bangladesh, as the vice-president of the Republic and the resignation tendered to him on 6 December 1990 by the then President H M Ershad. This Act ratified, confirmed and validated all powers exercised, all laws and ordinances promulgated, all orders made and acts and things done, and actions and proceedings taken by the vice-president as acting president during the period between 6 December 1990 and the day (9 October 1991) of taking over the office of the president by the new President Abdur Rahman Biswas, duly elected under the amended provisions of the Constitution. The Act also confirmed and made possible the return of Vice-president Shahabuddin Ahmed to his previous position of the Chief Justice of Bangladesh.

3.12 The Twelfth Amendment Act

Twelfth Amendment: The Twelfth Amendment Act, passed on 6 August 1991 and approved by referendum in September, brought about a fundamental change to Bangladesh’s constitutional arrangements. It amended Articles 48, 55, 56, 57, 58, 59, 60, 70, 72, 109, 119, 124, 141A, and 142 of the Constitution with the following results:

The parliamentary form of government was re-introduced;

The President became the constitutional head of the state;

The Prime Minister became the head of the executive;

The cabinet headed by the Prime Minister became responsible to the Jatiya Sangsad;

The position of Vice President was abolished;

The office of President now became elected by the members of the Jatiya Sangsad.

3.13 The Thirteenth Amendment Act

The Constitution (Thirteenth Amendment) Act 1996 was passed on 26 March 1996. It inserted a new Chapter in Part IV of the Constitution (Chapter on Caretaker Government) and incidental changes in different Articles of the Constitution. It provided for a non-party Caretaker Government which, acting as an interim government, would give all possible aid and assistance to the Election Commission for holding the general election of members of the Parliament peacefully, fairly and impartially. The non-party caretaker government, comprising the Chief Adviser and not more than 10 other advisers, would be collectively responsible to the president and would stand dissolved on the date on which the prime minister entered upon his office after the constitution of the new Parliament

The Supreme Court has repealed the 13th Amendment to the constitution that introduced the caretaker government but said the next two general elections could be held under unelected rulers.

It, however, ruled that parliament may amend the charter deleting provisions that require the former chief justices or the judges of the Appellate Division to head the caretaker government.  The majority decision of a seven-member bench of the Appellate Division, headed by chief justice ABM Khairul Haque, was delivered on Tuesday, upon a petition against the High Court judgment that rejected an appeal challenging the 13th amendment.

The Supreme Court ordered on the ground that the system ol care taker government in inconsistent with the democracy contained in the preamble that’s why The Constitution (Thirteenth amendment) Act 1996 is prospectively declared void and ultra virus the Constitution.

But the election to the Tenth and the Eleventh Parliament may be held under the provisions of the above mentioned Thirteenth Amendment on the age old principles, namely that which otherwise is not lawful, necessity makes lawful).

Parliament, however, in the meantime, is at liberty to bring necessary amendments excluding, the provisions of making the former Chief Justices of Bangladesh or the Judges of the Appellate Division as the head of the Non-Party Care-taker Government. The court, at the same time, opined not to involve the judiciary in the process.

Amicus Curie

Senior lawyers, who were nominated as amicus curiae (friends of the court) of the hearing on the petition, have given mixed reactions over the verdict.

Rafiq-ul Haque told that

“The verdict is slightly contradictory, because it says the 13th amendment is illegal from today but adds that next two general elections can be held under the [caretaker government] system.”

M Zahir commented about the 13th amendment verdict that

“It is a nice verdict. We repeatedly said to keep the judiciary out of the caretaker government system. Our speech was reflected in the verdict.” He mentioned that the House was given the authority to enact law to keep justices away from the system.

Mohammad Amirul Islam said-

“The political parties will have to be responsible as the onus to find an alternative of the system lay with them. If they fail, the mammoth task will be on the last former chief justice He said there was no alternative to free, fair and acceptable elections in order to maintain constitutional continuity and stability of democracy. The current Election Commission has already conducted many fair elections which is a sign of our success,”.

I think that in a democratic country the system of non party care taker should not be revived. It has a long run effect for the democracy. But the politics of Bangladesh is not practiced soundly, every political party who hold the governing power try to hold it for ever, that’s why election commissioner, head of the care taker are appointed on the political basis for which the rough situation raised to over throw that person from their post. This amendment of the constitution has tried to overcome the non-democratic system of government. The system of care taker government can be treated as the black stigma of the democracy as well as the constitution of Bangladesh. 

3.14 The Fourteenth Amendment Act

Fourteenth Amendment: The Constitution (Fourteenth Amendment) Act, 2004 was passed on 16 May 2004. This amendment amended several articles of the Constitution:

A new Article 4A was inserted, for the preservation and display of the portraits of the President and the Prime Minister;

Clause (3) of Article 65 was amended regarding the seats reserved exclusively for women members in the Parliament;

Articles 96 (1), 129, and 139 were amended to raise the retirement age of the Judges of the Supreme Court, the Auditor General, and the Chairman and other members of the Public Service Commission (PSC); and

Article 148 was amended, to provide for the administration of the oath to newly-elected members of Parliament by the Chief Election Commissioner.

