A dissertation on drawbacks of the constitution of bangladesh by Roushan Zadeed

A DISSERTATION ON DRAWBACKS OF THE CONSTITUTION OF BANGLADESH

Introduction

Chapter 1

‘Constitutionalism’ is the doctrine which governs the legitimacy of government action. By constitutionalism is meant – in relation to constitutions written and unwritten – conformity with the broad philosophical values within a state Constitutionalism implies Something far more important than the idea of ‘legality’ which require official conduct to be in accordance with pre-fixed legal rules . A power may be exercised on the legal authority; however, that fact is not necessarily determinative of whether or not the action was ‘constitutional’. In a constitution that the government, in formulating policy, and the legislative, in legitimating that policy, are accountable to the electorate on whose trust power is healed. Constitutionalism suggests the limitation of power, the separation of power and the doctrine of responsible accountable government.1 1.1 The Concept of Constitution A constitution is a set of rules for government-often codified as a written document-that enumerates and limits the powers and functions of a political entity. These rules together make up, i.e. constitute, what the entity is. By limiting the government's own reach, most constitution’s 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.2 There is an enormous and profound relationship between democracy and the Constitution of Bangladesh, because the Constitutional basis of the Constitution of Bangladesh is democracy. Moreover, democracy is the solemn expectation of the citizens of the country. Constitution gets a sole and unique form and deserves a full sanctity where there is a democratic country. The people of a democratic country have freedom in every sphere of their daily life. So it is the aspiration of the people that their country will be a democratic one, specially the people of the third world country. 3 1

Halaire Barnett, Constitutional and Administrative Law, 6th ed. (London: Cavendish Publishing Limited, 2006), p.3. 2

Ali Ahmed, Theory and Practice of Bangladesh Constitution, 1st ed. (Dhaka: Book Syndicate, 1998), pp. 1-2.

Hilaire Barnett, ibid, p.15.

Therefore, the people of Bangladesh fought about a long period of twenty four years (1947–1971) to be a citizen of a sovereign and democratic State through an ideal democratic Constitution. And at last we got our freedom and the exclusive Constitution for the bright future of our nation.

1.2 Definition of Constitution A constitution is a set of laws that a set of people have made and agreed upon 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. In the case of countries and autonomous regions of federal countries the term refers specifically to a constitution defining the fundamental political principles, and establishing the structure, procedures, powers and duties, of a government. By limiting the governments own reach, most constitution’s 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 uncodified historical constitutions that existed before the development of modern codified constitutions.4 Constitutions concern different levels of political organization. They exist at national (e.g., codified Indian Constitution, uncodified Constitution of the United Kingdom), regional (e.g., the Massachusetts Constitution), and sometimes lower levels. They also define many political and other groups, such as political parties, pressure groups, and trade unions. A supranational constitution is possible (e.g., proposed European Union constitution) but not always probable, depending on the structure of government to be laid out. 1.3 Basic features of a constitution Following are the features of Constitution of Bangladesh 5 i) Written Constitution: The Constitution of the People’s Republic of Bangladesh is written document. It was formally adopted by the Constitution Assembly on a specific day 4th Nov. 1972. It contains 153 articles, 1 preamble & 4 schedules. ii) Rigid Constitution: The Constitution of Bangladesh is a rigid. An amended can be passed only by votes of two-thirds members in the total members of parliament. iii) Preamble: The constitution of Bangladesh starts with a preamble which is described as the guiding star of the Constitution. This Preamble contains the legal as well as moral basis of the Constitution. It also identifies the objectives and aims of the state. iv) Supremacy of the Constitution: The Constitution Supremacy has been ensured in the Constitution of the People’s Republic of Bangladesh. Article (7) provides that, this 4

Halaire Barnett , ibid,p.7.

