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Changes of Bangladesh Constitution: What the government is up to?
Dr K M A Malik |
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Part 1*
There have been ongoing controversies and debates on some aspects
of the current Bangladesh Constitution, especially since the BAL
government came to power in January 2009. No specific and written
proposal has yet been published by the government; so we are still in
the dark about what Amendments (if any) are intended. The following
discussions, therefore, are mainly academic and based on various
comments made by the ruling party leaders on different occasions. The
purpose is to enlighten the general public to Constitutional issues and
stimulate constructive debates on a very serious national issue.
Before going into any discussion, it is perhaps necessary to give a
short account of the Amendments made to Bangladesh Constitution since
its adoption after in 1972. The Fourteen Amendments made so far are as
follows.
First Amendment: In 1973, the Constitution (First Amendment) Act
1973 was passed inserting sub-art (3) in Article 47 whereby any law
providing for the detention and trial of war criminals was kept out of
the purview of the provision of Part III relating to fundamental
rights.
Second Amendment: The original Constitution did not have any
provision for proclamation of state of emergency and preventive
detention. By the Constitution (Second Amendment) Act 1973, Article 33
was amended providing for preventive detention and Part IXA was
inserted conferring power on Parliament and the Executive to deal with
emergency situations and providing for suspension of enforcement of the
fundamental rights during the period of emergency.
Third Amendment: The Constitution (Third Amendment) Act 1974 was
passed to give effect to the agreement with India giving up the claim
in respect of Berubari and retaining Dahagram and Angorpota.
Fourth Amendment: The Constitution (Fourth Amendment) Act 1975 made
major changes into the Constitution. The presidential form of
government was introduced in place of the parliamentary system; a
one-party system in place of a multi-party system was introduced; the
powers of the Parliament 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: The Constitution (Fifth 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. The expression
‘Bismillah ar-Rahman ar-Rahim’ was added before the Preamble of the
Constitution. The expression ‘historic struggle for national
liberation’ in the Preamble was replaced by ‘a historic war for
national independence.’ One party system was replaced by multiparty
parliamentary system. Fundamental principles of state policy were made
as ‘absolute trust and faith in the Almighty Allah, nationalism,
democracy and socialism meaning economic and social justice.’
Sixth Amendment: The Constitution (Sixth Amendment) 1981 was passed
providing, inter alia, that if the Vice President is elected as
President, he shall be deemed to have vacated his office on the date on
which he enters upon the office of President.
Seventh Amendment: The Constitution (Seventh Amendment) Act 1986
was passed ratifying all the Proclamations and Proclamation Orders and
the amendments made in the Constitution by such Proclamations and
Proclamations Orders and all actions of the Martial law authorities and
declaring those to have been validly made and done. By the same Act the
retiring age of the Judges of the Supreme Court was fixed at 65 in
place of 62.
Eighth Amendment: The Constitution (Eighth Amendment) Act 1988 was
passed amending Article 100 of the Constitution and thereby setting up
six permanent Benches of the High Court Division outside the capital
and authorising the President to fix by notification the territorial
jurisdiction of the permanent Benches. By the same Act, ‘Islam’ was
made the state religion of Bangladesh . This Act also amended (i) the
word 'Bengali' into 'Bangla' and 'Dacca' into 'Dhaka' in Article 5 of
the Constitution, (ii) 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.
Ninth Amendment: 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: The Constitution (Tenth Amendment) Act 1990
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: The Constitution (Eleventh Amendment) Act 1991
ratified all actions taken by the caretaker government headed by
Justice Shahabiuddin Ahmed. It also ratified the appointment of Chief
Justice Shahabuddin Ahmed as the Vice President who later became Acting
President upon Ershad’s resignation. In addition, the Act also
confirmed and made possible the return of Acting President Shahabuddin
Ahmed to his previous position of the Chief Justice of Bangladesh.
Twelfth Amendment: The Constitution (Twelfth Amendment) Act 1991
re-introduced the parliamentary form of government; 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.
