A constitution is a set of rules for government—often codified as a written document—that enumerates by lawjuris

A constitution is a set of rules for government—often codified as a written document—that enumerates and limits the powers.

CHAPTER 1 INTRODUCTION A constitution is a set of rules for government—often codified as a written document —that enumerates and limits the powers and functions of a political entity. These rules together make up, i.e. constitute, what the entity is. A constitution defining the fundamental political principles, and establishing the structure, procedures, powers and duties, of a government. By limiting the government's own reach, most constitutions guarantee certain rights to the people. The term constitution can be applied to any overall system of law that defines the functioning of a government, including several unmodified historical constitutions that existed before the development of modern codified constitutions.1 We know that State is a political organization. It is administered by a group of person or body which is known as government. A government is formed by three types of organs, namely, the executive, the legislative and the judiciary. These three organs cannot run the State according to their whim and caprice. There must be some rules and principles on the basis and under the authority of which the government can run the State. This set of rules or principles are known as Constitution, the governing wheel of the State. There is an enormous and profound relationship between democracy and the Constitution of Bangladesh, because the Constitutional basis of the Constitution of Bangladesh is democracy. Moreover, democracy is the solemn expectation of the citizens of the country. Constitution gets a sole and unique form and deserves a full sanctity where there is a democratic country. The people of a 1

Professor Ali Ahmed, Theory and Practice of Bangladesh Constitution, 1st ed., (Dhaka: Book

Syndicate, 1998), pp. 1-2.

democratic country have freedom in every sphere of their daily life. So it is the aspiration of the people that their country will be a democratic one, specially the people of the third world country.2 Therefore, the people of Bangladesh fought about a long period of twenty four years (1947 â&#x20AC;&#x201C; 1971) to be a citizen of a sovereign and democratic State through an ideal democratic Constitution. And at last we got our freedom and the exclusive Constitution for the bright future of our nation. The Constitution of Bangladesh is the supreme law of Bangladesh. It declares Bangladesh as a sovereign people republic and lays down the framework defining fundamental political principles, establishing the structure, procedures, powers and duties, of the government and spells out the fundamental rights of citizens. Passed by the Constituent Assembly of Bangladesh on November 4, 1972, it came into effect from December 16, 1972, the day commemorated as Victory Day in the country, marking the defeat of the Pakistan Army in the Bangladesh Liberation War. The constitution declares Bangladesh to be a unitary, independent and sovereign Republic, founded on a popular struggle for national liberation, which will be known as the People's Republic of Bangladesh. It pledges nationalism, secularity, democracy and socialism as the fundamental principles defining the Republic and declares the pursuit of a society that ensures its citizens- the rule of law, fundamental human rights and freedoms as well as equality and justice, political, economic and social.3 When enacted in 1972, the Constitution of Bangladesh was hailed by international jurists and legal historians and as one of the most progressive and democratic constitutions in modern history and one that inspired progressive political aspirations among third world countries and populations struggling for selfdetermination. However, amendments during socialist one party and military rule in Bangladesh radically altered the secular and liberal democratic nature of the 2

Hilaire Barnett, Constitutional & Administrative Law, 6th ed., (London: Cavendish Publishing

Limited, 2006), p. 15. 3

Professor Ali Ahmed, ibid., pp. 14-16.

constitution.4 In August, 2005, the Bangladesh High Court passed a landmark judgment that declared constitutional amendments during military rule as illegal and unconstitutional, and hence nullified. After several legal protests, the Bangladesh Supreme Court, in January, 2010, ultimately announced that the historic verdict of the High Court will be upheld. The judgment of Bangladesh's highest courts paved way for the return of the original nature of the constitution that defines Bangladesh as a secular, democratic state.5 The original Constitution of Bangladesh introduced a parliamentary form of government with the President as its constitutional head. It provides a responsible executive, a non-sovereign legislature and an independent judiciary with appropriate separation of powers, and checks and balances among them. The supreme law of Bangladesh, the Constitution, confers only limited law making competence on Parliament. Parliament does not possess any intrinsic law-making power, which derives from the constitution. The parliament cannot make any law in contravention with the provisions of the Constitution. It is the reflection of people's wishes and desires. The government should think very carefully before making any fundamental changes in it. It should refrain from making major changes unless a national consensus is reached. The original Constitution of 1972 which was the aspiration of the people has undergone so many changes that the purity of the original can hardly be seen. Not all the changes are made for public good. Therefore, purity of the Constitution is now been questioned. In this dissertation, we will discussion about the drawbacks of our Constitution and scope for improvements in the subsequent chapters.6 2 3

CHAPTER 2 4

Ibid., pp. 17-19.

[http://en.wikipedia.org/wiki/Constitution_bangladesh, accessed on 15 May 2010.]

Ibid.

BACKGROUND AND SPIRIT OF THE BANGLADESH CONSTITUTION 2.1 Historical Background of Bangladesh Bangladesh was established after East Pakistan broke away from Pakistan in 1971 after a twenty five year union that saw widespread economic and political discrimination against the ethnic Bengali majority; suppression of the secular Bengali culture and linguistic heritage; and military rule. In the early years of Pakistan's independence, Bengalis protested against attempts by West Pakistan to impose Urdu, a language remote to the eastern Indian subcontinent, as the sole state language of Pakistan. The subsequent Bengali Language Movement in 1952 gave rise to Bengali linguistic and cultural nationalism in the province of East Bengal, as opposed to Islamic nationalism in the rest of Pakistan. Bengali resentment aggravated over the years as the democratically elected provincial governments in East Bengal were dismissed, the name of the province was changed to East Pakistan, greater discrimination prevailed in recruitment and promotions in the civil services and armed forces, harsher restrictions were imposed on secular Bengali culture, economic disparity between East and West Pakistan widened and the increased suppression on Bengali political parties and leaders by the Pakistani military and its Islamic fundamentalist allies.7 In the late 1960s, the main Bengali political party, the Awami League, proposed the Six Point demands as the basis for a new constitution in Pakistan. Drafted by leading Bengali intellectuals and nationalists Rehman Sobhan, Govinda Chandra Dev, Mohammad Shamsuzzoha, Kamal Hossain and Tajuddin Ahmad, the six points envisioned Pakistan as a parliamentary democracy where supremacy lies with a legislature directly elected on the basis of universal suffrage. The Six Points were also based on the Two Economies Theory coined by economist Rehman Sobhan. The theory argued that West and East Pakistan have essentially two different economies lying in different regions and with different characteristics, and 7

Justice Mustafa Kamal, Bangladesh Constitution: Trends and Issues, 2nd ed., (Dhaka: University of

Dhaka, 1994), pp. iv-viii.

therefore power cannot be vested with the central government. It argued that the survival of the union between East and West Pakistan depended on establishing a federation that guaranteed considerable economic and political autonomy for each province. But the Two-Economies Theory also evoked, among Bengalis, a nationalistic reminiscence similar to that of the Two-Nation Theory that drove the founding of Pakistan. It served as the economic justification for Bengali nationalism and independence from the feudal and military establishment of West Pakistan. The Six point movement would be spearheaded by the charismatic Awami League leader Sheikh Mujibur Rahman in a popular movement that engulfed the entire province of East Pakistan. Afterwards, Sheikh Mujib along with senior leadership of the Awami League, would be arrested and tried for treason in the Agartala Conspiracy Case. Sheikh Mujib also placed the proposals at a meeting in 1966, between President Ayub Khan and all other opposition parties. The proposals were rejected by Ayub Khan and all major West Pakistan based political parties.8 The tensions provoked by the Six point movement would contribute to the fall of the Ayub Khan regime and lead to the 1970 elections, which were overwhelmingly won by the Awami League. The subsequent refusals by the Pakistani military to hand over power to the Awami League eventually culminated in the Bangladesh Liberation War. During the war the Pakistani military again imposed martial law and committed wide spread atrocities against the Bengali population. They were aided by Islamic fundamentalist parties and militias. The war ended in December, 1971 with the victory of Bengali nationalists and emergence of Bangladesh. In 1972, the 300 members elected to the East Pakistan Legislative Assembly in the 1970 elections, were made members of the Constituent Assembly of Bangladesh. An all-partpy committee (except Islamic fundamentalist parties) headed by Dr. Kamal Hossain, the Minister of Law in the new government, was tasked to draft the constitution of the new country. The constitution drafting committee consisted of members of all parties in the constituent assembly, including the Awami 8

S.M. Hassan Talukder, History of Constitutional Development: Bangladesh Perspective, 1st ed.,

(Dhaka: Book Syndicate, 1993), pp. 68-75.