3.15 Fifteen Amendment:

The Parliament of Bangladesh, the Jatiyo Sangsad, passed the Constitution (15th Amendment) Bill, 2011 on 30 June 2011 to amend its constitution under which the caretaker government system for holding general elections was scrapped. The bill which contained 15 proposals was passed by division vote with a majority of 291-1.

The 15* amendment of the constitution brought the considerable change into the constitution. The 15* amendment of the constitution revived article 12 of the constitution which stated about secularism and prohibited the political party to use religion as the shield of politics, though there is a debate that where the state religion is Isiam under article 2A of the constitution, there how the concept of secularism is being adopted. Here it should be remembered that by the 15th amendment of the constitution article 2A of the constitution has given the equal status to other religion which was not existed before. This amendment tried to establish the original constitution of 1972.

15th amendment of the constitution abolishes the system of non party care taker government which will act as the medicine of democracy. But today it is the challenge for the government to ensure a free and fair election without care taker government because the opposition of the government is not interested to participate in next general election under the existing government.

Not only the opposition of the government but also another political paitutiontrties and the jurists opined in the view that under the supervision of the political party free and fair election is not possible. So they seek the care taker or interim government whatever the name may be, at the time of election.

The 15th amendment of the constitution tried to stop takeover of power through extra constitutional means by inserting article 7A and 7B into the constitution, though some scholar as shadin malik criticized it as the penal nature of the constitution. But I think this provision will remind the person who will try to hold the governing power of the state by extra constitutional means that he has to be prosecuted for doing it.

Article 7B of the constitution for the first time ascertaining the basic provisions of the constitution and where it is restricted the parliament not to amend the basic structure of the constitution. This amendment of the constitution recognized about 51 provisions as the basic features of the constitution, before this amendment the SC would be identified that which provisions of the constitution shall be treated as the basic provisions of the constitution but by this amendment the ambiguity of the basic features has been removed.

In article 95 of the constitution it has been inserted that the other justice of the SC shall be appointed by the President with the consultation of chief justice. This provision will be helpful for the higher judiciary to be independence.

The portrait of the Father of the nation Bangbandhu Sheikh Mujibur Rahman shall be preserved and display at the offices of the President, the Prime Minister, the Speaker, and the Chief Justice and in head and branch offices of all government and semi-government offices, autonomous bodies, statutory public authorities, government and non-government educational institutions, embassies and missions of Bangladesh abroad.

Incorporation of historic speech of the Father of the Nation Bangabandhu Sheikh Mujibur Rahman on March 7, 1971, declaration of independence by Bangabandhu after midnight of March 25, 1971 and the proclamation of Independence declared at Mujibnagar on April 10, 1971

Chapter 4

WHETHER BASIC FEATURE OF THE CONSTITUTION CAN BE AMEND OR NOT?

4.1 Basic Structure:

In 1967, at first the basic structure issue raised before the India SC in Golak Nath case, where it was stated by Justice Subbarao that the basic structure of the constitution is not possible to alter by amendment, though this case was more dealt about the amendment of fundamental human right than the basic structure of the constitution.

In this case it was also contended that the parliament has no authority to amend the constitution in violation of fundamental human right. But in 1971 the parliament of India by 24th amendment it was inserted into their constitution that the parliament can amend the constitution in violation of fundamental human right and the provision of that amendment was that no court can challenge the constitutionality of the amendment.

In 1973 the constitutionality of 24th and 25th amendment of the India constitution had been challenged in Kesavanda Bharati case where the majority Justice of India SC opined that Parliament cannot amend the basic structure of the constitution and it is also the basic structure of the constitution to scrutiny the validity of law by the court.

In keshavananda case justice of India SC held that the followings are the structural pillar of the constitution of India-

  1. Supremacy of the Constitution
  2. Separation of Powers between the legislature, the executive and the judiciary
  3. Republican and the democratic form of Government;
  4. Secular character of the Constitution
  5. Federal character of the Government
  6. The dignity of the individual secured by the various Fundamental Rights and the mandate to build a welfare state contained in the directive principles
  7. The unity and integrity of the nation
  8. Parliamentary system.

In keshavanandi case justice of India SC held that the followings are the structural pillar of the constitution of India-

  1. Supremacy of the Constitution
  2. Separation of Powers between the legislature, the executive and the judiciary
  3. Republican and the democratic form of Government;
  4. Secular character of the Constitution
  5. Federal character of the Government
  6. The dignity of the individual secured by the various Fundamental Rights and the mandate to build a welfare state contained in the directive principles
  7. The unity and integrity of the nation
  8. Parliamentary system.

In 1976 the India parliament brought up 42th amendment of the constitution and 368(4) article has been inserted and stated that no question shall be lied before the court as to the any amendment of the constitution.