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

constitution is as the solemn expression of the will of the people, the supreme law of the Republic, and if any other law is inconsistence with this Constitution that other law shell, to the extent of the inconsistency, be void. v) Unitary Government System: Article (1) of the Constitution provides that Bangladesh is a unitary people’s republic. Unitary government means all power centralized under the constitution. vi) Unicameral Legislature: Article (65) of the Constitution provides Unicameral Legislature for Bangladesh. It is only one house, which known as “House of the Nation”. Fundamental Principle of State Policy: vii) Fundamental Right: Part 3 of the Constitution provides for 18 fundamental rights. The enjoyment and enforcement of those rights have been guaranteed in the Constitution. No authority can make any law which is inconsistent with the provisions of fundamental right and if any law made shell be void to the extent of inconsistency. viii) Parliamentary form of Government: The Constitution of Bangladesh provides for a Westminster type of parliamentary system. This form of government means that the government is run by cabinet of Ministers headed by the Prime Minister. President becomes a titular head but real executive power is exercised by the cabinet. ix) Independence of Judiciary: The Constitution of 1972 ensured the independence of Judiciary. Firstly, Provision was made that the Chief Justice would be appointed by the President and other justice of the Supreme Court appointed after consultation with the Chief Justice. Appointment of subordinate judges and magistrates was also to be exercised with consultation of the Supreme Court. Secondly, a judge could not be removed from his office except by an order of the President passed to a resolution of parliament supported by a two-third members of the parliament. Again, the security of tenure of the subordinate judge was vested in the Supreme Court. Thirdly, the control (including the power of posting, promotion and grant of leave) and discipline of person employed in the judicial service and magistrates was vested in the Supreme Court. x) Ombudsman: Provisions for the establishment of an Ombudsman were inserted in Article (77). To provide machinery to overview the activities of civil bureaucracy, to eradicate corruption in the administration and ensure the responsibility of the government in more specific way the role of an Ombudsman like a citizen defender. xi) Responsible Government was not ensured: The Constitution of Bangladesh provides for a Westminster type of parliamentary government, it could not ensure the Conditions of responsible government. The constitution of Bangladesh has no provision for ensuring the individual responsibility of minister. Article 55(3) provides that the cabinet shall be collectively responsible to the parliament; this responsibility cannot be ensured in practice due to the barricade created by the Article 70 of the Constitution.

Chapter 2 BACKGROUND OF THE CONSTITUTIONAL DEVELOPMENT IN BANGLADESH A Constitution is a body of Fundamental rules, written or UN written, which determines the organization or structure of the government, distributes power and determines the relation among the organs of the government. It’s also determines the scope and way of the exercise of essential government functions. Regulates the sphere of the rights and liberties of the people, control governmental organization and distribution of powers of a state, lastly it determines the provisions for amendment of the Constitution itself. But it is, at the present time, impossible to frame a constitution which is absolutely new or original. In most of the cases, many of the important concepts of a modern Constitution are the outcomes of its previous constitutional growth and practice. Not only this, many important constitutional beliefs and doctrines are deep-rooted in the past. As such, proper understanding of a modern Constitution of a country may not be fruitful unless it is studies together with the history of constitutional development of the country. The new Constitution of Bangladesh has been deliberately created. But number of land marks in the history of the constitutional development Bangladesh since very beginning, i.e. relating to British period, Pakistan period and a period after independence, influenced its deliberate creation. And, up to date, a study of this landmark of Constitutional importance can conveniently be made fewer than four phases as follows;6 A. Settlement of East India Company in India: Beginning of the constitutional and first phase Constitutional Development, 1600-1858. B. India under the crown: second phase Constitutional Development, 1858-1947. C. The Creation of Pakistan and its rule: third phase Constitutional development, 19471971. D. Independent Bangladesh : Fourth phase Constitutional Development,19712.1 First phase of constitutional development, 1600-1858 The British came to India in 1601 as a ‘body of trading merchants “In the name of east India Company. The fabulous wealth of India attracted them to this country for trading purpose. On the 22nd December, 1599 a number of British merchants resolved to form a trading company. On the last day of December, 1600, Queen Elizabeth I issued A Royal charter to the said company. Thus, the company became a juristic person with the exclusive privilege to trade in India and other Far-East countries. Subsequently, many Charters were also granted from time to time to enable the company to develop its authority to deal with new circumstance. These charters which played significant role to build up a constitution structure and were granted during the period from, 1600-1858.

S.M. Hassan Talukder, History of Constitutional Development: Bangladesh Perspective, 1st ed. (Dhaka: Book Syndicate, 1993), p.3.

