Chapter – 1.
1.1 Aims and objectives:
By instinct man is gregarious and lives in company of his fellow beings. This led to the emergence of society and the rules to regulate the conduct of the members of the society. The association was not, however, for mere companionship, but to achieve various objectives and purposes. The modern formation of man and society is the formation of State. State is run by following a supreme law of the land. The Supreme law of our laws is called the constitution of the people’s Republic of Bangladesh, which was had in 1972. The aims and objectives of the amendment of Bangladesh Constitution 1972 and their impact in Legal History are stated below:
(1) To understand and realize the amendment of Bangladesh Constitution 1972.
(2) To assess the impact of the amendment in the legal History.
(3) To assess the impact of the amendment in the practical activities of the whole citizens.
(4) To recommend in avoiding the lacuna of the amended constitutional provisions.
1.2 Importance of the study:
The emergence of State speaks the administrative system for protecting the interest of its citizens. It is the fundamental duties of the state to protect the inalienable or fundamental rights of the citizens. The importance of the amendment of Bangladesh constitution 1972 is undeniable in terms of the inalienable rights of Bangladeshi citizens. They are as follows:
(1) to identify whether the amendment of the constitution has contracted the fundamental rights.
(2) to recommend in avoiding the lacuna for safeguarding and upgrading the fundamental rights.
1.3 Scope and limitations
Scope of the study:
Every law contains a periphery or a scope, At the same time, it keeps some limitations. Nothing has absolute scope except the absolute being or entity.
The scope of the study is determined within the boundary of the amended constitutional provisions of 1972 constitution. Hence it is indispensable to project the amended constitutional provision based legal area.
1.4) Limitation of the study:
The given research monograph does not permit to criticize or discuss about the constitutional lacuna of Bangladesh constitution, 1972. There are many lacunas of Bangladesh constitution, 1972 for which the entire good governance and the fundamental human rights of the citizens are destroyed. Here is no scope to discuss or criticize about the basis /foundation. It is necessary to discuss about the severe lacuna based Law. The constitution of Bangladesh, 1972 itself contains some severe lacunas which are not pertinent of the given research monograph. The limitations like the following example.
Mr. Aziz is an engineer. He is empowered to examine and report from the first to 13th floor except the ground floor and the foundation of a building.
1.5 Research Methodology:
Data have been generated from both the primary and secondary sources:
In order to understand the deepness of the given research monograph, I have first of all, collected all amendments, the original constitution of Bangladesh, 1972 and other related documents. Then I have discussed about the amendments of the constitution and finally have thought very deeply again and again. By this methodology, I have completed the research monograph.
A combination of methods have been. applied to obtain data which included:
– Observation with a checklist.
– Study of Bangladesh (Original) constitution of 1972.
– Study of Bangladesh Constitution (amended up to 1998)
– Discussion with experts and others.
1.6 Research Policy:
Although there is no enlightened policy in our country in the domain of research. I have tried to follow the ‘Research Action Policy1 It has been applies to the best of my ability.
2.1 Commonly it is known to us that constitution the supreme or basic law of a country. The administrators according to constitution run the entire administrative system of any state. So a constitution is, there fore, the basic design of the structure and powers of the government and the rights and duties of its citizens. There can be no state without a constitution. Sometimes the constitution of a state is definitely formulated in a document or documents; sometimes it is found in an established body of rules, maxims, traditions and practices in accordance with which its government is organized and its powers are exercised”1
2.2Meaning of amendment:
The word amendment denotes “the removal of faults or errors, reformation. 1 In the constitutional law amendment means the removal or the reformation of the constitutional provision for the purpose of equipping with the present and future needs of the citizens. Again, the word amend may have Different nuances of meaning in different contexts, like ‘amend one’s conduct; “amend a letter or a document” “amend a pleading” “amend a law” “amend a Constitution”. We are concerned with the last one, namely, what an amendment means in the context of a Constitution that contains an amending clause. In the Oxford English Dictionary, Vol. 1 the word ‘amend’ is stated to mean “to make professed improvements in (a measure before Parliament); formally, to alter in detail, though practically it may be to alter its principle so as to thwart it.”1
It is indispensable to keep a provision of amending the provision of the constitution. So, “Article–142 of the constitution confers power on parliament to amend the Constitution For such amendment there are some procedural requirements. A bill for amendment of the constitution must contain a long title expressly stating that it will amend a provision of the constitution. It was contended that the long title must specifically mention which provision is sought to be amended, otherwise the amendment passed will be void. The Majority decision of the Appellate Division is that the specific provision need not be mentioned in the Bill and the requirement will be fulfilled if the long title states that certain provision or provisions is or are sought to be amended.2
This bill paned by the votes of not less than two-thirds of the total number of members of Parliament shall be presented to the President for his assent. The president shall assent to the Bill within sever days of the presentation of the Bill if that Bill is pared by the required majority assent. If he fails to assent within that time he shall be deemed to have assented to the Bill. But in case of amending the preamble, or any of the provisions of arts. 8,48,56, and 142, the President shall within seven days of Presentation of the Bill for his assent cause it to be refereed to a referendum. It is seen that the majority votes in the referendum are in favour of the amendment the president shall be deemed to have assented to the Bill. Otherwise the president shall be deemed to have withheld his assent from the Bill, the procedural requirements are mandatory. and if these are not followed the amendment will be void.
