The Constitution of Bangladesh is the highest ruling of Bangladesh. It represents Bangladesh as a democratic republic nation where all the power is in the hands of Bangladeshi people (art.7) and characterizes basic political principles of the state and stands for the fundamental rights of citizens. It was approved by the Assembly of Bangladesh on November 4, 1972; it was exercised from December 16, 1972. The constitution stands as the most powerful evidence to state Bangladesh as a unitary, independent and Republic, founded on a struggle for national liberation, and that is how we, achieve the People’s Republic of Bangladesh. It lays a strong foundation of nationalism, secularity, democracy and socialism as the essential ethics that stands for the Republic and declares the quest of a society that gives its citizens- the rule of law, fundamental civil rights and independence as well as fairness and evenhandedness, political, economic and social.
Throughout this whole paper I will try to explain the amendments of the constitution with their timely significance which I have asked from the 14 amendments.
What is Constitution?
The constitution in the fundamental law of the state which defines and limits the powers of the legislature, executive and judiciary along with the relations among themselves and with the citizens of the state.
Constitution has been in the universal standard Encyclopedia, Volume 6 as “In politics, a system of law established by a sovereign State for its own guidance. It fixes the limits and defines the relations of the legislative, the judicial, and the executive powers of the State, both among themselves and with the citizens of the State, thus setting up the basis for Government.”
According to Wikipedia a constitution is a set of fundamental principles or established precedents according to which a state or other organization is governed. These rules together make up, i.e. constitute, what the entity is. When these principles are written down into a single or set of legal documents, those documents may be said to comprise a written constitution.
Constitutions concern different levels of organizations, from sovereign states to companies and unincorporated associations. A treaty which establishes an international organization is also its constitution in that it would define how that organization is constituted. Within states, whether sovereign or federated, a constitution defines the principles upon which the state is based, the procedure in which laws are made and by whom. Some constitutions, especially written constitutions, also act as limiters of state power by establishing lines which a state’s rulers cannot cross such as fundamental rights.
The Constitution of India is the longest written constitution of any sovereign country in the world, containing 444 articles, 12 schedules and 94 amendments, with 117,369 words in its English language version, while the United States Constitution is the shortest written constitution, at 7 articles and 27 amendments. On the other hand our constitution has only 153 articles,4 schedules and 14 amendments.
The term constitution comes through French from the Latin word constitutio, used for regulations and orders, such as the imperial enactments (principis: edicta, mandata, decreta, rescripta). Later, the term was widely used in canon law for an important determination, especially a decree issued by the Pope, now referred to as an apostolic constitution.
Generally, every modern written constitution confers specific powers to an organization or institutional entity, established upon the primary condition that it abides by the said constitution’s limitations. According to Scott Gordon, a political organization is constitutional to the extent that it “contains] institutionalized mechanisms of power control for the protection of the interests and liberties of the citizenry, including those that may be in the minority.”
The Latin term ultra vires describes activities of officials within an organization or polity that fall outside the constitutional or statutory authority of those officials. For example, a students’ union may be prohibited as an organization from engaging in activities not concerning students; if the union becomes involved in non-student activities these activities are considered ultra vires of the union’s charter, and nobody would be compelled by the charter to follow them. An example from the constitutional law of sovereign states would be a provincial government in a federal state trying to legislate in an area exclusively enumerated to the federal government in the constitution, such as ratifying a treaty. Ultra vires gives a legal justification for the forced cessation of such action, which might be enforced by the people with the support of a decision of the judiciary, in a case of judicial review. A violation of rights by an official would be ultra vires because a (constitutional) right is a restriction on the powers of government, and therefore that official would be exercising powers he doesn’t have.
In most but not all modern states the constitution has supremacy over ordinary statute law in such states when an official act is unconstitutional, i.e. it is not a power granted to the government by the constitution, that act is null and void, and the nullification is ab initio, that is, from inception, not from the date of the finding. It was never “law”, even though, if it had been a statute or statutory provision, it might have been adopted according to the procedures for adopting legislation. Sometimes the problem is not that a statute is unconstitutional, but the application of it is, on a particular occasion, and a court may decide that while there are ways it could be applied that are constitutional, that instance was not allowed or legitimate. In such a case, only the application may be ruled unconstitutional. Historically, the remedy for such violations have been petitions for common law writs, such as quo warranto.
Excavations in modern-day Iraq by Ernest de Sarzec in 1877 found evidence of the earliest known code of justice, issued by the Sumerian king Urukagina of Lagash ca 2300 BC. Perhaps the earliest prototype for a law of government, this document itself has not yet been discovered; however it is known that it allowed some rights to his citizens. For example, it is known that it relieved tax for widows and orphans, and protected the poor from the usury of the rich. .
After that, many governments ruled by special codes of written laws. The oldest such document still known to exist seems to be the Code of Ur-Nammu of Ur (ca 2050 BC). Some of the better-known ancient law codes include the code of Lipit-Ishtar of Isin, the code of Hammurabi of Babylonia, the Hittite code, the Assyrian code And Mosaic law.
In 621 BC a scribe named Draco codified the cruel oral laws of the city-state of Athens; this code prescribed the death penalty for many offences (nowadays very severe rules are often called “Draconian”). In 594 BC Solon, the ruler of Athens, created the new Solonian Constitution. It eased the burden of the workers, and determined that membership of the ruling class was to be based on wealth (plutocracy), rather than by birth (aristocracy). Cleisthenes again reformed the Athenian constitution and set it on a democratic footing in 508 BC.
Aristotle (ca 350 BC) was one of the first in recorded history to make a formal distinction between ordinary law and constitutional law, establishing ideas of constitution and constitutionalism, and attempting to classify different forms of constitutional government. The most basic definition he used to describe a constitution in general terms was “the arrangement of the offices in a state”. In his works Constitution of Athens, Politics, and Nicomachean Ethics he explores different constitutions of his day, including those of Athens, Sparta, and Carthage. He classified both what he regarded as good and what he regarded as bad constitutions, and came to the conclusion that the best constitution was a mixed system, including monarchic, aristocratic, and democratic elements. He also distinguished between citizens, who had the right to participate in the state, and non-citizens and slaves, who did not.
The Romans first codified their constitution in 450 BC as the Twelve Tables. They operated under a series of laws that were added from time to time, but Roman law was never recognized into a single code until the Codex Theodosianus (AD 438); later, in the Eastern Empire the Codex repetita pralectionis (534) was highly influential throughout Europe. This was followed in the east by the Ecloga of Leo III the Isaurian (740) and the Basilica of Basil l (818).
The Constitution of Medina also known as the Charter of Medina, was drafted by the Islamic prophet Muhammad (Sm.). It constituted a formal agreement between Muhammad and all of the significant tribes and families of Yathrib (later known as Medina), including Muslims, Jews, and pagans. The document was drawn up with the explicit concern of bringing to an end the bitter inter tribal fighting between the clans of the Aws (Aus) and Khazraj within Medina. To this effect it instituted a number of rights and responsibilities for the Muslim, Jewish, and pagan communities of Medina bringing them within the fold of one community—the Ummah.
The precise dating of the Constitution of Medina remains debated but generally scholars agree it was written shortly after the Hijra (622). It effectively established the first Islamic state. The Constitution established: the security of the community, religious freedoms, the role of Medina as a haram or sacred place (barring all violence and weapons), the security of women, stable tribal relations within Medina, a tax system for supporting the community in time of conflict, parameters for exogenous political alliances, a system for granting protection of individuals, a judicial system for resolving disputes, and also regulated the paying of Blood money (the payment between families or tribes for the slaying of an individual in lieu of lex talionis).
In England, Henry’s proclamation of the Charter of Liberties in 1100 bound the king for the first time in his treatment of the clergy and the nobility. This idea was extended and refined by the English barony when they forced King John to sign Magna Carta in 1215. The most important single article of the Magna Carta, related to “habeas corpus”, provided that the king was not permitted to imprison, outlaw, exile or kill anyone at a whim— there must be due process of law first. This article, Article 39, of the Magna Carta read:
No free man shall be arrested, or imprisoned, or deprived of his property, or outlawed, or exiled, or in any way destroyed, nor shall we go against him or send against him, unless by legal judgment of his peers, or by the law of the land.
This provision became the cornerstone of English liberty after that point. The social contract in the original case was between the king and the nobility, but was gradually extended to all of the people. It led to the system of Constitutional Monarchy, with further reforms shifting the balance of power from the monarchy and nobility to the House of Commons.
The earliest written constitution still governing a sovereign nation today may be that of San Marino. The Leges Statutae Republicae Sancti Marini was written in Latin and consists of six books. The first book, with 62 articles, establishes councils, courts, various executive officers and the powers assigned to them. The remaining books cover criminal and civil law, judicial procedures and remedies. Written in 1600, the document was based upon the Statuti Comunali (Town Statute) of 1300, itself influenced by the Codex Justinianus, and it remains in force today.
In 1639, the Colony of Connecticut adopted the Fundamental Orders, which is considered the first North American constitution, and is the basis for every new Connecticut constitution since, and is also the reason for Connecticut’s nickname, “the ConstitutionState”. England had two short-lived written Constitutions during Cromwellian rule, known as the Instrument of Government (1653), and Humble Petition and Advice (1657).
Agreements and Constitutions of Laws and Freedoms of the Zaporizian Host can be acknowledged as the first European constitution in a modern sense. It was written in 1710 by Pylyp Orlyk, hetman of the Zaporozhian Host. This “Constitution of Pylyp orlyk” (as it is widely known) was written to establish a free Zaporozhian-Ukrainian Republic, with the support of Charles XII of Sweden. It is notable in that it established a democratic standard for the separation of powers in government between the legislative, executive, and judiciary branches, well before the publication of Montesquieu’s Spirit of the Laws. This Constitution also limited the executive authority of the hetman, and established a democratically elected Cossack parliament called the General Council. However, Orlyk’s project for an independent UkrainianState never materialized, and his constitution, written in exile, never went into effect.
All of the British colonies in North America that were to become the 13 original United States, adopted their own constitutions in 1776 and 1777, during the American Revolution (and before the later Articles of Confederation and United States Constitution), with the exceptions of Massachusetts, Connecticut and Rhode Island. The Commonwealth of Massachusetts adopted its Constitution in 1780, the oldest still-functioning constitution of any U.S. state; while Connecticut and Rhode Island officially continued to operate under their old colonial charters, until they adopted their first state constitutions in 1818 and 1843, respectively.
What is sometimes called the “enlightened constitution” model was developed by philosophers of the Age of Enlightenment such as Thomas Hobbes, Jean-Jacques Rousseau, and John Locke. The model proposed that constitutional governments should be stable, adaptable, accountable, open and should represent the people (i.e. support democracy).
The United States Constitution, ratified June 21, 1788, was influenced by the British constitutional system and the political system of the UnitedProvinces, plus the writings of Polybius, Locke, Montesquieu, and others. The document became a benchmark for republicanism and codified constitutions written thereafter.
The Spanish Constitution of 1812 served as a model for other liberal constitutions of several South-European and Latin American nations like Portuguese Constitution of 1822, constitutions of various Italian states during Carbonari revolts (i.e. in the Kingdom of the Two Sicilies), or Mexican Constitution of 1824, As a result of the Napoleonic Wars, the absolute monarchy of Denmark lost its personal possession of Norway to another absolute monarchy, Sweden. However the Norwegians managed to infuse a radically democratic and liberal constitution in 1814, adopting many facets from the American constitution and the revolutionary French ones; but maintaining a hereditary monarch limited by the constitution, like the Spanish one. The Serbian revolution initially led to a proclamation of a proto-constitution in 1811, which was the first such legal act in Central and Eastern Europe; the full-fledged Constitution of Serbia followed few decades later, in 1835, by which also the country became the first constitutional monarchy in that part of Europe.
Principles of constitutional design
After tribal people first began to live in cities and establish nations, many of these functioned according to unwritten customs, while some developed autocratic, even tyrannical monarchs, who ruled by decree, or mere personal whim. Such rule led some thinkers to take the position that what mattered was not the design of governmental institutions and operations, as much as the character of the rulers. This view can be seen in Plato, who called for rule by “philosopher-kings.” Later writers, such as Aristotle, Cicero and Plutarch, would examine designs for government from a legal and historical standpoint.
The Renaissance brought a series of political philosophers who wrote implied criticisms of the practices of monarchs and sought to identify principles of constitutional design that would be likely to yield more effective and just governance from their viewpoints. This began with revival of the Roman law of nations concept and its application to the relations among nations, and they sought to establish customary “laws of war and peace”to ameliorate wars and make them less likely. This led to considerations of what authority monarchs or other officials have and don’t have, from where that authority derives, and the remedies for the abuse of such authority.
Along the way several writers examined how the design of government was important, even if the government were headed by a monarch. They also classified various historical examples of governmental designs, typically into democracies, aristocracies, or monarchies, and considered how just and effective each tended to be and why, and how the advantages of each might be obtained by combining elements of each into a more complex design that balanced competing tendencies. Some, such as Montesquieu, also examined how the functions of government, such as legislative, executive, and judicial, might appropriately be separated into branches. The prevailing theme among these writers was that the design of constitutions is not completely arbitrary or a matter of taste. They generally held that there are underlying principles of design that constrain all constitutions for every polity or organization. Each built on the ideas of those before concerning what those principles might be.
The later writings of Orestes Brownson would try to explain what constitutional designers were trying to do. According to Brownson there are, in a sense, three “constitutions” involved: The first the constitution of nature that includes all of what was called “natural law.” The second is the constitution of society, an unwritten and commonly understood set of rules for the society formed by a social contract before it establishes a government, by which it establishes the third, a constitution of government. The second would include such elements as the making of decisions by public conventions called by public notice and conducted by established rules of procedure. Each constitution must be consistent with, and derive its authority from, the ones before it, as well as from a historical act of society formation or constitutional ratification. Brownson argued that a state is a society with effective dominion over a well-defined territory, that consent to a well-designed constitution of government arises from presence on that territory, and that it is possible for provisions of a written constitution of government to be “unconstitutional” if they are inconsistent with the constitutions of nature or society. Brownson argued that it is not ratification alone that makes a written constitution of government legitimate, but that it must also be competently designed and applied.
Constitutional design has been treated as a kind of metagame in which play consists of finding the best design and provisions for a written constitution that will be the rules for the game of government, and that will be most likely to optimize a balance of the utilities of justice, liberty, and security. An example is the metagame Nomic.
Classification of constitutions
Most states in the world have codified constitutions. Codified constitutions are often the product of some dramatic political change, such as a revolution. The process by which a country adopts a constitution is closely tied to the historical and political context driving this fundamental change. The legitimacy (and often the longevity) of codified constitutions has often been tied to the process by which they are initially adopted.
States that have codified constitutions normally give the constitution supremacy over ordinary statute law. That is, if there is any conflict between a legal statute and the codified constitution, all or part of the statute can be declared ultra vires by a court, and struck down as unconstitutional. In addition, exceptional procedures are often required to amend a constitution. These procedures may include: convocation of a special constituent assembly or constitutional convention, requiring a supermajority of legislators’ votes, the consent of regional legislatures, a referendum process, and other procedures that make amending a constitution more difficult than passing a simple law.