In 1980 the constitutionality of the 42th amendment was challenged in Minerva Mills’s case and it was stated by the Justice that the parliament has no jurisdiction to change the basic structui e of the constitution and if the parliament do so SC has the jurisdiction to declare the amendment void. The court also stated that if the amendment curtailed the power of SC to scrutiny the validity of the constitutional amendment it will be also treated as the change of the basic features of the constitution.

On the influence of the above mentioned cases in Anwar Hossain Chowdhury case the SC of Bangladesh held that the basic structure of the constitution is not amendable.

4.2 Meaning of Basic Features:

The Basic structure is a doctrine which was first adopted by the supreme court of India in Kesavananda Bharati case. Actually the basic structure of the constitution indicated some articles of the constitution which is regarded as the pillar of the constitution upon which the constitution stands.

If the basic structure of the constitution is changed or altered by the amendment of the constitution the whole constitution falls down. The SC of Bangladesh has been adopted the basic structure doctrine in the 8th amendment case. B.H. Chowdhury, Justice of 8th amendment case of the constitution has listed 21 as basic structure of the constitution. Another justice of this case Shahabuddin Ahmed declared that -sovereignty belongs to people, supremacy of the constitution, democracy , unitary state, separation of powers , independence of the Judiciary are the structural pillars of the constitution.

4.3 Whether Basic Structure of the Constitution is Amended or not?

Whether Basic Structure of the Constitution is Amended or not? This issue has been decided by the 8th amendment case of the constitution in Bangladesh .Not only this case, but also there are some case of India as Kesavanandi case, in Indira Gandhi case , in Golok Nath case, where the issue of basic structure came before the court. In Kesavanandi and Indira Gandi case the supreme court of India declared that the basic structure of the constitution cannot be amended. This doctrine has been adopted in Bangladesh for the first time in Anwar Hossain Chowdhury v. Bangladesh case.

Fact of 8th Amendment case.

The constitution (Eighth Amendment) Act, 1988, was passed amending article 100 of the constitution by setting up permanent Benches of the High Court Division outside the capital city Dhaka and the Supreme Court gripped with that constitutional issue which were challenged by two writ petitions.

The Issue of 8th Amendment Case:

In deciding the constitutionality of 8th amendment, two issues raised before the SC of Bangladesh which are given below:

Whether in exercise of power under article 142 parliament can alter the Basic structure of the Constitution or not?

Whether by amen dment of article 100 any basic structure of the constitution had been destroyed or not?

In view of Justice B.H Chowdhury, the first issue’s answer is negative and second one is positive in deciding this case he stated that-

The term ‘amendment’ implies such an addition or change within the lines of the original instrument as will effect an improvement or better carry out the purpose for which it was farmed’

Justice B.H Chowdhury further stated that-

‘Some of the features of are the basic structure of the constitution and they are not amendable by the amendment power of the parliament. In the scheme of article 7 and therefore of the constitution the structural pillars of parliament and judiciary are the basic and fundamental. It is inconceivable that by its amending power the parliament can deprive itself wholly or partly of the plenary legislative power over the entire Republic’

Justice B.H Chowdhury also contended that-

The power of amendment of the Constitution of the Republic of Bangladesh under Article 142 is not an unlimited power and that power conflicts with the concept of supremacy of the constitution provided by Article 7 of the Constitution. Article 7 of the Constitution has put an implied limitation on the power of amendment and therefore Article 7 is basic and unalterable. The counter argument was independence of judiciary and separation of powers is basic features of the constitution but the impugned amendment has not affected either of the two. And the power of amendment under article 142 is a constituent power not any ordinary legislative power.

Finally, B.H. Chowdhury, J. has listed 21 ‘unique features’ which are basic features of the constitution and they are not amendable. He accepted the contention of the appellants that the impugned amendment is to be tested against article 7 because the amending power is but a power given by the constitution to the parliament and although that is a higher power than other given by the constitution to the parliament, it is nevertheless a power within and not outside the constitution. The impugned amendment according to B.H Chowdhury that this amendment has directly violated two articles, namely articles 102 and 44 without amending expressly article 94 to 116 of the constitution.

It has disrupted the provisions in relation to the judiciary given in article 94 by introducing some alien concept or permanent benches conferring specifically jurisdictions, powers and functions of the HCD, thereby creating seven rival courts to the HCD, doing something indirectly which cannot be done directly. It has disrupted the constitutional fabric of article 102 by introducing territorial concept fraught with innumerable difficulties and incongruities.

In the same case Justice Shahabuddin Ahmed noted the difference the difference between the constituent power of adopting a constitution and the derivative power of amending the constitution and having regard to the connotation of the term ‘amendment ‘took the view that amendment of the constitution does not mean its abrogation or destruction or change resulting in the loss of its identity and character

Shahabuddin Ahmed, J. further held that ‘constituent power’ in the sense of power to make a Constitution, belongs to the people alone and to vest the power to the parliament is a ‘derivative’ one and that derivative constituent power will not automatically make the amendment immune from challenge. And he further held that the impugned amendment has broken the ‘oneness’ of the High Court Division which is irreconcilable conflict with other Articles of the constitution relating to High Court Division.