Thirteenth Amendment: The Constitution (Thirteenth Amendment) Act
1996 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 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: The Constitutional (fourteenth Amendment) Act
1994 was passed providing, among others, the following provisions:
reservation of 45 seats for women on a proportional representation
basis for the next 10 years; increase in the retirement age of Supreme
Court Judges from 65 to 67 years; and displaying of portraits of the
President and the Prime Minister in all government, semi-government and
autonomous offices and diplomatic missions abroad.
Part 2
Analysis and comments
It is observed from the above summary, that a few Amendments made
at one time under certain compelling circumstances were subsequently
removed by another Amendment, and also that several of these had a
broad nationwide consensus. But a few of the Amendments were enacted
without proper debates and thorough discussions involving all the stake
holders including people adhering to different, sometime opposing,
ideological or political views. Amendments that were the result of
one-dimensional thought, lack of respect for democratic practices or
expediency have obviously come under severe criticisms, sometimes for
valid reasons and sometimes for sectarian political purposes.
The BAL leaders want to amend the present Constitution, because
according to them, the Constitution was made ‘Communal’ by introducing
the words ‘Bismillah ar-Rahman ar-Rahim’ in the preamble and by making
‘Islam’ the ‘state religion’ at the expense of the principle of
‘Secularism’. This brought about fundamental changes to Constitution,
which is true in my opinion, but I am not sure whether this made
Bangladesh ‘more Islamic’ or ‘communal’ than before. It is noted that
equal rights, including freedom to practice all religions, are
guaranteed in the Constitution. There may be some ambiguity and it is
true that some fringe groups have been agitating for introduction of
‘Sharia Law’. This, of course, is scaring the religious minorities for
the potential loss of their religious rights and freedom under an
‘Islamic Republic’ in the style of Pakistan or Afghanistan under
Taliban rule. Majority Muslims of Bangladesh are also concerned since
such arrangements may encourage the extremist groups to adopt violent
and terrorist methods for a change of the government and the system.
The BAL leaders and their die-hard supporters allege that the Fifth
Amendment is the root of all evils in Bangladesh , and that all
mischief, corruption, intolerance, politics of conspiracy, ‘Islamic
Extremism and militancy’, etc., started only after the overthrow of the
BKSAL regime in 1975. But they remain conspicuously silent on the
Fourth Amendment enacted by a civilian government which established a
one-party (BKSAL) dictatorial system or even the Third Amendment which
ceded Bangladesh territory to a different country. It is also alleged
that the Fifth Amendment destroyed ‘the values and spirit’ of the
liberation war and so this should be cancelled. They argue that the
original state principles (nationalism, democracy, socialism and
secularism) as incorporated as fundamental state principles in the 1972
Constitution should be restored, to establish the ‘Rule of Law’ and
prevent ‘Islamic Terrorism’.
The Fifth Amendment was enacted by a military government in the
aftermath of a series of murderous coups, counter-coups and regime
change. The period was very painful, uncertain and critical for the
‘sovereign existence’ of Bangladesh as it faced hosts of political,
economic and security challenges from both within and outside. One may
have reservations about some aspects of this or any other Amendment but
it is important also to consider the overall situation prevailing at
the time. And it is wrong, in my view, to condemn any or all the
Amendments if the existing circumstances demanded it, but we have a
right, in fact obligations, to look at them critically and reassess the
situation.
The most controversial part of the Amendment was the Indemnity for
the killings in the aftermath of the August 15, 1975 coup that
overthrew the BKSAL regime. The ousted government was led by civilian
politicians but it was undisputedly a dictatorial regime with unlimited
powers in the hands of the President who could be elected for as many
terms as possible (most people took this for a ‘President-for Life’
arrangement).
Of course, there are deficiencies, in some cases contradictions, in
the Constitution as it has evolved during the last 37 years and these
should be rectified in the light of aspirations and practical needs of
a modern democratic and civilised society. The Constitution should
serve the people, all the people, irrespective of creed, caste, gender
and ethnicity. Constitutional provisions must guarantee equal rights,
privileges as well as responsibilities for all citizens of the state;
none should feel marginalised and discriminated by any provision of the
Constitution. And, no act of treason or murder, whether committed by
individual or any state organ, should be condoned or indemnified by any
Constitutional provision.
The 1972 Constitution had four basic principles: Nationalism
(Bangalee), Democracy, Socialism and Secularism. Three of these
principles (Democracy, Socialism and Secularism) were perhaps taken
from Indian Constitution.