Constitutions may also provide that their most basic principles can never be abolished, even by amendment. In case a formally valid amendment of a constitution infringes these principles protected against any amendment, it may constitute a so-called unconstitutional constitutional law.
Codified constitutions normally consist of a ceremonial preamble, which sets forth the goals of the state and the motivation for the constitution, and several articles containing the substantive provisions. The preamble, which is omitted in some constitutions, may contain a reference to God and/or to fundamental values of the state such as liberty, democracy or human rights.
As of 2010 at least three states have uncodified constitutions: Israel, New Zealand, and the United Kingdom. Uncodified constitutions (also known as unwritten constitutions) are the product of an “evolution” of laws and conventions over centuries. By contrast to codified constitutions, in the Westminster tradition that originated in England, uncodified constitutions include written sources: e.g. constitutional statutes enacted by the Parliament (House of Commons Disqualification Act 1975, Northern Ireland Act 1998, Scotland Act 1998, Government of Wales Act 1998, European Communities Act 1972 and Human Rights Act 1998); and also unconstitutional sources: constitutional conventions, observation of precedents, royal prerogatives, custom and tradition, such as always holding the General Election on Thursdays; together these constitute the British constitutional law. In the days of the British Empire, the Judicial Committee of the Privy Council acted as the constitutional court for many of the British colonies such as Canada and Australia which had federal constitutions.
Elements of constitutional law in states with uncodified constitutions can be entrenched; for example, sections of the Electoral Act 1993 of New Zealand relating to the maximum term of parliament and how elections are held require a three-quarter majority in the House of Representatives or a simple majority in a referendum to be amended or repealed.
Written versus unwritten / codified versus uncodified
The term written constitution is used to describe a constitution that is entirely written, which by definition includes every codified constitution; but not all constitutions based entirely on written documents are codified.
Some constitutions are largely, but not wholly, codified. For example, in the Constitution of Australia, most of its fundamental political principles and regulations concerning the relationship between branches of government, and concerning the government and the individual are codified in a single document, the Constitution of the Commonwealth of Australia. However, the presence of statutes with constitutional significance, namely the Statute of Westminster, as adopted by the Commonwealth in the Statute of Westminster Adoption Act 1942, and the Australia Act 1986 means that Australia’s constitution is not contained in a single constitutional document. The Constitution of Canada, which evolved from the British North America Acts until severed from nominal British control by the Canada Act 1982 (analogous to the Australia Act 1986), is a similar example. Canada’s constitution consists of almost 30 different statutes.
The terms written constitution and codified constitution are often used interchangeably, as are unwritten constitution and uncodified constitution, although this usage is technically inaccurate. Strictly speaking, unwritten constitution is never an accurate synonym for uncodified constitution, because all modern democratic constitutions mainly comprise written sources, even if they have no different legal status than ordinary statutes. Another, correct, term used informal (or formal written) constitution, for example in the following context: “The United Kingdom has no formal [written] constitution” (which does not preclude a constitution based on documents but not codified).
Rigid and flexible constitution/ the distinction between rigid and flexible
The distinction between a flexible and rigid constitution rests upon the method by which the constitution may be changed. The constitution which can be amended by ordinary law making procedure is called a flexible constitution. Ordinary law making procedure means making law by simple majority which is possible by a majority of the votes of the members present and voting. All ordinary laws (Acts of parliament) of the country are passed by this process. For example, British Constitution is flexible. This because there is no distinction between ordinary and constitutional law in Britain. On the other hand, the constitution which cannot be amended by ordinary law making procedure but a special procedure (like two thirds or three fourths majority) is needed, it is called a rigid constitution. For example, the constitution of USA and constitution of Bangladesh.
Can our Constitution be amended?
Part X of the Constitution laid down provisions relating to the procedure for amendment of the constitution. The principle applied in formulating this Article was comparatively more simple but at the same time rigid and straightforward in its content. In the Indian Constitution a bill for amendment would become an Act if it is passed in each House of the Parliament by a majority of the total membership of that House and by a majority of not less than two thirds of members of that House present and voting; it is then presented before the President who “shall give his assent to the Bill”, For certain Article and pan of the constitution the amendment would require ratification by the legislatures of not less than one-half of the states before presenting to the President for his assent. The 1956 Constitution of Pakistan followed similar principles on the voting procedure but no “shall” was used for the President to assent to the Bill. Nothing was indicated as to what would happen if the President refused to assent to the Bill or just kept silent for an unlimited period.
The 1962 Constitution being Presidential in nature gave even more power to the President enabling ham ultimately to take the matter to a referendum if he did not agree to any amendment. Firstly, the Bill would require votes of two-thirds of the total number of members of the National Assembly. Similarly, within 30 days, the President could either assent to the Bill or withhold such assent or return the Bill with amendments. When the President would withhold the Bill the National Assembly could pass the Bill again with votes of the three quarters of the total number of member and again place it for the Presidents assent .If the Bill was again passed by three fourths of the total number with or without his amendments, the President could still have power to either give his assent or cause the Bill to be referred to a referendum In other words even with the support of the three-fourths of the total number members of the National Assembly an amendment could not be effected to the Constitution of 1962 as the President held enormous power in relation to legislation.
In the Bangladesh Constitution Article 142 reads as follows:
1) Notwithstanding any thing contained in this Constitution
a) any provision thereof may be amended by way of addition, alteration, substitution or repeal by Act of Parliament:
i) No Bill for such amendment shall be allowed to proceed unless the long title thereof expressly states that it will amend a provision of the Constitution;
ii) No such Bill shall be | presented to the President for; assent unless it is passed by the votes of not Jess than two-thirds of the total number of members of parliament;
b) When a Bill passed as aforesaid is presented to the president for his assent he shall, within the period of seven days after the Bill is presented to him assent to the Bill, and if he fails so to do he shall be deemed to have assented to it on the expiration of that period.
It will be evident that the constitution did not leave any scope for the President to stop or create obstruction to any amendment once the Parliament had passed it with votes of two-thirds of the total number. After the presentation of the Bill if the President failed to give his assent within 7 days, the Bill would become a law. From this point of view the provision in the Bangladesh Constitution was an improvement over all others an the question of maintaining the sovereignty of Parliament The second interesting point to note was that while it did not contain any restriction or exclusion and gave an absolute power to bring any amendment to any provision of the Constitution, it did not exclude Article 26(2) of the Constitution which reads as follows:
“The stale shall not make any law inconsistent with any provisions of this part, and any law so made shall to the extent of such inconsistency, be void.”
The two Articles 26 and 142 appeared to be contradictory as far as Part III of the Constitutions was concerned which related to provisions on fundamental rights. On the other hand, the fundamental rights were guaranteed to the extent that they could not be changed even by the Parliament but on the ether hand. Article 142 gave an unequivocal power to the Parliament to bring an amendment and indicated that the Parliament was sovereign in changing any provision of the Constitution. However, this contradiction was removed in 1973 by the Constitution (Second Amendment) Act in which a new clause was added to Article 26 and Article 14258. The new clause in Article 26 read as follows:
“(3) Nothing in this Article apply to any amendment of this constitution made under Article 142.” :
In Article 142 the new clause reads as follows:
“(2) Nothing in Article 26 shall apply to any amendment made under this Article.”
In other words, the sovereign authority of the Parliament was secured on the question of amending any part or provision of the Constitution including the fundamental rights.
But again although the amendment removed any possible contradiction between the two Articles and apparently established the absolute authority of the Parliament to Amended any provision of the Constitution, it indirectly provided more power to the party controlling the government. In other words, the executive office through the party in power could now bring any amendment to suit their administration. In a way the amendment took away the inherent power of the Parliament to retain the fundamental rights and destroyed the balance that existed between the permanent nature of the Constitution and the amending power of the Parliament with regard to the most important part of the Constitution-the fundamental rights. The point bears special importance in the Bangladesh Constitution in view of the fact that this amendment of Article 142 which excluded the impact of Article 26 enabled the Parliament at a later stage to change the basic structure of the Constitution when it introduced a one-party system.
On the question of changing the basic structure of the constitution by the Parliament having absolute authority to amend any provision of the constitution, we have series of precedents to understand he real import of such an amending power of the Parliament. When the Awami League government on January 25, 1975 passed the Fourth Constitution Amendment Bill to introduce a one-party monolithic system, it changed the very basic structure of the Constitution but there was no scope to challenge the validity of such a change in the circumstances prevailing at that time. In India however, there has been a series of judicial decisions on this vital question whether the Parliament ‘having absolute power to amend any provision can change the essential features of the Constitution. The Supreme Court of India at different stages enunciated the ‘doctrine of basic structure and the most celebrated of all the cases is known as the Fundamental Right Case. (Kesavanda Bharati v. State of Kerala, AIR 1973 SC 1461) where the court overruled the decision in Golaknaths case and upheld the validity of the 24th Amendment. In this case the court held that the power of amendment extending to all pan of the Constitution was at the same time subject to inherent or implied limitations and it could not be used to change or affect the basic structure of the Constitution, Parliament was still constrained from changing the essential features of the Constitution.
Interesting provisions were made with respect to laws existing on the day of commencement of the Constitution. While Art 149 kept existing laws in force generally, Art, 151 specifically repealed laws earlier made since the, declaration of independence in March, 1971.Then again under Article 47, twenty seven laws, all excepting one made during the same period, were not only protected but also were provided with the status of fundamental laws having equal force as the Constitution itself. These laws contained in the First Schedule of the Constitution, enjoyed to some extent a super constitutional status in the sense that any amendment made to any of these laws would also be protected even if such amendments were made to give Retrospective effect. It is true that in the extraordinary circumstances of the country certain special laws .were required to be made and they had to be saved but these had 2 very significant elements. One the saving excluded the application of Article 26 of the Constitution. Two, it went further to save their subsequent amendments too.
So discussing above it is clear that our constitution can be amended.
Amendments of the Constitution in Brief
There has been 14 amendments of the Constitution and those are shortly given below:
1. Constitution (1st Amendment) Act, 1973 was passed on 15 July 1973. Sub-Article (3) of Article 47 was inserted whereby any law providing for the detention and trial of war criminals was kept out of the purview of fundamental rights as enumerated in Part III of our Constitution. New Article 47A debars any person to whom a law specified in Clause (3) of Article 47 applies to move the Supreme Court for any of the remedies under the Constitution.
2. Constitution (Second Amendment) Act, 1973 was passed on 22 September, 1973. In our constitution, there was no provision of proclamation of emergency and suspension of fundamental rights. Part IX A was introduced providing for proclamation of Emergency, .suspension of provisions of certain articles during emergencies and suspension of enforcement of fundamental rights during emergencies. Further, Article 33 was substituted providing for preventive detention. 3. Constitution (Third Amendment) Act, 1974 was passed on 28 November 1974. In the case of Mukhlesur Rahman Vs. Bangladesh, 26 DLR(SC) 44, the agreement between India and Bangladesh signed by Sheikh Mujibur Rahman, Prime Minister of Bangladesh and Indira Ghandi,. Prime Minister of India in respect of retaining Dahagram and Angarpota and giving up Berobari was challenged. In view of the decision of the Appellate Division to give effect to the said agreement, this Amendment.
4. Constitution (Fourth Amendment) Act, 1975 was passed on 25 January 1975. This Amendment brought in changes in the basic structures of the Constitution. Part VIA was added bringing the following basic changes:
- Parliamentary form of government was abolished introducing Presidential form.
- One political party was introduced in place of many political parties in the country.
- Power of judiciary was curtailed. Article 44 was amended.
- President can appoint and remove Judges.
- President will appoint Vice-President and Ministers.
- Subordinate Court’s control was taken away from the Supreme Court to the President.
- No provision was kept for consultation with the Chief Justice in case of appointment of the Supreme Court Judges.
By this amendment all authority was vested in the President.
5. Constitution (Fifth Amendment), 1979. The First Martial Law of Khandoker Mostaque Ahmed continued upto 9 April 1979. Constitution (Fifth Amendment) Act, 1979 was passed in the new Parliament of President Ziaur Rahman ratifying and conforming of all martial law proclamations/orders between 15 August 1975 to 9 April 1979.
6. Constitution (Sixth Amendment) Act, 1981 On the death of President Ziaur Rahman on 30 May 1981, Vice President Abdur Sattar became the Acting President. To remove doubt as to whether Acting President can contest as President without resigning from the post of Vice President in 1981, this amendment was broughtin that on being elected as President he shall be deemed to have vacated the post of the vice President.
7. Constitution (Seventh Amendment) Act 1986: 2nd Martial Law of Hussain Muhammad Ershad continued from 24 March 1982 to 10 November 1986. By this amendment all Martial Law proclamations/Orders of this period were ratified and confirmed. Further the age of the Supreme Court Judges was raised from 62 to 65 years.
8. Constitution (Eight Amendment) Act 1988: By this amendment, Article 100 of the Constitution was amended by setting up six permanent benches out side Dhaka. By the same Amendment Act, Islam was introduced as the State religion of Bangladesh in Article 2A. In the case of Constitution (8th Amendment) case, Anwar Hossain Chowdhury-Vs- Bangladesh, 41 DLR(AD) 165, the Constitution (Eight Amendment) Act, 1988 was declared as unconstitutional and void.
9. Constitution (Ninth Amendment) Act, 1989 was passed providing for election of the Vice-President and making amendments in respect of the terms of office of the President and Vice-President. Before this amendment, the movement for formation of Non-Party Care-Taker Government for holding a free and fair election was going on for appointing a neutral person. To facilitate this formula, Article 55A was inserted for appointment of a new Vice-President, and to make it effective, would require the confirmation by the majority of the total number of members of Parliament.
10. Constitution (Tenth Amendment) Act, 1990. By amendment of Article 65(3), reserved seats for 30 women were further extended for ten years.
11. Constitution (Eleventh Amendment) Act, 1991. President Ershad handed over power to Shahabuddin Ahmed, Chief Justice after appointing him as Vice-President. By this amendment all actions of the Care-Taker Government was ratified along with the appointment of Justice Shahabuddin Ahmed and his return to the Supreme Court as Chief Justice.
12. Constitution (Twelfth Amendment) Act, 1991 restored Parliamentary form of Government. This amendment is very important as original Constitution was substantially restored.
13. Constitution (Thirteenth Amendment) Act, 1996 introduced Non-Party Care Taker Government by introducing Chapter II A-in the Constitution. This was passed in the sixth parliament.
14. 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 aboard.