League, National Awami Party, Jatiya Samajtantrik Dal and the seven independent lawmakers.9 2.2 The Proclamation of Independence The Pakistan Army crack-down on March 25, 1971 the declaration of independence of Bangladesh was broadcasted from the Shadhin Bangla Betar Kendra (Free Bengal Radio Station) in Chittagong. The declaration was an informal announcement since till then it was East Pakistan and no revolutionary government was formed to turn the so-called East Pakistan into Bangladesh and to give the declaration a legal basis. So from the viewpoint of the international law, to legalize the declaration as well as to legalize the independence war of Bangladesh it was essential to form a revolutionary government.10 A formal Proclamation of Independence was drafted and adopted on 10 th April 1971 with retrospective effect from March 26th March 1971. Under this Proclamation the representatives constituted themselves into a Constituent Assembly for Bangladesh and declared Bangladesh as a Sovereign Peoplesâ&#x20AC;&#x2122; Republic. Under this very Proclamation the Bangladesh Government-in-exile was legalized though it was formed earlier with the leading initiative of Tajuddin Ahmed. The Government-inexile of Bangladesh formally took their oath on 17 th April 1971 at Meherpur in Kustia District. The Proclamation was a Constitution because it outlined the nature of the State, structure of the government, declared Bangladesh as the Peoplesâ&#x20AC;&#x2122; Republic. It provided for Presidential system of government and declared that the President1. Shall be the Supreme Commander of all the Armed Forces of the Republic. 2. Shall have power to appoint a Prime Minister and such other Ministers as he considers necessary. 3. Shall have the power to levy taxes and expend money. 9

Ibid.

Md. Abdul Halim, Constitution, Constitutional Law and Politics: Bangladesh Perspective, 3rd ed.

(Dhaka: CCB Foundation, 2008), pp. 33-5.

4. Shall have the power to summon and adjourn the Constituent Assembly; and 5. Shall exercise all legislative and executive powers of the Republic including the power to grant pardon. Though the President was empowered with all uncontrolled powers like a dictator, it was nothing unusual and undemocratic since it was a war time.11 2.3 The Proclamation of Independence read with the Provisional Constitution of Bangladesh Order, 1972 On 16th December, 1971 Bangladesh achieved its full formal independence. The Government-in-exile came to Bangladesh on December 22, 1971 and took the administration of the new born State. The State administration was being run according to the Proclamation of Independence. On 8 th January 1972 Sk. Mujibur Rahman who was till then the President of Bangladesh under the Proclamation was released from Pakistani Jail and returned to Bangladesh on 10th January 1972. The same day, to keep in line with his earlier commitments, Sk. Mujibur Rahman expressed his intention not to act as President but chose to be the Prime Minister of Bangladesh in line with a Westminster type Parliamentary system. Accordingly on 11th January 1972 as the President of Bangladesh Sk. Mujibur Rahman issued the Provisional Constitution of Bangladesh Order whereby the entire character of the government was changed. The Presidential form was substituted by a form aiming at a Westminster type of Parliamentary system. The reason stated for changing the system was that it was the â&#x20AC;&#x153;manifest aspiration of the people of Bangladesh to establish a Parliamentary democracyâ&#x20AC;? and so in order to achieve this objective the new system was introduced. The Proclamation of Independence 1971 alone with it the Provisional Constitution of Bangladesh Order 1972 acted as the single interim Constitution of Bangladesh till 16th December 1972. The Provisional Constitution of Bangladesh Order 1972 did not actually supersede the Proclamation of Independence 11

Ibid.

1971, nor was the Proclamation really abolished, nor was the Provisional Constitution Order any formal amendment to the proclamation. The Provisional Constitution of Bangladesh Order 1972 changed only the character of the government i.e. from Presidential to Parliamentary form. A minute perusal of both the documents and the functioning of the then government would necessarily to give the idea that both the Proclamation and the Provisional Constitution Order were acting as the Constitution of the Country. Because though the Provisional Constitution Order changed the character of the government, it did not tell anything about the legislative power, nor did it give any power to the Constituent Assembly to control the cabinet, nor did it tell anything about the exercise of the executive power of the State. All the executive and legislative powers were being exercised by the President under the Proclamation in an uncontrolled way. The main provisions of the Order, however, were as follows1. There shall be a cabinet of Ministers, with the Prime Minister as the Head. 2. The President shall in exercise of his entire functions act in accordance with the advice of the Prime Minister. 3. There shall be a Constituent Assembly comprising of the elected representatives of the people of Bangladesh who were elected as MNAs and MPAs in the elections held in December 1970, January 1971 and March 1971, not otherwise disqualified by or under any law. 4. The President shall Commission as Prime Minister of the Constituent Assembly, who commands the confidence of the majority of the members of the Constituent Assembly. All other Ministers shall be appointed by the President on the advice of the Prime Minister. Under this system Justice Abu Sayeed Chowdhury became the President of the Bangladesh and Sk. Mujibur Rahman became the Prime Minister.12 2.4 Members of the Constitution Drafting Committee and national cabinet 12

Ibid.

The constitution drafting committee would take inspiration from the intellectual thought that drove the six point movement and the liberation war; the heritage of democratic struggle by Bengalis in the Indian Subcontinent, during both the British Raj and the Pakistan era; and the secular Bengali culture in formulating the constitution. The drafters of the constitution also identified the features of the Pakistani state that created widespread discontent in its population, particularly the Bengalis. One such feature was the religion based polity that gave opportunity to the military to influence politics. They also felt that religious nationalism failed to establish a sustainable state in Pakistan. Keeping in mind the lack of democracy and powerful influence of the military in Pakistan, the drafters of the constitution envisioned Bangladesh as a secular democracy, in order to establish a progressive and sustainable state. The secular nature of Bengali culture also served as an important motivation in inspiring a secular state for Bangladesh.13 The drafters would also base the constitution on the objectives of the TwoEconomies Theory. The theory argued economic autonomy for East Pakistan in order to attain greater equity in the distribution of income, as the Pakistan's economy was dominated by the West Pakistani feudal elite. Bengali nationalists felt the idealism of a "socialist" or "social democratic" society while waging movements against the feudal elite of Pakistan. Influenced by this idealism, the leadership of Bangladesh felt that greater equity in the distribution of income in the economy of the new country would be possible either through social democracy or democratic socialism. They also felt that the war ravaged country needed a strong public sector to drive initial economic development.14 The drafters of the constitution hence decided upon nationalism, secularity, democracy and socialism as the fundamental principles of the new state. The constitution also pays great attention to rural development, education rights and scientific temper, reflecting its commitment to rural Bengal as well as to modernization and progressivism. On November 4, 1971, the Constituent Assembly 13

S.M. Hassan Talukder, ibid., pp. 118-121.

Ibid.

of Bangladesh adopted by the constitution and on December 16, 1972, the first anniversary of victory of the Bengali nationalist forces over the Pakistani Army, the constitution was signed into law.15 2.5 The Original Constitution of 1972 The beginning of the constitution-making process was made when the President issued the Constituent Assembly of Bangladesh Order, 1972 on 23 March 1972. The Order defined the Constituent Assembly and its functions in great detail.16 Though the total number of members who were elected to the National Assembly and Provincial Assembly was 469, a few of them had died and some were disqualified. Only 404 took part in the proceedings of the Constituent Assembly. The Assembly held its first meeting on 10 April 1972. On the second day of the sitting a Constitution Drafting Committee of 34 members was formed with Dr. Kamal Hossain as its Chairmen. The Constitution Bill was introduced in the Assembly on 12 October for consideration. Its first reading began on 19 October and continued till 30 October. The second reading took place from 31 October to 3 November. The third reading began on 4 November and it was approved with 65 amendments. The Constitution was given effect to from 16 December 1972.17 The Constitution as adopted in 1972 contained a Preamble, 153 Articles divided into 11 parts, and four schedules. The main contents of the Constitution are: (i) The Preamble The Preamble, which embodied the collective memories and national aspirations, affirmed that the "high ideals of nationalism, socialism, democracy and secularism that inspired our heroic people to dedicate themselves to, and sacrifice their lives in,

Ibid.

AKM Shamsul Huda, The Constituion of Bangladesh, 1st ed. (Chttagong: Signet Press Limited,

1997), pp. 957-77. 17

Ibid.

the national liberation struggle", would be the fundamental principles of the Constitution.18 (ii) New Nationhood Part I of the Constitution was the definitive and formal manifestation of a new nationhood. It has declared Bangladesh as a sovereign unitary People's Republic. It has defined the state territory, the state language, the national anthem, the national flag, the national emblem, the national flower and the national identity. (iii) Fundamental Principles of State Policy Part II of the Constitution has contained a declaration of social and economic goals of the nation in the form of 'Fundamental Principles of State Policy'. It has defined the four basic principles as mentioned in the Preamble. It has affirmed that 'Bangali' nationalism is rooted in the unity of the people from its identity of language and culture and attainment of independence through the determined struggle in the War of Independence (Article 9). Socialism has been defined as a 'socialist economic system' aiming at ensuring the attainment of a just and egalitarian society, free from the exploitation of man by man (Article 10). Democracy has been envisaged as a system in which fundamental human rights, freedom and dignity of persons would be guaranteed and effective participation of the people would be ensured through their elected representatives at all levels of administration (Article II). Secularism has been defined as the elimination of all forms of communalism, abuse of religion for political purposes and discrimination on the basis of religion (Article 12). Moreover, emancipation of peasants and workers from all forms of exploitation; provision of such basic necessaries of life as food, clothing, shelter, education and medical care to all citizens; the right to employment with recreation and leisure and such other facilities to the citizens have been made the national goal. The Fundamental Principles of State Policy are mere pledges without any legal backing. It has been stated that the principles enunciated in Part II, though not enforceable in the court,

Moudud Ahmed, Era of Sheikh Mujibur Rahman, 4th ed. (Dhaka: The University Press Limited, 1983), p.321.

