Prof. Maimul Ahsan Khan*
Former Chair, Department of Law
University of Dhaka
Introduction
A State’s constitution is the fundamental law of the concerned Statehood. The concept of the Law of the Land may sound similar to that of a whole body of State endorsed rules and regulations based on basic principles upon which a state functions through government agencies. A State’s constitution is not merely a bunch of principles, provisions, and legal norms or rules and regulations. It is a fundamental legal text, based on which national institutions can be established and developed. It is the most important Basic Law that establishes a legal framework for all other branches of law. In other words, it is the legal foundation for any Statehood to start with. However, to be regarded as a matured and documented constitutional text, it must go through some crucial tests. The Basic Law in a State may suffer serious setbacks in its journey if it does not have the right kind of political, economic, and ethical orientation. Moreover, main aims and objectives of the Basic Law of a State cannot be articulated with ambiguity.
Constitutional law, as a whole, is also valued for its rhetorical excellence and the ornamental beauty in its expression that need to be admired by all concerned parties, including the conflicting political forces. In a black letter view, constitutional law is a legal text, either compiled in one legal text or scattered in a number of documents and conventions. Whatever way one writes or compiles a State’s constitution, it will require some changes from time to time, to meet necessities of change and to fulfill the demands of its constituents.
A constituent assembly may write or rewrite a constitution for a concerned State many times; this makes no difference until the highest legislative body of the State adopts it. Once the lawmakers adopt the text of the constitution, through acceptable political and legal procedures, then as a fundamental law it has binding force for all citizens and foreigners living within its jurisdiction, except those with diplomatic immunity. Irrespective of rigid or flexible character, any constitutional amendment requires political maturity, economic farsightedness, and legal acumen. The 1972 constitution of Bangladesh has been acclaimed as a remarkable achievement for the nation, which paid a high price for its political independence, in terms of human lives and the destruction of the country. The frequent changes Bangladeshis brought to their rigid constitution were either unsustainable or marred by vindictive partisan politics. In October 2011, Bangladesh got a renewed version of the constitution, with the 15th amendment having been added, which claimed to be a fulfillment of the political promise of returning to the original 1972 constitution.
In this article, the latest constitutional changes will be put to the test; the Basic Law and its characteristics, in terms of empowering people, vis-à-vis providing an upper hand to the vested interests of strong political and business lobbies will be teste¬d. The major way of looking at our constitutional changes would be comparison them with similar constitutional changes in other countries. Why has the 15th constitutional amendment provoked so much political and religious controversy? This is one of the main questions we will address in this article. An analytical approach and a jurisprudential prism will be used to find out how successful Bangladesh has been in bringing about desired and necessary constitutional changes, textually, and in real dynamics of the polity and expected economic betterment of the nation. The secular, nationalistic, and socialist character of the constitution has never been above political and cultural controversy. The issues of constitutional continuity, inconsistency, and absurdity have been hunting Bangladesh for four decades of its history. Finally, how relevant are these controversies for building a prosperous and forward-looking nation is another key question this research article would like to bring to jurisprudential scrutiny.
Constitutional Past in Futuristic Perspective
Bangladesh has, since independence, been viewed as a country of natural calamities. In 1974, it was called a “bottomless basket”. It made others look good, literally so, when Bangladeshis subsequently took to dressing everyone up across the globe in quality garments. Infamy greeted the moderate Muslim country as a result of the brutal killing of its most celebrated leaders, in
1975 and 1981. The autocratic tenure of Ershad, a reincarnation of Pakistan’s Ayub Khan, followed. And, since 1990, Bangladesh has been witnessing the golden era of female premiership, a period that has made both friends and foes wonder how colorful, progressive, and tolerant Bangladesh is as a nation.
For masses and voters, constitutional issues and amendments have been a distant reality – nothing to do with real life in terms of practical social, political, and economic predicament. Voters have been rather happy to see two of the most powerful ladies of the country alternate for the chair of premiership. In terms of trade and business, apparently, Bangladesh is doing fine. In agricultural sectors, production and distribution methodologies have started to work inclusively. Industrial sectors have been growing steadily. Wild capitalistic mode of production and distribution has hardly allowed time for issues of constitutional development, the rule of law, and human rights.
The innocent people and naïve voters have not thought much about the consequence of a brute majority in parliament. Any overwhelming brute majority in the highest legislative body can go wild at any time, especially in an immature democracy. This is exactly what has happened with constitutional legacy, political culture, and constitutional amendments in Bangladesh.
The Bangladesh Constitution is rigid; it was not supposed to be changed so quickly and easily. It does matter how many times Bangladesh changes its constitution so dramatically, diminishing characteristics of the supreme law of the land. What is the content or substance of any constitutional amendment and what is the purpose of a particular amendment? The ways adopted and the means resorted to make sweeping changes to the written and rigid constitution is what really counts, to understand the mentality and pattern of behavior of political parties in power and the puppeteers behind the curtain.
In this article, the Fifteenth Amendment to the Constitution1 will be analyzed, an amendment that promised to restore the spirit of the original 1972 Constitution. Even a superficial reading of the Fifteenth Amendment will show that the present-day Constitution is in no way close to the original one. A deeper reading will show how the Fifteenth Amendment has frustrated the spirit of the original 1972 Constitution, which had claimed to reflect the hopes and aspirations of the Bengali nation.
Constitutional amendment may sometimes bring a supposedly serious impact on the ongoing legal, political, and economic narratives of the time, touching the very core of the fundamental principles of the governance and system of the concerned nation. More importantly, the entire fabric of constitutionalism may be directly affected by such amendments to the constitution by pushing its “overall operational scheme” down the wrong path.
For example, the British and Pakistani constitutional laws were standing in the way of freedom for the Bengali nation. After Bangladeshis achieved their hard earned political independence, they were keen to achieve economic prosperity and overall emancipation with the help of a legally sound constitutional framework, to be implemented and followed by the ruling elite first. However, often politicians and business lobbies have failed Bangladeshis miserably. At the outset of almost every constitutional amendment, Bangladeshis were promised to be better served by our politicians and by the representation of the ruling class. Constitutionally, lawmakers are the people’s representative in parliament, empowered with the legal authority to change the constitutional system or any of its provisions.