The Constitution was adopted immediately after the birth of
Bangladesh , and those were the days when Bangladesh was strongly
allied with India and Soviet Russia, and still lacked formal
recognition from Pakistan , China and most of the Arab and Muslim
countries. Those were also the days of Vietnam and the slogan of
Socialism inspired millions of young activists throughout the third
world including Bangladesh . It is also a fact that the Bangladeshi
students and youths were in the forefront of our independence struggle.
Senior political leaders including Sheikh Mujibur Rahman (who had been
pro-capitalist and pro-western throughout his political career) had to
accommodate the wishes and zeal of this vast youth force. But the irony
is that BAL had no real understanding or genuine commitment to
Socialism as opposed to Capitalism. Socialism was only a convenient
slogan to nationalize the Banks and other financial institutions from
the hands of their former owners (mainly from West Pakistan or Muslim
expatriates from India ). The USA and pro-western elements thought that
this was a disastrous step and there was another potential ‘red
republic’ in the making.
The word ‘Socialism’ was not omitted altogether from the
Constitution by the subsequent amendments but redefined by saying that
it meant ‘economic and social justice’. This assured the West and
pro-capitalist elements that Bangladeshi Socialism is not socialism in
the real sense, it was not the socialism as it was then practised in
China or Soviet Russia, and that there is no reason to be panicked. In
the light of the major changes in the world economic and power
relations over the last decades (specially since the collapse of Soviet
model, end of Cold war, revisions in the Chinese model), debates on
this ‘revisionist socialism’ in the Constitution is rather muted. Some
of our former ‘Socialist revolutionary leaders’ are happily co-habiting
with semi-feudal, pro-capitalist parties.
The debate on ‘Nationalism’ (Bangalee vs Bangladeshi) seems to be
driven by emotion. Personally, I feel quite comfortable being known as
a ‘Bangladeshi’ national with ‘Bangalee’ cultural and linguistic
heritage and with a Muslim faith. Citizens who are not Bangalee but of
other ethnic and cultural roots and profess any of the non-Muslim
faiths should feel quite comfortable if their nationality is
‘Bangladeshi’. I find no contradiction in this kind of arrangement. But
it is wrong to define all the citizens of Bangladesh as ‘Bangalee’;
they would not feel comfortable with is this definition. Those who
raise controversies and unnecessary debates on this issue are not
helping Bangladesh to establish its distinct national identity.
The issue of ‘Secularism’ is more sensitive as it is supposed to be
more progressive and all embracing as opposed to the word ‘Islam or
Muslim’ in the Constitution. Whether the present BAL government really
wants to delete the words ‘Bismillah ar-Rahman ar-Rahim’ from the
preamble and ‘Islam is the state religion’ from the Constitution to
reinstate the word ‘Secularism’, remain to be seen. Still we may make a
few comments for general discussion.
In my opinion, it would be very controversial and difficult to
remove the words from the preamble. Whether it was right or wrong at
the time of its addition to the Constitution is another question. But
doing this now would send a wrong signal to the vast majority of
Muslims about the intention of the BAL government.
The fact remains that in many ‘secular’ western countries, belief
in the Almighty God (Allah) remains a cardinal principle. These
countries have Christian majority populations, and Christian
traditions, rituals and culture dominate the social and cultural life
of most people, although legitimate rights of people practicing other
religious faiths, as well as those of atheists or agnostics, are
acknowledged, respected, and legally guaranteed. There are extremists
and fanatics also within these secular Christian societies, but the
legal system is strong enough to contain their activities that advocate
hatred, racism and violence. The societies are economically, socially
and politically more advanced and mature with a high degree of
tolerance for different religions, culture and opposing views.
Bangladesh society is relatively backward in economy, political and
social culture compared with the European societies and what is
acceptable in Europe may not be acceptable in Bangladesh .
Does religion clash with secularism? According to many people, it
does so when religion and only religion is the guiding force for all
political and social activities within a state. We have witnessed this
in Afghanistan , Sudan or Somalia , Kashmir , Chechnya or even in Iran
to some extent. But the matter is more complex that it appears on the
surface. There are dozens of other reasons for the instability,
turmoil, and conflicts in most of these societies.