should be applied by the state in the making of laws and should be a guide to the interpretation of the Constitution and other laws of Bangladesh.19 (iv) Fundamental Rights of the Citizens Part III of the Constitution has dealt with the fundamental rights of the citizens. Article 26 of the Constitution has asserted that the state shall not make any law inconsistent with this part, and any law so made shall to the extent of such inconsistency be void. These include such rights as equality before law, equal opportunity in public employment or office, equal protection of law, right to life and liberty, safeguard against arbitrary arrest and detention, freedom of movement, freedom of assembly, freedom of association, freedom of speech and expression and of the press, freedom of religion and right to property. The right to move the Supreme Court for the enforcement of these rights has also been guaranteed (Article 102). Most of the fundamental rights have been subject to 'reasonable restrictions imposed by law' in the interest of 'the security of the state', or 'decency' or 'morality'. (v) Form of Government (Executive, Legislature, Judiciary) Parts IV, V and VI of the constitution have mainly described the structure of Bangladesh Government. The form of government as provided for in the Constitution has been parliamentary democracy modeled on the British system. The head of the state is the President who would be elected by the members of the Jatiya Sangsad for a term of 5 years and removed only through impeachment by at least two-thirds majority of the members of the Jatiya Sangsad. Like the British King or Queen, he is the constitutional head. He would appoint as prime minister a member of the Jatiya Sangsad who appeared to him to command the confidence of members of the Sangsad. In the exercise of his functions, the President is required to act on the advice of the Prime Minister who, in fact, is the chief executive. The Prime Minister is the head of the cabinet, "central to its formation, central to its life and central to its death". The cabinet is the executive arm of the government.20 19

Ibid.

A major theme of the Constitution is the supremacy of the unicameral Jatiya Sangsad. It consists of 300 members, to be elected from 300 single-member constituencies on the basis of universal adult franchise. In addition to this, there are another 15 seats reserved for 10 years for women to be elected by the members of the Sangsad. The Jatiya Sangsad is the supreme law-making body. The President has no veto power, although a bill passed by it requires the assent of the President to be an act. The Jatiya Sangsad is also the guardian of national finance, and no tax can be imposed without its sanction. Judicial power has been vested in a judiciary with the Supreme Court at its head. The Court consists of two divisions, appellate and high court divisions. The Chief Justice of the Supreme Court is appointed by the President and holds office up to the age of 65 years. Other judges are appointed by the President in consultation with the Chief Justice. The control and discipline of the employees in the judicial service are vested in the Supreme Court. Administrative tribunals can also be established by law to deal with matters relating to the terms and conditions of persons in the service of the Republic. (vi) Elections, Services and Audit Parts VII, VIII and IX of the Constitution deal with elections, audit and civil services. The Chief Election Commissioner, comptroller and auditor-general, and chairman and members of the Bangladesh public service commission are independent in the exercise of their functions and can be removed 'in the like manner and on the like grounds as a judge of the Supreme Court' (Articles 118, 129 and 130). (vii) Amendment of the Constitution Part X of the Constitution is concerned with the amendment process. It has been provided that any provision of the constitution can be amended or repealed by an Act of the Jatiya Sangsad passed by not less than two-thirds of its members. (viii) Miscellaneous Provisions 20

Talukder Maniruzzaman, The Bangladesh Revolution and its Aftermath, 2nd ed. (Dhaka: The University Press Limited, 1980), p.166.

In Part XI of the Constitution there are some miscellaneous provisions. The first schedule contains a list of the laws that have been kept beyond judicial review; the second prescribes rules regarding the election of the President; in the third the proforma of oaths to be taken by persons of certain elevated positions has been inserted. The fourth one contains provisions for transition to constitutional government.21

1 2 3

CHAPTER 3 AMENDMENT OF THE CONSTITUTION AND ITS IMPACT 3.1 Article 142 of the Bangladesh Constitution22 Article 142 provides the Power to amend any provision of the Constitution (1) Notwithstanding anything contained in this Constitution21 22

Ibid. The Constitution of the Peopleâ&#x20AC;&#x2122;s Republic of Bangladesh. Art. 142.

(a) any provision thereof may by amended by way of addition, alteration, substitution or repeal by Act of Parliament: Provided that(i) No Bill for such amendment shall be allowed to proceed unless the long title thereof expressly states that it will amend a provision of the Constitution; (ii) No such Bill shall be presented to the President for assent unless it is passed by the votes of not less than two-thirds of the total number of members of Parliament; (b) When a Bill passed as aforesaid is presented to the President for his assent he shall, within the period of seven days after the Bill is presented to him assent to the Bill, and if he fails so to do he shall be deemed to have assented to it on the expiration of that period. (1A) Notwithstanding anything contained in clause (1), when a Bill, passed as a aforesaid,, which provides for the amendment of the Preamble or any provisions of articles 8, 48 or 56 or this article, is presented to the President for assent, the President, shall within the period of seven days, after the Bill is presented to him, cause to be referred to a referendum the question whether the Bill should or should not be assented to. (1B) A referendum under this article shall be conducted by the Election Commission, within such period and in such manner as may be provided by law, amongst the person enrolled on the electoral roll prepared for the purpose of election to Parliament. (1C) On the day on which the result of the referendum conducted in relation to a Bill under this article is declared, the President shall be deemed to have(a) Assented to the Bill, if the majority of the total votes cast are in favor of the Bill being assented to; or (b) Withheld assent therefore, if the majority of the total votes cast are not in favor of the Bill being assented to. (1D) Nothing in clause (1C) shall be deemed to be an expression of confidence or no-confidence in the Cabinet or Parliament.

(2) Nothing in article 26 shall apply to any amendment made under this article. 3.2 Summery of 14 Amendments From the adoption of the Constitution of Bangladesh till now 14 amendments have been brought in it.23 These amendments, changed provisions summary as followsSL

Amendments Date of

Summery of Substance

1st

Amendments 15th July, To make for the prosecution of genocide,

Amendment

1973

crime against humanity and war crime committed in the liberation war of 1971.

2nd

22nd

Inclusion the emergency provision, suspension

Amendment

September,

1973

detention.

3rd

28th

To give effect to the agreement with India

Amendment

November,

giving up the claim in respect of Berubari and

1974

retaining Dahagram and Angorpota. That is it

Fundamental

Rights

and

preventive

was made to give effect the boundary line 4th

treaty between Bangladesh and India. 25th January, One party Dictatorial system was substituted

Amendment

1975

for a responsible parliamentary system.

5th

6th April,

Legalizing all acts done by the first Military

Amendment

1979

Authority in Bangladesh.

6th

10th July,

To make way for the Vice President to be a

Amendment 7th

1981 10th

candidate in president election. Legalizing all the acts done by the 2nd

Amendment

November,

Military Authority.

1986

Md. Abdul Halim, ibid, p.101.

8th

9th June,

Setting up six permanent Benches of the High

Amendment

1988

Court Division and Islam was made the State Religion.

10.

11.

9th

11th July,

Election for the President and the Vice

Amendment

1989

President simultaneously.

10th

23rd June,

By the Amendment of Article 65(3), reserved

Amendment

1990

seats for 30 women were further extended for

11th

10th

Amendment

1991

ten years. August, The Amendment legalized the appointment of Shahabuddin

Ahmed,

Chief

Justice

Bangladesh as Vice President of Bangladesh and his all activities as the Acting President and then the return to his previous position of 12.

12th

Amendment

September,

the Chief Justice of Bangladesh. Reintroducing the Parliamentary System

1991 13.

14.

13th

28th March,

Amendment

1996

14th

17th May,

It made provision for 45 reserve seats for

Amendment

2004

women members and increased the age of the

Provision for Caretaker Government.

retirement of the Judges of the Supreme Court.24 Now we will discuss about some important amendment of the Bangladesh Constitution, which are given below3.3 1st Amendment The Constitution (First Amendment) Act 1973 was passed on 15 July 1973. It amended Article 47 of the constitution by inserting an additional clause which 24

Ibid.

allowed prosecution and punishment of any person accused of 'genocide, crimes against humanity or war crimes and other crimes under international law'. After Article 47 it inserted a new Article 47A specifying inapplicability of certain fundamental rights in those cases. 3.3.1 Subject matter changes by this amendment By this Amendment a way was make for the prosecution of genocide, crime against humanity and war crime committed in the liberation war of 1971. By the virtue of this Amendment Sub-Article (3) of Article 47 was inserted whereby any law providing for the detention and trial of war criminals was kept out of the purview of Fundamental Rights as enumerated in Part III of our Constitution. New Article 47A debars any person to whom a law specified in Clause (3) of Article 47 applies to move the Supreme Court for any of the remedies under the Constitution. 3.3.2 Impacts This Amendment was made to face a special situation. Because there was no special law in the country to prosecute those who committed war crimes, crime against humanity, genocide and other crimes under International law during the liberation war in 1971.Under the authority of this Amendment the Parliament passed within a week the International Criminal (Tribunal) Act for the trial of 195 prisoners of war. 3.4 2nd Amendment The Constitution (Second Amendment) Act 1973 was passed on 22 September 1973. This act resulted in the (i) amendment of Articles 26, 63, 72 and 142 of the constitution; (ii) substitution of Article 33 and (iii) the insertion of a new part i.e. IXA in the constitution. Provisions were made through this amendment for the suspension of some fundamental rights of citizens in an emergency.