However, why the apex court was so intimately involved in bringing about some of the latest constitutional amendments made conscientious circles of the country wonder. It appears that we have been much involved in circular logic of changing constitutional principles back and forth without giving deeper thought to the hopes and aspiration of the masses, who should have gotten the first priority for modern amenities of life such as safe food, drinking water, decent shelter, enlightened education, and proper health care, and first and foremost a constitutional guarantee to life, liberty, and happiness.
How, did Bangladesh end up here, with one constitutional disaster after another?
Historical Look at the 15th Constitutional Amendment: Reminiscing BAKSAL
The Fifteenth Constitutional Amendment is indeed a disaster for the constitutional mechanism in Bangladesh, as well as the rule of law based on the will of the people, without which no government can be legitimate. With the help of a brute majority in parliament, no ruling party can make constitutional provisions that cannot be changed even by referendum or by any successive legitimate government. In fact, the present constitution is a footnote-based constitution;2 there is no other such example of its kind in the world. By incorporating the Fifteenth Amendment, the ruling party lawmakers at the helm in parliament have made about one-third of the constitution a “holy text” that can never be changed or amended. The argument advanced is that the apex court of the country ordered Parliament to change the Constitution based on a controversial verdict.
The way the then Chief Justice passed the Short Order and wrote this verdict, after fourteen long months of retirement, is by itself a mockery of the supreme law of the republic.3 Moreover, the Awami League government adopted the Fifteenth Amendment even before the nation could see what the judges had to say about Thirteenth Amendment in a divided verdict that contained diverse opinion about the system of Non-Party Caretaker Government (CTG).
Traditionally, in Bangladesh, judges are mostly appointed on the basis of their commitment to political leaders and ideologies. A report by Asian Human Rights Commission has meticulously proved this reality.4
In the following timeline, consider a glimpse about how this controversial Fifteenth Amendment was adopted:
Critical Timeline of 15th Amendment
On July 21, 2010, the Prime Minister formed of a 15-member special parliamentary committee to push for another constitutional amendment. In the next 11 months this committee orchestrated
27 sessions to demonstrate that it was holding various types of consultations with so-called experts. However, it had failed to justify why Bangladesh needed a sweeping constitutional amendment that would practically change one-third of the constitution.
On March 29, 2011, in its 14th meeting, the committee arrived at a consensus that CTG should not be abolished from the Bangladesh constitution.
On April 27, 2011, the Prime Minister suggested that the committee should not abolish the CTG, but amended its provisions.
On May 10, 2011, a 4-3 split judgment of the Appellate Division of the Bangladesh Supreme Court was delivered. It stated that CTG is unconstitutional, and it has been declared void prospectively. Chief Justice Khairul Haque observed that the Parliament may keep a renovated form of CTG for tenth and eleventh parliament elections, and that the Parliament needed to be abolished before 42 days of the next parliamentary elections.5
On May 16, 2011, the parliamentary committee discussed the issue of CTG again.
On May 29, 2011, the committee decided to keep CTG as a constitutional system of holding election and transfer of power from one government to another. Two changes were proposed:
1) CTG must hold parliamentary elections within 90 days; 2) if CTG signs any treaties with any foreign states or governments during its tenure, then those treaties will need to be ratified by the forthcoming Parliament.
On May 30, 2011, the committee met with the Prime Minister Sheikh Hasina. Despite her earlier position against the removal of CTG system, in that meeting everything had changed overnight and abolishment of CTG was recommended.
On June 20, 2011, the Fifteenth Constitutional Amendment Bill was approved by the cabinet, which abolished the CTG, before the final judgment of the Supreme Court was written or pronounced, with the ill motives of the then CJ of the Bangladesh Supreme Court.
On June 25, 2011, the 15th Constitutional Amendment Bill was introduced in Parliament and, on the same day, was passed in fashion similar to that witnessed by Bangladesh with regard to the 4th Amendment, i.e. the one party rule of BAKSAL. Lawrence Ziring considers the Fourth Amendment as the biggest tragedy of Bangabandhu’s fate.6
The Fifteenth Amendment to the Constitution, as it stands, has virtually made one-third of the Constitution unamendable by any successive parliament7. Such a constitutional amendment is unheard of across the world in recent centuries. Moreover, the Amendment introduced apparent self-contradictory provisions in Article 7B and Article 142 of the Constitution. Article 7B begins with the words, “not withstanding anything contained in article
142” and Article 142 starts with “notwithstanding anything contained in this Constitution”. Use of the notwithstanding phrase in both the articles makes it ambiguous which article will prevail over the other. It is a jurisprudential fallacy of an extreme kind. It would be unimaginable for any sound person to think of such a constitutional amendment that prohibits lawmakers from amending any existing constitutional provision adopted unilaterally by a ruling party. Prior to gaining a brute majority in Parliament, Awami League never expressed its intention to abolish CTG.
From BAKSAL to Rampal8, we have been witnessing the same political trend amongst a section of Awami stalwarts, many of whom find it easy to sacrifice national interest for personal or group financial gains. In more than four decades of Bangladesh history, as a ruling party, the Awami League has never demonstrated any deep respect for public opinion or commitment to national security, which should never be compromised under any circumstances. The history of constitutional changes during the Awami League regime is full of incidents of betrayal of the true spirit of constitutionalism. One may consider Omar Khasru’s take on this for further details.9
It is unfortunate that General Ziaur Rahman was falsely named as one of the perpetrators of the tragic events of 1975. History has demonstrated that General Zia wanted to pull out the country from Awami misrule, and the Bangladeshi people from the tragic aftermath of aborted military coups, directly related to BAKSAL politics that banned all political parties. Zia had to deal with these tragic consequences of Bangladesh national politics. After the demise of Zia, the democratic process was interrupted for about a decade and an autocratic dictatorial rule shrouded the nation. Both Awami League and BNP had to deal with the unfortunate reality of autocratic rule led by General Ershad, who, on his part, has continued playing a nasty game of power politics in the country.