Why constitution needs systems of its being amended and its importance:
The constitutions of the states are not divine origin that there may not be any shortage or any other lack. Constitutions are made thinking about the circumstances which are arising or likely to arise so a constitution can only cover for some period of time but with the passing of times the interest of people are changes. For example, my interest will not be the same with a person of 18th century. So if a constitution is created in 17th century then it may not be so suitable today as it were on that period. With the modernization of human society the problems has been also modernized. So to keep peace with the time the constitution must have some systems to be amended. Sometimes the whole system of Govt. is changed then the constitution becomes inconsistence. Then the state can’t be administered or the administration process faced with various difficulties. So some provisions must be amended for that reason. For example, we were ruled by presidential system and then our constitution was according to that but after that the cabinet system of Govt. was introduced and our constitution was also amended. Our constitution has been amended for 14 times. Originally our constitution had 153 articles but now various articles and various parts of it is omitted or inserted .Lastly from the above discussion it is now clear that it is a must for any constitution to have provisions amended.
Asked Amendments are Discussed Below:
Discussing above it is clear that the constitutional journey of Bangladesh was very much eventful. It starts from 16th December 1972 and running till today. After one years of its starting it was amended and done so for 14 times. Today another is going to be taken place. It is not in its original from now. Among the 14 Amendments I am asked to discuss the 7th, 8th, 9th and 10th Amendments of the constitution. Now those are being discussed below:
This Act was voted on 11 November 1986. It revised Article 96 of the constitution. It also place a new paragraph 19 on the fourth schedule of the constitution. Its most of the parts are related to martial law. Now we will try to learn about those things.
Origin and Development of the Concept of Martial Law
From historical point of view the origin of the modern concept of martial law traces back to the court of the Constable and Marshal which was a part of Curia Regis or the Supreme Court established in England in the middle age by William, the conqueror. The King’s Marshal or the Constable or to use the modern designation, the Master of the Horse, was the commander-in-chief of the King’s army. Law administered by the King’s Marshal through its court of Constable and Marshal was known invariably ‘Marshal law and this term gradually came to be spelled ‘martial law’ what we say today. This Marshal law was something apart from common law of England. The King on the advice of his Marshal used to issue orders and regulations for suppressing riot, or rebellion and also for governing the conduct and discipline of officers and soldiers. These orders and regulations came to be known as martial law. This martial law administered by the Constable and Marshal’s court was applied in the following cases:
1. Administering army and governing the conduct of and discipline within the soldiers and their officers and also for imposing penalties over them in appropriate cases. It is to be mentioned here that till 18th century this law relating to soldiers was known as martial law. But henceforth it came to be known as military law and at present this is what we call military law.
2. In case of insurrection, riot or rebellion or breaches of peace within the realm the King used to command his Marshal to suppress those by applying martial law. The Marshal, therefore, applied martial law in such cases and martial law being so imposed the ordinary common law along with ordinary court became suspended; under martial law the solders might do anything to suppress riot, kill, execute or slaughter as in battle. But as soon as the disturbance was over the common law along with ordinary courts were revived. This was actually a royal prerogative or, in other words, the common law right of the Crown to repel force by force in the case of invasion, insurrection, riot etc. But gradually it became evident that the Crown began to abuse this prerogative. It was found that even in cases’ of persons who were merely guilty of ordinary felonies and who, therefore, were to be tried under common law in ordinary courts, were ordered to be tried by martial law. Again, instead of .maintaining discipline and order in the army martial law was applied to punish any crimes committed either by soldiers or civilians associated with them which ought to have been done legally under common law in ordinary courts. It was also evident that even after the disturbances or riot for which martial law and Marshal Court were applied, had been over, the Marsha! Court (Military Tribunal in modern sense) was retained and were applied to punish) citizens for subsequent offences. Thus as Cockburn CJ. says, ‘the prerogatives of the Crown was often attempted to be stretched beyond Us proper limits. This frequent abuse of martial law in time of peace was lastly prohibited by the British Parliament by the celebrated Petition of; Rights, 1628.
Since 1628 martial law has never been attempted to be exercised in the realm of England by virtue of the prerogative either in time of peace or of war. So now, after 1628 the right to declare martial law in peace time came under the parliament’s authority. And under the authority of parliament only three times martial law was imposed in England to suppress riot and insurrection. This was done on three different occasions during the rebellions of (1715, 1745 and 1780. And henceforth till today no martial law was declared in England even under the authority of parliament.
It is noteworthy that during the first and the second World War the British Parliament passed enactments like the Defense of the Realm Act 1914-15 and the Emergency Power (Defense) Acts 1939-1940 giving the executive wide discretionary and military powers to meet the emergency. There may be controversies as to whether this enforcement virtually amounted to an application of martial law. But these were not martial law as such, because, firstly, The Defense of the Realm Act did not authorise to declare ‘martial law’ and secondly, though initially the law gave his Majesty-in-council the power to make regulations and provided that “offenders should be tried and punished by court martial for breach of such regulation, the law was later on amended which authorised Civil courts instead of courts martial to try breaches of the aforesaid regulations. So the jurisdiction and functioning of the ordinary courts were not suspended. Likewise, the power under the Emergency Power (Defense) Act did not amount to martial law because, ordinary courts were not suspended: persons violating regulations were to be tried no^ by any court martial but by special courts which were essentially civil courts.
Actually these measures were national emergency measures and it is established beyond any doubt that the Armed Forces may be legally empowered under any grave emergency by an Act of parliament to render such assistance as may be deemed essential to ensure the restoration of order.
Different Meanings of Martial Law
The above discussion makes it clear that the concept of martial law had its origin and development in British system but in true sense of the term there is no martial law in Britain for last three centuries. Then Jin which sense does martial law exist in Britain? Before answering this question first we should see in what different senses the term ‘martial law’ is used. The term ‘martial law’ may be used in the following four senses.
Firstly, in earlier times ‘martial law was used to mean what we now call military law, the law for the discipline and government of the armed forces. It had this connotation up to the latter part of the eighteenth century. Prior to that period, no distinction was made between the military law and the martial law of the present day as they had a common historical origin in the law, that had been administered in medieval England in the court of the Constable and the Marshal.
Secondly, the term ‘martial law’ is commonly used in the sense if ‘military government in occupied foreign territory in time of war. Martial law in this municipal sense of military government is quite .outside the ambit of I or constitutional law; it is rather a subject matter of international law.
Thirdly, martial law is used to mean the deployment of troops in aid of and under the discretion of the civil authorities to suppress riot, insurrection or other disorders, in the realm without the proclamation of martial law. It is to be noted that the right to enlist the support of the military forces by the civil authority in its effort to restore order is common to the law of every civilised country. This right of the executive cannot be properly called ‘martial law’.
Fourth, martial law means that kind of law which is generally promulgated and administered by and through military authorities in an effort to maintain public order in times of insurrection, riot or war when the civil government is unable to function or is inadequate to the preservation of peace, tranquility and enforcement of law and by which the civil authority is either partially or wholly suspended or subjected to the military power. And as soon as peace is restored, the military authority goes back to its barrack handing over power to the civil government. This type of martial law is called martial law in proper sense.
(i) There must be necessity i.e. the situation of the whole country or any part of it is such that the ordinary courts and civil government are unable to function.
(ii) Declaration of martial law must come from or the deployment of forces must be ordered by the authority who is legally competent to do so.
(i) The civil government must either act in concert with or in subordination to the military authority; or, it will be suspended and the military authority will substitute for it.
(ii) Civil laws and courts would be suspended and the people would be made subservient to the military authority i.e. the ‘ordinary courts would be superseded by the military tribunals.
(iii) As soon as peace is restored, martial law and martial law courts or tribunals would be dissolved; civil law and courts would be revived-the civil government would sit on power and the military Authority would go back to its barrack.
(iv) The civil government would pass an indemnity Act indemnifying any person or officials in respect of their acts done in connection with the maintenance or restoration of order in a martial law area and validating any penalty inflicted under martial law.
(v) Once peace is restored and civil government revived, the courts have the right to review acts committed by the military during the period of martial law.
Besides the above mentioned senses of martial law, there is, of course, another type of martial law which should be a class apart, and it is military take over or military intervention into politics under the garb of martial law in proper sense. Though this type of martial law has nothing to do with constitutional martial law and most of the constitutional experts and jurists are not at all prepared to treat it as a martial law but the fact is that this military take over is done under the garb of martial law; forma! declaration by issuing a proclamation is made that martial law is declared throughout the country; the largest number of the world population is acquainted with this kind of martial law only; the largest number of developing countries have been or still ire under clasp of this kind of martial law for a considerable period of the second half of is century. This kind of martial law should, therefore, be given a specification particularly for research purpose. In my view the best suited name of this kind of martial law should be like ‘So-called’, Extra-Constitutional or ‘Whimsical martial law.’
From the light of the above discussion it may be said that under constitutional jurisprudence martial law may be of following 3 types:
1. Martial Law in Universal Sense.
2. Martial Law in Proper Sense.
3. So-Called, Whimsical or Extra-Constitutional Martial Law.
Martial Law in Universal Sense
As mentioned earlier martial law in universal sense exists in every J civilized country of the world. Because in this sense martial Jaw means I the deployment of troops in aid of and under the direction of the civil [government to suppress riot, insurrection or other disorders in the realm. [In this case the military authority does not supersede the civil government; it is merely called upon to aid the civil government in execution of its emergency functions.
Martial Law in Proper Sense
As mentioned earlier martial law in proper sense means the suspension of ordinary law and the temporary government of a country or part of it by military tribunals. This is equivalent to the circumstances which in France is known as the declaration of ‘State of Siege’. Details of this kind of martial law have been discussed earlier.
So-Called Martial Law
As mentioned earlier this type of martial law is commonly known in I political science military intervention into politics. The displacement of civil governments by the military has been a common feature in most I countries which have gained independence from colonial rule in the 1 second half of the twentieth century. Wherever the social and political condition deteriorates and an ambitious general is at hand, the country r goes through a period of military rule. This military rule suddenly comes with the declaration of martial law and such declaration is not generally a willful declaration of the executive who has constitutional authority to do so; rather it is declared either by the military coup leader himself ousting or killing the existing governing leaders or by the head of the state under gun-point. Again, many countries’ Constitutions do not provide any provision for martial law but the military comes to power declaring martial law fully in an extra-constitutional way. From legal point of view this type of martial law is void ab initio. This type of martial law does have the post-elements of martial law in proper sense but none of the ante-elements. Because firstly, with the declaration of this type of martial law the civil government is suspended and the military authority takes over to power; secondly, all civil courts and laws are declared suspended and people comes under the jurisdiction of martial law and martial law courts or tribunals. But none of the ante-elements possessed by this martial law. Because, firstly, it is. not declared by the authority which has constitutional and legal power to do so; secondly, it is not declared on the basis of doctrine of necessity; rather such type of martial law is declared for political purpose, for seizure of power ousting the civil government. This is why it may be termed as so-called martial law. This kind of revolution or imposition; of martial law constitutes a class apart and has nothing to do with constitutional martial law.
Martial law and the Doctrine of necessity
In constitutional law martial law finds its justification in the common law doctrine of necessity for its promulgation and continuance; all measures taken in exercise of the power of martial law must be justified by requirements of necessity alone, the necessity to restore law and order. Thus martial law can be declared as a last resort in times of grave emergency when society is disordered by civil war, insurrection or invasion by a foreign enemy, for speedy restoration of peace and tranquility, public order and safety in which the civil authority may function. Sir James Mackintosh conceded that “while the laws are silenced by the noise of arms, the rulers of the Armed Forces must punish, as equitably as they can, those crimes which threaten their own safety and that of society but every moment beyond usurpation.
The same opinion was expressed by lord Brougham:
“On the pressure” of great emergency, such as invasion or rebellion, when there is no time for the slow and cumbrous proceedings of the civil law, a proclamation may justifiably issue for excluding the ordinary tribunals if and directing that offence should be tried by Military Court such proceeding might be justified by necessity…. It is created by necessity and necessity must limit its continuance.”
Likewise Hamudur Rahman. J in Asma Jilanl V. Government of Punjab and others says:
“Martial law is a machinery for the enforcement of internal order…. is normally brought in by a proclamation issued under the authority of the civil government and it can replace the civil government only where a situation has arisen in which it has become impossible for the civil courts and other civil authorities to function … it is an equally established principle that where the civil courts are sitting and civil authorities are functioning, the establishment of martial law cannot be justified.”
Since martial law is declared on the basis of state of necessity “mere subjective apprehensions as to the existence of such necessity would not however, justify the declaration as well as the exercise of arbitrary powers. It will subsequently be judged with reference to an objective standard, for necessity is an objective standard by which executive action can be measured. Taney C.J. of the US Supreme Court in luther V. Borden says that the court cannot restrain the executive from declaring martial law earlier at hand, for the question whether the ‘public safety requires a declaration of martial law is a question of political nature. That necessity has the right to recourse to the military forces arises from been admitted on all hands but what kind of necessity invests the military authority with such unregulated discretion has often been the subject of inquiry before the courts. The necessity should be that “the danger must be present or impending and the necessity such as does not admit of delay.” To determine its presence the court will take into consideration the state of facts as they were at the time of taking the action. There must be a reasonable relation between the steps taken and the emergency. If such relationship does not exist, the action will be wholly arbitrary.
It is recognised that during the continuance of martial law the armed forces have the power to inflict any punishment including the death penalty. But it is also recognised that any use of force is limited as well as justified by the nature of the emergency. Accordingly, the armed forces whose duty is merely to restore order and repel an enemy cannot act wantonly. The exercise of powers when martial law has been proclaimed does not enable members of the armed forces to commit excesses under colour and pretence of authority. Though martial law allows every act necessary for maintenance and restoration of order, at the same time it requires that it must be honest and bonafide. On his failure to prove executive good faith in administering martial lawGovernor Wall was of only prosecuted but was hanged for the crime of committing murder.
The legislature, however, usually passes an Act of Indemnity which provides a good to those responsible for acts done in good faith.
But this kind does not cover any act motivated by malice or ill will. “Excess and wantonness, cruelty and unscrupulous contempt of human life, meet with no sanction from martial law any more than from ordinary law.” So once martial law is withdrawn and peace restored, any injured person may use his right of action in the court and if he can establish that the ‘powers were not used bonafide and for recognised purposes, he will be entitled to damages and other remedies. If this is not or if it is argued that every act, however unnecessary or malicious it may be, is justified by a proclamation of martial law, one “may easily see the institution of martial law degenerate into an engine of tyranny, private malice and revenge.
Doctrine of Efficacy
This doctrine is also called the doctrine “of revolutionary legality which is based on the positivist theory of the efficacy of the change or revolution expounded by Hans Kelsen, In his book General Theory of law and State” Kelsen, under the heading of “the Principles of Legitimacy”, has given a logical explanation on the elements and effects of a revolution. According to Kelsen, a revolution means a successful revolution and a successful revolution must have the following two elements:
(i) The overthrow of existing order and its replacement by a new order.
(ii) The new order begins to be efficacious because the individuals whose behaviour the new order regulates actually behave, by and large in conformity with the new order.
If these two facts are associated with the new order, then the order is considered as valid order and a law creating factor. So the success of a revolution or, in other words, the efficacy of the change would establish its legality.