He listed sovereignty belongs to people, supremacy of the constitution, democracy, unitary state, separation of powers, independence of the Judiciary are the structural pillars of the constitution and they are beyond any alteration or change by amendatory process. And the impugned amendment rendering the High Court Division virtually unworkable in its original form and shape.

Actually Justice Shahabuddin Ahmed in his decision emphasized on the ground the of unitary character of the Supreme Court and made a clear between the constituent power of the parliament and derivative power of the parliament. He did not recognize the amendment of the constitution as law within the meaning of article 7 and 26 of the constitution because of its enacting procedure.

In deciding the first issue of the case Justice M.H Rahman relied on the preamble as the touch stone to test the constitutionality of the constitutional amendment. He stated the basic principles which placed in the Preamble of the constitution shall not be amended because it can not directly impair or destroyed the fundamental aims of the society

Justice Shahabuddin Ahmed observed that –

The High Court Division as an integral part of the Supreme Court has lost its original character as well as most of its territorial jurisdiction. Seven judicial bodies, by whatever name they are called, Benches or Courts, are, to all intents and purposes, independent courts having no relation with each other except a thin link through the Chief Justice. The ‘High Court Division’ sitting in the permanent seat is not the original High Court Division with jurisdiction over the whole of the Republic, it is a court with limited territorial jurisdiction –

It can be seen that B.H. Chowdhury, S. Ahmed and A.T.M. Afzal J agreed that the expression ‘amendment’ is a word of limited import and at any rate it does not cover repeal or destruction of the essential pillars of the Constitution. If we carefully consider the observation of Afzal J that it will be seen that the difference in the opinion of Afzal J with the opinion of B.H. Chowdhury J and S. Ahmed J is minimal.

Coming to the question whether the amendment of art. 100 affected the basic structure of the Constitution, three learned Judges found that the High Court Division with plenary judicial power over the entire Republic is a basic structure of the Constitution and the amendment having destroyed the plenary judicial power of the High Court Division altered the basic structure of the Constitution and is, therefore, void.

Justice B.H. Chowdhury held that-

The amended sub-Article (5) has disrupted structural balance that was carefully erected in Part VI of the Constitution. If sub-article (5) attempted to create two new sets of Courts by a device terming them as ‘permanent Benches’ and the ‘Bench at the permanent seat’ then… the least that can be said is that it is hit by Article 114 which enables the legislature for setting up subordinate courts of law but such must not be of co-ordinate jurisdiction or compete with Article 44… Sub-article (5) has clearly destroyed the structural pillar of the Constitution as given in Article 94 and thus has violated the mandate of the Constitution and further brought itself within the mischief of the provisions of Article 7(2). that is, the jurisdiction over what is called the “residuary area’ in clause (5) of the impugned Article … High Court Division, as contemplated in the unamended Article is no longer in existence and as such the Supreme Court, one of the basic structures of the constitution, has been badly damaged, if not destroyed altogether.

The learned dissenting Judge, A.T.M. Afzal J held –

It is clear that in matters of exercise of judicial power, the High Court Division has been treated separately in the Constitution and the impugned amendment is but only an extension of such treatment. What is important to remember is that no other Art of Chapter I has been amended (except 107(3) which is consequential) it must be presumed that the integrity of the Supreme Court/High Court Division with its unlimited territorial jurisdiction has not been impaired and the High Court Division has remained one as before and therefore the impugned amendment has to be construed in harmony with all other provisions of Chapter I.

The learned Judge drew a distinction between jurisdiction in relation to an area and jurisdiction within an area. It is submitted that the distinction is really not material. Sub-art.(5) provided that the President would assign the area in relation to which each permanent Bench would have jurisdiction and the area not assigned would be the area in relation to which the High Court Division at the permanent seat would have jurisdiction. This made it clear that the jurisdiction of the High Court Division at the permanent seat would be limited to the unassigned area, while the jurisdiction of a permanent Bench would not extend to the area not assigned to it. The rules framed made the position further clear.

4.4 Fifteenth Amendment of the Constitution and Basic provisions:

Basic features of the constitution were considered by the court from time to time before the 15th amendment of the constitution. By inserting article 7B into the constitution the basic provisions of the constitution has been ascertained. This amendment of the constitution has recognized about 5 1 articles as the basic provisions of the constitution and this article of the constitution also stated that the basic provisions of the constitution shall not be amended.