The year 1986 witnessed orchestrated national parliamentary elections. Awami League was the main collaborator of General Ershad in the third parliamentary assembly election. Sheikh Hasina was the main opposition party in the Parliament and could capture only 67 seats. Awami League leaders were convinced that they should not be the main collaborator of the Ershad regime for a longer period of time and, along with Jamaat-e-Islami, Sheikh Hasina demanded another fresh parliamentary elections.
The Fourth National Parliamentary Elections held on March
3, 1988, were boycotted by BNP. As a result, along with Jamaat leaders, Awami League had to follow the suit to save face. The Jamaati leaders had been working closely with Awami League to third parliamentary assembly. In fact, it was the collaboration make its efforts successful to be the main opposition party in the between Awami Leagure and Jamaat that ultimately prompted these two political parties to fight for CTG during early years of 1990s.
The Fifth National Parliamentary Elections were held on February 27, 1991, and, this time again, the Awami League failed to capture power, winning only 88 seats in the National Assembly. This is the short historical background that helped Awami League return to the helm. Despite the Awami League having a history of collaboration with General Ershad and Jamaat leaders for a longer period of time, it did not share governmental powers with them. Awami League appears to love sharing governmental politics with so-called left-leaning politicians, who were the main collaborators in the process of establishing BAKSAL, the one party misrule that still haunts every fair-minded Bangladeshi citizen.10
Failing to capture state power in 1991, the Awami League became paranoid; this prompted its leaders to adopt strategies to collaborate with Jamaati leaders openly, so they could destroy the politics of BNP. Failing to capture the majority seats in Parliament in the national elections of 1991, along with Jamaati leaders, Sheikh Hasina launched vicious attacks on the BNP government and held 173 days of hartal (complete standstill) in the country.11
Tenth Parliamentary Elections: Reminiscence of 1996 &1973 Elections?
Many analysts think that the tenth parliamentary elections held on January 5, 2014 is a reminder of the 1973 and 1996 parliamentary elections. Such an observation lacks in objectivity and credibility in a number of ways.
Firstly, 1973 elections were held under the pressure of unruly leaders and activists of Jatio Samajtantric Dal, which had served foreign interests to discredit the leadership of Bangabandhu. The first parliament was in serious dilemma with its Pakistani origin, supposed to work for the Pakistani legislative body. The Constituent Assembly created by the lawmakers of the Pakistani election was suffering from a serious lack of legitimacy.
Secondly, Bangabandhu had resigned from the post of Premiership to make the 1973 election creditable and legitimate. Sheikh Hasina took oath as a Prime Minister for the third time on January 14, 2014, while she was holding the same post of Prime Minister of the country.
Thirdly, the tenth parliamentary election was held on January
5, 2014, while the 9th Parliament was dissolved 20 days later on
January 24, 2014, just a day before its tenure ended.
Fourthly, neither did Members of Parliament (MP) of the 9th Parliament lose their seats during the 10th Parliament election, nor did they resign from their parliamentary seats.12Thus, the legal and political position of all MPs and other ministers remained the same. They contested seats in parliament, while they had been occupying those very seats and the powers associated with them. In other words, after January 5, 2014 Bangladesh got two parliaments, in a country with a unitary form of government.
Fifthly, the tenth parliamentary election can be termed as a constitutional necessity, as much a necessity as the 1996 election held under a politically charged and legally obligated situation. But neither were the political forces behind those two parliamentary elections the same, nor did their foreign patrons belong to the same group. Thus, Bangladesh national interest and ethnic pride has been stolen and destroyed. Of course, Bangladeshis cannot forget and forgive their leaders for their betrayal to the nation and the people.
Constitutional Adventurism vis-à-vis Political Correctness
General Ershad captured power illegally from the elected Presidency of Justice Abdus Satter. Ershad wanted legitimacy for his government, and Awami League had been cooperating with the Ershad government secretly. On the surface, Awami League was cooperating with BNP to oust Ershad from power in the 1980s, and this mysterious political dynamic had started to play a stronger role in shaping the power politics of Bangladesh. Ideological fights, based on sound strategies, began to become things of the past. Grabbing state power and misuse and abuse of national resources had become the only reason most politicians began waging battles against each other.13
Being part of a ruling force in the country, many BNP leaders had never tried to understand Awami policies of capturing and retaining power. In fact, neither BNP nor Jamat understood too well the strategies and policies Awami leaders were pursuing while they were in and out of power.
Following the independence of Bangladesh, Awami League wanted to transform itself into a party similar to that led by Ataturk of Turkey or Nasser of Egypt. The untimely and unwanted demise of Bangabandhu did not permit this happen.
Ziaur Rahman wanted to be a leader like Mahathir Mohammed of Malaysia. Foreign forces did not want this for obvious reasons. More importantly, BNP, as a driving force in the hands of Ziaur Rahman, failed to provide a political platform to allow him to achieve his reformative and constructive policies. Fighting Ershad, Begum Khaleda Zia emerged as an uncompromising leader in Bangladesh. As a result, she was a natural choice for BNP leadership, as it had happened with Sheikh Hasina.
Most political analysts and observers tend to argue that both of these powerful ladies of Bangladesh do not maintain any real differences, ideologically speaking. Such an assumption is incorrect; despite both being supporters of democracy and free market economy, their ideology of governance and development models are fundamentally different. However, the idea that both the female leaders could be influenced and dominated by Big Brothers from New Delhi gets support. Since 1/11 of 2007, the leadership of Sheikh Hasina took a different turn, witnessed clearly in the tenth parliamentary elections of the country.
Tenth Parliamentary Elections: Inescapable Outcome with Obvious Results
As a ruling party, Awami League has won 232 in a total of 300 parliamentary seats in the latest elections. This is no source of wonder for anybody. The unprecedented events that led to this result knows no parallel in any democratic exercise in the history of any country of the world. Out of 300 seats, 153 seats were won uncontested, while in 1973 this number was 8. Moreover, this time, the Awami League itself won 127 seats uncontested. In 1973, all 8 uncontested seats were in the pocket of the ruling party.