This Kelsen’s theory of efficacy was first applied in State V. Dossocase be the Pakistan Supreme Court. Pakistan after nine, years of its independence, had been able to adopt and implement its first republican constitution in 1956. Then the Governor-General Iskander Mirza was elected |as the first President under the constitution. After the constitution was adapted, there was naturally a sense of relief in the political circle who expected full implementation of the constitution after the first general -election to be held in 1959. But such expectations proved unreal as governments after governments came and went resulting in an extreme political chaos and instability both at the centre and in the provinces. President Iskander Mirza did not play the democratic role of an impartial balance; under the constitution; rather being directly involved in party politics, he became the master-architect of these chaos and instability. For his power-expectation and undemocratic and conspiratorial activities it was decided by the politicians that Iskander Mirza would not be elected as the president in. the next election. When the country was preparing for the general election to be held in February, 1959, Mirza finding himself unable to rally support among the politicians for his re-election, by a proclamation on the night of 7th October, 1958 abrogated the constitution of 1956, dismissed the Central and Provincial governments; dissolved the central and provincial legislatures and declared martial law throughout the country. In doing this Mirza was supported by the Commander-in-Chief of the Pakistan Army, general Mohammad Ayub Khan who was also appointed as the Chief Martial Law Administrator. Following the proclamation of martial law the Law (Continuance in Force). Order was promulgated. The legality of Mirza’s Proclamation of martial law arid the military government came up for consideration in State V. Dosso case. As mentioned by a commentator,
The Pakistan Judiciary had to face unique situation when it was required to pronounce on the legality of a new regime which usurped power through an unprecedented means hitherto unknown in the constitutional history of the commonwealth. The martial law imposed by Mirza was not [martial law as understood by the ordinary connotation of the term. The preexisting legal order had been overthrown establishing a new one by an extra-ordinary means not contemplated by the constitution and the question elf legitimacy of the new order had come for examination before a court established under the system which had now been replaced.
The court took resort to the positivist theory of Hans Kelsen and declared the martial law and military Government of Pakistan valid on the basis of the doctrine of efficacy as explained by Kelsen. The substance of the judgment was that since the constitution was abrogated and its government came to power by imposing martial law and since there was no protest among the people, the coup was a successful one and martial law and military government were legally valid. Munir C.J. maintained:
“Victorious revolution or successful coup detat was an internationally recognised legal method of changing a constitution, and tie revolution having become successful in Pakistan it satisfied the efficacy pf the change” and became a basic law-creating fact …. It sometimes happens that a constitution and the national legal order under it. is disrupted by an abrupt political change not within the contemplation of the constitution. Any such change is called a revolution, and its legal effect is not only the destruction of the existing constitution but also the validity of the national legal order … from a juristic point of view the method by which and the persons by whom a revolution is brought about is wholly immaterial …. Equally irrelevant is the motive for a revolution … . If the revolution is victorious in the sense that persons assuming power under the change can successfully require inhabitants of the country to conform to the new regime, the revolution itself becomes a law-creating fact…. .”
The judgment delivered in Dosso’s case had to face a severe criticisms on the one had and on the other hand, it had a great impact, for it gave recognition to an unconstitutional government which became a pattern of ‘change1 in the commonwealth countries and later on, this decision has been refereed to with approval in courts of many countries like Nigeria, Rhodesia. Ghana, Uganda etc.
In Uganda V. Commissioner of Prisoners -Exparte Matuvo the Ugandan High Court following the decision of Dosso’s cause held that the constitution of 1966 of Uganda which was made by military government was a product of a revolution and it would be regarded as valid and the supreme law of Uganda. Similar verdict was given in R. V. Ndholvu by the Rhodesian High Court and also in Awoornor Williams V. Gbedmal by the Supreme Court of Ghana.
The So-called Martial Law and the Role of the Judges
It has already been mentioned that declaration of martial law can be justified only” oh the common law doctrine of necessity. But when martial law is declared just to hold on to power or to capture power through military coup or to oust the existing government for any other purpose, this martial law does not have any legal validity. But due to pressure of realities and facts or under a threat the judges have tried to legalise this so-called martial law sometimes on the basis of the doctrine of efficacy and sometimes, on necessity. Again, when there has been no threat or any pressure, the court has emphatically declared this martial law illegal. For example, when the Pakistan Supreme Court delivered its judgment on Asma Jilani’s case Yahya and his regime had been decredited and removed from office and martial law was not in force. Likewise, the decision of E.K. Sallah’s case also came after the military government had ceased to exist. If such judgments are pronounced during the continuance of military rule and martial law, there is danger for the judges arid the courts so pronouncing; they will either be suspended or their jurisdiction will be restricted or the judges concerned will be removed from office by the new regime. Again, it is improbable that the judgment, of the court would have made the slightest difference to the continuance of martial law, because the military authority does not I hesitate to frustrate such judgments by issuing decrees or proclamation. For example, when the Lahore High court of Pakistan in Malik Mir Hassan V. State declared the proclamation of martial law declared 25th March, 1969 illegal, the military authority issued the President’s jurisdiction of Courts (Removal of Doubts) Order, 1969 by which the courts were barred from questioning the exercise of powers by the Martial Law Authority and the decision in contravention of this would be deemed to be of no effect. Likewise when the Supreme Court of Nigeria in Lakanmi V. Attorney General declared the military coup and martial flaw illegal, the decision of the court was made ineffective by the military government by issuing the Federal Military Government (Supremacy and Enforcement of Powers) Decree, 1970. The situation has best been explained by Justice Fieldsend in Madzimbamuto V. LardnerBurke N.O. and another:
“It may be a vain hope that the judgment of court will deter a usurper, or have the effect of resorting legality, but for a court to be deterred by fear of failure is merely to acquiesce in illegality.”
Thus the legality of so-called martial law which is followed by a military coup or revolution does not depend on the courts justification or judgment; rather it conversely controls the courts and judges. This is why this type of martial law may be termed as whimsical martial law. Certainly this type of martial law poss a dilemma for the judges. Sometimes they become helpless when the constitution is either abrogated or suspended and made subservient to the will of an extra-constitutional force. Though a judge is oath-bound to preserve, protect and defend the constitution, during this extra-constitutional situation ‘he is’ as expressed by Sir Hugh Beadle, ‘simply forced into a position of accepting the facts and the laws as they are, whether he likes or not. He has been taken over by events.” An Argentinean Judge (Oyhanarte.) has aptly described the dilemma of judges:
The Supreme Court cannot modify the course of history. It lacks the power necessary to do this. When it is laced with the overthrow of I constitutional authorities and the installation of a go\ eminent of force by what have come to be called ‘revolutionary’ means, the judges’ of the court can do three things:
(i) resigns, thus transferring the responsibility of the decision to others ;
(ii) simply accepts the fact;
(iii) try to save those institutional values which can still be saved.”
But the judges should make choice for the third alternatives because, as mentioned by (Mastafa Kama). J. ‘resignation of judges in revolutionary ”& situations has not been uncommon, but except for the ripple that it causes in the body politic neither the judges by resignation en masse or in ones or twos have been able to deflect the revolutionary regime from following the course of action it chose to persue nor have the people at large carried the mantle from the judges to overthrow the extra-constitutional force. On the other hand when judges resigned in protest against an unconstitutional take-over or when judges were removed because of their obstruction to the wishes of the new authority, their successors on the Bench merely conformed to the wishes of the new regime and often they were also of so low a calibre that justice was longer administered properly.
So-Ca lied Martial Law in Bangladesh
The Constitution of Bangladesh does not envisage the imposition of martial law. Throughout the text of the Constitution, no reference has been made to Martial Law. Although the term ‘Martial Law’ had duly occurred in Article 196 of the 1956 Constitution of Pakistan and Article 223-A of the 1962 Constitution of Pakistan, the Articles which enacted provisions for passing an Act of Indemnity in relation to acts done in connection with Martial Law Administration, it has significantly been omitted form corresponding Article 46 of the Constitution of Bangladesh that empowered parliament to pass an Act of Indemnity in respect of any act done in connection with the national liberation struggle or the maintenance or Restoration of order in any area in Bangladesh. This shows that although in Pakistan Articles 196 and 223-A of the 1956 and of 1962 Constitutions respectively, recognised the possibility that Martial law might be imposed under the common law doctrine of necessity for the purpose of the maintenance or restoration of order in any area in Pakistan’, no such recognition was given in Bangladesh where toe phrase ‘Martial Law’ was omitted from the analogus Article 46 of the Constitution of Bangladesh. Therefore, it appears that in the Constitution of Bangladesh there is no provision whatsoever for the imposition of martial law under any circumstances even for the sake of restoring law and order.
But like some other commonwealth countries mania law was imposed unconstitutionally in Bangladesh twice- first on the 15th August, 1975 and second, on the 24th March, 1982.
On 15th August 1975 Sheikh Mujibur Rahman, the then President of Bangladesh was brutally killed with his family members by a military coup. Following this assassination martial law was declared throughout the country Khandaker Mostaque Ahmed assumed the office of the President. Though martial law was imposed, the Constitution was not suspended; it was to remain in force subject to-martial law proclamation, regulations, orders etc. This martial law continued for 3 years and 7 months. On the 5th April, 1979 the Chief Martial Law Administrator and President Ziaur Rahman got his extra-constitutional regime legalised through the parliament which was elected during the continuance of martial law and on 6th April martial law was withdrawn.
For the second time martial law was imposed by the then thief of Army Lieutenant General Hussain Muhammad Ershad ousting the civil government of Justice Abdus Sattar on 24th March, 1982. This time the Constitution was suspended. This martial was kept in force for 4 years and 7 months. On 10th November, 1986 General Ershad legalised his regime through a parliament which was elected during the continuance of martial law and on the next day martial law was withdrawn.
It is pertinent to note here that unlike the case of Dosso and Asma Jilanl (the cases in which legality of imposition of martial law in Pakistan was examined) in Bangladesh the legality of the declaration of martial law was not discussed by the Supreme Court in any case either during the continuance of or even after the withdrawal of martlial law. But some fringe questions relating to martial law came up for consideration before the points1 and the courts declared that martial law proclamation regulation etc. were supreme law and the Constitution lost its character as the supreme law. In this respect, the observations of Fazle Munim, J. in the case of Halima Khatun V. Bangladesh is worth quoting:
“What it appears from the Proclamation ‘of August 20, 1975 is that, with the declaration of Martial Law… the constitution of Bangladesh… (has been made) subordinate to the Proclamation and any regulation or order as may be made by the president in pursuance thereof… . Under the Proclamation…. the constitution has lost its character as the supreme law of the country. There is no doubt, an express declaration in Article 7(2) of the constitution to the following effect” This constitution is as the solemn expression of the will of, the people, the supreme law of the Republic, and if any other law is inconsistent with ibis constitution that oilier, law to the extent of such inconsistency be void.” Ironically enough, this Article, though it still exists must be taken to have lost some of its importance and efficacy. In view of…. the Proclamation the supremacy of the constitution is no lager unqualified.
For the third- time in Bangladesh ‘”military intervention into politics was made on January, 11th 2006 in the wake of political unrest before the 9th– Parliamentary Election. This intervention did not follow any declaration of martial law; nor was the ‘constitution suspended; it was class part intervention and the consequence and aftermath of this intervention is yet to ripen into politics.
Second Martial Law: 24 March, 1982-10 November
I Bangladesh was placed under Second Martial Law on 24 March, 1982 by Hussain Muhammad Ershad. By the Proclamation of 24 March 1982, he suspended the Constitution of Bangladesh and the Supreme Court of Bangladesh ceased to derive any power from the Constitution. Subsequent thereto, Ershad revived the power of judicial review in respect of some of the fundamental rights and the Constitution was partially restored. Final revival of the Constitution took place after withdrawal of the Martial Law on 10 November 1986. As the Constitution (Fifth Amendment) Act gave validity to the First Martial Law, in the like manner, the Constitution (Seventh Amendment) Act, 1986, ratified and confirmed all Martial Law Proclamations, Regulations and orders. By inserting paragraph 19 to the Fourth Schedule to the Constitution all Martial Law orders, actions made or taken ‘ ns this period was validated.
(1) Nasrin Kader Siddique Vs. Bangladesh, 44 DLR(AD)16.
Detenu, Abdul Kader Siddique’s wife filed a writ petition challenging her husband’s detention under Section 3(1) (a) of the Special Powers Act, 1974. The facts are like this, that after the assassination of Sheikh Mujibur Rahman on 15 August 1975, the detenu left for India. He returned to Bangladesh on 16 December, 1990. Subsequently, he was arrested on the ground that there is a conviction order against him by a Martial Law Court. The detenu wanted to see the warrant of arrest and the police failed to produce the same. Thereafter, this detention order was passed. The alleged conviction and sentence remained unexecuted for 14 years. On 7 April 1979, a proclamation was issued which was both a repealing and saving legislation. Now, the main question raised is, unexecuted sentences of Special Martial Law Court can be executed only in the manner and by the authority prescribed in the saving clauses.
The said proclamation of withdrawal in Sub-paragraph K’ reads as follows:-
“K” Every sentence of imprisonment or whipping passed in any case at any time before the commencing day by a Special Martial Law Court or Special Martial Law Tribunal shall, after the commencing day, be put into execution under the warrant of the Sessions Judge of the area in which the person under sentence may be found, as if the sentence were passed by him,”
But in the instant case the warrant of commitment of sentence was issued by the Additional District Magistrate, Tangail, whereas the warrant of commitment of sentence was not passed by the Sessions Judge within whose area the detenu was found as contemplated under the proclamation of 7 April 1979. It is the Sessions Judge who alone is lawfully competent to issue the warrant of Commitment in this case. Hence, it was held that the order of detention was wholly without any lawful authority.
(2) In the case of Principal Secretary Vs. Mahtabiiddin Ahmed, 42 DLR (AD) 214, the respondent, Additional Chief Engineer of the Roads and High Ways Department was dismissed from service by Chief Martial Law Administrator under Martial Law Order No. 9 of 1982. A criminal case filed against the respondent was disposed of by submitting FRT. Though the Criminal case was withdrawn but the review application and the dismissal order were not set aside. Martial Law was withdrawn with effect from 10.11.86 by a proclamation. All Martial Law Orders including Martial Law Order No.9, stood repealed and thus there was no competent authority to pass any order on review for respondent’s re-instatement under Para 1A of MLO No.9 of 1982.
In that decision A.T.M. Afzal J. held at para 6 as under:
The relevant provision shows that an aggrieved person may make an application praying for review of an order made under MLO 9. It is true that the word ‘may’ has been used in conferring authority to the Chief Martial Law Administrator for review but upon a true construction of the Provision in the context of an order made under MLO 9 it will be reasonable and right to hold, as the High Court Division has done, that the word ‘may’ ought to be read as ‘shall’ and the CMLA is bound to consider and dispose of an application for review which has been filed to him.”
The learned Judge further held in paragraph 7 as follows:
“The General Clauses Act, 1897 has been made applicable to Martial Law Orders by reason of Sub-Paragraph.(a) of Paragraph 19 of the 4th Schedule of the Constitution (7 Amendment)Act, 1986. Under the Proclamation of withdrawal of Martial Law, MLO 9 was repealed but the remedy of review provided under the said MLO survived the repeal. It is obvious that unless some provision was made for disposal of cases awaiting review the effect to the proclamation could not be fully given. In order to harmonize the effect of repeal of the MLO with the operation of proclamation of withdrawal of Martial Law in the circumstances as in the present case, provision has been rightly made in paragraph 5 of the said proclamation enabling the President to make an order whenever necessary to which the High Court Division has referred.”