The question of religion (Islam) is often invoked by certain
quarters (both at home and abroad), but the underlying unresolved
national questions (right of self determination as guaranteed by the UN
Charter), foreign aggressions and occupation associated with extreme
violations of basic human rights to life, property and dignity are
often ignored. Blaming Islam for all the ills of the world is clearly
one-sided and wrong. We are dismayed to see that many people condemn
Pakistan, for example, for branding itself as an ‘Islamic’ country but
they have no problem in supporting the purely ‘Jewish’ nature of
Israel, a settler colonial, racist state that is acting as an advanced
outpost of the militarist imperialists and bent on destroying the
Palestinian people and subjugating other Middle Eastern Muslim states.
Despite anti-Islam, anti-Bangladesh propaganda by some R&AW
inspired elements, independent Bangladesh has not witnessed any serious
communal riots or systematic repression of religious minorities,
whereas in India, which has a ‘secular’ label, repression of religious
and ethnic minorities, communal riots, caste and class violence happen
more or less regularly. The main point is not what you profess but what
you do.
Personally, I do not support that the idea that politics and state
structure of a modern country should be based exclusively on a very
rigid interpretation of holy books, although I have no problem in
accepting the basic teachings of honesty, tolerance, fellowship and
humanity which are the core values of all religions. Unfortunately,
some people who themselves are devoid of any moral values dominate our
politics and exploit the name of religion to fool the common people.
One such person is he who staged a coup to overthrow a
democratically elected government in 1982 and amended the Constitution
to make ‘Islam’ the State Religion. Many people believe that this was
done not for the love of Islam but for his own political agenda. He was
the worst type of political manipulator, financially and ethically
corrupt, and he did everything that goes against the basic teachings of
Islam.
The irony is that the same person is now a partner in the current
BAL government. What would he say if and when the government amends the
Constitution to remove ‘Islam’ and incorporates ‘Secularism’ in its
place? Would that be acceptable to the majority Muslim population?
Honestly, I do not know. But I have a feeling that it will arouse
intense emotional feelings to cause greater dissension and
destabilisation. There is every chance of the issue or intention of the
government being misinterpreted. Can the government handle the
situation, even with its more than two-thirds majority in the
parliament?
We can write many good words and sentences in the Constitution, but
this by itself does not guarantee a system of democracy and good
governance, unless the rule of law and justice providing equal
opportunity for all religious and ethnic communities are practised.
Secularism was a part of the Constitution until the Fifth Amendment,
but was the socio-political situation better then? The answer is a
clear ‘No’. We are still alive to tell the story of mismanagement,
nepotism, corruption, grabbing of ‘enemy’ properties and industries,
one-party dictatorship, mad made famine, factional fighting and state
sponsored killings by Rakkhi Bahini and other killer groups. What led
to the coups and counter-coups in 1975, only after a few years of the
country’s independence? We should give up emotion and half-truths and
do an objective analysis based on facts. Blaming only this person or
that person, this country or that country, for all ills of the
country’s failure to establish a genuine democratic order and just
society is not good enough. We must do some soul-searching and work
together to analyse the problems and find the best possible solution.
In conclusion, we have no objections in enacting another Amendment
by the present or future governments, but if and when this is done,
there must be full debates and participation by all the political
parties, intelligentsia and concerned citizens.
* [The present essay is based on the presentations made by
Barrister Nazir Ahmed (account of the Amendments described herein) and
the author (analysis and comments) in a round table conference on
“Bangladesh: Contemporary Debates for Fundamental Changes of its
Current Constitution”, organized by ‘Justice for Bangladesh’ (London)
on 6 December 2009 at Davenant Centre, Whitechapel Road, London.] |
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পাঠকের মন্তব্য: |
|
 Chittagong থেকে Hakim লিখেছেন, |
Very informative article from a very informed writer.Thank you Mr Ahmed.
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| 6618 |
| বুয়েট ,ঢাকা থেকে আসিফ হাসান রনি লিখেছেন, |
| লেখককে অসংখ্য ধন্যবাদ । |
| 9432 |
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| বাংলা (ইউনিকোডে) অথবা ইংরেজীতে আপনার মন্তব্য লিখুন: |
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