3.4.1 Subject matter changes by this amendment In the original Constitution of Bangladesh there was no provision of emergency or of any for preventive detention was inserted. But this Amendment was made to include the emergency provision, suspension of Fundamental Rights and preventive detention. This Amendment brought the following changes1. A new Part IXA was added to incorporate emergency provision. 2. Article 33 was substituted so as to empower the Parliament to pass law relating to preventive detention. 3. Added two new Clauses - Clause 3 of Article 26 and Clause 2 of Article 142. 4. The interval between two sessions of the Parliament was extended from 60 days to 120 days. 3.4.2 Impacts 1. According to Article 141A the President can declare emergency on three grounds. These are war, external aggression and internal disturbance. Among the three grounds first and second one is clear because these two terms have a definition in the International Law, but the last one is vague and indistinct, because there is no clear definition of internal disturbance. Thus emergency can be declared in the peace time to suppress the political oppositions. In the time of emergency the six Fundamental Rights would be suspended (Article36, 37, 38, 39, 40 and 42) which is so ridiculous. Another thing is that though the President declares emergency situation, counter signature of the Prime Minister is essential. So ultimately the right to declare emergency situation holds the ruling Party which has a chance to misuse. 2. The second part of Article 33 provides three Constitutional safeguards for a detention under preventive detention lawa) Review by an Advisory Board. b) Right to communicate of grounds of detention. c) Right to representation against the order of detention

3. It is to mention here that the third right (right to make an effective representation) depends upon the second right (right to communicate of grounds). Because without knowing the grounds, information and particulars it is not sufficient for the person detained to make an effective representation against the detention order. But provision of Article 33(5) says that detaining authority may refuse to disclose facts which such authority considers to be against the public interest to disclose. Thus the second and third constitutional rights of the person detained become meaningless. Most important thing is to mention here that under the authority of Article 33, Special Powers Act 1974 was enacted which provides preventive detention for all the times. This has been regarded as most democracy destroying draconian law. 4. The addition of two new Clauses- Clause (3) of Article 16 and Clause (2) of Article 142 is just a bluff. Because by this change the government which formed by attaining majority of two third of the total seats of the Parliament can amend the Constitution unconstitutionally, destroying the Fundamental Rights. 5. Extension of time of interval between two sessions of Parliament virtually weakened the spirit of responsible government. Because to extend the period between two sessions of Parliament is to keep the Parliament in abeyance for a longer period, in other words, to get the government out of its responsibility in the Parliament. Secondly, so long the Parliament will not be in session the government will get an easy hand to promulgate Ordinances by-passing the Parliament. Thus what was done by extending the period between two sessions was to give government an easy way to be dictatorial. 3.5 5th Amendment This Amendment Act was passed by the Jatiya Sangsad on 6 April 1979. This Act amended the Fourth Schedule to the constitution by adding a new paragraph 18 thereto, which provided that all amendments, additions, modifications, substitutions

and omissions made in the constitution during the period between 15 August 1975 and 9 April 1979 (both days inclusive) by any Proclamation or Proclamation Order of the Martial Law Authorities had been validly made and would not be called in question in or before any court or tribunal or authority on any ground whatsoever. 3.5.1 Subject matter changes by this amendment It was made to ratify all the Martial Law Proclamations or Orders issued between 15th August 1975 and 9th April 1979. It was the first Military Authority in Bangladesh.25 The changes which were brought in the Constitution by this Amendment are as follows1.

Part VI A of the Constitution dealing with one party system as introduced by the 4th Amendment was omitted.

The independence of judiciary which was completely destroyed by the 4th Amendment was restored partially (Art-96 and 116).

The jurisdiction of High Court Division of the Supreme Court to enforce the Fundamental Rights was restored to its original position as was in the original Constitution (Art-44 and 102).

Provision of Supreme Judicial Council in respect of security of tenure of Judges of the Supreme Court was inserted (Art-96).

The Provision of absolute veto power of the President introduced by the 4th Amendment was abolished (Art-80).

Provisions of referendum in respect of amendment of certain provisions of the Constitution were inserted and to that end a new Clause IA was created in the Article 142.

Religious words, â&#x20AC;&#x153;Bismillahir Rahmanir Rahimâ&#x20AC;? were inserted in the beginning of the Constitution i.e. above the preamble.

Md. Altap Hossain, Constitutional Law, 6th ed. (Dhaka: City Law Books, 2008), pp.172-74.

In the original constitution it was provided in Article 6 that citizens of Bangladesh would be known as ‘Bangalees’. But this was changed and it was provided that citizens of Bangladesh would be known as ‘Bangladeshis’.

One of the four major Fundamental Principles of State Policy ‘secularism’ was omitted and in its place a new one ‘the Principle of absolute trust and faith in the Almighty Allah’ was inserted (Art-8).

10.

One of the four major Fundamental Principles of State Policy, ‘socialism’, was given a new explanation that socialism would mean economic and social justice (Art-8).

11.

A new Article 145A was created where it was provided that all International treaties would be submitted to the President who should cause them to be laid before Parliament.

12.

Another new Article 92A was created whereby the President was given power to expend public moneys in certain cases.

13.

Article 58 was amended to the affect that four-fifths of the total numbers of the ministers should be taken from among the members of the Parliament. It was also provided that President would appoint as Prime Minister the member of Parliament who appeared to him to command the support of the majority of the members of Parliament.26

3.5.2 Impacts This Amendment has some positive and some negative sides. That means the amendment has some merits and some demerits. These are as followsMerits 1. Dictatorial one party was abolished and multi-party system was restored. 2. The Fundamental Rights were again given their full life and enforcement by reverting Article 44 of the Constitution to its original position of 1972. 3. The independence of judiciary specially the Constitutional status and sanctity of the Supreme Court was restored. 26

Ibid.

4. The undemocratic provision of absolute veto power of the President which was introduced by the 4th Amendment was abolished. 5. Insertion of provision of referendum in respect of certain important provisions of the Constitution is a healthy one.27 Demerits 1. As regards the composition of the Parliament, the number of reserve seats for women were increased from 15 to 30 and the period this provision was to remain force was extended from 10 to 15 years. This provision enabled the Zia Government to manage two-thirds 7majority in the Parliament. 2. The Amendment provided that all international treaties must be submitted before the President who should cause them to be laid before the parliament. But there was a significant sub-clause that â&#x20AC;&#x2DC;no treaty should be laid if the President would consider it to against national interestâ&#x20AC;&#x2122;. This Proviso has virtually curtailed the Parliament power in relation to International treaty. 3. A new Article 92A was created by the Amendment and this Article curtailed the Parliaments power over the financial matter and the President was given power to get money from the Consolidated Fund and to expend it without the Parliaments approval. 4. Using Religious Words are one sort of trap. By this there created a chance to get the favor religion minded people. This would be very fruitful during the time of election. From the above discussion of the merits and demerits of the 5 th Amendment, it is so clear to us that though the 5th Amendment made some positive steps but more or less there was the involvement of some political interests.28 3.6 7th Amendment 27

Md. Abdul Halim, ibid, pp.153-55.

Ibid.

This Act was passed on 11 November 1986. It amended Article 96 of the constitution; it also amended the Fourth Schedule to the constitution by inserting a new paragraph 19 thereto, providing among others that all proclamations, proclamation orders, Chief Martial Law Administrator's Orders, Martial Law Regulations, Martial Law Orders, Martial Law Instructions, ordinances and other laws made during the period between 24 March 1982 and 11 November 1986 (both days inclusive) had been validly made and would not be called in question in or before any court or tribunal or authority on any ground whatsoever. 3.6.1 Subject matter changes by this amendment This Amendment was made to legalize all the acts done by the 2 nd Military Authority. By this Amendment Ershad’s seizure of power in 1982 and his long term action as CMLA were legalized. In the 4th Schedule to the Constitution a new paragraph 19 was added which provided, inter alia, that all Proclamations, Proclamation Order, CMLA’s Order, Martial Law Regulation Order, Ordinances and other Laws made during the period 24th March 1982 and the Date of Commencement of the Constitution (7th Amendment) Act, 1986 had been validly made and would not be called in question in or before any Court or tribunal or authority on any ground whatsoever. 3.6.2 Impacts Unlike his two predecessors (Bangabandhu Sk. Mujib and President Zia), Ershad did not through this 7th Amendment, make any major Constitutional Changes. The reason behind may be that what constitutional structure Zia left was very much in favor of Ershad’s dictatorial rule. He inherited a system with all powerful dictatorial executive and rubber-stamps Parliament, which in no way hampered rather it helped to the Constitution of limited or controlled democracy. 3.7 14th Amendment

The four party Government of Alliance could manage to adopt the constitution (Fourteenth Amendment) Bill, 2004 in the Parliament on last 16th May, 2004. They could get the Bill passed on the strength of their so called brute majority. For convenience of examination, the separate provisions having no relevancy with each other and incorporated in a single Bill in the form of a package may be discussed separately: 1. Insertion of new Article 4 A after Article 4 for preservation and display of the portraits of the President and the Prime Minister. 2. Amendment of clause (3) of Article 65 in the Constitution regarding reserved number of seats exclusively for women members in the Parliament. 3. Amendment of Article 96 (1), 129 and 139 of the constitution enhancing the retirement age of the Judges of the Supreme Court, Auditor General and Chairman & other members of Public Service Commission. 4. Amendment of Article 148 of the Constitution.29 3.7.1 Subject matter changes by this amendment It made provision for 45 reserve seats for women members and increased the age of the retirement of the Judges of the Supreme Court. [Art-96(1)]30 3.7.2 Impacts It was made for the sole political interest of the ruling party. That the Ex-Chief Justice is the ruling party minded. After this Amendment the running Chief Justice will be at his office during the time of the general election and thus the previous retired Chief Justice becomes the Chief Advisor of the Caretaker government who can help them in the general election.