Article 7B of the constitution is given below-

“Notwithstanding anything contained in article 142 of the constitution, the Preamble, all articles of part I ,all articles of part II, subject to the provisions of part IXA, all articles of part III, and the basic structure of the constitution including article 150 of part XI shall not be amendable by way of insertion, modification, substitution, repeal or by any other means. “‘

Chapter 5

COMPARISON BETWEEN UK, USA AND INDIA’S CONSTITUTIONAL AMENDMENTS

  • Procedure of UK Constitutional Amendment

The procedure of UK constitutions are-

5.1.1 Flexible constitutions

A flexible constitution is one that may be amended by a simple act of the legislature, in the same way as it passes ordinary laws. The ‘un codified’ constitution of the United Kingdom consists partly of important statutes, and partly of certain unwritten conventions. The statutes that make up the UK constitution can be amended by a simple act of Parliament. UK constitutional conventions are held to evolve organically over time.

  • Special majority

The constitutions of a great many nations provide that they may be amended by the legislature, but only by a special, extra large majority of votes cast (also known as a supermajority, or a “qualified” or “weighted” majority). This is usually a majority of two-thirds the total number of votes cast. In a bicameral parliament it may be required that a special majority be achieved in both chambers of the legislature. In addition, many constitutions require a that an amendment receive the votes of a minimum absolute number of members, rather than simply the support of those present at a meeting of the legislature which is in quorum.

  • Process of Amendment

Some constitutions may only be amended with the direct consent of the electorate. In some states a decision to submit an amendment to the electorate must be triggered by the legislature via a legislatively-referred constitutional amendment. In others, a constitutional amendment may be triggered through the process of an initiated constitutional amendment.

  • Successive Majorities

Some jurisdictions require that an amendment be approved by the legislature on two separate occasions during two separate but consecutive terms, with a general election in the interim. Under some of these constitutions there must be a dissolution of the legislature and an immediate general election on the occasion that an amendment is adopted for the first time.

  • Special Requirements

An amendment to the United States Constitution must be ratified by three-quarters of either the state legislatures, or of constitutional conventions specially elected in each of the states, before it can come into effect.

  • Prohibited Amendments

Some states restrict the kind of amendment to which they may be subject. This is usually to protect characteristics of the state considered sacrosanct, such as the democratic form of government or the protection of fundamental human rights.

Article Five of the U.S. Constitution prohibits any amendments which would deprive a state of its “equal Suffrage in the Senate” without that state’s consent.

Section 284 of Article 18 of the Alabama State Constitution states that legislative representation is based on population, and any amendments are precluded from changing that.

  • Form of changes to the text

The manner in which constitutional amendments are finally recorded takes two main forms. In most jurisdictions, amendments to a constitution take the form of revisions to the main body of the original text. Thus once an amendment has become law, portions of the original text may be deleted or new articles may be inserted among existing ones. The second, less common method, is for amendments to be appended to the end of the main text in the form of special articles of amendment, leaving the body of the original text intact. Although the wording of the original text is not altered, the “doctrine of implied repeal” applies. In other words, in the event of conflict, an article of amendment will usually take precedence over the provisions of the original text, or of an earlier amendment. Nonetheless, there may still be ambiguity as to whether an amendment is intended to supersede an existing article in the text or merely to supplement it. An article of amendment may, however, explicitly express itself as having the effect of repealing a specific existing article.

  • Procedure of USA Constitutional Amendment

Article Five of the United States Constitution describes the process whereby the federal Constitution may be altered. Twenty-seven amendments have been added (appended as codicils) to the Constitution.

Amendment proposals may be adopted and sent to the states for ratification by either:

Two-thirds (Supermajority) vote of members present—assuming that a quorum exists—in both the Senate and the House of Representatives of the United States Congress;

By a Two-thirds (Supermajority) vote of a national convention called by Congress at the request of the legislatures of at least two-thirds (at present 34) of the states.

All thirty-three amendment proposals that have been sent to the states for ratification since the establishment of the Constitution have come into being via the Congress. State legislatures have however, at various times, used their power to apply for a national convention in order to pressure Congress into proposing a desired amendment.

For example, the movement to amend the Constitution to provide for the direct election of U.S. Senators began to see such proposals regularly pass the House of Representatives only to die in the Senate from the early 1890s onward. As time went by, more and more state legislatures adopted resolutions demanding that a convention be called, thus pressuring the Senate to finally relent and approve what later became the Seventeenth Amendment for fear that such a convention—if permitted to assemble—might stray to include issues above and beyond just the direct election of U.S. Senators.

To become an operative part of the Constitution, an amendment, whether proposed by Congress or a national Constitutional Convention, must be ratified by either (as determined by Congress):

The legislatures of three-fourths (at present 38) of the states

or

State ratifying conventions in three-fourths (at present 38) of the states.

Congress has specified the state legislature ratification method for all but one amendment. The ratifying convention method was used for the Twenty-first Amendment, which became part of the Constitution in 1933.