This time Awami League used the autocratic military junta and General Ershad and his faction of Jatiya Party to orchestrate the parliamentary elections, while Bangabandhu was very reluctant to use other political forces or state powers in his election endeavours. Apparently, ten tiny political parties contested in this January 2014 elections, but in reality less than 10% (many estimates show the figure less than 5%) voters participated in these elections that made it the most unrepresented elections of Bangladesh. The IFEX report has elaborated these events in details.14
Most Western observers are in consensus about the credibility of the tenth parliamentary elections. However, Awami League, as a ruling party, was and is determined to remain in power by hook or crook. On December 21, 2013, The Economist stated that in these elections the Awami League would win, but the nation will fail definitely.15 This is not a new thesis about Awami leadership in Bangladesh and it has become rather the most important political strategy of the party. Even before the demise of first Awami League government under the leadership of Bangabandhu, Ahmed Sofa, a great patriot of Bangladesh, reiterated that Awami League was no more interested to win with the people – it wishes to win power by defeating Bengali people.16
The people of Bangladesh have increasingly becoming hostages in the hands of rulers and their cronies, who claim themselves as representatives, but are destroying all the hope and potential Bangladesh as nation can aspire to.
From Original Constitutional Flaws to Utter Manipulation & Virtual Suspension of Fundamental Rights
The chief architect of the 1972 Constitution, Dr. Kamal Hossain, would possibly agree that the text of the first supreme law of Bangladesh suffered from two major flaws, which could diminish the entire envisioned system of Bangladesh.
The two major flaws were:
1. Poor application of the theory of separation of powers17, which should give shape to the constitutional framework for a state and its legal system. Who was it that, for the first time, conceptualized the theory of separation of powers might a debatable issue in legal research or political discourse. But without its application one cannot expect a check and balance in state power at the highest levels of governance. Members (34 of them) of the first Constituent Assembly must have known the substance of the theory of separation of powers, and being well-versed in jurisprudential studies of constitutional theories Dr. Kamal Hossain was probably aware that without some Aristotelian thought – that the rule of law is always better than kind of application of Montesquieu’s theory, originating from the absolutism exercised by kings or monarchs – no modern constitutionalism can work for the people. During the lifetime of Montesquieu, the Bourbon monarchy in France was horribly despotic; the monarch was an absolute Lawgiver, the Highest Executor, and the Chief Judge for France. In fact, Louis XIV declared: “I am the State”. Possibly, Dr. Kamal Hossain could not have imagined that Bangladesh could repeat this history. Still, the 1972 constitution was marked with some nominal and very formal distribution of powers at the highest levels of state machinery.
2. The original 1972 Constitution did not contain any provision for declaring emergency under any circumstances. In other words, neither the Head of State (President) nor the Head of the Government (Prime Minister) could declare emergency in the country and the Chief Justice could not endorse any kind of state emergency declared or undeclared by any Bangladeshi citizen of force in disguise of constitutional necessity. Most of the constitutional experts would tell us that this is a very profound constitutional flaw in the 1972 Supreme Law of Bangladesh.
However, if we take these two theoretical shortcomings of the 1972 Constitution of Bangladesh in context and allow them to be exposed simultaneously, then Dr. Kamal Hossain would possibly argue that these two negative notes about the original text of the constitution might have neutralized the pulses of absolutism and anarchism on one hand and could leave Bangladesh alone for the fulfillment of the original intention and declared commitment to the fundamental rights of all citizens, including people claiming themselves as religious minorities or having non-Bengali ethnic identities.
With the help of the second Amendment to the Bangladesh constitution, constitutional provisions necessary for the declaration of state emergency were introduced. But, neither the framers of the constitution nor the lawmakers elected in the 1973 parliamentary elections could seriously ponder about the method of using the power of declaring emergency.
Thus, the establishment of one-party rule brought with it the adoption of the fourth Amendment to the constitution in 1974. This is the beginning of the constitutional disaster, which turned into a tsunami that has buried many of cherished democratic traditions and hard earned fundamental rights. Surprisingly, all this was done in the name of the consolidation of the objectives of the glorious liberation war and for the sake of the preservation of the basic structure of the constitution, which will be discussed shortly.
Consider what the Fifteenth Amendment to the constitution has achieved. Firstly, in the name of returning to the original
1972 constitution, the nation has been lied to. This is sheer deception, if not utter hypocrisy. No investigation has proven that the present Constitution of Bangladesh is a reminiscence of
1972 Constitution. Now we have state religion as a constitutional principle and all powers vested in the hands of one person, i.e. the Prime Minister, who can control all major work of the President and even the Chief Justice. Chief Justice K. Haque has proven this in front of the nation. Abdul Halim offers a critical assessment of Khairul Haque’s legacy.18
Secondly, even the right to have referendum over any vital national issue has been taken away as such a provision is completely absent in the constitution19.
Thirdly, Bangladesh has lost a system of parliamentary supremacy that could change laws, including constitutional provisions whenever necessary. What kind of constitutional rigidity is this? No credible answer can be found elsewhere in the world.
Fourthly, Bangladeshis were told that they now lived under constitutional supremacy for which national parliamentary elections are orchestrated, where less than 5% voters exercise their voting rights. All major opposition parties were blamed for their non-participation in 5 January 2014 elections. But, the fact of the matter is that the ruling party did not want any other popular party to contest in the 10th parliamentary elections.
Fifthly, any criticism of the Fifteenth Amendment may result in any citizen being accused of sedition against the State, a crime for which the constitution itself declares a punishment of death.20 All this has happened in the backdrop of a kind of fascist onslaught on the political right to protest and assemble in any place in Bangladesh.
Lastly, by virtue of the Fifteenth Amendment to the constitution, the principle accepted worldwide that sovereignty belongs to people has been violated completely and in many ways. Even with an overwhelming majority, support within and outside the parliament, Bangladeshis supposedly should not even try to change their constitution for the better. Any serious and consistent efforts to bring about progressive changes to the constitution may lead to death penalty for those who voice their right to act or speak against impractical, unhealthy, unacceptable, and discredited provisions of the constitution. Who and how people will enjoy the right to free speech and political opinion is not a debatable question in terms of constitutional principles.
However, under the present constitution, a huge number of constitutional principles, provisions, and rules must be kept above all kinds of criticism and those constitutional letters must be regarded as “sacred words” not to be amended by the nation or by any highest legislative body genuinely elected.