[http://www.albd.org/autoalbd/index.php?option=com_content&task=view&id=74&Itemid=37, last

visited on May 16, 2010]. 30

[http://www.britannica.com/EBchecked/topic/3114/amendment_constitution_of_bangladesh, last

visited on May 16, 2010].

So, from the above discussion of all the Amendments, it can be said that without some specific Amendments, all the Amendments have been made for the political interest of the ruling parties those were in power time to time.31 3

CHAPTER 4 BACKWARDNESS OF THE CONSTITUTION OF BANGLADESH It is to be agreed that we cannot get absolute perfection in all of our works or acts, as we are human being. It depends upon certain circumstances. However, it is to say that our Constitution is not fully perfect. There are some reasons behind this imperfection. One of them is the post-war situation. We had an infant State after independence. In that condition there was the existence of an immediate necessity of Constitution for the formation of the new born country. The Constitution makers made the Constitution within an improper time to face the political situation. That is why there was a possibility to have some flaws in the Constitution and the same was happened. Another reason for having backwardness in the Constitution is that the political intention. That is, different times, different ruling parties amended the Constitution for the favor of their own. Some of the amended provisions are omitted and some of them still exist. Some positive provisions of the Constitution became meaningless because these provisions are not inaugurated in the proper Part of the Constitution. These provisions became meaningless in a sense that the Part which they belong has no judicial enforceability.32 Now, we are going to show the flaws and errors of the Constitution of Bangladesh: 31

[http://www.answers.com/topic/effect_14th_amendment_constitution_bangladesh, last visited on

May17, 2010]. 32

Mahmudul Islam, Constitutional Law of Bangladesh, 2nd ed. (Dhaka: Mullick Brothers, 2002),

p.46.

4.1 Part II: Fundamental Principles of State Policy This Part has no judicial enforceability. The provisions of this Part act as the guiding star for the governance of the country. The government takes these provisions as programme. This Part is the directive Part, not obligatory or mandatory for the government. The provisions of this Part contain the economic, social and cultural rights of the people.33 However, this Part contains some self-contradictory provisions as well as some provisions those should not been placed in this Part. These provisions are given below4.1.1 Article 8 This Article provides the Fundamental Principle of State policy. This Article says that, “the principles of absolute trust and faith in the Almighty Allah, nationalism, democracy and socialism meaning economic and social justice, together with the principles derived from them as set out in this Part, shall constitute the fundamental principles of State policy.” Now the point is that this Article is self-contradictory, because ‘absolute trust and faith in Almighty Allah’ results an Islamic intention and indirectly it says that there should an Islamic country. If it is so, then why ‘nationalism’ has been inserted in this Article? This term ‘Islamic State’ totally opposes the term ‘nationalism’. Another self-contradiction is in between the terms ‘democracy’ and ‘socialism’. There may be social democratic State, but where there is sole democracy there the socialism has no existence. These provisions made the Article self-contradictory. 34 4.1.2 Article 10 33

Md. Abdul Halim, ibid. p.448.

Justice Latifur Rahman, The Constitution of the People’s Republic of Bangladesh with Comments

and Case Law, 1st ed. (Dhaka: Mullick Brothers, 2005), p.37.

Article 10 says that “steps shall be taken to ensure participation of women in all spheres of national life”. This is a very much positive approach. But this Article becomes meaningless because it belongs to Part II. Ultimately, it lost its enforceability, due to its displacement. Sooner or later, it falls in the stage of discrimination of woman and we can say that it enumerated in this Part to discriminate the women. And in the end it contradicts the Article 28(1) which says that “the State shall not discriminate against any citizen on grounds only of religion, race, caste, sex or place of birth”. If the Article 10 has been put in the Part III then it would be appropriate and would not have any contradiction on the ground of discrimination.35 4.1.3 Article 22 We know that Part II contains economic, social and cultural rights. But as far as Article 22 is concerned which discusses about the separation of judiciary does not depends upon the financial efficiency of the State. It depends upon the sole wish of the government. If the judiciary is made independent than the government cannot act according to their wish and whim, they will fall under a check and balance. And that is why this Article is not placed in the Part III. That is why the government is not implementing the 12 point directions given by the Highest Court of the land in Masder Hossain Case. The governments of Bangladesh used to say that they are not bound to implement these directions because they are directive not mandatory. They can say like that because of the placement of this Article in this Part. However, after a long expectation, the last Fakhruddins’ Caretaker Government through an Ordinance passed by the President separated the Judiciary from the executive organ of the State. It abolished executive magistrates' authority to take cognizance of offences for trial. The ordinances ceased to remain effective on 25 February 2009 for want of parliamentary approval. The incumbent government 35

Justice Latifur Rahman, ibid, p.40.

introduced a bill on the separation of judiciary in parliament on 2 March 2009 in a bid to continue the separation. Instead of endorsing the bill in its present form, parliament sent it for scrutiny by the parliamentary standing committee on law, justice, and parliamentary affairs. This committee has submitted its report to parliament on 18 March 2009 with recommendations for amending the bill to confer on the government sweeping discretion to authorize executive magistrates to take cognizance of offences for trial in any circumstances. Empowering executive magistrates only to take cognizance without any authority to hold trial may not appear to be a pressing matter. But the cognizance of an offence entails the recognition and acceptance of that offence to be sent for trial, which is a judicial, not administrative, act. Moreover, the discretionary nature of executive governmental power to be exercised in any circumstances is not necessarily amenable to the rule of law and due process. These two factors conglomerate to potentially impinge on the constitutionally entrenched independent judiciary and the separation of power. Parliament on 7 April 2009 passed a crucial bill meant for continuation of separation of judiciary, allowing the government discretion to empower executive magistrates to take cognizance of offences in any situation for trial. In that case, the government will have to specify the reasons and period for empowering the executive magistrates, who are also admin cadres, to this effect. This provision was included in the bill ignoring the opposition of judicial service association and legal experts.36 4.2 Part III: Fundamental Rights This Part contains civil and political rights for the people of Bangladesh. Any violation of any provision prescribed in this Part has the judicial enforceability. But this part, in fact, contains some negative provisions.37 These are as follows4.2.1 Article 28(2)

Ibid, p.43.

Md. Abdul Halim, ibid, p.451.

This Article states that “women shall have equal rights with in all spheres of the State and public life”. This Article is another appositive step to ensure the women’s rights in public life and to reduce the tendency of discriminating them. But this Article has an inherent negative side. That is Article says about the rights of women in the State and public right but there is saying about their right in their private life. So as a result they become the victims of discrimination in their private life.38 4.2.2 Article 33 This Article deals with “safeguard as to arrest and detention”. This Article provides one of the most debatable provisions so far Constitutional laws is concerned, because of some negative provisions as it contains. This Article provides a provision for making law on preventive detention. And under this authority the Special Powers Act, 1974 was enacted which is the most draconian law. Every riling party abuses this Act to subjugate the oppositions. Another thing is that this Article provides three Constitutional safeguards for a detention under preventive detention lawd) Review by an Advisory Board. e) Right to communicate of grounds of detention. f) Right to representation against the order of detention It is to mention here that the third right (right to make an effective representation) depends upon the second right (right to communicate of grounds). Because without knowing the grounds, information and particulars it is not sufficient for the person detained to make an effective representation against the detention order. But provision of Article 33(5) says that detaining authority may refuse to disclose facts which such authority considers to be against the public interest to disclose. Thus the second and third constitutional rights of the person detained become worthless.39 38

Justice Latifur Rahman, ibid, p.59.

Ibid, p.64.

These were the negative aspects of Article 33. 4.3 Collective Responsibility of the Cabinet Member Article 55(3) provides that “the Cabinet shall be collectively responsible to the Parliament”. This step can be said as the milestone to ensure a responsible government. On the other hand, according to Article 70, the seat of the member of the Parliament shall vacate if he votes in Parliament against the political party from which he was nominated as the candidate and was elected as the Member of Parliament. So, from the analysis of the aforesaid two Articles it can be said that Article 70 made the 55(3) an insignificant one. By the virtue of Article 70, the cabinet is always sure that it will never be defeated on the floor by the motion of no-confidence. So to creating blockade in the functioning of one provision by the placement contradictory something in another Article is not a symbol of any healthy Constitution.40 4.4 Ordinance making Power of the President Article 93 provides for the Ordinance making power of the President. According to this Article the President can make Ordinance in the following two grounds- (i) when parliament is not in session and (ii) when Parliament is dissolved. In these two cases the President can promulgate Ordinance only when he is satisfied that circumstances exist which render immediate action necessary. The backward aspects of this Provision are as follows•

As far it is depends upon the subjective satisfaction of the President, it enables the executive to play an uncontrolled hand in abusing power.