2.2 Second phase of constitutional development, 1858-1947 The year 1858 is a memorable year in the constitutional history of India. With the passing of the Government of India Act 1858, The East India Company`s rule in India was ended and the Government of India was transferred from the company to the Crown. During the period of direct government by the British crown in India, some major policy decisions were taken and the whole constitutional development was patronized in three phases by the growth of representative institution, self – governing institutions and dominion status respectively. 2.3 Third phase of constitutional development, 1947-1971 By virtue of the India independence Act, 1947, as Pakistan came into existence on the 14 th August ,1947,as an independence dominion in the geographical a well as political map of the world , when Lord Mountbatten want to Karachi to transfer power into the herds of the leaders of Pakistan . It is worthy to notice that the India independence Act, 1947 coupled with government of India Act of 1935(as amended)provided the Interim Constitution of the country . the Indian Independence Act, 1947, provided ,among others, for the creation of two Constituent Assemblies for the two dominions –Pakistan and India .it was also provided by the Act that until the new Constitutions were Framed and put in operation ,the function of the Central Legislatures of the two Dominions would be performed by their respective Constitution Assembly would also act as the central Legislatures of the two Dominions would be performed by their respective constituent Assemblies; that is each Constituent Assembly would also act as the Center Legislature of the Dominion concerned. Such Central Legislation of Each should be the Sovereign law – making body of that Dominion with full power to frame her constitution in any way it might decide. 2.4 Fourth phase of constitutional development, 1971 The break between East and West Pakistan was historically inevitable. Besides the geographical distance, linguistic, ethnical and cultural difference between the people of two wings, the inherent imbalances in their respective socio-economic structure reached such a stage that they could no more be held together. Bangladesh took its birth as an independence and sovereign state on 16 December 1971 out of the ashes of a bloody war of national independence carried out for nine month beginning from March 25, 1971 and ending on December 16 1971, after the surrender of Pakistan army on the date. In true, the independence of Bangladesh brought a great change in its history of constitutional growth and development. And in order to trace the trends and development under the constitution of Bangladesh, one has to go back to early stage of the war of independence including the formation of first free Provisional Government of independent Bangladesh, the proclamation of independence, etc. For the history of the constitutional development of Bangladesh, it is revealed that the people of Bangladesh have lived under many constitution .it may be mentioned here that now on major constitution issue , the political parties of the country are, however divided and there are strong disputations among them. it is really grievous for our newly independent nation that love and respects to constitutional supremacy and people’s sovereignty are not active in the political arena. Even after independence, about two facades have been wasted; we have not adapted

ourselves as yet to the democratic and constitutional discipline. But said adaptation is inevitable for the successful and effective working of our Constitution as well as constitutional development. But according to Dr. B.R. Ambedker, the chief architect of the constitution of India (1950) –“however good a constitution may be , it is sure to turn out bad because those who are called to work it happen to be a bad lot. However bad a constitution may be it may be turn out to be good if those who are called to work it happen to a good lot”.

Chapter 3 AMENDMENTS OF THE CONSTITUTION OF BANGLADESH

3.1 Article 142 of the Bangladesh Constitution Article 142 provides the Power to amend any provision of the Constitution 7 (1) Notwithstanding anything contained in this Constitution(a) Any provision thereof may by amended by way of addition, alteration, substitution or repeal by Act of Parliament: 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.

The Constitution of the People’s Republic of Bangladesh. Art. 142.