Since the turn of the 20th century, amendment proposals sent to the states for ratification have generally contained a seven year ratification deadline, either in the body of the amendment or in the resolving clause of the joint resolution proposing it. The Constitution does not expressly provide for a deadline on the state legislatures’ or state ratifying conventions’ consideration of proposed amendments. In Dillon v. Gloss (1921), the Supreme Court affirmed that Congress—if it so desires—could provide a deadline for ratification. An amendment with an attached deadline that is not ratified by the required number of states within the set time period is considered inoperative and rendered moot.

An amendment becomes operative as soon as it reaches the three-fourths of the states threshold. Then, once certified by the Archivist of the United States, it officially takes its place as an article of the Constitution. An amendment is a change to a country’s constitution or, in America, to a state constitution.

  • Procedure of Indian Constitutional Amendment

Indian Constitution is a balanced Constitution. The framers of the Constitution desired to secure balance and moderation in incorporating various provisions in our Constitution. As far as the amendment of the Constitution is concerned, a balance is struck in making the Constitution partly rigid and partly flexible.

A flexible Constitution is one, which can be easily amended like ordinary law of the land. On the contrary, a rigid Constitution is one whose amendment is very difficult and where there is a distinction between the amendment of constitutional law and ordinary law. Both the types of Constitutions had their merits and demerits.

But the framers of the Indian Constitution did not go to the extreme. They incorporated a unique procedure of amendment which combines both rigidity and flexibility. Article 368 of Constitution deals with procedure of amendment of the Constitution. The Constitution can be amended in three different ways :-

(a) Some categories of amendment like creation of new States, creation or abolition of second chamber of the States, changes in the citizenship, etc., require only a simple majority in both the Houses of the Union Parliament. In this case amendment of the Constitution is made in a flexible manner.

(b) Certain other provisions of the Constitution in order to be amended require a majority of the total membership in each House of Parliament and a majority of not less than two-thirds of the members present and voting in each House of parliament. The bulk of the Constitution can be amended in this way.

(c) Certain categories of amendment like the Presidential powers and mode of election, the extent of the Executive and Legislative Powers of the Union or the States, the provision regarding the Supreme Court and the High Court, the representation of States in Parliament etc. require :-

  1. A majority of the total membership in each House of Parliament.
  2. A majority of not less than two-thirds of all the members present and voting in each House of Parliament, and
  3. Ratification by the legislatures of at least one half of the States.

The analysis of the above three procedures of the Indian Constitution reveals that the amendment procedures strike a wise balance between rigidity and flexibility:- K. C. Where, eulogizing the procedure of amendment of Indian Constitution, observes. “This variety in the amending process is wise but is rarely found” The process of amendment is a dynamic one. It does not stop the growth of a nation.

In this connection, it is worthwhile to quote Pundit Nehru who clearly stated, “While one wants this Constitution to be as solid and permanent as we can make it, there is no permanence in the Constitution. There should be certain flexibility. If you make anything rigid and permanent, you stop the nation’s growth, the growth of a living vital organic people. While the world is in turmoil and we are passing through a swept period of transition, what we may do today may not be wholly applicable tomorrow”.

Thus, our Constitution strikes a balance between the extreme flexibility of the British Constitution and the extreme rigidity of the American Constitution. Dr. B. R. Ambedkar rightly said that “….this Assembly has not only refrained from putting a seal of finality and infallibility upon the Constitution by denying the people the right to amend the Constitution as in Canada, or by making the amendment of the Constitution subject to the fulfillment of extra-ordinary terms and conditions as in America or Australia, but has provided a most facile procedure”.

  • Comparisons among constitutional amendment of Bangladesh, UK, USA and India

UK & USA

In the United Kingdom, they have a parliamentary form of government which means that the executive is responsible to the legislature. The ministry remains in office so long as it enjoys the confidence of the House of Commons and it must resign as soon as it loses the confidence of the House of Commons. The Ministers sit in parliament and are answerable to it. The head of the judiciary in the United Kingdom is lord Chancellor who is not only member of the British Cabinet but also preside over the House of Lords. On the other hand, in the United States, they have presidential form of government in which the executive is not responsible to the legislature. The person who is elected as president holds his office for 4 years and no adverse vote to the congress can force him to resign.

The American constitution is based on the principles of separation of powers. The American president, the American congress and the supreme court of America are all independent of one another. The Supreme Court can declare ultra vires any law passed by the congress. All the three organs of the government are independent of each other. On the other hand, there is mixed separation of powers in the United Kingdom.

The United Kingdom has a unitary form of government and all powers are centered in the hands of the central government. In  the United states, they have a federal form government in which authority is divided between the federal government and the states pleases. There is absolutely no check on it. It can pass any law it pleases. That is not so in the US. The American Congress can pass laws only on those matters which are given to it by the American Congress. The American Congresses limited powers and if any law is passed by the American Congress which is outside the powers given to it by the Constitution the Supreme Court can declare the same ultra verse. Thus, the American Congress is not as sovereign as the British Parliament. There is double citizenship in the United States. A person is not only a citizen of a state but also of the Federal Government. In the United Kingdom there is only single citizenship.