2.2. Important features of Bangladesh constitution, 1972.
1) Preamble: The constitution of the People’s Republic of Bangladesh has a clear Preamble in which it has been stated that.
Further pledging that it shall be a fundamental aim of the State to realize through the democratic process a socialist society, free from exploitation a society in which the rule of law fundamental human rights and freedom, equality and justice, political, economic and social, will be secured for all citizens”
2) Supremacy of the constitution:
Bangladesh constitution, 1972 has the supremacy which is ensured in article 7 (2) of it. It provides that “this constitution is…. the supreme law of the republic and if any other law is inconsistent with this constitution that other law shall, to the extent of the inconsistency, be void.
3) Unitary Governmental system:
According to article 1 of Bangladesh constitution. 1972, there is a system of Unitary government. All powers is centralized in the hand of a unitary government.
4) Fundamental principles of state policy: Article 8 of Bangladesh constitution 1972 provides for major fundamental principles of state policy. They are-
(i) Nationalism,
(ii) Democracy,
(iii) Socialism,
(iv) Secularism, All other principles derived from these four shall also constitute the fundamental principles of State policy.
5) Fundamental Rights:
Eighteen fundamental rights are guaranteed in chap (iii) Bangladesh constitution, 1972. The enjoyment and enforcement of these rights have been guaranteed in the constitution.
6) Parliamentary form of Government:
The constitution of Bangladesh 1972, provides for a west minister type of parliamentary system.
7) Independence of Judiciary:
The constitution of Bangladesh 1972 ensured the Independence of Judiciary.
8) Ombudsman:
Article 77 of Bangladesh constitution, 1972 has spoken about the establishment of the office of the Ombudsman.
2.3) Amendments of Bangladesh constitution 1972:
From the commencement of Bangladesh constitution, 1972, there has been 13 amendments, a summery of all the amendments is given,
Summery of 13 Amendments:
Amendments Date Summery of substance
1st Amendment 15th July, 1973 To make way for prosecution of genocide, crime against humanity and war crimes committed in the liberation war of 1971.
2nd Amendment 22nd September, 1973 Inclusion of emergency provision, suspension of fundamental rights and preventive detention.
3rd Amendment 28th November 1974 To give effect to the boundary line treaty between Bangladesh and India.
4th Amendment 25th January 1975 One party dictatorial system was substituted for a responsible parliamentary system.
5th Amendment 6th April, 1979 Legalizing all acts done by the first Military Authority.
6th Amendment 10th July 1981 To make way for the Vice president to be a candidate in president election.
7th Amendment 10th November 1986 Legalizing all acts done by the 2nd Military Authority.
8th Amendment 9th June, 1988 Setting up six permanent Benches of the High cornet Division and making Islam the state religion.
9th Amendment 11th July 1989 Direct election of the president and the Vice president simultaneously.
10th Amendment 23rd June 1990 Period for reservation of 30 Women members seats in the parliament wad extended for 10 years.
11th Amendment 10th August 1991 Legalizing the appointment of Shahabuddin Ahmed. Chief Justice of Bangladesh, as Vice President of Bangladesh and his all activities as the Aching president and then the return to his previous position of the chief Justice of Bangladesh.