•

Not to meet any urgent situation but just with a view to by-passing the Parliament the executive makes a huge number of Ordinances during every recess of Parliament.

Ibid, pp.90-107.

•

It uproots the democratic norms as public opinion cannot get any chance to play its role through the members of the Parliament.41

4.5 Appointment of the Judges Article 115 provides that “appointments of persons to office in the judicial service or as Magistrates exercising judicial functions shall be made by the President in accordance with rules made by him in that behalf”. So the executive organ has a clear hand to abuse this appointment procedure. It depends upon the sole wish of the executive organ of the State. And they can use this power in their favor.42 4.6 Establishment of administrative Tribunal Article 117 provides for the establishment of Administrative Tribunal, but it does not mention who will chair this tribunal, what will be their qualifications, what would be the conditions for their security of tenure. Again, this tribunal has been kept outside the writ jurisdiction of high Court Division under Article 102(5). Also it has been kept out of the supervisory jurisdiction of the High Court Division. This provision has, therefore, been contradictory to the concept of integrated judicial system and of independence of judiciary.43 4.7 Emergency Provision Under Article 141A the President can declare emergency if he is satisfied that there exists a grave emergency in which the security or economic life of Bangladesh, or any part thereof is threatened by war or external aggression or internal disturbance. So the President can issue Proclamation of emergency on the aforesaid three grounds. Precisely speaking, there is no objection about the first and second ground as they are defined in the international law. But the question is about the third one. 41

Ibid. p.194.

Ibid, p.196.

Ibid,p.220.

This term ‘internal disturbance’ is uncertain and vague. So the President can proclaim emergency in the peacetime to suppress the oppositions. Again, the proviso of Article 141A (1) provides that the proclamation of emergency shall require for it validity the prior counter signature of the Prime Minister. So, the point is that virtually it depends upon the wish of the Prime Minister. Whenever the Prime Minister advises the President to declare emergency, the President is bound to so. So it leads a great risk of abuse of power. Another important and most debating matter in the recent time is the SubClause (c) of Clause 2 of this Article. It says that, a proclamation of emergency “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: Provided that if any such Proclamation is issued at the time when Parliament stands dissolved or the dissolution of Parliament takes place during the period of one hundred and twenty days referred to in sub-clause (c), the Proclamation shall cease to operate at the expiration of thirty days from the date on which Parliament first meets after its reconstitution, unless before that expiration of the said period of thirty days a resolution approving the Proclamation has been passed by Parliament.” This is a vague provision and that is why the Fakhruddins’ Caretaker Government lasted almost 2 years.44 4.8 Amendment of the Constitution Article 142(2) states that “nothing in Article 26 shall apply to any amendment made under this Article”. By the virtue of this Article parliament can amend the Constitution according to their inclination. So they can amend the Constitution violating any fundamental rights and this violation cannot be remedied. More or less it creates hindrance on the way to establish the Constitutional Supremacy. Because Article 26 ensures Constitutional Supremacy and Article 142(2) holds its functioning. 44

Ibid.

So, these were about the flaws existing in the Constitution of Bangladesh. As long as these provisions linger in the Constitution, it will lead the country to an undemocratic one. So as soon as these black provisions of the Constitution are relinquished, the constitution will get an unobstructed platform to institutionalize the Constitutionalism.45 4.9 Non Party Caretaker Government The term of the Caretaker Government is three months within which it will have to hold the general election of Parliament. Article 58 Clause (3) of Article 123 plainly states: "A general election of members of Parliament shall be held within ninety days after Parliament is dissolved, whether by reason of the expiration of its term or otherwise than by reason of such expiration. The Caretaker Government cannot extend its term. But what will happen in case of act of god (a sudden and inevitable occurrence caused by natural forces and not by the agency of man, such as a flood, earthquake, or a similar catastrophe)? The Constitution (Thirteenth Amendment) Act, 1996 does not deal with the situation. The Caretaker government established under this amendment has nothing to do with this type of 'extra-ordinary emergency'.46 4.10 Election Commission Article 118(4) of the Constitution dictates that the Election Commission is independent in the exercise of its functions and subject only to the Constitution and any other law. The provision has not yet been implemented. In fact the issue of an independent Election Commission has become a political rhetoric. After thirty years of independence, the Election Commission is still dependent on other ministries including Ministry of Establishment and the Prime Minister's Secretariat for any vital appointment. 45

Ibid. [http://www.photius.com/countries/bangladesh/government/bangladesh_government_constitution.ht

ml, accessed on 18 May 2010].

00000The posts of Election Commission Secretary, Additional Secretary and Joint Secretary are routinely filled up routinely according to the dictates of the Prime Minister's Secretariat even without any consultation with the Chief Election Commissioner. Recently the Parliament enacted the Upazila Parishad (Amendment) Act 2001, which abruptly took away the power of the Election Commission to fix a date for the Upazila Parishad Election.472 3

CHAPTER 5 RULE OF JUDICIARY AS A GUARDIAN OF CONSTITUTION 5.1 Judicial Independence in Bangladesh Independent judiciary is the sin qua non of a democratic government. And separation of judiciary is the precondition of the sound and independent judiciary. Since the beginning of the British colonial rule, the question of separation of judiciary from the executive has been a continuing debate. Independence of judiciary means a fair and neutral judicial system of a country, which can afford to take its decisions without any interference of executive or legislative branch of government. Taking into consideration some of the recent discussions made in the Beijing Statement of Independence of the Judiciary (a statement resulting from the cumulated views of thirty-two Asian and Pacific Chief Justices) Judicial independence is defined, in this report as a Judiciary uninhibited by outside influences which may jeopardize the neutrality of jurisdiction, which may include, but is not limited to, influence from another organ of the government (functional and collective independence), from the media (personal independence), or from the superior officers (internal independence). Independence of judiciary truly means that the judges are in a position to render justice in accordance with their oath of office and only in accordance with their own 47

Ibid.

sense of justice without submitting to any kind of pressure or influence be it from executive or legislative or from the parties themselves or from the superiors and colleagues. The concept of judicial independence as recent international efforts to this field suggests, comprises following four meaning of judicial independence: Substantive Independence of the Judges: It referred to as functional or Decisional independence meaning the independence of judges to arrive at their decisions without submitting to any inside or outside pressure; Personal independence: That means the judges are not dependent on Government in any way in which might influence them in reaching at decisions in particular cases; Collective Independence: That means institutional administrative and Financial independence of the judiciary as a whole vis-à-vis other branches of the government namely the executive and the legislative; and Internal Independence: That means independence of judges from their judicial superiors and colleagues. It refers to, in other words, independence of a judges or a judicial officer from any kind of order, indication or pressure from his judicial superiors and colleagues in deciding cases. Independence of judiciary depends on some certain conditions like mode of appointment of the judges, security of their tenure in the office and adequate remuneration and privileges. Satisfactory implementation of these conditions enables the judiciary to perform its due role in the society thus inviting public confidence in it. “Independence of the judiciary”, it is maintained, “lends prestige to the office of a judge and inspires confidence in the general public”.48 5.2 Judicial Safeguard of Constitution 48

Ibid.

The Constitution of Bangladesh is written and rigid one and it specifically prescribes how the power and functions of the organs of the State will be exercised. In this way the Constitution of Bangladesh declares its Supremacy, and we know that where there is a Constitutional Supremacy, the Constitution must be protected by the judiciary.49 More distinctively it can be said that by the virtue of Article 7 and 26 of the Constitution of Bangladesh, the Constitution expressly declares its Supremacy. According to Article 7(2)50, “any other law is inconsistent with this Constitution that other law shall, to the extent of the inconsistency, be void”. Article 26(1)51 as well says that, “all existing law inconsistent with the provisions of this Part shall, to the extent of that inconsistency, become void on the commencement of this Constitution”. This power to declare void the inconsistent provisions is vested of the judiciary. Thus if anything is found which is contradictory to Article 7 and 26 then the judiciary can declare them void on the ground of inconsistency with the Constitution. Again Article 26(2)52 says that Parliament can enact law in accordance with the consistency of the Constitution. Thus, if they enact any law inconsistent with the Constitution will be declared void by the judiciary through Article 102. 18 Fundamental Rights have been enumerated in the Constitution of Bangladesh (Art. 27-44). These Fundamental Rights are guaranteed by the Article 44 through Article 102. The Constitution of Bangladesh stands on certain Fundamental Principles which are its structural pillars which the Parliament cannot amend by its amending power, for if these pillars are demolished or damaged then the whole Constitutional structure will fall down. Some of these basic structures area) Sovereignty belongs to the people (Art.7) 49

Md. Abdul Halim, ibid., pp. 328-31.

The Constitution of the People Republic of Bangladesh, 1972, Art. 7(2).

Ibid., Art. 26(1).

