Legitimacy and legality of 15th constitutional amendment?

Barrister Nazir Ahmed

The Bangladesh Parliament passed the Constitution (Fifteenth Amendment) Bill 2011 on 30 June 2011 to amend its Constitution. The Bill which contained 15 proposals was passed, while opposition parties were boycotting Parliament, by the division vote with a majority of 291-1. It scrapped the provision of the caretaker government system for holding general election.

However, amendments moved by ruling alliance opposing Islam as the State religion and religion based politics were rejected. Islam has been retained as the State religion along with Bismillahi-Ar-Rahmanir-Rahim.

Salient features
1. The provision of caretaker system, introduced by the Thirteenth Amendment, was abolished by the 5th amendment;
2. All future General (Parliamentary) Elections would be held under incumbent cabinet;
3. Islam as the State religion was kept with some qualifications and ‘Bismillah-Ar-Rahman-Ar-Rahim’ was retained above the Preamble;
4. ‘Absolute faith and trust in Allah’ was removed from the Constitution;
5. Article 12 to restore secularism and freedom of religion was revived;
6. The provision allowing religion-based politics was maintained;
7. The indigenous people would be termed as tribal and ethnic minorities;
8. The people of Bangladesh shall be known as Bangalees as a nation and citizens of Bangladesh shall be known as Bangladeshis;
9. Articles 7A and 7B were inserted in the Constitution after Article 7 in a bid to end takeover of power through extra-constitutional means;
10. Basic provisions of the Constitution (more than 50 Articles) were made un-amendable;
11. The original Article 70 of the 1972 Constitution was restored allowing Members of Parliament (MPs) to remain absent from the House if she or he does not want to cast vote on any issue in line with her or his party’s decision;
12. The legality of trials of war crime suspects, who were not part of any armed force or auxiliary force in 1971, cannot be challenged in any court;
13. In the case of dissolution of Parliament by any reason, election shall be held within 90 days of such dissolution;
14. The numbers of women reserve seats were increased to 50 from the existing 45;
15.    The Supreme Command of the defence services shall vest in the President and the exercise thereof shall be regulated by law;
16. The Chief Justice shall be appointed by the President, and the other judges shall be appointed by the President in consultation with the Chief Justice;
17. The portrait of the Sheikh Mujibur Rahman shall be preserved and displayed at the offices of the President, the Prime Minister, the Speaker, and the Chief Justice and in head and branch offices of all government and semi-government offices, autonomous bodies, statutory public authorities, government and non-government educational institutions, embassies and missions of Bangladesh abroad;
18. The speech of Sheikh Mujibur Rahman on March 7, 1971, supposed declaration of Independence by Sheikh Mujibur Rahman after midnight of March 25, 1971 and the proclamation of Independence declared at Mujibnagar on April 10, 1971 were incorporated in the Constitution; and
19. A new clause for safeguarding and developing the environment and wildlife was introduced, under which the State will protect natural resources, biodiversity, water bodies, forest, and wildlife, and preserve and develop the environment for the present and future generations. According to another new clause, “The State shall take steps to protect and develop the unique local culture and tradition of the tribes, minor races, ethnic sects, and communities”.

Caretaker system repealed
In July 2010, on the Prime Minister’s proposal, a 15-member Special Parliamentary Committee was formed with the Deputy Leader of the House Syeda Sajeda Chowdhury as the Chair and Mr. Suranjit Sen Gupta as the Vice-Chair to amend the Constitution. The main opposition party, Bangladesh Nationalist Party (BNP), was invited to join the Committee, but they refused. Over a period of eight months, the Committee, consisting of all the front ranking leaders of the ruling alliance, consulted former Chief Justices, prominent members of the legal profession, members of the civil society, representatives of political parties, and then came to a unanimous decision, in its 14th meeting held on March 29, 2011, to keep the caretaker system intact. In a meeting of the Committee held in April 2011, the Prime Minister opined that the life-time of the caretaker government should be limited; but she did not ask for its abolition. On 29 May 2011 the Committee proposed to limit the life-time of the caretaker government to a maximum of 90 days.
A day later, on 30 May 2011, the Committee met the Prime Minister and made a u-turn, and then they decided to abolish the caretaker system. The only reason cited by the ruling party for this ‘surprise’ u-turn is the Supreme Court’s judgment of early May 2011, which declared the caretaker system unconstitutional, although the same judgment permitted the government to hold the next two elections under a caretaker government. The Committee, then in its final report prepared as per wish of the Prime Minister in June 2011, recommended the abolition of the provision of the caretaker government. On June 20, 2011, before the final judgment was even written by the Supreme Court, the Fifteenth Amendment Bill without the provision of caretaker government was approved by the Cabinet. On 25 June 2011, the Bill was introduced in Parliament and on the same day it was passed while the opposition was boycotting Parliament. The truth of the matter is that it was the wish of the Prime Minister to repeal the caretaker system. The history will never forgive the Prime Minister of her double standards, misleading role and arrogance, which