12th Amendment 18th September 1991 Reintroducing the Parliamentary System
13th Amendment 28th March 1996 Provision for caretaker Government 1
Detail Discussion of the amendments:
First Amendment:
The fundamental purpose of the first amendment was very good.
This was done in giving the punishment of 195 Prisoners of liberation war in 1971. They committed war crimes, crime against humanity, genocide and other crimes under international law. By this amendment a new clause in Article 47 was inserted (clause-3) which allowed the parliament to make any law for the trial of war criminals “1 It is worthy to mention here that under the authority of this amendment the parliament passed within a weeks the international criminal (Tribunal) Act for the trial of 195 prisoners of war; But all initiative of the government to try them ended in a failure due to tricks played by Bhutlo” 2
2nd Amendment:
In the constitution of Bangladesh 1972, Thee were no Provisions for prevention detention or emergency situation because “during the British colonial rule and then 3 years constitutional history of Pakistan the arbitrary application of preventive detention law and emergency was so bitter that it left a good teaching to the AL that such provision which are contradictory to the concept of nourishing living democracy, would never allow to build normal democratic system. To maintain the colloquial state the British government used these laws under the government of India Act 1935 as necessary weapons to crash the opposition and perpetuates their rule. And launders and thousands of Indians and their leaders had to suffer imprisonment without trial for an indefinite period. After partition the two governor-generals of Pakistan Golam Mohammad and Iskander Mirja used the power of emergency to perpetuate their rule and thereby destroyed all the political institutions. … and hundreds of citizens were put into prison for years together without trial. This bitter experience led the Awami League to make an avowed commitment since the formation of United front in 1954 to repeal not only these black laws but also to remove any scope or prerogative enabling an individual to retard the process of demaoucracy”1
But unfortunately on 22nd September 1973 the then members of the parliament passed the 2nd amendment in exercising and expending their administrative power.
3rd Amendment:
This was done for giving effect to an agreement between Bangladesh and India. The agreement was based on some changes of boundary lines between them.
4th Amendment:
By 4th amendment the Presidential form of government was introduced in line of parliamentary form of government. It was interdicted by amending article 48(1) of the constitution of Bangladesh 1972.
Article 48(1) of Bangladesh Constitution 1972:
“There shall be of Bangladesh who shall be elected by members of Parliament in accordance with the provisions contained in the second schedule. 1”
Article 48(1) of (amended) Bangladesh consultation, 1972.:
“There shall a president of Bangladesh who shall be elected by members of Parliament in accordance with law”2
In amending article 48(1), the second schedule of original 1972 constitution of Bangladesh was repealed. Besides, “In true Presidential system, as there is the doctrine of separation of power, no minister can be a member of Parliament. But in the 4th amendment it was provided that the president could appoint Ministers from among the members of the parliament or from outside [Art. 58(3)]. There was left therefore, no separation of power.” 1
5th Amendment:
The following changes were done by 4th amendment:
(1) It omitted the one party system introduced by 4th amendment. (Part-VIA)
(2) It restored the independence of judiciary (Arts 96 & 116)
(3) It restored the jurisdiction of the High court division. (44 and 102)
(4) It inserted the provision of supreme Judicial council. (Art. 96)
(5) It destroyed the absolute veto power of the President.
(6) It inserted a referendum clause (Art 142)
(6) It inserted Bismillahir Rahmanir Rahim;
(7) It introduced the nationality term ‘Bangladeshi: (Art. 6)
- Md. Abdul Halim, Constitution, Constitutional Law and Politics: Bangladesh Perspective, 2nd edt. P. 109-110.
(8) It omitted ‘Secularism’ and introduced the principle of absolute trust and faith in the Almighty Allah. ‘ (Art. 8)
(9) It inserted an new explanation of socialism, (Art, 8)
(10) Provision regarding foreign agreement (Art. 145A)
These were fundamental among changes of 5th amendment.