(3) In the case of Dewan Abdul Karim-Vs- Bangladesh, 54 DLR, 33, Syed J.R.Mudassir Husain, J. relying on the decision of 42 DLR(AD) 214 held in paragraph 14 as under:
“In view of the aforesaid decision of the Appellate Division reported in 42 DLR(AD) 214 as well as of the decision of the Writ Petition No.4897 of 1997 we find substance in the Rule arid accordingly, we direct the respondents to communicate the result of the review application of the petitioner which was heard on 16.6.92 pursuant to notice 3.6.92 (Annexure F). If the petitioners application is still undisposed of, the Government may take step to dispose of the said application for review by creating an appropriate review forum within three months from the date of receipt of this order.”
(4) In the case of Maiioranjan Mukherjee Vs. Election Commission and of others, 41 DLR 484, a question was raised as to what will be the effect of a conviction and sentence by a summary Martial Law Court after the withdrawal of Martial Law and could such a conviction be termed as a disqualification under Section 7(2) (d) of Local Government (Union Parishad) Ordinance, 1983, Initial decision at Paragraphs 9 and 10 Mustafa Kama observed as follows:
“But while leaving, the Martial Law does not leave a trail of disqualification. It is good as it lasts, but with its departure it no longer casts a shadow upon the ordinary laws of the land In that view of the matter we are clearly of the opinion that Section 7(2)(d) of the Ordinance does not refer to a conviction of a Military Court and it also does not refer to an offence under the Martial Law Regulations or orders. It simply refers to Criminal offences as provided by the ordinary taws of the land and conviction on trial by an ordinary court of the country as provided in the judicial hierarchy or by Special Tribunals”
(5) In the case of Mullick Brothers Vs, Income Tax Officer and another, 31 DLR (AD) 165, a question was raised that the Martial Law Regulation came to an end after the revocation of Martial Law and it cannot be included as a valid piece of legislation in the definition of law or existing law or Regulation as provided in the Constitution of Bangladesh. In that decision, Article 83 of the Constitution, Income Tax Regulation, 1969 there K.M. Sobhan J. held at Paragraph 12 as follows:-
“The learned Judges of the High Court Division again wrongly concluded that the tax demanded from the appellant is debt due to the Government of the then Pakistan and became a debt, to the Government of Bangladesh. President’s Order No. 147′ of 1972 has amended the definition of the Government which is effective from the 26 day of March, 1971 and it reads as follows:-
“Clause 21 “Government or the Government” shall mean
(a) in relation to anything done before the 26 day of March, 1971, comprised in Bangladesh;
(b) in relation to anything done or to be done after the 25 day of March, 1971, the Government of the People’s Republic of Bangladesh. This definition of the Government is contrary to what have been taken as meaning of Government by the High Court. “Government debt” has also been defined in clause (216) of the General Clauses Act as amended by President’s Order No. 147 of 1972 and-is as follows:-“(216) Government debts” and equivalent expressions shall include debts due to the Government of the People’s Republic of Bangladesh and any debt due to any Government that functioned within the territories now comprised in Bangladesh.”
The imposition of the impugned tax was totally unauthorised and lacked legal foundation. It created no liability and so the question of debt does not arise”.
(6) In the case-of A.K.M. Fazlul Hoque and others Vs. State, 26 DLR SC 11, a question was raised as to whether the President’s Order No.8 of 1972, the Bangladesh Collaborators (Special Tribunal) Order, 1972 was promulgated by an authority competent to do so. Sayem,CJ. on consideration of Clause (5) to (8) of the Provisional Constitution of Bangladesh Order, 1972, held at paragraph 11 as under:
“It will however, be seen that in addition to conferring on the President all other powers including the executive powers, the proclamation after having notice the prevailing circumstances invested him with all the “legislative powers of the Republic”. Obviously, the expression “Legislative Power of the Republic” is of the widest amplitude and admits of no limitation. The proclamation, in our view, empowered the President designated by it to make any law or legal provision, even of a Constitutional nature. We looked for but found no indication in the proclamation to the contrary. On the other hand, assurance is lent lo this view by the further provision in the proclamation which empowered the President to do everything necessary to give the people of Bangladesh an orderly and just Government, including the power to appoint a Prime Minister and other Ministers. The impugned clauses (5) to (8) of the Provisional Constitution order were thus authorised by the terms of proclamation.”
Thus, the Appellate Division found that the Bangladesh Collaborators order was promulgated by a competent legislative authority of the Republic.
In act no.1 of 1986 which is the constitution (Seventh Amendment) Act. 1986, it was provided in the newly inserted paragraph 19 to the fourth schedule of the constitution as follows:
19 Ratification and Confirmation of the Proclamation of the 24th March, 1982 etc.
(1) The Proclamation of the 24th March, 1982, hereinafter in this paragraph referred to as the said Proclamation, and all other Proclamations, Pr Proclamation Orders, Chief Martial Law Administrator’s Orders, Martial Law 24 Regulations, Martial Law Orders, Martial Law Instructions, Ordinances and el all other Laws made during the period between the 24th March, 1982, and the date of commencement of the Constitution (Seventh Amendment) Act, 1S86 (Act I of 1986) (both days inclusive), hereinafter in this paragraph referred to as the said period, are hereby ratified and confirmed and declared to have been validly made and shall not be called in question in or before any court, tribunal or authority on any ground whatsoever.
(2) All orders made, acts and things done, and actions and proceedings taken, or purported to have been made, done or taken, by the President or the Chief Martial Law Administrator or by any other person or authority during the said period, in exercise or purported exercise of the powers derived from the said Proclamation or from any other Proclamation, Proclamation Order, Chief Martial Law Administrator’s Order, Martial Law Regulation, Martial Law Order, Martial Law Instruction, Ordinance or any other Law, or in execution of or in compliance with any order made or sentence passed by any court, tribunal or authority in the exercise or purported exercise of such powers, shall be deemed to have been validly made, done or taken and shall not be called in question in or before any court, tribunal or authority on any ground whatsoever.
(3) No suit, prosecution or other legal proceedings shall lie in any court or tribunal against any person or authority for or on account of or in respect of any order made, act or thing done, or action or proceedings taken whether in the exercise or purported exercise of the powers referred to in sub-paragraph (2) or in execution of or in compliance with orders made or sentences passed in exercise or purported exercise of such powers.
(4) All appointments made during the said period to any office mentioned in the Third Schedule shall be deemed to have been validly made and shall not be called in question in or before any court, tribunal or authority on any ground whatsoever, and any person appointed under the said Proclamation to any such office during the said period and holding such office immediately before the date of commencement of the Constitution (Seventh Amendment) Act, 1986 (Act I of 1986), hereinafter in this paragraph referred to as the said Act shall, as from that date hold such office as if appointed to that office under this Constitution ; and shall, as soon as practicable after that date, make and subscribe before the appropriate person an oath or affirmation in the form set out in the Third Schedule.
(5) All appointments made by the Chief Martial Law Administrator during the said period to any office or post which is continuing after the date of commencement of the said Act shall, as from that date, be deemed to be appointments made by the President.
(6) All Ordinances and other laws in force immediately before the date of commencement of the said Act shall, subject to the Proclamation revoking the said Proclamation and withdrawing the Martial Law, continue in force until altered, amended or repealed by competent authority.
(7) Upon the revocation of the said Proclamation and withdrawal of Martial Law, this Constitution shall stand fully revived and restored and shall, subject to the provisions of this paragraph, have effect and operate as if it had never been suspended.
(8) The revocation of the said withdrawal of Martial Law shall not revive or restore any right or privilege which was not existing at the time of such revocation and withdrawal.
(9) The General Clauses Act, 1897, shall apply to the said Proclamation, and all other Proclamations, Proclamation Orders, Chief Martial Law Administrator’s Order, Martial Law Regulations, Martial Law Orders and Martial Law Instructions made during the said period and also to the revocation of the said Proclamation and other Proclamations and the repeal of the said Proclamation Orders, Chief Martial Law Administrator’s Orders, Martial Law -Regulations, Martial Law Orders and Martial Law Instructions as it applies to, and to the repeal of, an Act of Parliament as if the said Proclamation, and other Proclamations, Proclamation Orders, Chief Martial Law Administrator’s Orders, Martial Law Regulations, Martial Law Orders and Martial Law Instructions and the Proclamation revoking the said Proclamation were all Acts of Parliament.
(10) In this paragraph, “law” includes rules, regulations, bye-laws, orders, notifications and other instruments having the force of law.
“Therefore, after the withdrawal of Martial Law on November 11, 1986 the Ordinance in question is to be read as an ordinary law and when it refers to “criminal offence” and also speaks about “conviction”, it invariably refers to ordinary offences provided for by the ordinary laws of the country and also refers to trial and conviction by an Ordinary Criminal Court within the judicial hierarchy or a Special Tribunal created by ordinary law. The ordinary laws of the country; cannot even contemplate or visualize extra – constitutional offences tried by extra-constitutional dispensation. Nor is there any constitutional mandate to read Martial Law offences and Martial Law Courts whenever there is any reference to criminal offences and conviction in any general law of the land. It is well-settled that Martial Law is not a part of the constitutional scheme of this country. It is an extra-constitutional dispensation. It is a temporary measure, a short-term arrangement. It meets only an interim need. When it leaves, it usually legalises all past actions for purposes of immunity, with the tacit acknowledgement that its interference with the constitutional process is an aberration and needs to be condoned. But while leaving, the Martial Law does not leave a trail of disqualification. It is good is as long as it lasts, but with its departure it no longer casts a shadow upon the ordinary laws of the land.”
“In that view of the matter we are clearly of the opinion that section 7(2)(d) of the Ordinance does not refer to a conviction of a Military Court and it also does not refer to an offence under the Martial Law Regulations or Orders, it simply refers to criminal offences as provided for by the ordinary laws of the land and conviction on trial by an ordinary Court of the country as provided in the judicial hierarchy or by Special Tribunals.”
“Accordingly, we hold that the respondent No. 6 did not incur any disqualification under section 72 (d) of the Ordinance at all.”
The Government preferred a petition for leave to appeal and in dismissing the same the Appellate Division (judgment by A.T.M. Afzal, J.) held as follows:
“The General Clauses Act 1897 has been made applicable to Martial Law Orders by reason of sub-para (9) of para 19 of the 4th Schedule of the Constitution enacted by the Constitution (7th Amendment) Act, 1986. Under the Proclamation of Withdrawal of Martial Law, MLO 9 was repealed but the remedy of review provided under the said MLO survived the repeal. It is obvious that unless some provision was made for disposal of cases awaiting review the effect to the Proclamation could not be fully given. In order to harmonize the effect of repeal of the MLO with the operation of the Proclamation of Withdrawal of Martial Law in the circumstances as in the present case, provision has been rightly made in para 5 of the said Proclamation enabling the President to make an order whenever necessary to which the High Court Division has referred.
Except the ratification clause in the 4th schedule the 7th Amendment amended only one article and it was Article 96. Its sub clause one is as follows-
(1) Subject to the other provisions of the article, a Judge shall Tenure of office of hold office until he attains the age of (sixty-seven) years.
Recently Supreme Court Declared Seventh Amendment Illegal
That is as follows:
The Appellate Division of the Supreme Court on Sunday upheld the High Court judgement declaring illegal the constitution’s seventh amendment that had legitimised the military rule of HM Ershad. A six-member Appellate Division bench headed by Chief Justice ABM Khairul Haque also declared the martial law rules, regulations and orders issued by Ershad illegal, void and unconstitutional. The court provisionally condoned the acts and things done during the military regime of Ershad between March 24, 1982, and November 10, 1986. The SC on Sunday said the international treaties done during this period will continue. The apex court cancelled the trial and conviction against Siddique Ahmed, who was convicted and sentenced to life term imprisonment in a murder case by a martial law court in 1986. It also granted bail to Siddique, who is now is jail, in this case. The Appellate Division, however, said the case against Siddique will run at the normal court. The SC passed this short verdict after allowing in part an appeal filed against the HC verdict. Following a writ petition, an HC bench of Justice AHM Shamsuddin Chowdhury Manik and Justice Sheikh Md Zakir Hossain on August 26 last year delivered the watershed judgment on the seventh amendment to the charter. The petition was filed by Siddique Ahmed of Chittagong seeking retrial of a murder case filed against him. Though the HC declared the seventh amendment illegal, it neither acquitted him [Siddique] of the murder charge nor ordered a retrial of the case. The HC, however, asked Siddique, who was then out on bail, to surrender his bail bond to the lower court from which he had obtained it, and explore other legal options for his remedy. In the judgment, the HC also issued a certificate so that an appeal can be filed directly with the SC against the HC verdict. Siddique surrendered to a Chittagong court on April 7 in connection with the murder case, as per the HC order.
In the last we can say that the seventh amendment brought to us the withdrawal of martial law and the tenure of a Judge to hold office.
A lull and a gush
With the revived Constitution in full bloom during 1979-82, the Supreme Court saw a spate of constitutional litigations springing up from various quarters. It was as if the cork of the constitutional bottle was opened and the pent-up constitutional injuries gushed out of the corked bottle in a fury. All this came to a halt in 1982 when Martial Law was clamped. Even pending writ petitions abated. When the Supreme Court started functioning with revived constitutional jurisdiction from the 11th November, 1986 the High Court Division lay fragmented into 7 parts. All constitutional matters originate by way of an application under Article 102 of the Constitution in the High Court Division, but the High Court Division was a shadow of its former self after the Constitution was revived and such debilitating situation was hardly conducive to constitutional litigation. The revocation, therefore, did not make any difference; it was only in 1988 that the Supreme Court became seized with a constitutional issue of momentous importance, triggered off by the Eighth Amendment to the Constitution.
The Subjects of Eight Amendment
Amendment of Article 2A
Article 2A discuss about the state religion. It describes- The state religion of the Republic is Islam, but other religion may be practiced in peach and harmony in the republic.
Comments on Article 2A
Islam was recognised as the official religion of Bangladesh. The Constitution of India stands for a secular State. India has no official religion as opposed to Bangladesh.
It may be mentioned here that many countries viz. Ireland, Sweden. Norway. Denmark, Switzerland and Brazil have recognized Christianity and Jesus as religion.
The word ‘Bengali’ was replaced by the word ‘Bangla’ in Article 3 of the constitutions
The word ‘Dacca’ was replaced by the word ‘Dhaka’ in Article 5 of the constitution.
No citizen shall, without the prior approval of the President, accept any title, honour, award or decoration from any foreign state.
In the constitution in article 68 and its sub-title for the word ‘salaries’ the word ‘remuneration’ shall be substituted.
In the Constitution, in article 103. in clause (2b), for the word “transportation” the word “imprisonment” shall be substituted.