(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 noconfidence in the Cabinet or Parliament. (2) Nothing in article 26 shall apply to any amendment made under this article. The Constitution of the People's Republic of Bangladesh has been amended several times. The following is a brief account of these acts and orders.8 3.2 Amendments of the Constitution Bangladesh First Amendment Act The Constitution (First Amendment) Act 1973 was passed on 15 July 1973. It amended Article 47 of the constitution by inserting an additional clause which allowed prosecution and punishment of any person accused of 'genocide, crimes against humanity or war crimes and other crimes under international law'. After Article 47 it inserted a new Article 47A specifying inapplicability of certain fundamental rights in those cases. Second Amendment Act The Constitution (Second Amendment) Act 1973 was passed on 22 September 1973. This act resulted in the (i) amendment of Articles 26, 63, 72 and 142 of the constitution; (ii) substitution of Article 33 and (iii) the insertion of a new part ie IXA in the constitution. Provisions were made through this amendment for the suspension of some fundamental rights of citizens in an emergency. Third Amendment Act The Constitution (Third Amendment) Act 1974 was enacted on 28 November 1974 by bringing in changes in Article 2 of the constitution with a view to giving effect to an agreement between Bangladesh and India in respect of exchange of certain enclaves and fixation of boundary lines between India and Bangladesh. Fourth Amendment Act The Constitution (Fourth Amendment) Act 1975 was passed on 25 January 1975. Major changes were brought into the constitution by this amendment. The presidential form of government was introduced in place of the parliamentary system; a one-party system in 8

Md. Abdul Halim, Constitution, Constitutional Law and Politics: Bangladesh Perspective, 3rd ed. (Dhaka: CCB Foundation, 2006), p.101.

place of a multi-party system was introduced; the powers of the jatiya sangsad were curtailed; the Judiciary lost much of its independence; the Supreme Court was deprived of its jurisdiction over the protection and enforcement of fundamental rights. This Act (i) amended articles 11, 66, 67, 72, 74, 76, 80, 88, 95, 98, 109, 116, 117, 119, 122, 123, 141A, 147 and 148 of the constitution; (ii) substituted Articles 44, 70, 102, 115 and 124 of the constitution; (iii) amended part III of the constitution out of existence; (iv) altered the Third and Fourth Schedule; (v) extended the term of the first Jatiya Sangsad; (vi) made special provisions relating to the office of the president and its incumbent; (vii) inserted a new part, i.e. part VIA in the constitution and (viii) inserted articles 73A and 116A in the constitution. Fifth Amendment Act 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.9 Sixth Amendment Act The Sixth Amendment Act was enacted by the Jatiya Sangsad with a view to amending Articles 51 and 66 of the 1981 constitution. Seventh Amendment Act 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. Eighth Amendment Act This Amendment Act was passed on 7 June 1988. It amended Articles 2, 3, 5, 30 and 100 of the constitution. This Amendment Act (i) declared Islam as the state religion; (ii) decentralised the judiciary by setting up six permanent benches of the High Court Division outside Dhaka; (iii) amended the word 'Bengali' into 'Bangla' and 'Dacca' into 'Dhaka' in Article 5 of the constitution; (iv) amended Article 30 of the constitution by prohibiting acceptance of any title, honours, award or decoration from any foreign state by any citizen of Bangladesh without the prior approval of the president. It may be noted here that the Supreme Court subsequently declared the amendment of Article 100 unconstitutional since it had altered the basic structure of the Constitution. Ninth Amendment Act 9

Md. Altap Hossain, Constitutional Law, 6th ed. (Dhaka: City Law Books, 2008), pp.172-4.