Thus, the present constitution has to be regarded as a religious scripture and its injunctions to be followed blindly; any number of people can be hanged by the government if it thinks that the accused have been engaged in sedition against government. In other words, we have diminished the differences between religious injunctions and constitutional rules on one hand, and on the other hand, have taken the concepts of statehood and government as synonymous.
It makes one wonder how the authors of the Fifteenth Amendment to the Constitution claim themselves as secularists. For some secularists in Bangladesh, anti-Islamism is the real essence of state-secularism, which will promote all non-Islamic religious activists so that they can kill any religious man or woman just by labeling them as Islamic fundamentalists. This is a dangerous phenomenon that recent history has registered in some countries including India, which is now engulfed by Hindu fanatic forces at all level of its polity and governance. Surprisingly, these Hindu fanatic forces are termed as “nationalist”, and have also been credited for their wish to unite South Asian countries under the political ideology of Hinduism.
The Doctrine of Basic Structure vis-à-vis Basic Constitutional Provisions
Initially, those that framed the constitution had been pondering over fundamental constitutional principles. Combining socialism, nationalism, secularism, and democracy, they wanted to have a legal philosophy for constitutionalism in Bangladesh.21 However, the ideological basis of the Bangladesh constitutional system did not resonate with the hopes and aspirations of the vast majority of people, who wanted to see the materialization of proclaimed goals of economic emancipation.
Politicians, as always, were, and are, very keen to keep citizens engaged in political rhetoric to monopolize power in running state affairs. State ideology is a self-severing agenda for most political parties, which have been engaging in deadly internecine fighting for capturing and retaining power. Neither the empty words of patriotism, nor the religious commitment to the betterment of fellow-citizens can anymore serve as an effective tool to generate popular support to the political parties and their activists as they have lost their credibility as genuine patriots and leaders committed to the causes of nation building. Moreover, most people have been talking consciously about their leaders’ hypocritical behaviors and life-style.
In this backdrop, the role of the ‘doctrine of necessity’ has increased tremendously at every turning point of Bangladesh national history and constitutional development. The doctrine of necessity has been used by politicians, judges, and military- backed governments; they have used it in diametrically opposite ways; thus Bangladesh has not achieve any maturity in its political and constitutional system. Amendment after amendment to the constitution has failed to produce any lasting result to consolidate fundamental rights, the rule of law, and political stability. Political instability, along with endemic corruption and vicious cycles of poverty, has pushed Bangladesh toward a system tantamount to a police state, something the Bangladesh nation has hated since British domination over people and resources.
Since the hard-earned independence of Bangladesh in 1971, the Bangladeshi people wanted to have their own constitutional framework and legal system conducive to the protection of their national glory, dignity, identity, and for the creation of a society based on fairness, decency, equality, and progressive ideals of economic and constitutional growth. Our brutal colonial and Pakistani legacy either hurt the people deeply and/or Bangladeshis have just been indulging in reactionary squabbling, leading to a kind of intellectual bankruptcy. As a result, Bangladesh decided to make political speeches or statements an integral part of the constitution, despite committing fundamental blunders during and after the liberation war.
The instrument of surrender is one example of such a blunder, where neither the Bangladesh Chief of Staff of Freedom Fighters, nor his deputy was seen beside General Jagjit Singh Aurora as the surrender was signed. General Aurora signed as the General Officer Commanding in Chief, India and Bangladesh Forces, Eastern Theatre. Since the Deputy Chief of Staff of Bangladesh weapons, he should have signed the Instrument on behalf of the Bangladesh Force.22
The Simla Treaty is another post-liberation blunder of the Ruling Awami League, wherein India and Pakistan were party to the decision of releasing 93,000 Pakistani prisoners of war who were really war criminals.23 The agreement should have been tripartite, and included Bangladesh; it should not have been bilateral, between India and Pakistan. Both these blunders undermined and lowered the sovereignty of Bangladesh, becoming a permanent shame for the nation.
Not Bangabandhu’s immensely popular speeches, but his Six
liveable.
Points Formula along with Bangladesh’s Shwadhinota Shonod (Proclamation of Independence on April 17, 1971), could serve well as Bangladesh’s constitutional ideology. Even the brutal Pakistani leaders, including Z.A. Bhutto, acknowledged the strength of the Six Points Formula to lay down the foundation of a constitution of any federal government. Bangladesh is still based on a unitary form of government; it does not need federal constitutionalism as yet. The separate currency issue within Bangladesh territory is completely irrelevant.24 But the spirit of the Six Points and Shadhinota Shonod is quite relevant to Bangladeshi constitutionalism.
Bangladeshis desperately need a constitutional framework and legal system that can make their motherland livable, and can keep it sustainable environmentally, with harmonious economic growth. For this Bangladesh really needs constitutional provisions that would remain above all kinds of partisan politics and extremist political or religious ideas.
Should that be named as the Basic Structure of the constitution that would maintain some order in distributing State Powers from top to bottom? Maybe not! As State constitution primarily refers to the formation of national institutions at all important levels and their rules of engagement in contributing to nation building as a whole, so, in final analysis, the interplay between vital state institutions determine speedy and smooth growth towards statehood.
Does Bangladesh really need some non-amendable, permanent, perpetual, infallible, and eternal Articles or constitutional rules in our constitution? One doesn’t need serious legal or constitutional acumen to conclude that such kind of audacious rigidity cannot work for the betterment of nation building. Moreover, it creates a paradoxical situation: no future and fully accredited and credible highest legislative body will be able to make necessary constitutional amendments or changes without which Bangladesh can get locked into a dysfunctional system, in which it exists today. The main challenge at hand is how to fight corruption, poverty, and prevailing impunity, which has been widely used by ruling elite, especially the party in power.
The catastrophic erosion of our prevailing political and constitutional system is the outcome of the concentration of State power in the hands of very few who claim that they have the birth right to dominate the people in every aspect of their existence and activities. These ‘fortunate’ few are seeking life-long sole-agency over the destiny of the people and national interests, which should remain above partisan politics and all kinds of fanaticism. To this date, we have not reached national consensus over any important national and state-building issue.