An American has to obey two sets of laws. Those laws are made by the federal Government and the states. He has to pay two kinds of Taxes, levied by the American Congress and taxes levied by the State Legislature. In the United Kingdom, a person has to obey only those laws which have been passed by British Parliament. He has also to pay only those taxes which have been levied by the British Parliament.

The British Constitution is party written and partly unwritten and the unwritten and part is more important than the written part. However it is not so in the United States. The Constitution which is in force in the United States was adopted in1987. The American constitution is to be found in a document which can be easily referred to. The case is different is the United Kingdom. There is charter or document which contains the whole of the constitution of the United Kingdom. It is scattered in many places.

The British constitution is flexible. It can be amended without much difficulty .As a matter of fact; it can be amending by the same parliament following the ordinary procedure. There is no distinction in the procedure followed in amending the constitution and passing an ordinary law in England In the case of the United States, the method for the amendment of the constitution is different from that followed for passing ordinary laws. A constitutional amendment must be approved of by two laws. A constitutional amendment must be approved of by two-thirds majority of the congress and three – fourths of the states .The American constitution is so rigid that only 27 amendments have taken place so far.

In England, the executive consists of two pans The Queen of England is the national executive and the real executive is the British Cabinet. The Case is different in the United States. There is no nominal executive. The American President is the real executive. The office of kingship in England is hereditary but the office of the President is not hereditary. The American President is elected only for four years. It is true that he can continue in office for another term of 4 years but to do so he must get himself re-elected. After 8 years of office he cannot be elected even, although me King or Queen of England can go on ruling so long as he or she continues to live.

In the United States the Supreme Court can declare any law ultra varies. That is due to the fact that the American Legislature enjoys enumerated powers. However the doctrine of judicial review is absent in the United Kingdom. The British Parliament is Supreme and it can pass any law and no Court in the United Kingdom can say that a particular law passed by the British Parliament is invalid or ultra varies.

INDIA

Indian Constitution is flexible constitution , which can be easily amended like ordinary law of the land as Bangladesh. On the contrary, a rigid Constitution is one whose amendment is very difficult and where there is a distinction between the amendment of constitutional law and ordinary law. Both the types of Constitutions had their merits and demerits.

But the framers of the Indian Constitution did not go to the extreme. They incorporated a unique procedure of amendment which combines both rigidity and flexibility. Article 368 of Constitution deals with procedure of amendment of the Constitution. The Constitution can be amended in three different ways :-

(a) Some categories of amendment like creation of new States, creation or abolition of second chamber of the States, changes in the citizenship, etc., require only a simple majority in both the Houses of the Union Parliament. In this case amendment of the Constitution is made in a flexible manner.

(b) Certain other provisions of the Constitution in order to be amended, require a majority of the total membership in each House of Parliament and a majority of not less than two-thirds of the members present and voting in each House of parliament. The bulk of the Constitution can be amended in this way.

(c) Certain categories of amendment like the Presidential powers and mode of election, the extent of the Executive and Legislative Powers of the Union or the States, the provision regarding the Supreme Court and the High Court, the representation of States in Parliament etc. require :-

  1. A majority of the total membership in each House of Parliament.
  2. A majority of not less than two-thirds of all the members present and voting in each House of Parliament, and
  3. Ratification by the legislatures of at least one half of the States.

Chapter 6

FINDINGS, RECOMONDATIONS AND CONCLUSION  

6.1 Findings:

When I worked my research with the topic named parliaments limit of amending Constitution, sometimes I thought if I sit as a member in the amendment committee, what will happen by me? Because, the Article- 142 make itself ambiguity words which may be make positive of negative thinking. After 7 days of presentation of the Bill to the president, if he not gives his consent, he shall deem to have assented. So, why it need to present to the president? The power of president is like a doll here.

I appreciate the consent of two-third majority. Because, if the amendment procedure is so much flexible, wrong doer have a chance to amend the Constitution with their wish from time to time. Like- Fifth Amendment, 1979 where the military took the administration of our country by force. When I read newspaper for the purpose of referring hi my research work, I found some of the word used by member of different political party is ambiguous like-public interest.

On the other hand I faced some confusing word which sometimes makes a negative approach that is the State policy is depend on the wish of different political party or depend on the wish of people?

In Article-142(1C) refer that, the president is assented to the Bill if referendum is passed with majority vote. Through this provision the Constitution again help me to remember what stated in the Article-7 of the Constitution. Where, all powers in the Republic given to the people.