Ibid., Art. 26(2).

b) Supremacy of the Constitution (Art.7) c) Democracy (Art.11) d) Republican government (Art.1) e) Independence of judiciary (Art.22) f) Unitary State (Art.1) g) Separation of powers [Art. 48(3), 55, 65, 94] h) Fundamental Rights (Art.27-44) These structural pillars of the Constitution stand beyond any change by amendatory process. Thus the amended Article 100 made by the 8 th Amendment was declared ultra vires because it has destroyed the essential limb of the judiciary in Anwar Hossain Chowdhury v. Bangladesh53 in 1989 (popular as 8th Amendment case). In this way judiciary protects the basic structures of the Constitution and applies the ‘Basic Structure Doctrine’.54 The most practical and constructive Article for the safeguard of the Constitution is 102. This Article provides five types of writ such as writ of quo warranto, writ of habeas corpus, writ of mandamus, writ of prohibition and writ of certiorari, though this term ‘writ’ is not used in this Article directly. When any Constitutional provision is violated then this Article comes into force through its five sorts of writs. These were the provisions for the safeguard of the Constitution of Bangladesh. So the sanctity of the Constitution of Bangladesh generally depends upon Article 44 and 102. By the virtue of these two Articles the judiciary gets the power to protect the Constitution.55

3 53

41 (1989) DLR, AD, 165

Md. Abdul Halim, ibid, pp. 360-66.

Ibid.

CHAPTER 6 COMPARATIVE STUDY: INDIAN, PAKISTAN AND BANGLADESH There are Constitutions of every country of the world. But all these Constitutions are not the same. Each of the countries of the world adopts their Constitutions according to the desire of their people and also it depends upon the form of the government that particular country. Now we will talk about some Constitutions of some countries with which we would like to compare the Constitution of Bangladesh. 6.1 Compare with the Constitution of India This is the largest Constitution all over the world. India is the largest democratic State. This Constitution provides federal system of government for India. India was ruled by the Government of India Act 1919 and 1935. These Acts were considered as the Constitution that time, and then in 1950 a new Constitution for India was adopted.56 At this instant we will exchange a few words about the comparison between the Constitution of Bangladesh and the aforesaid ConstitutionsThe Constitution of India provides a ‘Federal State’ and the Constitution of Bangladesh provides a ‘Unitary State’. The Constitution of India provides that there shall be one Supreme Court in centre and a High Court for each Province whereas the Constitution of Bangladesh provides that there shall a Supreme Court comprising of Appellate Division and High Court Division. The Constitution of India and the Constitution of the People’s Republic of Bangladesh provide more or less the same provisions regarding the function and jurisdiction of the Supreme Court of each country.

Ibid.

The Constitution of India provides no provision for ‘non-party caretaker government’ but the Constitution of Bangladesh provides. There is no provision about ‘floor-crossing’ in the Constitution of India whereas the Constitution of Bangladesh provides so. The provision relating ‘democracy’ is put down in the obligatory Part in the Constitution of India, whereas the Constitution of Bangladesh contains it in the Directive Part. The Constitution of India provides one central legislature and provincial legislature for each province, on the other hand, the Constitution of Bangladesh provides one National Assembly for the country as it is a Unitary State. As a neighboring country India and Bangladesh contains more or less the same provisions in their Constitutions. The reason behind this may be that the geo-political history of India and Bangladesh, which, almost the same, as they once upon a time were under the dominion of the British. As far as differentiation is concerned, it based on the types of government but the form of government is the same of both the countries. 6.2 Compare with the Constitution of Pakistan The currently enforced 1973 Constitution is the supreme law of the country and all laws passed should be in line with the Constitution. However, this Constitution has undergone various amendments, especially during the previous Martial Law period (1977-1985), which have weakened the guarantees it provides for equal rights. Articles 8 to Article 28

of the 1973 Constitution describe the Fundamental

Rights which are to be available to all citizens, women as well as men wherever they may be, as well as all people temporarily or permanently in Pakistan. However, the freedoms guaranteed can be curtailed or taken away by the government on the grounds of the sovereignty or integrity of Pakistan, maintenance of public order, public morality. BUT these restrictions can be challenged in the superior courts. The executive is bound to implement these rights while the judiciary is bound to take 57

The Constitution of the Islamic Republic of Pakistan, 1956.

notice of any violations and provide redress on individual complaints or take notice of its own (called ‘suo moto’ notice) of any gross violations of a collective right. For example, the Supreme Court has recently taken suo moto notice of the killings in Karachi. The basis of fundamental rights is laid out in Article 4, which states that it is the inalienable right (i.e., can never be taken away) of individuals (citizens wherever they may be as well as individuals currently in Pakistan) to enjoy the protection of law and be treated in accordance with law. It also guarantees the protection of life, liberty, body, reputation & property of an individual. A person cannot be: •

prevented from doing something which is legal

•

Compelled to do something which the law does not require him/her to do. Writ can be filed before High Court or Supreme Court in case of

infringement of the fundamental rights under Article 199 & Article 185 of the constitution of The Islamic Republic of Pakistan respectively. Supreme Court entertain writ only in those cases where there is violation of fundamental rights, however under Article 199 a writ petition can be filed in High Court even in case of infringement of legal rights. Who can file a writ: Any citizen of Pakistan can file a writ petition, however, a foreigner can also file writ petition for enforcing his right to life and equality before law. Court can also issue writ in the interest of justice and public interest. Article 23258 provides the Proclamation of emergency on account of war, internal disturbance, etc.(1) If the President is satisfied that a grave emergency exists in which the security of Pakistan, or any part thereof, is threatened by war or external aggression, or by internal disturbance beyond the power of a Provincial Government to control, he may issue a Proclamation of Emergency. (2) Notwithstanding anything in the Constitution, while a Proclamation of Emergency is in force, 58

Ibid., Art. 232.

(a) Majlis-e-Shoora (Parliament) shall have power to make laws for a Province, or any part thereof, with respect to any matter not enumerated in the Federal Legislative List or the Concurrent Legislative List; (b) The executive authority of the Federation shall extend to the giving of directions to a Province as to the manner in which the executive authority of the Province is to be exercised, and (c) the Federal Government may by Order assume to itself, or direct the Governor of a Province to assume on behalf of the Federal Government, all or any of the functions of the Government of the Province, and all or any of the powers vested in, or exercisable by, any body or authority in the Province other than the Provincial Assembly, and make such incidental and consequential provisions as appear to the Federal Government to be necessary or desirable for giving effect to the objects of the Proclamation, including provisions for suspending, in whole or in part, the operation of any provisions of the Constitution relating to any body or authority in the province: Provided that nothing in paragraph (c) shall authorize the Federal Government to assume to itself, or direct the Governor of the Province to assume on its behalf, any of the powers vested in or exercisable by a High Court, or to suspend either in whole or in part the operation of any provisions of the Constitution relating to High Courts. (3) The power of Majlis-e-Shoora (Parliament) to make laws for a Province with respect to any matter shall include power to make laws conferring powers and imposing duties, or authorizing the conferring of powers and the imposition of duties upon the Federation, or officers and authorities of the Federation, as respects that matter. (4) Nothing in this Article shall restrict the power of a Provincial Assembly to make any law which under the Constitution it has power to make but if any provision of a Provincial law is repugnant to any provision of an Act of Majlis-eShoora (Parliament) which Majlis-e-Shoora (Parliament) has under this Article

power to make, the Act of Majlis-e-Shoora (Parliament), whether passed before or after the Provincial law, shall prevail and the Provincial law shall, to the extent of the repugnancy, but so long only as the Act of Majlis-e-Shoora (Parliament) continues to have effect, be void. (5) A law made by Majlis-e-Shoora (Parliament), which Majlis-e-Shoora (Parliament) would not but for the issue of a Proclamation of Emergency have been competent to make, shall, to the extent of the incompetency, cease to have effect on the expiration of a period of six months after the Proclamation of Emergency has ceased to be in force, except as respects things done or omitted to be done before the expiration of the said period. (6) While a Proclamation of Emergency is in force, Majlis-e-Shoora (Parliament) may by law extend the term of the National Assembly for a period not exceeding one year and not extending in any case beyond a period of six months after the Proclamation has ceased to be in force. (7) A Proclamation of Emergency shall be laid before a joint sitting which shall be summoned by the President to meet within thirty days of the Proclamation being issued and, (a) Shall cease to be in force at the expiration of two months unless before the expiration of that period it has been approved by a resolution of the joint sitting; and (b) Shall, subject to the provisions of paragraph (a), cease to be in force upon a resolution disapproving the Proclamation being passed by the votes of the majority of the total memberships of the two Houses in joint sitting. (8) Notwithstanding anything contained in clause (7), if the National Assembly stands dissolved at the time when a Proclamation of Emergency is issued, the Proclamation shall continue in force for a period of four months but, if a general election to the Assembly is not held before the expiration of that period, it shall cease to be in force at the expiration of that period unless it has earlier been approved by a resolution of the Senate.

Article 23359 provides the Power to suspend Fundamental Rights, etc., during emergency period(1) Nothing contained in Articles 15, 16, 17, 18, 19, and 24 shall, while a proclamation of Emergency is in force, restrict the power of the State as defined in Article 7 to make any law or to take any executive action which it would, but for the provisions in the said Articles, be competent to make or to take, but any law so made shall to the extent of the incompetency, cease to have effect, and shall be deemed to have been repealed, at the time when the Proclamation is revoked or has ceased to be in force. (2) While a Proclamation of Emergency is in force, the President may, by Order, declare that the right to move any Court for the enforcement of such of the Fundamental Rights conferred by Chapter 1 of Part II as may be specified in the Order, and any proceeding in any Court which is for the enforcement, or involves the determination of any question as to the infringement, of any of the Rights so specified, shall remain suspended for the period during which the Proclamation is in force, and any such Order may be made in respect of the whole or any part of Pakistan. (3) Every Order made under this Article shall, as soon as may be, be laid before a joint sitting for approval and the provisions of clauses (7) and (8) of Article 232 shall apply to such an Order as they apply to a Proclamation of Emergency. 60 1

CHAPTER 7 RECOMMENDATIONS AND CONCLUSION 59

Ibid, Art. 233.