Some politicians are still partial toward a Pakistani type of politics, with power mongering at any cost. And, the so-called patriotic and largest political party, in particular its central leaders, are out to make Bangladesh completely subservient to its mightiest neighbor, whose ruling elite are reaping benefits at the cost of total destruction25 of the motherland: Golden Bengal.
Indulging in a Myth of Alien Constitutional Doctrine & Its Fatal Consequences
Whatever way we wish to discover a textual justification for the Basic Structure of the Bangladeshi constitution, we may fail to find one, as there is no “constitutional text” for it. In fact, it is impossible to insert such a provision in a state’s constitution, as then many other constitutional principles and provision would also claim such a special status. As a result, all the defenders of the “Basic Structure” of the constitution have to argue merely based on some presumed underlying spirit of constitutional principles and provisions that cannot be found in the constitution.
The doctrine of basic structure is nothing but an abstract hypothesis that tends to curtail the powers of the highest legislative body of a democratic country where some sections or some families look for sole agency in the process of the amending the constitution. In a narrower sense, this perceived doctrine, it may be argued, for the sake of political and constitutional stability, tries to keep some pillars of the constitutional framework irremovable or unchangeable, so that no unconstitutional forces can intervene in the system of governance in any unwanted manner.
However, such an impractical rigidity may prove uncalled for and may even provoke the vast marginalized majority to resort to various types of anarchism to have their stake in running the affairs of the State. In a broader sense, the ruling elite may feel unable to resist its ideological and religious adversaries through constitutional means that cannot be challenged in any court of law within the country. In both ways, this doctrine may put the State mechanism in a precarious situation, which may go out of hand at any time. To avert that possibility, the 15th Amendment to our constitution made all kinds of national referendum of getting public support for any amendment unconstitutional and can therefore be regarded as anti-constitutional. This is one of the greatest strategies of constitutional history and development of our time.
The 15th amendment of our constitution has created way too many controversies, too many for a Supreme Law of a modern State. Not only has it attempted to change many age- old and universally accepted formulas of jurisprudence and constitutionalism, it has created too many ambiguities for a sound legal document.26
The Fifteenth Amendment taking us nowhere
The ill-conceived ideology of the two-nation theory of colonial London and its agents made both barbaric Pakistan and fanatic India a reality for all people of the subcontinent. However, India remained on the path of some kind of constitutionalism, and Pakistan opted for militarism. Pakistan has failed to produce any kind of system for its own federalism, but India was sincere to keep its federal government running to avoid any catastrophe such as a dismantling of Indian federalism that encompasses thousands of ethnic and linguistic groups living in the Indian territories.
In 1951, the Indian Parliament decided to make its first constitutional amendment, while, at that time the Pakistanis were still fighting for what type of constitution it should have. Indian politicians understood very well that the concentration of huge capital in private hands might be detrimental to the interests of the growing Indian state. The constitution amendment brought in 1951 known as the First Amendment Act of parliament consolidated powers in the hands of government to resist individuals and groups aspiring to grab properties of all kinds in the name of right to private property. This legal idea of governmental preeminence over national wealth was in the line of socialistic ideals about nationalized economy, where sectors of private economy must be under the strict control of governmental agencies. After independence in 1971, the Bangladesh government also followed the same strategy, leading to disastrous consequence, including the devastating famine of 1974.
In Sajjan Singh vs. State of Rajasthan27, the 17th Amendment Act of the Indian Constitution, relating to fundamental rights, was challenged but it was also rejected like Sankari Parsad. Unfettered amendment privilege of the Parliament remains untouched in this case but the opinion was divided 3:2. Two dissenting judges, Hidayatullah, based on non-amendability of a fundamental right, and Mudholkar JJ, based on non-amendability of basic structure, raised doubt as to the amendability of all the provisions of the constitution.
The petitions against constitutional amendment were recurrently rejected but objections against amendment were not stopped. After the above cases, came the Golaknath case. The Golaknath case is the first to breach parliamentary power of unfettered amendment. I.C. Golaknath vs. State of Punjab28 established the principle of non-amendability of fundamental rights, based on the argument of Hedayatullah J. in the Sajjan Singh case in favor of non-amendability of fundamental rights and not on the argument of basic feature of Mudholkar J. in Sajjan Singh case that was the base of the later Kesavananda case.
KesavanandaBharati vs. State of Kerala29 is the landmark case establishing the doctrine of basic structure. Parliament acted to undo the effect of the Golaknath case and declared that parliament can amend any part of the constitution. The Kesavananda case discarded the argument against the non-amendability of the provision of constitution that affects the basic structure of the constitution.30
There are many other subsequent cases where the decision of Kesavananda has made the basic structure dubious in some matters and made favorable matters of fundamental rights that should not come under the attack of any ruling party or government. We can observe here that Indira Gandhi vs. Raj Narain31, popularly known ‘Election case’, was filed against 39th amendment and the decision of Kesavananda was also affirmed in this case. Other cases in favor of the basic structure doctrine to be noted are Minerva Mills vs. Union of India32, Waman Rao vs. Union of India33, and A. K. Roy vs. India34.
Doctrine of Basic Structure in Bangladesh
The present-day Bangladeshi constitution has been apparently designed along the lines of Indian jurisprudential understanding of constitutionalism; the constitution can be regarded as a broader legal framework for all national institutions and for the branches of Law yearning for a decent system of Rule of Law. Problems with many jurists and legal minds in Bangladesh is that they believe that the overriding and overarching powers of some people sitting at the top of important national institutions can meet the challenges by empowering them only through dogmatic activism or partisan politics. Power sharing at the State level is not a simple legal mechanism that can ensure the supremacy of one state organ over others.
However, the doctrine of parliamentary supremacy is altogether a different issue, as, through this doctrine, democratic government wishes to uphold the theory and principle of asserting the notion that ‘Sovereignty belongs to People.” Neither the Parliament nor the Supreme Court of any State can violate this fundamental constitutional principle of putting people’s interest ahead of everything. The executive branch of government headed by President or Prime Minister should be under the supervision and guidance of other two branches of government. And this is not a simple application of the theory of the Separation of Powers within a State mechanism; it is a real check and balance system within the state machinery to save people from arbitrary actions or inactions of the ruling elite.