Sixth Amendment:
This amendment made the way for the vice-president to be a candidate in president election, (Arts, 51 & 60)
Seventh Amendment:
This amendment legalized 2nd Martial law regime and increased the age of supreme cord Judges, from 62 to 65 years. (Art. 96)
8th amendment:
This amendment made the following changes:
(1) The ward Bangla was substituted for the word ‘Bengali’. (Art, 3)
(2) The word ‘Dhaka’ was substituted for the word Dacca; (Art. 5)
(3) Islam was dignified as the state Religion, (Art 2 A)
(4) The Provision of Six permanent Benched of the High Court Division outside Dhaka was enacted (Arts. 100 and 107.)
These were the major changes of the 8th amendment.
Ninth Amendment:
The concerning amended articles were 49, 50, 51, 53, 54, 72, 119, 122, 123, 124, 148, 152, and 4th schedule. This made the following changes:
(1) Direct election provision for Vice-President.
(2) Simultaneous election provision for president and vice president.
(3) Tenure of president of five years.
(4) Provision for not more than two consecutive terms.
Tenth Amendment:
This amendment increased the researched seats of women from 15 to 30 (Art. 65)
11th Amendment:
This amendment legalized the appointment of Shahabuddin Ahmed chief Justice of Bangladesh as Vice-President of Bangladesh and his all activities as the Acting president. This also legalized the return to his previous position of the chief Justice of Bangladesh.
12th Amendment:
This amendment revivified the parliamentary form government in place of Presidential form of government.
13th Amendment:
This amendment introduced the Non-Party caretaker Government’ A new Chapter named Chapter IIA – Non party caretaker Government” was added for this type of new government. These are all about the fundamental subject matters of all amendments.
2.5) What do you mean by the term impact?
Impact:
The word ‘Impact’ means commonly the effective action of one thing or person upon another; the effect of such action; influence impression.1 new ton’s third law Every action has its equal and opposite reaction implies the impact of the action. i.e. the impact of the amendments.
All the amendments has impact in Legal History that’s why, 13 amendments of Bangladesh Constitution have the impacts which are important in our legal field as well as in our practical life 13 constitutional amendment’s impacts are stated here.
2.6) The impacts of the amendments in the Legal History.
Impact of 1st Amendment:
The impacts of 1st amendments are following.
(1) It made a way or primary initiation in or dear to prosecute the prisoners who were liable for genocide, crime against humanity and war crimes comminuted in the liberation war of 1971.
(2) The issue was negotiated according to the international law.
But unfortunately it did not give the successful fruit because of the lack of adequate and strong steps.
Impact of 2nd amendment:
The impacts of 2nd amendment are given below:
(i) It provided the provision for the suspension of the inalienable rights i.e. fundamental rights of the citizens.
It has attacked the inalienability of human being’s rights. The word ‘inalienability’ denotes that you can not separate the inherent rights of the human being. Suspension connotes the separation of inalienable rights.
(ii) For the enactment of the provision of preventive detention, the state has got a type of additional power to arrest the citizens. By this power the state authority can arrest and continue torture upon any citizen. In our society we have seen some untold and bad precedent regarding preventive detention.
Impact of 3rd amendment:
This amendment had changed the geographical position and boundary line between India and Bangladesh. It solved the geo-problem of the both countries.
Impact of 4th amendment:
(i) The parliamentary form of government was changed and one party dictatorial system was introduced.
(ii) It centralized all the powers of the state in the hand of one party i.e. one man Bangladesh Sheikh Mujibur Rahman.
(iii) The different top leaders of BAKSAL except Bangladesh Sheikh Mujibur Rahman abused that centralized power, they thought that they are absolute power holder.
(iv) This amendment empowered than and them violated any law in satisfying their interest.
Impact of 5th amendment:
(i) This legalized and led the Military person to lake the power of the State.
(ii) For this amendment, Military person who is not an elected representative ruled the country according to his own law.’ It suspended the constitutional sprit for the democracy.
(iii) But this amendment restored some democratic Provisions in comparing with the 4th amendment.
Impact of sixth amendment:
(i) This amendment enabled Sattar to contest the election without resignation from his office.
(ii) This was done and accepted for the well purpose but not for the so-called political reason.
Impact of seventh amendment:
(i) The coup of march 24, 1982 was legalized and the then President Hussain Muhammad Ershad got a system with all powerful dictatorial executive and a rubber stamp parliament, which in no way hampered rather it helped to the continuation of controlled democracy.