In the Constitution, in article 10, in clause (3). for the words “Supreme Court” the words, commas and brackets “or any Bench of a permanent Bench of the High Court Division referred to in clause (3) of article 100” shall be substituted.
By the 8th amendment the article 100 of constitution is now as follows:
The permanent seat of the Supreme Court, shall be in the Seat of supreme capital, but sessions of the High Court Division may be held at such other court place or places as the Chief Justice may, with the approval of the President, from time to time appoint.
Amendment of article 100 made by the Constitution (Eighth Amendment) Act, 1988 (Act XXX of 1988) held ultra vires and invalid by the Appellate Division of the Supreme Court, in the case o( Anawar Hossain chowdhury and other Vs Bangladesh (Civil Appeal No. 42/1988 and Civil Appeal No. 43/1988) and thereby old article 100 stands restored.
Article 100 as amended by the said Act was as under:
“100. Seat of Supreme Court.
(l) Subject to this article, the permanent seat of the Supreme Court shall be in the capital.
(2) The High Court Division and the Judges thereof shall sit at the permanent seat of the Supreme Court and at the seals of its permanent Bench.
(3) The High Court Division shall have a permanent Bench each at Barisal, Chittagong, Comilla, Jessore, Rangpur and Sylhet and each permanent Bench shall have such Benches as the Chief Justice may determine from time to time.
(4) A permanent Bench shall consist of such number of Judges of the High Court Division as the Chief Justice may deem it necessary to nominate to that Bench from time to time and on such nomination the Judges shall be deemed to have been transferred to that Bench.
(5) The President shall, in consultation with the Chief Justice, assign the area in relation to which each permanent Bench shall have Jurisdictions, powers and functions conferred or that may be conferred on the High Court Division by this Constitution or any other law; and the area not so assigned shall be the area in relation to which the High Court Division sitting at the permanent seat of the Supreme Court shall have such jurisdictions, powers and functions.
(6) The Chief Justice shall make rules to provide for al incidental, supplemental or consequential matters relating to the permanent Benches.”
On the 8th May, 1982 General Hussain Muhammad Ershad as Chief Martial Law Administrator amending the Schedule to his Proclamation of the 24th March, 1982 (which has earlier been referred to as a mini-constitution) assumed powers to set up permanent Benches of the High Court Division with seats at such places and for such areas as he may specify by notification. Permanent Benches were set up initially at 3 places – Rangpur, Comilla and Jessore and later at 3 other places – Chittagong, Sylhet and Barisal. Areas under their respective jurisdictions were specified. The High Court Division at Dhaka continued to function, albeit with a truncated jurisdiction. Judges were transferred to the six permanent Benches. By a further amendment of the Proclamation by Proclamation Order No. Ill of 1986, dated the 17th June, 1986, these permanent Benches were designated as Circuit Benches and it was provided that when Article 100 of the Constitution is revived, the Circuit Benches shall be deemed to he sessions of the High Court Division at Dhaka under that Article. Martial Law was withdrawn by a Proclamation on the 10th November, 1986 and the Constitution was also fully revived on the same date. The Constitution (Seventh Amendment) Act, 1986 Act 1 of 1986) was published in the official Gazette on the 11th November, 1986. By the Seventh Amendment Proclamations etc., were “ratified and confirmed” and “declared to have been validly made” not to be “called in question in or before any court, tribunal or authority on any ground whatsoever.” It was quickly realised that Proclamation Order No. Ill of 1986 dated the 17th June, 1986 was no longer an operative law and therefore the Chief Justice issued a fresh notification on the 24th November, 1986 in exercise of his powers under Article 100 appointing with the approval of the President the same six places where Circuit Benches were functioning during the Martial Law period to be the places in which sessions of the High Court Division may be held on such dates and for such period as may be specified by him. The Chief Justice issued six other notifications of the same date specifying the jurisdiction to be exercised by each session and the areas covered by them.
These notifications raised eyebrows as to their constitutional validity. Lawyers continued a sustained and powerful agitation and movement since 1986 against the dismantling of the High Court Division. The Chief Justice’s Notifications added fuel to the fire.
Perhaps to set at rest the unrest thus created, the Constitution (Eighth Amendment) Act, 1988, Act No. XXX of 1988, was enacted on the 9th June, 198s8 substituting Article 100 altogether, providing that the High Court Division shall have a permanent Bench each at the; same places where Circuit Benches and Sessions were” held during the Martial Law period and the period following. Judges of the High Court Division were made transferable to the permanent Benches. In consultation with the Chief Justice the President shall assign the area in relation to which each permanent Benches shall have jurisdiction, powers and functions conferred or that may be conferred on the High Court Division by the Constitution or any other law. The High Court Division at Dhaka shall have like jurisdictions, powers and ‘functions over the unassigned area. The Chief Justice shall make: rules to provide for all incidental, supplemental or consequential matters relating to the permanent Benches.
On 11-6-88 the President issued Notifications assigning areas of the six permanent. Benches and on the same date the Chief Justice issued Notifications relating to the permanent Benches. The amendment and the Notification were counterproductive. The unrest was intensified.
Constitution (8th Amendment) Case
The case of Anwar Hussain Chowdhury V. Bangladesh 19S9 BLD (SPL) popularly known as the 8th Amendment case is a historic judgment, in. the constitutional history of independent Bangladesh.
A. The Facts and the Contentions
By two Writ Petitions the amended Article 100 and the Notification of the Chief Justice dated 11-6-88 were challenged as ultra vires, A Division Bench of the High Court Division summarily dismissed the writ petitions on the 15th August, 1988. Leave was granted by the Appellate Division. This appeal, Anwar Hossain Chowdhury vs. Bangladesh, 1989 BLD (Spl.) 1 = 41 DLR (AD) 165, along with two other appeals, is popularly known as the Constitution (8th Amendment) case.
The main ground on which the amendment of Article 100 was challenged was that the High Court Division of the Supreme Court with plenary judicial power over the Republic is a basic structure of the Constitution which cannot be altered or damaged and the amendment is void having rendered the High Court Division with plenary judicial power over the entire Republic non-existent.
The basis for this argument is that the power of amendment of the Constitution under Article 142 is a power under the Constitution and not above and beyond it and is not an unlimited power. The concept that Parliament has unlimited power of amendment is inconsistent with the concept of supremacy of the Constitution embodied in the Preamble and Article 7 of the Constitution. Article 7 itself is basic, fundamental and unalterable. It is a question of construction of the word “amendment” which has to be interpreted in the context and scheme of the whole Constitution. Read with the Preamble and Article 7, it means that there is an implied limitation on the power of amendment and that the basic structure of the Constitution cannot be altered or damaged and that ‘amendment’ can only make the Constitution more “complete, perfect or effective”.
This argument was countered by the State by stating that independence of judiciary and separation of powers are basic features of our Constitution but the impugned amendment has not affected either of the two. The makers of the Constitution have imposed no limitation on the power of amendment of “any provision” of the Constitution. The amending power cannot be limited by some vague doctrine of repugnancy to the Preamble and Article 7. The argument that Parliament cannot change the basic structure of the Constitution is untenable. There cannot be any implied limitation to Parliament’s power of amendment of the Constitution. The power of amendment under Article 142 is a constituent power, not an ordinary legislative power.
Although the Appellate Division by a majority of 3:1 struck down the impugned amendment of Article 100 and the Notification it remains to be seen how the issues of implied limitation to the power of amendment, difference between legislative power and constituent power, the meaning of the word ‘amendment’ and the basic structure doctrine have been treated in its hands.
B. Majority Judgment.
(i) Judgment of B, H. Chowdhury, J.
On the question of implied limitation to the power of amendment. B.H. Chowdhury. J. has been unduly economic, having devoted for all practical purposes only one paragraph (Para 184 in DLR. Para 166 in Spl. BLD) to it, although his treatment of the evolution of Letters Patent of various High Courts and the details of past Constitutions has been quite generous prompting a critic to say that “It appears to have been not quite necessary” (Article on “Holding of Periodic Sessions a Flagrant Abuse of Power – by Justice Debesh Chandra Bhattacharya, 42 DLR Journal 41(43)). From the labyrinth of his myriad forensic inquisitions one can gather that he has mainly held that there is no distinction in our Constitution between a legislative power and a constituent power, that the constituent power is with the people of Bangladesh as reflected in the Preamble and Article 7, that in the absence of any exclusion as in Article 26 the word ‘law’ in Article 7 is conclusively intended to include an amending law, that an amending law cannot be valid if it contravenes any express provision of the Constitution, so says Article 7, that Article 142 merely confers enabling power for amendment, that the term ‘amendment1 implies such an addition or change within the lines of the original instrument as will effect an improvement or better carry out the purposes for which it was framed and that Article 7 stands between the Preamble and Article 8 as a statue of liberty, supremacy of law and rule of law and is the pole star of our Constitution which no Parliament can amend because all power followed from Article 7.
On the question of ‘basic structures’. B.H. Chowdhury, J. has listed 21 ‘unique features” of the Constitution and held that ‘some’ (without specifying which) of the said 21 features are the basic features of the Constitution and they are not amendable by the amending power of Parliament. He accepted the contention of the appellants that the impugned amendment is to be tested against Article 7 because the amending power is but a power given by the Constitution to Parliament and although that is a higher power than any other given by the Constitution to Parliament, it is nevertheless a power within and not outside the Constitution. The impugned amendment, according to B.H. Chowdhury, J. has directly violated two Articles, namely, Articles 102 and 44 without amending expressly Articles 94 to 116 of the Constitution. It has disrupted the provisions in relation to the judiciary given in Article 94 by introducing some alien concept of ‘permanent benches’ conferring specifically ‘jurisdictions, powers and functions’ of the High Court Division, thereby creating seven rival courts to the High Court Division, doing something indirectly which cannot be done directly. It has disrupted the constitutional fabric of Article 102 by introducing territorial concept fraught with innumerable difficulties and incongruities.
(ii) Judgment of Shahabuddin Ahmed, J.
Shahabuddin Ahmed. J. on the other hand, is of the considered opinion that an amendment of the Constitution is not included in “law” within the meaning of Article 7 in the same way it is not law within Article 26. In other words he is not prepared to test the validity of a constitutional amendment on the touchstone of Article 7. He did not agree with the contention that if a constitutional amendment is excluded from “law’ within the meaning of Article 7 that Article will become redundant and ineffective. His reasoning is that an ordinary statute is enacted through an ordinary legislative process, but a constitutional amendment, following the special procedure and not altering any basic structure or essential feature of the Constitution becomes a part of the Constitution whereupon it derives the same sanctity as the Constitution itself. “If an amendment of the Constitution is the same thing as a law it is the Constitution whose position will fall down to the level of ordinary legislation. Validity of a law is tested by the touchstone of the Constitution, but there is no such touchstone to test the validity of the Constitution. Its validity is inherent and as such it is unchallengeable.”
By an ‘amendment’ of a Constitution, he means that it must pass through some tests. Tests are that the amendment has been made after strictly complying with the mandatory procedural requirements, that it has not been brought about by practicing any deception or fraud upon statutes and that is not so repugnant to the existing provision of the Constitution that its co-existence therewith will render the Constitution unworkable, and that, if the doctrine of bar to chance of basic structure is adopted, the amendment has not destroyed any basic structure of the Constitution.
With regard to Preamble of a Constitution it is his opinion that it is the intention of the makers of the original Constitution as expressed in the Preamble that is the guide to its interpretation.
Shahabuddin Ahmed, J. further held that ‘constituent power” in the sense of power to make a Constitution, belongs to the people alone, although opinions differ whether it can be vested in Parliament, but even if the constituent power is vested in Parliament the power is a derivative one and the mere fact that an amendment has been made in exercise of derivative constituent power will not automatically make the amendment immune from challenge. He then found that our Constitution stands on certain fundamental principles which are its structural pillars and if those pillars are demolished or damaged the whole constitutional edifice will fall down. He listed the following to be the basic structures of our Constitution, namely, sovereignty belongs to the people, supremacy of the Constitution as the solemn expression of the will of the people, democracy. Republican Government. UnitaryState, separation of powers, independence of the Judiciary and fundamental rights. He held that these are the structural pillars of the Constitution and they stand beyond any change by amendatory process. Amendment will be subject to the retention of the basic structures. The Court, Therefore, has power to undo an amendment if it transgresses its limit and alters a basic structure of the Constitution. By a clause by clause examination of the amended Article 100, Shahabuddin Ahmed, J. held that the amendment has created more than one permanent seat of the Supreme Court, thus destroying the unitary character of the judiciary, the transferability of Judges has a likely effect of jeopardizing the independence of the judiciary, a basic feature of the Constitution and the amendment has resulted ill irreconcilable repugnancies to all other existing provisions of the Constitution rendering the High Court Division virtually unworkable in its original form.
There is thus a noticeable distinction in the approaches of the two learned Judges. While B.H. Chowdhury, J. would measure the validity of a constitutional amendment in the touchstone of Article 7, which is for him the ‘pole star’ of the Constitution. Shahabuddin Ahmed, J. would not do so. A constitutional amendment is not, in his view, “law’ within the meaning of Article 7. To B.H. Chowdhury, J. the word ‘amendment’ implies an improvement on the existing provisions of the Constitution, to Shahabuddin Ahmed. J. it means the passing of some tests. B.H. Chowdhury. J. holds that the Preamble is unamendable (it has to be referred to the people) and the Preamble preserves the constituent power with the people, Shahabuddin Ahmed, J. regards the Preamble as a guide to the interpretation of the Constitution. To B.H. Chowdhury, J. of the 21 ‘unique features’ of the Constitution, ‘some’ are basic features, but those are not specified. The impugned amendment in his judgment has directly violated Articles 102 and 44 and disrupted the provisions of Article 94. To Shahabuddin Ahmed, J. there are 8 specified basic structures of our Constitution. The impugned amendment has broken the ‘oneness’ of the High Court Division, it has the likely effect of destroying the independence of the judiciary and it is in irreconcilable conflict with other Articles of the Constitution relating to High Court Division.
(iii) Judgment of M.H. Rahman, J.
M.H. Rahman, J. has not given his unqualified welcome to and acceptance of the doctrine of basic structure. He is quite conscious that the doctrine of basic structure is a new one and it may take some time before this doctrine gets acceptance from the superior courts of the countries where constitutionalism is prevailing and he has left the doctrine at that. His reasoning is that the appeals were concerned with only one basic feature, the rule of law, marked out as one of the fundamental aims of our society in the Preamble. It is his opinion that if any provision of the Constitution can be called the ‘pole star’ of the Constitution then it is the Preamble. The impugned amendment is to be examined on the touchstone of the Preamble, with or without resorting to the doctrine of basic feature. As the impugned amendment has badly impaired the structure of rule of law which is the fundamental aim of our society as laid down in the Preamble, he has struck down the amendment. This he has done not on the ground of uncertainties or irreconcilability (as was done by the other two learned Judges) but on the ground of the amendment’s irreconcilability with rule of law as envisaged in the Preamble. He has been categorical in his rejection of Article 7 as the “pole star” of the Constitution and has held very7 clearly that the validity of an amendment of the Constitution cannot be examined on the touchstone of Article 7. Even without clause (3) of Article 26 ‘law” does not mean a constitutional amendment. Clause (2) of Article 142 was enough to exclude application of Article 26 to an amendment of the Constitution. He has not dealt with the difference between legislative power and constituent power in any great details or with the meaning of the word ‘amendment’.