Without giving any attention to the check and balance system in exercising state powers, an apex court cannot simply buttress the avenues of possible use of arbitrary powers by the top executives of the government that is no more accountable or answerable to the people. That Bangladesh leaders are not caring about the welfare of the people is now an established phenomenon that can easily be understood at any time or in any event of conflict between different political parties and forces. Things get nastier when leaders in powers ignore not only the voices of the people, but also the opposition leaders, who may or may not be the birds of same feathers when it comes to grabbing State powers and occupying seats in parliament through which they can stay in power against the will of the people.35
The argument that the bill of the fifteenth Amendment to the Constitution was prepared on the basis of the report of the Special Committee for Constitutional Amendment (SCCA) on July 21, 2010, does not hold water. The claim that the SCCA held 27 formal meetings and then came up with 51 points of recommendations is also a political maneuvering rather than any serious expression of good will of accommodation of diverse legal views and opinions. The main argument was that the Amendment was necessary because of the judgment of the Supreme Court, headed by the highly controversial C.J. H. Haque. The consequences of the political drama have proved to be disastrous by any standard of maintaining the rule of law and continuity of a constitutional legal framework that can ensure a peaceful and creditable transition of power from one government to another. But after the Fifteenth Amendment, as Abdul Halim claims, the constitution now creates dilemma and confusion.36
Provision of Basic Structure in the Present constitution of Bangladesh:
Article 7A and 7B includes the provision of basic structure in Bangladesh constitution.
Article 7A.
(1) If any person, by show of force or use of force or by any other un-constitutional means-
(a) abrogates, repeals or suspends or attempts or conspires to abrogate, repeal or suspend this Constitution or any of its article ; or
(b) subverts or attempts or conspires to subvert the confidence, belief or reliance of the citizens to this Constitution or any of its article,
his such act shall be sedition and such person shall be guilty of sedition.
(2) If any person-
(a) abets or instigates any act mentioned in clause (1) ; or
(b) approves, condones, supports or ratifies such act,
his such act shall also be the same offence.
(3) Any person alleged to have committed the offence mentioned in this article shall be sentenced with the highest punishment prescribed for other offences by the existing laws.
Article 7B
Notwithstanding anything contained in article 142 of the Constitution, the preamble, all articles of Part I, all articles of Part II, subject to the provisions of Part IXA all articles of Part III, and the provisions of articles relating to the basic structures of the Constitution including article 150 of Part XI shall not be amendable by way of insertion, modification, substitution, repeal or by any other means.
Under the pretext of above mentioned constitutional provisions, any person may find himself and herself in a very dangerous situation in the hands of any personnel of any law enforcement agencies, guided or misguided by any person or leaders, who are at the helm of political power. Due to these provisions, the lines between the political correctness and being legally prudent have been blurred completely.
Some Troubling Notes about the Fifteenth Amendment to the Constitution
Where the constitution has made no limitation, why does the amendment attempt to impose limitation over the amending power of the parliament? Where the original constitution has not imposed any absolute bar on amending power is it justified to impose such bar by way of judicial interpretation? The answer of the antagonist to the basic structure doctrine is: no.
Rigidity in amendment of the constitution may lead to revolution. It is argued that if all the doors and windows are closed, the possibility of revolution looms. The Parliament has also constituent power.37 The body that makes the constitution is the parliament elected by the people. All parliaments should have such power so that the opinion of the people is respected.
The constitution has already undergone many radical changes. Why should one make an exception to such trends? If one allows it, those amendments would be void which have already been regarded as valid. Only dissenting Judge A.T.M. Afzal, in the 8th Amendment case, observed, that in the absence of the full catalogue of basic structure, nobody may know the limit of amendment. It is inconceivable that the makers decided all the matters and left nothing for the future. There was nothing to prevent the makers to make such provisions of basic structure in the original constitution if those were really wanted by them. However, Fifteenth Amendment did this to our constitution by making a large part of it unamendable.38
A functional constitution cannot alienate a vast majority of the voters. In the January 5, 2014, parliamentary elections not more than 5% of the total voters cast their votes and 153 PMs out of
300 member-parliament were declared elected without contesting their seats. The holding of such farce parliamentary elections was justified by a necessity of constitutional continuity that argues that in the case of absence of other candidates the sole running candidates should be declared as the winners.
In a similar fashion, present-day Bangladeshi constitution, as mentioned above, declares that no future parliament can change any article related to so-called Basic Structure of the constitution. One-third of the constitution, as Basic Structure, which includes a number of declarations and public speeches, can, under no circumstances, be regarded as the text of any State-constitution. Without mentioning any role of internal and external influence on the design and draft of the fifteenth amendment, we can easily argue that the flawed constitutional system the nation has been riding now may prove to be obsolete during any given political crisis and ultimately Bangladesh may, in desperation, need to adopt a new constitution to address vital issues related to power- sharing at the highest level of governance.
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*He was a Fulbright Scholar, Country Specialist on Afghanistan at the Amnesty
1 The Constitution (Fifteenth Amendment) Act, 2011 (Act XIV of 2011)
2 After Fifteenth Amendment, the Constitution now contains 114 footnotes for its 153 Articles.
3 See article 7 (2) of the Constitution of the People’s Republic of Bangladesh, available at http://bdlaws.minlaw.gov.bd/print_sections_all.php?id=367, last visited on April 17, 2014.
4 http://www.humanrights.asia/resources/hrreport/2013
5 This judgment is itself dubious and unconstitutional. It violates jurisprudential norms for making and amending the constitution of a modern sovereign state and the concept of separation of powers, based on which the judiciary operates.
6 Ziring, Lawrence, Bangladesh, From Mujib to Ershad: An Interpretative Study, Oxford University Press (republished by UPL), 1992, pp.100-101
7 Article 7B has been inserted by the 15th Amendment, which makes the preamble, all articles of Part I, all articles of Part II, all articles of Part III (subject to the provisions of Emergency) and the provisions of articles relating to the basic structure of the Constitution, including article 150 of Part XI, not amendable by way of insertion, modification, substitution, repeal, or by any other means.