The Constitution (Ninth Amendment) Act 1989 was passed in July 1989. This amendment provided for the direct election of the vice-president; it restricted a person in holding the office of the president for two consecutive terms of five years each; it also provided that a vice-president might be appointed in case of a vacancy, but the appointment must be approved by the Jatiya Sangsad. Tenth Amendment Act The Tenth Amendment Act was enacted on 12 June 1990. It amended, among others, Article 65 of the constitution, providing for reservation of thirty seats for the next 10 years in the Jatiya Sangsad exclusively for women members, to be elected by the members of the Sangsad. Eleventh Amendment Act This Act was passed on 6 August 1991. It amended the Fourth Schedule to the constitution by adding a new paragraph 21 thereto which legalised the appointment and oath of shahabuddin Ahmed, Chief Justice of Bangladesh, as the vice-president of the Republic and the resignation tendered to him on 6 December 1990 by the then President Hussain Md. Ershad. This Act ratified, confirmed and validated all powers exercised, all laws and ordinances promulgated, all orders made and acts and things done, and actions and proceedings taken by the vice-president as acting president during the period between 6 December 1990 and the day (9 October 1991) of taking over the office of the president by the new President Abdur Rahman Biswas, duly elected under the amended provisions of the constitution. The Act also confirmed and made possible the return of vice-president Shahabuddin Ahmed to his previous position of the Chief Justice of Bangladesh. Twelfth Amendment Act This Amendment Act, known as the most important landmark in the history of constitutional development in Bangladesh, was passed on 6 August 1991. It amended Articles 48, 55, 56, 57, 58, 59, 60, 70, 72, 109, 119, 124, 141A and 142. Through this amendment the parliamentary form of government was re-introduced in Bangladesh; the president became the constitutional head of the state; the prime minister became the executive head; the cabinet headed by the prime minister became responsible to the Jatiya Sangsad; the post of the vice-president was abolished; the president was required to be elected by the members of the Jatiya Sangsad. Moreover, through Article 59 of the constitution this act ensured the participation of the people's representatives in local government bodies, thus establishing the base of democracy in the country. Thirteenth Amendment Act The Constitution (Thirteenth Amendment) Act 1996 was passed on 26 March 1996. It provided for a non-party caretaker government which, acting as an interim government, would give all possible aid and assistance to the Election Commission for holding the general election of members of the Jatiya Sangsad peacefully, fairly and impartially. The non-party caretaker government, comprising the Chief Adviser and not more than 10 other advisers, would be collectively responsible to the president and would stand dissolved on the date on which the prime minister entered upon his office after the constitution of the new Sangsad. Fourteenth Amendment Act

The four parties 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. 10

Chapter 4 DRAWBACKS OF THE CONSTITUTION OF BANGLADESH 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.11 Now, we are going to show the flaws and errors of the Constitution of Bangladesh: 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. 12 However, this Part contains some self-contradictory provisions as well as some provisions those should not been placed in this Part. These provisions are given below-

[http://www.albd.org/autoalbd/index.php?option=com_content&task=view&id=74&Itemid=37, accessed on May 16, 2010]. 11

Mahmudul Islam, Constitutional Law of Bangladesh, 2nd ed. (Dhaka: Mullick Brothers, 2002), p.46.

Md. Abdul Halim, ibid. p.448.

4.1.1 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. 13 4.1.2 Article 10 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. 14 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.15 These are as follows4.2.1 Article 28(2) 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.16

Latifur Rahman, The Constitution of the People’s Republic of Bangladesh with Comments and Case Law, 1st ed. (Dhaka: Mullick Brothers, 2005), p.37. 14

Latifur Rahman, ibid, p.40.

Md. Abdul Halim, ibid, p.451.

Latifur Rahman, ibid, p.59.

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 lawa) Review by an Advisory Board. b) Right to communicate of grounds of detention. c) 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. 17 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. 18 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.

Ibid, p.64.

Ibid, pp.90-107.

• •

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. It uproots the democratic norms as public opinion cannot get any chance to play its role through the members of the Parliament.19

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.20 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.21 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. 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 Sub-Clause (c) of Clause 2 of this Article. It says that, a proclamation of emergency “shall cease to operate at 19

Ibid. p.194.

Ibid, p.196.

Ibid, p.220.

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.â&#x20AC;? This is a vague provision and that is why the Fakhruddinsâ&#x20AC;&#x2122; Caretaker Government lasted almost 2 years.22 4.8 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'.23 4.9 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. 000The 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. 24 22

Ibid.

[http://www.photius.com/countries/bangladesh/government/bangladesh_government_constitution.html, accessed on 20 May 2010]. 24

Ibid.

Chapter 5 RECOMMENDATIONS AND CONCLUSION 5.1 Recommendations 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: 5.1.1 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 no-confidence 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 cutmotion 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 anti-defection law will be applicable in motion of no-confidence or confidence, but not in any other matter. 5.1.2 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. 5.1.3 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 self-contradictory 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. 5.1.4 Safeguard as to arrest and detention Article 33 provides ‘safeguard as to arrest and detention’. 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. 5.1.5 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. 5.1.6 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. 5.1.7 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. 5.2 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.25 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 positive 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 respect for 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

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 10 May 2010].

turn into a cream of the crop, democracy will turn to an incredible one and country will turn into a flourishing one.26

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