These are the three learned Judges in the majority who declared the impugned amendment of Article 100 to he ultra vires and void, but there is a distinct lack of Commonness in their individual approach-to the basic issues in these appeals. While B.H. Chowdhury, J. and Shahabuddin Ahmed, J. have accepted the basic structure doctrine in their own different ways, M.H. Rahman, J. has stopped short of accepting the doctrine and has struck down the amendment because of its irreconcibility with rule of law as laid down in the Preamble which he considers to be the ‘pole star’ of the Constitution.
C. The Minority Judgement
Judgment of A. T.M. Afzal, J.
A.T.M Afzal, J. in his dissenting opinion has been clear and unequivocal in rejecting tile theory of basic structures on two grounds. “The first is that it is inconceivable that the makers of the Constitution had decided on all matters for all people of all ages without leaving any option to the future generation. Secondly, if it is right that they wanted the so-called ‘basic features’ to be ‘permanent features” of the Constitution there was nothing to prevent them from making such a provision in the Constitution itself/’ He reasons that the incorporation of sub-Article (1A) in Article 142 providing for a more difficult procedure of referendum in case of amendment of some of the provisions of the Constitution is a clear manifestation of the principle that no other provision of the Constitution is so basic that it will need a referendum for it to be incorporated in the Constitution.
A.T.M. Afzal, J. gives, however, some additional reasons as to why “the doctrine of basic features has indigenous and special difficulties for acceptance”. Features that were considered to be basic to our Constitution on the 16th December, 1972 “have been varied in such abandon and with such quick succession that the credibility in the viability of the theory of fundamentality is bound to erode”. He gives a few examples by reference to various amendments of the Constitution made upto the Eighth Amendment Act, namely, amendment of the Preamble itself, of Article 44, Article 94 (and of their comeback), of secularism etc., and then proceeds to say :
“In view of the experience as noticed above, any doctrainaire approach as to “basic features”, in my opinion, will amount to tracing a blind eye to our constitutional evolution and further will not be in the interest of the country. I shall give one example. Today a basic feature in our Constitution is the Presidential form of Government. We can take judicial notice that there is a demand by some political parties to restore Parliamentary form of Government as it originally obtained. Why should a roadblock be created by the Court, if people choose to send the members of these political parties to the Parliament, against amending the Constitution providing for Parliamentary system?”
Badrul Haider Chowdhury, J. in his judgment mentioned the then Articles 48 and 58 of the Constitution to be the basic features of the Constitution. These Articles then provided for direct election of the President in a Presidential form of Government and the selection by the President of a member of Parliament as Prime Minister who commands the support of the majority. These Articles, he said, are protected. He then invoked Article 7 and said. “Hence the constitutional scheme if followed carefully reveals that these basic features are unamendable and unalterable.”
Yet, within two years from this judgment, after the general elections of February. 1991, the then Articles 48 and 58, exemplified as a “basic feature” by B.H. Chowdhury, J. were substituted by the Constitution (Twelfth Amendment) Act, 1991, Act XXVIII of 1991. with effect from 18-9-91. replacing a Presidential system of Government with a Parliamentary one.
No one has yet complained that the majority judgment in the Eighth Amendment case is a “roadblock” to the Twelfth Amendment.
A.T.M. Afzal, J. in the last analysis, has come to accept a limited and highly restricted concept of ‘basic features”. He holds that the word “amendment” has a built-in limitation in that it does not authorise the abrogation or destruction of the Constitution or any of its three structural pillars – executive, legislature and judiciary – which will render the Constitution defunct or unworkable. In his words, “in exercise of the power under Article 142 the Constitution cannot be destroyed or abrogated. The destruction of the Constitution will be the result if any of its “structural pillars”, that is, the three organs of the Government, Executive, Legislature and Judiciary is destroyed. The result will also be the same if any of these organs is emasculated or castrated in such a manner as would make the Constitution unworkable. For example, if the Supreme Court or a Superior Court by any name is retained but the power of Judicial Review as under Article 102 is taken away, the result will be that the form will be there but the soul of the judiciary will be gone and the Constitution will be rendered unworkable inasmuch as the balance which is struck in the scheme of the Constitution cannot be maintained. There can be no objection to the exercise of amending power to fulfil the needs of time and of the generation. But the power cannot be so construed as to turn the Constitution which is the scripture of hope of a living society and for its unfolding future, into a scripture of doom.”
It follows from the above view of A.T.M. Afzal, J. that he rejects the doctrine of implied limitation to the power of amendment. “Who is to decide and how to decide when the Constitution-makers themselves in their wisdom chose not to distinguish, what are to be considered as transcendental, in limitation to the power of amendment given to Parliament?” A power to amend the Constitution, constituent power, is different from the power to amend ordinary law, legislative power. The validity of an ordinary law when questioned is to be justified by reference to a higher law, but the validity of a constitutional amendment cannot be justified by reference to another higher law. The Constitution generates its own validity. A.T.M. Afzal, J. therefore rejects the contention that the validity of a constitutional amendment is to be tested in the touchstone of Article 7. He is of the opinion that in our Constitution no article or clause is unamendable. The limitation in Article 142 relates only to procedure for amendment and not substantive in the sense that no article is beyond the purview of amendment.
A.T.M. Afzal, J. then holds that the impugned amendment has not destroyed the High Court Division as originally conceived as an integral part of the Supreme Court, nor affected its jurisdiction and power in a manner so as to render the Constitution unworkable. The consequences of the amendment belong to the domain of policy and whatever may be the personal view of a Judge regarding the wisdom behind the amendment, he would be concerned with only the legality of it. He held the impugned amendment and Notification not to be ultra vires on any grounds alleged.
D. The Ratio Decidendi
Lawyers and constitutional analysts will look in vain for a consensus ratio decidendi of the majority judgment, except for the result.
The lowest common denominator of the two majority judgments – those of B. H. Chowdhury, J. and. Shahabuddin Ahmed, J. and of the minority judgment of A.T.M. Afzal, J. is that there are after all some basic structures of the Constitution, although the learned Judges are not unanimous on those. But the existence of basic structures is one thing and their non-amendability is another. The basic difference between the two learned Judges in the majority and the learned Judge in the minority concerns the amendability of basic structures. And the difference inter se between the two learned Judges in the majority is with regard to the yardstick with which the violation of basic structures is to be measured.
According to B.H. Chowdhury, J. an amendment of the Constitution “directly violating” or “disrupting” other provisions of the Constitution and thus bringing about “innumerable difficulties and incongruities” will be ultra virus and void on the touchstone of Article 7. According to Shahabuddin Ahmed, J. an amendment of the Constitution which fails to pass the ‘”tests” mentioned by him (not altering any basic structure of the Constitution – or not being so repugnant to the existing provision of the Constitution that its coexistence with the amendment will render the Constitution unworkable, being one of such “tests”) will be ultra vires and void, not on the touchstone of Article 7 (or presumably even the Preamble), but because the derivative constituent power has to pass through the ordeal of validity test. According to A.T.M. Afzal. J. there is a built-in limitation in the word “amend” which does not authorise the abrogation or destruction of the Constitution or any of its three structural pillars which will render the Constitution defunct or unworkable and an amendment of the Constitution which does the same will be ultra vires and void, neither on the touchstone of Article 7 and the Preamble nor on any validity test, but because of the built-in limitation of the word “amend”. Thus if only A.T.M. Afzal. J. could persuade himself that the impugned amendment has brought about the result he talked of, it would have been theoretically possible for him to strike down the same, even though on a much narrower ground.
The view of M.H. Rahman, J. stands out in marked contrast to the views held by the three other learned Judges, even though he eventually found himself with the majority. He would not test the validity of a constitutional amendment either on the touchstone of basic structures, or of Article 7 or of any validity test, or of any definition of the term ‘amendment’. For him the Preamble of the Constitution is the ‘pole star” of the Constitution, rule of law is one of its main planks, the impugned amendment violates rule of law and therefore it is ultra vires and void.
Dr. D. Conrad, a German political scientist, wrote an article on “Limitation of Amendment Procedures and the Constituent Power”‘, in XVI – XVII Indian Yearbook of International Affairs, pp. 347-430 in 1970. Along with other text-book writers his views on the limitation of amending power were considered and noted by the majority Judges in Kesavananda vs. State of Kerala, AIR 1973(SC) 1461 at pages 1861 and 2020 after the basic structure doctrine was further reinforced by the Indian Supreme Court in Indira Gandhi V Raj Narain, AIR 1975 (SC) 2299, he wrote an article on “Constituent Power. Amendment and Basic Structure of the Constitution; A Critical Reconsideration” in Delhi Law Review Vol. 6 and 7. 1978-79. He noted the above two decisions of the Indian Supreme Court and observed.
“In spite of the practical acceptance, however, and the added credibility’ after a historic test, the theoretical contours and further implications of the doctrine have remained somewhat obscure and controversial.”
The observation seems to have equal, if not more, validity after the “historic test” in the Constitution 8th Amendment Case. Dr. Conrads critical reconsideration of the basic structure doctrine and of limitation on constituent power makes interesting reading.
From the above analysis of the Constitution (8th Amendment) Case it can be seen that the basic structure doctrine had a rather close shave, as it had in Keshavananda’s case (supra) in the Indian Supreme Court. It will be for the next generation of constitutional lawyers and Judges to develop and crystalize the theoretical base of this doctrine in its application to Bangladesh. As it is the doctrine stands on a nebulous footings.
The Principal Arguments of the Judgment
1. The Constitution stands on certain fundamental principles which are its structural pillars which the parliament cannot amend by its amending power for, if these pillars are demolished or damaged then “the whole constitutional edifice will fall down. Some of the basic structures are:
i) Sovereignty belongs to the people.
ii) Supremacy of the Constitution,
iv) Republican government.
v) Independence of judiciary.
vi) Unitary state.
vii) Separation of powers.
viii) Fundamental rights.
2. The amended Article 100 is ultra vires because it has destroyed the essential limb of the judiciary namely, of the Supreme Court of Bangladesh by setting up rival courts to the High Court Division in the name of permanent Benches conferring full jurisdictions, powers and functions of the High Court Division. Besides this, this amended Article is inconsistent with Articles 44, 94, 101 and 102 of the Constitution. The Amendment has reduced Articles 108, 109, 110 and 111 nugatory. It has directly violated Article 114. The “Amendment is illegal because there is no provision of transfer of cases from one permanent Bench to another Bench which is essential requisite for dispensation of justice.
3. If any provision can be called the ‘pole star’ of the Constitution, then it is the preamble. The impugned Amendment is to be examined on the touchstone of the preamble with or without resorting to the doctrine of basic structure. The preamble is not only a part of the Constitution, it now stands as an entrenched provision that cannot be amended by the parliament alone. When parliament cannot by itself amend the preamble, it cannot indirectly by amending a provision of the Constitution impair or destroy the fundamental aim of our society. One of the fundamental aims of our society is to secure the rule of law for all citizens and in furtherance of that aim part VI and other provisions were incorporated in the Constitution. By the impugned Amendment that structure of the rule of law has been badly impaired and as a result the High Court Division has fallen into sixes and sevens—six at the seats of the permanent Benches and the seven at the permanent seat of the Supreme Court.
The above quotations from the judgment makes it clear that the centre-point on which the majority judges relied to declare the impugned amendment illegal was the doctrine of the basic structure of the Constitution.
The Doctrine of Basic Structure
Now what is meant by the doctrine of basic structure of the Constitution? This doctrine is not a well-settled principle of constitutional law; it is rather a recent trend in and a growing, principle of constitutional jurisprudence. As M. H. Rahman. J. says in the 8th Amendment case that the doctrine has developed in a climate where the executive, commanding an overwhelming majority in the legislature, gets snap amendments of the Constitution passed without a Green Paper or White Paper, without clicking any public opinion, without sending the Bill to any select committee and without giving sufficient time to the members of the parliament for deliberation on the Bill for amendment.
The initial-trace, or origin of the concept of basic structure of the Constitution can be found in the Sub-Continent, as Dr. Kama Hossain subletted in the 8th Amendment case, in a decision of the Dhaka High Court (Abdul Haque V Fazlul Quder Chowdhury PLD) 1963 Dac. (669). This decision was upheld by the Pakistan Supreme Court in Fazlul Quder Chowdhury V. Abdul Hague (PLD 1963 SC 486) where the court held-
“….franchise and form of government are fundamental features of a Constitution and the power conferred upon the Presidency by the constitution of Pakistan to remove difficulties does not extend to making an alteration in a fundamental feature of the Constitution.”
But in its development or nourishing stage in Indian jurisdiction the first formal judicial formulation of this doctrine came out in Kesavananda’s case. Before Kesavananda’s case the issue of basic structure came to be applied indirectly in Golak Nath’s case where it was decided that parliament had no power to amend fundamental rights so as to take away or abridge any of them. Subba Rao, C.J. said that fundamental rights are assigned transcendental place under our Constitution and, therefore, they are kept beyond the reach of parliament. This judgment gave rise to acute controversy. It was apprehended that the fundamental rights in the Constitution would become static creating hindrances in the way of enactment of socio-economic legislation required to meet the needs of a developing society.
To get over this problem created by Golak Naths case the Indian Parliament passed the Constitution (24th Amendment) Act, 1971 which laid down that parliament might in the exercise of its constituent power amend any provision of the Constitution be it of fundamental rights or of any other one.
The validity of the Constitution (24th Amendment) Act, 1971 and the 25th Amendment Act which curtailed the power of judicial review was challenged in Kesavananda Bharati V. State of Kerala popularly known as the Fundamental Rights case. The court by majority overruling the Golak Nath’s case held that the parliament had the power to amend any or ail the provisions of the Constitution including those relating to fundamental rights but this power of amendment was subject to certain implied and inherent limitations and that parliament could not amend those provisions of the Constitution which affect the basic structure or framework of the Constitution.
The next case in which the Indian Supreme Court had occasion to apply the Kesavananda princile as regards the non-amendability of the basic features of the Constitution was Indira Nehru Gandhi V. Raj Narayan popularly known as Election case. Here was involved the question of the validity of the Constitution (39th Amendment) Act, 1975 which took away the power of any court and also of the Supreme Court to decide any doubts and disputes arising in connection with the election of four high officials of the State viz, the President, Vice President, Prime Minister and Speaker. Following Kesavananda’s principle the court held that the impugned Amendment affected and destroyed certain basic structures of the Constitution e.g. democracy which implies the principle of free and fair election; rule of law and judicial review; It was also held that parliament in the exercise of constituent power was not competent to validate an election declared void by the High Court. In this case Chandrachud, C.J. said that the fundamental rights,, being a part of the essential of the Constitution could not, therefore, be abrogated or emasculated in the exercise of the power conferred by Article 368, though a reasonable abridgment of those rights could be affected in the public interest.