8 The Rampal Power Station is a proposed 1320 megawatt coal-fired power station in southwest Bangladesh. The project is widely considered to be the symbol of present Awami League government’s megalomania, corruption, and lust for illegally made wealth. Popular belief considers it as a bribe by the Awami League to the former Congress government of India, which is also accused of massive corruption and malgovernance, to attain Indian support for arranging a virtually one-party election.
9 Khasru, Omar, “From 4th to 15th Amendment: BAKSAL to Abolition of Caretaker Government”, The New Age, Nov. 4, 2013, p. 8
10 “President of Bikalpadhara Bangladesh Prof. AQM Badruddoza Chowdhury on Friday called upon the Prime Minister to refrain from a BAKSAL style poll and urged her to take measures to hold the forthcoming elections under a caretaker government. B. Chowdhury, a former President of the country, alleged that the Prime Minister brought amendment to the Constitution by killing the democracy for her own interest.” (“Refrain from BAKSAL style poll: B Chy”, The Independent, November 9, 2013).
11 “Pointing at Prime Minister Sheikh Hasina, the BNP Chairperson said, “You had enforced hartal for 173 days. Now we’ll enforce non-stop hartal and blockade after our current programmes if you don’t restore non-party or caretaker government provision.” See: www.daily-sun.com/details_yes_08-09-2013_Khaleda-threatens-non-stop-hartal,-blockade_609_1_0_3_0. html#sthash.SP4mQyMC.dpuf
12 10th Parliament Election was held under article 123 (3)(a) of the Constitution, which is one of the controversial amendments brought by the 15th Amendment to the Constitution.
13 See for details, Liton, Shakhawat, “A Failed Adventure”, a weekly publication of The Daily Star, 24 January, 2014, p. 18.
14 http://www.ifex.org/bangladesh/2014/01/09/bangladesh_elections/
15 “Sheikh Hasina’s unpopular government has lost control of large parts of the country… The biggest disadvantage is that the poll will be an obvious sham. Of 300 elected parliamentary seats, 154 will be uncontested. The BNP and 17 of its small allies are joining the boycott. The government has detained in hospital and seems poised to exile Mohammad Hossain Ershad, a former dictator and the leader of Jatiyo, the third-largest party, for its boycott”.
16 ‘When Awami League wins, Sheikh Hasina with a handful of people wins, and when Awami League loses, the whole Bangladesh loses,’ in Collected Interviews of Ahmed Sofa.
17 A classical work of Montesquieu, titled “The Spirit of Laws” published in 1748, has elaborated the necessity of the theory of Separation of Powers for any modern state to be guided with the principles of the rule of law, methods of preservation of human dignity for all.
18 Halim, Md. Abdul, “7th Amendment Judgment: Judicial Politics or Activism”,
The Counsel Law Journal, pp. 26, 27.
19 The provision for referendum was introduced for the amendment of preamble or any provisions of articles 8, 48, 58, 80, 92A by the Second Proclamation (Fifteenth Amendment) Order, 1978 (Second Proclamation Order No. IV of
1978) and later by way of the Constitution (Twelfth Amendment) Act, 1991 (Act XXVIII of 1991) articles 58, 80, 92 A were omitted and article 56 was inserted.
20 Article 7 A has been inserted by way of the Constitution (Fifteenth Amendment) Act, 2011 (Act No. 14 of 2011) which makes abrogation, suspension etc. of the Constitution, offence punishable with death.
21 In 1972 Bangladesh leaders wanted to combine the principles of socialism with a kind of anti-Islamic secularism. On the other hand, India, in
1976, made secularism its constitutional principle. A major problem with Bangladesh leaders has been their wish to get everything done in wishful ways without taking any note of public opinion or hopes and aspirations of the people. Bangabandhu had been struggling with the declared ideology of secularism by claiming it as a different kind of neutrality to all religious beliefs, i.e. non-combative secularism that would not wage a war against Islam in Bengal.
22 The Instrument of Surrender, available at http://en.wikipedia.org/wiki/ Instrument_of_Surrender_(1971), last visited on May 13, 2014.
23 Simla Agreement, July 2, 1972, available at http://en.wikipedia.org/wiki/ Simla_Agreement, last visited on May 13, 2014.
24 The idea that Bangabandhu was wrong to claim a separate currency for then East Pakistan is also incorrect, as still today we can see that Hong Kong has it own currency despite that fact that it is an integral territory of the People’s Republic of China.
25 Making Bangladesh environmentally unsustainable and economically unviable, India would not be able to help itself in any way. Rather a friendly relation might be mutually beneficial. New Delhi has been ignoring this possibility since the inception of Bangladesh as a sovereign State, which is now the fifth largest remittance provider to India, which receives over $ USD 5 billion annually from a number of Indians working in Bangladesh. The unofficial figure cannot be counted and thus one cannot tell whether Bangladesh would lose its remittance income to India in the near future.
26 See for details, Halim, Md. Abdul, “7th Amendment Judgment: Judicial Politics or Activism”, The Counsel Law Journal, Vol. 1, Issue 1, Oct., Dhaka, 2013, p .68.
27 AIR 1965 SC 845
28 AIR 1967 SC 1643
29 AIR 1973 SC 1461
30 See for details, Halim, Md. Abdul, Amendments of the Constitution of
Bangladesh: Legislative Versus Judicial; CCB Foundation, Dhaka, 2012, pp 43, 44.
31 AIR 1975 SC 2299
32 AIR 1980 SC 1789
33 AIR 1981 SC 271
34 AIR 1982 SC 740
35 See for details, Halim, Md. Abdul, Amendments of the Constitution of Bangladesh: Legislative Versus Judicial; CCB Foundation, Dhaka, 2012, p. 68.
36 See for details, Halim, Md. Abdul, “7th Amendment Judgment: Judicial Politics or Activism”, In : The Counsel Law Journal, Vol. 1, Issue 1, Oct., Dhaka, 2013, pp. 78, 79.
37 The Constituent Assembly is the authority to frame a constitution. The Parliament, on the other hand, has the power to remove from and insert into the Constitution. That is why the Parliament also has constituent power.
38 See for details, Halim, Md. Abdul, Amendments of the Constitution of Bangladesh: Legislative Versus Judicial; CCB Foundation, Dhaka, 2012, p. 101.