[http://www.pakistani.org/pakistan/constitution/part10.html, last visited on May 20, 2010.]

7.1 Suggestion for Strong Constitutional Jurisprudence Constitution is the parent of all laws. So, it is not desirable that there will be some flaws in it. But the Constitution of Bangladesh contains some backwardness. For the existence of those weaknesses in the Constitution of Bangladesh, the democracy turned into a far reaching substance like moon that the common people cannot achieve it. Hence, there will be some propounds from me but all of these will be based on the abolishment of certain erroneous provisions, on insertion certain new provisions to aid the existing provisions and on modification or alteration of certain existing provisions of the Constitution of Bangladesh. The intimations from me are specified as under: 7.1.1 Provision relating to anti-defection laws The provision of floor-crossing is for the stability of the government. The stability of government is tested only by a motion of no-confidence or confidence. The application of the provision of 70 must, therefore, be restricted to a vote on a noconfidence or confidence motion only. A normal or general bill is not necessarily connected with the stability of the government. The government may fail to pass a bill, be it a money bill or cut-motion or any other bill. But failure of passing this bill or even defeat in a cut-motion does not mean the fall of the government. The government has to face a no-confidence motion and lose before it falls. If the anti-defection law is applied only to motions to no-confidence or confidence, MPs will have freedom to oppose an undemocratic bill, be it money bill or approval of an ordinance. As a result, rule of law and the spirit of responsible Parliamentary government will not be so hampered. So, the Article 70 should be reformed and modified in this way that the antidefection law will be applicable in motion of no-confidence or confidence, but not in any other matter.

7.1.2 No provision for motion of censure There is no provision for ‘motion of censure’ in the Constitution of Bangladesh. No motion of censure, therefore, can be made against a minister for any corruption in his ministry. The Constitution of Greece specifically provides for vote of censure. So a provision of vote of censure must be included in the Constitution of Bangladesh to ensure the ministerial responsibility. 7.1.3 Uncertain Fundamental principles for the State Article 8 provides some uncertain Fundamental principles for the State. Article 8(1) provides that “the Principles of absolute trust and faith in the Almighty Allah, nationalism, democracy and socialism.” Again, Article 8(2) says that the principles shall in the following spheresa) They shall be fundamental in governance of the country, b) Shall be applied in making law, c) They shall be a guide to the interpretation of the Constitution and of other laws of Bangladesh. d) They shall form the basis of all works of the State and of its citizens. Now, the question is that the principles mentioned in Article 8(1) are selfcontradictory as we said before in the topic of ‘Backwardness of the Constitution of Bangladesh’. In this situation how can they be applied in the foremost grounds prescribed in the Article 8(2)? So this vital provision (Art-8) must be modified and the fundamental principles must be ascertained.

7.1.4 Safeguard as to arrest and detention Article 33 provides â&#x20AC;&#x2DC;safeguard as to arrest and detentionâ&#x20AC;&#x2122;. As well as this Article provides the authority to made preventive detention law. And under this authority the Special Powers Act-1974 was made. It permits preventive detention all times. As far as preventive detention is concerned it should be applicable during the grave emergency. So, this Article must be reformed, because it violates the Article 36. 7.1.5 The Ordinance making power of the President The Ordinance Making power of the President (Art-93) is one of the main sources of abuse of power. As the power to make ordinance depends upon the subjective satisfaction of the President, it can enable the executive to play an uncontrolled hand in abusing power. So, the power to make ordinance should bring into a controlled format. The suggestion in this regard may be that when there is the existence of such situation which needs ordinance to face, the President may make ordinance. But this ordinance before coming into force must be published before the public, so that people can participate in this matter. 7.1.6 Provision relating to the Emergency Article 141A says that the President can declare emergency on the ground of war, external aggression or internal disturbance. On the other, the proviso of Article 141A (1) provides that the proclamation of emergency shall require for it validity the prior counter signature of the Prime Minister. Thus it made the provision conflicting. So, this provision must be reformed. And it is also important to change the provision if the emergency is declared at a time when the Parliament is not in session, so that no further third party like the last Caretaker Government can take the favor of its vagueness. Article 142(2) and Article 26(3) provides an unconstitutional provision that is Article 26 shall not apply to the provisions amended by Article 142. So the

Parliament can amend the Constitution violating the fundamental rights of the people. So as soon as possible this provision must be abolished. Before enacting any law it should be produced before the common people so that they can give their opinion on it. The essence of this statement is that the government should establish the public opinion in every sphere of life. It is one sort of democratic object. And in order to ensure public opinion a provision should kept in the Constitution not in the directive Part, but in the obligatory Part. The reason behind giving emphasize to establish public opinion is that if once the public opinion is established with the judicial enforceability then the government will fall under a pressure and they will remember all the time that the people is the source of all power and then the will act according to the aspiration of the common people. 7.1.7 Power of the President The President is a doll made by timber. That is to say that when a bill is brought before him in order to have his assent, though his is not given any assent, but after the expiry of the prescribed time the bill will be deemed to have assented by the President. This provision must be changed, because this provision underestimates the President and should be reformed in this way that if the President does not give any assent to any bill, then after the expiry of the prescribed time, it will go back to the Parliament for reconsideration. The President cannot do it in accordance with his will. There must be a legislative board for the President to make him understand that whether the bill is healthy one or not. So, these were the suggestions on our part to make the Constitution of Bangladesh a strong one. As soon as we can conquer the existing problems prevailing in the present Constitution of our Country, we will have a healthy Constitution.

7.2 Concluding Remark Constitution is the supreme law of Bangladesh [Art. 7(2)]. It is the reflection of peoplesâ&#x20AC;&#x2122; wishes and desires. The government should think very carefully before making any fundamental changes in it. It should refrain from making major changes unless a national consensus is reached. History tells us fundamental changes of the Constitution by the unilateral action of the government have not brought fruitful result. Rather, it created bitter hostility and division within the country when stability and unity were immensely needed for national prosperity. In any event, if any fundamental changes are to be made in the current Constitution, the prescribed procedure outlined in the very Constitution must be followed.61 While doing the thesis, I tried to create a link between the Constitution and the democracy. From my experience, it can be said that we had a Constitution of original shape in 1972 and it was really made for the betterment of the country and to ensure the smooth democratic functioning throughout the country, in spite of some lacking in it. But these appositive aspects did not continue a longer period; and the malpractice of politics and the egotistic political exercise is solely responsible in this regard. For this reason the Constitution of our country and the politics are flowing into two different streams. At present situation, the terms politics, democracy and Constitution are too far from each other. Another thing is that the politicians of our country have no admiration to the Constitution and on the other side; a large number of citizen of the country is unaware about the status of the Constitution. We feel that the politics has done enough and now it is the time to think about our country, about democracy and Constitution for which we had struggled. It is the time to change the view of the politicians; it is the time for the citizens of the country to learn more and more about the country. Once we can achieve these things then our Constitution will turn into a cream of the crop, democracy will turn to an incredible one and country will turn into a flourishing one.

Nazir Ahmed, Bangladesh: Contemporary Debates for Fundamental Changes of Its Current Constitution,â&#x20AC;&#x2122; [http://www.sonarbangladesh.com/article.php?ID=1628, last visited on November 2009].

REFERENCES

Books 1. Halaire Barnett, Constitutional and Administrative Law, 6th ed. (London: Cavendish Publishing Limited, 2006). 2. Ali Ahmed, Theory and Practice of Bangladesh Constitution, 1st ed. (Dhaka: Book Syndicate, 1998). 3. S.M. Hassan Talukder, History of Constitutional Development: Bangladesh Perspective, 1st ed. (Dhaka: Book Syndicate, 1993). 4. Md. Abdul Halim, Constitution, Constitutional Law and Politics: Bangladesh Perspective, 3rd ed. (Dhaka: CCB Foundation, 2006). 5. Md. Altap Hossain, Constitutional Law, 6th ed. (Dhaka: City Law Books, 2008). 6. Mahmudul Islam, Constitutional Law of Bangladesh, 2nd ed.

(Dhaka: Mullick

Brothers, 2002). 7. Latifur Rahman, The Constitution of the People’s Republic of Bangladesh with Comments and Case Law, 1st ed. (Dhaka: Mullick Brothers, 2005). Statute 1. The Constitution of the People’s Republic of Bangladesh

Web pages 1. Nazir Ahmed, Bangladesh: Contemporary Debates for Fundamental Changes of Its Current Constitution,’ [http://www.sonarbangladesh.com/article.php?ID=1628, accessed on 10 May 2010]. 2.

[http://www.scribd.com/doc/2024100, accessed on March 2010].

3. [http://www.photius.com/countries/bangladesh/government/bangladesh_government _constitution.html, accessed on 20 May 2010].