  • Recommendations:
  1. This Research recommends that the parliament should amend the followings articles of the constitution to represent a democratic country. Article 33 of the constitution provides for the provisions relating to preventive detention by which persons are detained only by the satisfaction of the government which is against the rules of natural justice. Under the influence of article 33 of the constitution Special powers Act 1974 was enacted which is treated as the black law. So part of the article 33 of the constitution deals about preventive detention that should be amended by the parliament under article 142 of the constitution.
  2. Under Chapter two of the constitution the prime minister exercises huge power than president of Bangladesh. Actually the president of Bangladesh is the titular head of the state. Except appointment of prime minister and Chief justice of SC, the president has to perform all activities with the consultation of prime minister. There is no balance of power between president and prime minister. So parliament should balance the power between the president and prime minister by constitutional amendment.
  3. Article 70 of the constitution is called as the black stigma of the constitution. This article of the constitution is against the democracy. Article 70 of the constitution is the virus for democracy. This article of the constitution violates the fundamental human right guaranteed under article 39 of the constitution. This article stated that if any member of parliament votes against his party in the parliament his or her seat of the parliament shall be vacated. This article hampered the Member of Parliament in legislation. So, article 70(b) of the constitution should be amended by the parliament.
  4. Article 67(b) of the constitution stated that if any member of parliament is absent from parliament, without leave of parliament, of .ninety consecutive sitting days, his or her seat shall be vacated from the parliament. On the plea of this article the opposition of the government away from the parliament and when the ninety consecutive days are knocking at the door, then the opposition party goes to the parliament to protect their parliamentary seat. Because of this article of the constitution the members of parliament are away from the representation of house. The provision of 90 days should be reduced to protect the democracy.
  5. Article 77 of the constitution has dealt with the Ombudsman where it is stated that the parliament may, by law, provide for the establishment of the office of Ombudsman. But this provision of the constitution is fully ineffective except revenue ombudsman. By bringing amendment this provision should make effective.
  6. Article 49 of the constitution empowers the president to grant pardons, reprieves and respites and to remit suspend or commute any sentence passed by any court, tribunal or other authority. It has been observed that the president with or without his wish has to pardon the political culprit by showing this authority. President Yeas Uddin and the existing president Zillur Rahman had to pardon the convicted murderer. This article of the constitution is used malafidely.

6.3 Conclusions

A Constitution is a system of basic laws and principles for the Government of a nation. It differs from an ordinary statute or law in that a statute must provide, at least to a certain degree, the details of the subject it treats, whereas a Constitution usually gives the general principles, framework of the law and Government.

In conclusion I would like to make a proposal for the amendment of Bangladesh Constitution. The Government of the State may ask to the people of Bangladesh whose rights are directly related with the amendment. The recent Government was passed in election with the voice of ‘Digital Bangladesh’. In digital world, the people are more introduced with technology.

The amendment of Constitution is the wide power of parliament where opposite political party bars themselves from vote in time of a governing party. For that leading party get a chance to amend the Constitution easily by their major vote. On the other hand, when the opposite party comes to the lead they change the Constitution on behalf of them. The constitution amended for fourteenth time in thirty eight years history of Bangladesh. Many times the Constitution was amended to act only behalf of Government which is a shame for our country where we having a great success in our independent history. For that, the power of parliament needs to be limited.

REFERENCES

BOOKS

  1. Mahamudul Islam, The Constitutional Law of Bangladesh, 2nd ed. (Dhaka: Mullick Brothers, 2003).
  2. Justice Mustafa Kamal, Bangladesh Constitution: Trends and Issues.1st ed. (Dhaka: City Law Book).
  3. Md Abdul Halim, Constitutional Law And Politics: Bangladesh perspective, 4th ed. (CCB Foundation, 1998).
  4. 4. O’ Hood Philips, Constitutional And Administrative Law 8th (Sweet And Maxwell, 2001).
  5. Moudud Ahmed, Bangladesh: The Constitutional Quest for Autonomy 1st ed. (Dhaka: UPL, 1979).

WEBSIGHTS

  1. 1. http://www.commonlii.org/ Last visited on 23.03.2014.
  2. http://www.thedailystar.net/ Last Visited on 23.03.2014.
  3. http://www.thefinancialexpress-bd.com/Last Visited on 23.03.2014.
  4. http://www.virtualbangladesh.com/ Last Visited on 23.03.2014.
  5. 5. http://en.wikipedia.org/ Last Visited on 23.03.2014.
  6. http://www.theprothomalo.net/ Last Visited on 23.03.2014.
  7. http://ballotpedia.org/Constitutional_amendment/ Last visited on 13 Mar 2014.

CASES

  1. Anwar Hossain Chowdhury v. Bangladesh, 41 DLR (AD) 165.
  2. Golak Nath v. The State of Punjab, AIR 1965 (SC) 845.
  3. Halima Khatun v. Bangladesh, 30 DLR SC (1978).
  4. Kesavanda Bharati v. state of Kerala, 207 AIR 1973( SC).
  5. Mukhlesur Rahman v. Bangladesh, 32 DLR.
  6. Anwar Hossian (Md) and others v. state and others: 55DLR 643.
  7. Minerva Mills Ltd v. Union of India, 1461 AIR 1980 (SC).
  8. Shariar Rashid Khan v.Bangladesh, 26 DLR (SC) 144.