(ii) By this amendment, the age of the Supreme Court Judges was increased and in practical he helped to continue the Martial Law.
Impact of 8th amendment:
(i) To make Islam, as the State religion made the people to believe Hussain Muhammad Ershad. Most of people of our country are religious and that is why they were happy for giving the status of Islam as State religion.
(ii) To make the provision for setting up six permanent Benches of the High Court Division outside Dhaka affected. Dhaka based lawyers and Judges of the Supreme Court. They were not willing to move outside Dhaka because of their family member’s Dhaka based opportunity.
Impact of 9th amendment:
This amendment, at that time sought to democratize the executive. But after the 12th amendment It has got effectiveness.
Impact of 10th amendment:
This amendment has helped some women of the elite or ruling citizens to be more rich. The ordinary women did not, don’t and probably will not be the members of Parliament. So the intention for enacting the provision of 30 women reserved seats is not for the welfare of the village women or the real backward women.
There was and is no statistics of backward women and the programme for decreasing or eliminating their backwardness.
They did not and do not discuss and have any reasonable step by which the degree of backwardness will be eliminated. They have no time based framework. After 33years of our independence, they did not do anything really for the advancement of the real backward women of the country. What has been improved by this amendment? In answering of this question, It can be told that some women who are the relative or the party based women have advanced their own lot only.
In fact, the reserved women members are called the ornament of the parliament. Here it can be quoted the statement of Golam Muhammad Quader MP. According to him the reserved women members are only the ornament of the Parliament because they have no role at the time of making any law without giving yes or no.1
Impact of 11th amendment:
This amendment made a precedent of giving retrospective effect of law, By this amendment the activities of Justice Shahabuddin Ahmed and his return to his previous position of the chief Justice of Bangladesh were legalised. This widened the flexibility of the constitution.
Impact 12th amendment:
This amendment again established the parliamentary form of government. The people of our country thought that, this form of government will rule the country very correctly. But the hope of the people has been of destroyed. The purpose parliamentary form of govt. has been failed because of other lacunas of our constitution particularly art. 70 and the centralization of all powers in the hand of execution.
Impact of 13th amendments:
Article 58C(3) provides that the President shall appoint as chief Adviser the person who among the retired Chief Justices of Bangladesh retired last…”
Here, the most important thinking word is “last”. By the word ‘last’ it has specified that the last retired. Justice would be appointed as the chief Adviser. For this opportunity the party in power can try to systemize the favorable will judge who will be the chief Adviser. This opportunity leads a party in power to violate the seniority matter.
As for example we can say the name of Justice K.M. Hasan who had been appointed by the present government in getting favoritism in the National Election. This specific way of becoming the Chief Adviser’ should be abolished in order to hold free, fair and neutral election.
Chap. 3.1:
Recommendations:
In getting free fair and neutral election the following recommendations can be considered:-
(i) Chief Adviser would be appointed from the retired and capable Chief Justices of Bangladesh by means of lottery. The lottery will be opened.
Provided that, the capable Chief Justices will not be directly or in directly involved in the party politics.
(ii) Each party containing member members in the parliament will propose not more than the name of 2 capable retired Chief Justices of Bangladesh. All proposed retired Chief Justices will casts their two votes in favour of two of them.
In an open meeting it will be done No Justice will cast his vote in favour of himself. The president as the Chief Adviser will appoint the Chief Justice of Bangladesh who will get the majority vote among them.
In the same way, other ten members of Non-Party Care-Taker Government will be appointed. Their all official activities will be recorded in avoiding any kind of unfair relationship. They will be bound to brief ever day’s activities every day before public at large including the journalists.
(iii) The check and balance between the state and people should be made in each step of administration.
Conclusion:
Bangladesh constitution 1972 has some basic features for the goodness of the constitution as well as the people at large.
The aforesaid basic features including the judiciary have been contracted for the amendments of the constitution of 1972 either directly or indirectly.
The different regime based rulers amended the constitution of 1972 in protecting and increasing their own interest. They did not bother about the interest or welfare of the total population of our country. They should not amend the provisions of the constitution, which are related to their interest. The reason is that, “all the provisions of the constitution are essential and no distinction can be made between essential and non-essential feature from the point of vied of amendment unless the makers of the constitution make it expressly clear in the constitution itself”1