Legitimacy of 5th Amendment
The Fifteenth Amendment brought fundamental changes in the Constitution and made many Articles un-amendable. But the government did not take any mandate from the people of Bangladesh. Commitment or intention of such major changes was neither in their 2008 Election Manifesto nor was any referendum held prior to the Amendment being brought. Dr Kamal Hossain, an eminent jurist and one of the framers of the country’s first Constitution, said at a roundtable discussion organised by Sushashoner Jonno Nagorik (SUJON) at the Jatiya Press Club “the Fifteenth Amendment was made hurriedly for their (Awami League) own interest. It can’t be accepted. Did they (government) seek people’s mandate to do this? Did the country’s 16 crore people vote them knowing about the Amendment?” Dr Kamal added that the Fifteenth Amendment contradicted the spirit of the Constitution.
The will of the people is the most important aspect in a democracy. Our Constitution clearly says that ‘all power belong to the people,’ Article 7. Unfortunately, the government did not bother about the will of the people of Bangladesh when they brought in the Fifteenth Amendment. According to Dr Bodiul Alam Mazumder, Secretary of the SUJAN “Our Constitution, according to its Preamble, is ‘the embodiment of the will of the people of Bangladesh.’ Unfortunately we cannot say the same thing about the Fifteenth Amendment. It does not even reflect the will of the Committee members, all of whom belonged to Awami League or its allies, rather it is the result of the dictate of one person – the Prime Minister. Thus, the legitimacy of the Fifteenth Amendment is highly questionable.” He also blamed the Fifteenth Amendment of the Constitution for the country’s ongoing unrest and political deadlock.

The legal aspect
The legality of the Fifteenth Amendment is doubtful. Article 7B, amended by the Fifteenth Amendment, makes about a third of our Constitution (more than 50 Articles) un-amendable. This means even if a future Parliament, for example, wants to fortify the Constitution and strengthen people’s fundamental rights, it cannot do so as the Fifteenth Amendment made un-amendable all the provisions stated in the fundamental rights and fundamental State principles. It is argued by many experts that the Constitution, in certain respects, has become unworkable. Can a Parliament bind future Parliaments? Was the Ninth Parliament the last and final Parliament? These are the fundamental and legitimate questions. According to Mahmudul Islam, the country’s leading constitutional expert and former Attorney General: “No Parliament can bind the successor Parliament’ (Constitutional Law of Bangladesh, 3rd Edition, p. 31).
Constitution making is, no doubt, a tough and lengthy task. Whenever made, it should reflect the people’s will and desire. It should also be legally sound. It took almost 11 years to frame the American Constitution, 9 years to frame Pakistan’s first Constitution, 3 years to frame the Indian Constitution, and 2 years to frame the French Constitution. Amendment to the Constitution is nearly as difficult as its framing. Unfortunately, Bangladesh framed its first Constitution as well as made subsequent amendments to it in a hurried mood. The speed with which the Fifteenth Amendment – which amended a number of provisions of the Constitution — was passed was unprecedented in the history of constitutional amendments of any democracy. The present crisis, needless to say, is the result of such a rash and unilateral decision to amend the Constitution in general and to abolish the provision of the caretaker government in particular.
In 1988, 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. It was challenged in the Supreme Court. The Supreme Court in Anwar Hossain Chowdhury V Bangladesh, 1989 BLD (Spl) 1 declared the Eighth Amendment as ultra virus the Constitution and hence illegal, for it violated the basic structure of the Constitution. The Fifteenth Amendment is worse than the Eighth Amendment in many respects. While the Eighth Amendment, inter alia, amended Article 100, the Fifteenth Amendment made nearly one third of the Constitution un-amendable forever and many Articles contradictory and inconsistent. Any government can hardly follow the Constitution without violating it. Can the Supreme Court show its backbone that it had shown towards the end of 1980s in relation to the Eighth Amendment?
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The writer is an UK-based legal expert, analyst, writer and author. He can be reached via e-mail: ahmedlaw2002@yahoo.co.uk

Source: Weekly Holiday

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