The Indian government became furious with the Supreme Courts judgment in Indira Gandhi’s case declaring clause 4 of 39th Amendment invalid and it came forward to ensure that never in future the courts should have the power to pronounce a constitutional amendment invalid. Accordingly, the 42nd Amendment of the Constitution was enacted providing for that, “no constitutional amendment (including the provision of part III i.e. the fundamental rights) … shall be called in question in any court on any ground”, and also that “there shall be no limitation whatsoever on the constituent power of parliament to amend by way of addition, alteration, variation or repeal of the provisions of the Constitution”. The Amendment, therefore, made it clear that even the ‘basic feature’ of the Constitution parliament. As a commentator puts it purported to kill the child.
However the validity of this 42nd Amendment was challenged in Minerva Mills Ltd V. Union of India. The scope and extent of the application of the doctrine of basic structure again came up for discussion before the Supreme Count in this case. The Supreme Court unanimously held the Amendment as unconstitutional transgressing the limits of the amending power and damaging or destroying the basic structure of the that the parliament had only a limited Constitution. The court said power which itself is a basic feature of the Constitution and the donee of a limited power cannot by the exercise of that power convert the limited power into an unlimited one. In other words, the parliament cannot expand its amending power so as to acquire for itself the right to repeal or abrogate the Constitution or to destroy its basic and essential features; power to destroy is not a power to amend. Mr. N. A Palkivala has remarked that this decision has rekindled the light of the Constitution of India.
This proposition that parliament cannot amend the Constitution so as to destroy its basic features was again reiterated and applied by the Supreme Court in Waman Rao V. Union of India.
Thus the doctrine of ‘basic feature’ has successfully passed the acid-test in almost 5 cases in India are footing in Indian Constitutional jurisprudence remains controversy as to the substance of this doctrine. And the Bangladesh Supreme Court in the has already attained its firm prudence though there still 8th Amendment case has followed the structure. Indian decisions as regards the doctrine of basic structure.
Problems of the Doctrine of Basic Structure
There are some problems arises from the basic structure doctrine. In Kesavananda’s case Sikri C.J. says that the basic structure of the Constitution consists of the following features:
i) Supremacy of the Constitution.
ii) Republican and democratic form of government.
iii) Secular characteristic of the Constitution.
iv) Separation of powers between the executive, legislative and…. Judiciary
v) Federal character of the Constitution.
According to Shelat and Grover J.J. the following are the examples of the basic structure of the Constitution:
i) Supremacy of the Constitution,
ii) Republican and democratic form of government and sovereignty of the country.
iii) Secular and federal character of the Constitution,
iv) Demarcation of power between the legislative, executive and Judiciary.
v) Dignity of individual security by various freedoms and basic rights in part III and the mandate to build a welfare state contained in part V.
vi) Unity and integrity of the nation.
In Indira Gandhi’s case the following features were termed as basic:
i) Rule of law.
ii) Judicial review.
iii) The principle of free and fair election as a principle of democracy,
iv) Jurisdiction of the Supreme Court under Article 32.
In Minerva Mills case the Supreme Court held that the following are the basic features of the Constitution:
i) Limited power of parliament to amend the Constitution.
ii) Harmony and balance between fundamental rights and directive principles.
iii) Fundamental rights in certain cases.
iv) Power of judicial review in certain cases.
Likewise in 8th Amendment case of Bangladesh the judges ‘could not come into an unanimity as to what constitute ‘basic feature’ of the Constitution. According to B: H. Chowdhury J. 21 features are basic features of our Constitution. Justice Sahabuddin Ahmed has mentioned six features as basic which have been mentioned earlier.
Of course, like the concept of ‘basic feature’ there are many concepts which -are not capable of precise definition, nevertheless they exist and play important part in law. Negligence; reasonableness, natural justice are some of these concepts which are very much understood but cannot be precisely defined.
Again, the Constitution of some/ countries specifies ‘basic features’ of the Constitution categorically. For example, the Constitution of Germany mentions in Article 79(3) that the amendments of the basic law (Constitution) affecting the following matters shall be prohibited meaning that these are basic features:
i) the division of the Federation into Laender (states).
ii) the participation on principle of the Laender in legislation, iii) the basic principles as laid down in Articles 1 and 20
Likewise Article 89 of the French Constitution says that ‘ the republican form of government shall not be an object of amendment.
If there is such categorical specification in the Constitution as to its basic features the court is not to fall into any precarious situation but since most of the written Constitutions are silent about their basic features, the courts in these “eases have to assume basic” features under the umbrella of the doctrine of ‘basic feature’ of the constitution. Though the doctrine is still a moot question, it has already been a basis of some important constitutional judgments in India and Bangladesh and in an unhappy fight between the executive and judiciary the latter has been able by using this doctrine to establish constitutional supremacy. In this sense this’ doctrine may be comparable to the doctrine of judicial review as expounded by Marshall C. J. Someone says that this doctrine of I basic feature appears to be an extension of the doctrine of judicial review. Marshall held in Marbury V. Madison that the court, in exercise of its judicial functions, had the power to say what the law, was, and if it found an Act of Congress conflicted with the Constitution, it had the duty to say that the Act was no law. Though I the decision of Marshall C.J. is still being debated, the principle of judicial review has received a wide acceptance not only from the superior courts to the countries that are under the influence of common law but in civil law countries as well.
In brief the historic 8th amendment makes Islam as the state religion of Bangladesh “Bangla” and “Dhaka” was inserted instead of “Bengali” and “Dacca”. It also made provision for prohibiting the citizen from accepting any honours, title etc. without prior permission of the president from any foreign country.
This amendment was passed on 10th July 1989 and it became a law on 11th July. But it was to come effect on 1st march 1991. This amendment amended Articles 49,50,51,53,54,72,119,122,123,124,148,152of the constitution and 4th schedule of the to the constitution. It also inserted a new Article 53A in the constitution. It introduced some important changes in the constitution. Those are shortly given below:
Amendment of article 49 of the Constitution.—In the Constitution of the People’s Republic of Bangladesh, hereinafter referred to as the Constitution, in article 49 for the words “appointed by President” the words “elected in accordance with law by direct election” shall be substituted.
Amendment of article 50 of the Constitution.—In the Constitution, in article 50 and the marginal heading thereof, the words “appointment as” shall be omitted.
Substitution of article 51 of the Constitution.—In the Constitution, for article 51 the following shall be substituted, namely:—
“51:TERM OF OFFICE OF PRESIDENT.—(1) Subject to the provisions of this Constitution, the President shall hold office for a term of five years from the date on which he enters upon his office:
Provided that, notwithstanding the expiration of his term the President shall continue to hold office until his successor enters upon his office.
2. No person shall hold office as President for more than two terms consecutively: Provided that nothing in this clause shall apply to a person who has acted is President under article 55.
3) The President may resign his office by writing under his hand addressed to the Vice-President.
4) If the President is elected as a member of Parliament, he shall be qualified to be such member until be ceases to hold office as President.
5) If a Member of Parliament is elected as President, he shall be deemed to have vacated his seat in Parliament on the date on which he enters upon his office as President.
51A: TERM OF OFFICE OF VICE-PRESIDENT.—(1) Subject to the provisions of this Constitution, the Vice-President shall hold office for a term of five years from the date on which he enters upon his office:
Provided that if the President and Vice-President have not entered office on the same date for any reason, the term of office of the Vice-President shall expire on the date on which the term of office of the President expires:
Provided further that, notwithstanding the expiration of his term, the Vice-President shall continue to hold office until his successor enters upon his office.
2) No person shall hold office as Vice-President for more than two terms consecutively:
Provided that nothing in this clause shall apply to a person who has held the office of Vice-President under article 55A.
3) The Vice-President may resign his office by writing under his hand addressed to the President.
4) If the Vice-President is elected as a Member of Parliament, he shall not be qualified to be such member until be ceases to hold office as Vice-President.
5) If a member of parliament is elected as Vice-President, he shall be deemed to have vacated his seat in Parliament on the date on which he enters upon his office as Vice-President.
5: Amendment of article 53 of the Constitution.—In the Constitution, in article 53.-
a) in the marginal heading, after the word “President”, the words “and Vice-President” shall be inserted,
b) in clause (1), after the word “President”, the words “or a Vice-President” shall be inserted, and
c) in clauses (2), (3) and (4), after the word “President”, wherever occurring, the words and commas “or the Vice-President, as the case may be,” shall be inserted.
6: Amendment of article 54 of the Constitution.—In the Constitution, in article 54.—
a) in the marginal heading, after the word “President”. the words “and Vice-President” shall be inserted’.
b) in clause (1), after the word “President”, the words “or a Vice-President” shall be inserted’, and
c) in clauses (2), (4). (5), (6) and (7), after the word ‘President”, wherever occurring, the words and commas “or the Vice-President. as the case may be.” shall be inserted.
7: Amendment of article 55 of the Constitution.—In the Constitution, in article 55. in clause (2). the words “or Vice-President appointed” shall be omitted.
8: Insertion of article 55A of the Constitution.—In the Constitution, after article 55 the following new article shall be inserted namely:—
“55A: VACANCY DURING TERM OF VlCE-PRESIDENT.—1) If a vacancy occurs in the office of Vice-President by reason of his death, resignation, impeachment or removal, the President shall appoint a person qualified for election as Vice-President to be Vice-President who shall take office upon confirmation by the votes of a majority of the total number of members of Parliament and shall hold the office of Vice-President until a Vice-President elected to fill such vacancy enters upon his office.
2) If the appointment of the Vice-President is neither confirmed nor refused confirmation by Parliament within ninety days of the submission of the appointment! before Parliament, the person appointed shall take office as if his appointment had been confirmed by Parliament.”.
9: Amendment of article 72 of the Constitution.—In the Constitution, in article 72, after clause (4), the following new clause shall be inserted namely:-
“(4A) If any contingency as mentioned in clause (3) of article 55 arises at any time when Parliament stands dissolved or is not in session, it shall, notwithstanding anything contained in this Constitution, stand summoned lo meet at the Parliament House at noon on the day following the day on which such contingency arises, and the Parliament so summoned to meet shall stand prorogued or dissolved as before, as the case may be, after it has made necessary provisions for the discharge of the functions of the President.”.
10: Amendment of article 119 of the Constitution.—In the Constitution, in article 119, for the words “office of President”, Where occurring, the words “offices of President and Vice-President” shall be substituted.
11: Amendment of article 122 of the Constitution.—In the Constitution, in article 122, for the words “office of President”, where occurring, the word “offices of President and Vice-President” shall be substituted.
12: Amendment of article 123 of the Constitution.—In the Constitution, in article 123. for clauses (1) and (2) the following shall be substituted, namely:-
“1) The elections to the offices of President and Vice-President shall be held simultaneously and at the same time.
2) An election to fill a vacancy in the office of President occurring by reason of the expiration of his term or by reason of his death, resignation, impeachment or removal shall be held within the period of one hundred and eighty days prior to the date on which his term shall expire or his term would have expired if there were no such death, resignation, impeachment or removal.
2A) An election to fill a vacancy in the office of Vice-President occurring by reason of the expiration of his term or by reason of his death, resignation, ‘impeachment or removal shall be held on the date on which the election to fill the vacancy in the office of President shall be held under clause (2).
2B) If both the offices of President and Vice-President have fallen vacant by reason of their death, resignation, impeachment or removal, the elections, to fill the vacancies shall be held within the Period of one hundred and eighty days after the occurrence of the last of the two vacancies.”
13: Amendment of article 124 of the Constitution.—In the Constitution, in article 124. for the words “office of President”, where occurring, the words “offices of President and Vice-President” shall be substituted
14:Amendment of article 125 of the Constitution.—In the Constitution, in article 125. in clause (b), for the words “office of President”, whatever occurring, the words “offices of President and Vice-President” shall be substituted.
15:Amendment of Article 148 of the Constitution.—In the Constitution, in. the article 148, after clause (1). the following new clause shall be inserted, namely:-
“1A) A person elected to the office of President and a person elected to the office of Vice-President shall make the oath on the same date, the person elected to the office of President making the oath first:
Provided that if for any reason both the persons cannot make- the oath on the same date, the person elected to the office of President shall make the oath on the first date and the person elected to the office of Vice-President on the next date”.
16: Amendment of article 152 of the Constitution. In the Constitution, in article 152, in clause (!), for the full-stop at the end a semi-colon shall be substituted and thereafter the following shall be added, namely:-
“the Vice-President means the Vice-President of Bangladesh elected or appointed under this Constitution.”.
17: Amendment of Fourth Schedule to the Constitution.– In the Constitution, in the Fourth Schedule, after paragraph 19, the following new paragraph 20 shall be added, namely.-
20: PROVISIONS RELATING TO VICE-PRESIDNT.—
1) The person holding office as Vice-President immediately before the commencement of the Constitution (Ninth Amendment) Act, 1989 shall continue to hold such office and the term of office of such Vice-President shall expire on the date on which the term of office of the person holding office as President immediately before such commencement expires holding office as President Immediately before such commencement expires.
2) If there is a vacancy in the office of Vice-President at the time of commencement of the Constitution (Ninth Amendment) Act, 1989. a Vice-President shall be appointed by the President under article 55A and the term of office of such Vice-President shall expire.”.
Executive under the Ninth Amendment: The type of executive, with an all powerful presidency and a rubber-stamp legislature established under the Fifth Amendment was retained by General HM Ershad. In order to make it look more like the American Presidential system he brought about the Ninth Amendment to the Constitution to democratise the system. Article 52 (2) was amended to limit the President’s tenure to two-terms; whereas according to the amended Article 49, instead of the President nominating the Vice President, the Vice President was to be directly elected as a running mate of the President. The executive now bore more resemblance to that of the US, but in the absence of a powerful and independent legislature there were virtually no checks on the authority of the executive. A further restriction on parliament’s powers, as evidenced through the addition of a new clause 72(A), made the case perfectly clear.
In conclusion we can say that by 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 appointed must be approved by the Jaiya Sangsad.
This Amendment was passed in the 4th parliament on 12th June, 1990. It mainly related to the reserved women seats in the parliament as provided for in Article 65.
The original Constitution provided for 15 reserved seats for women members and this provision was to remain in force for 10 years. But in 1979 through the 5th Amendment the number of reserved seats was increased from 15 to 30 and the period this provision was to remain in force was extended from 10 to 15 years. This period expired on 10th December 1987 and as such the 4th parliament did not have any reserved women seats. There were, therefore, debates and discussions within Ershad’s ruling party whether such a reservation was necessary or desirable. The mode of election for the women’s reserved seats and their role in the parliament had prompted a weekly to term these 30 ladies as “30 sets ornaments in parliament.” However Ershad and his ruling party decided to keep such reservation for another period of 10 years. To that end the Constitution (Tenth Amendment) Bill was introduced on 10th June and passed on 12th June, 1990.
Amendment of article 65 of the Constitution. — In the Constitution of the People’s Republic of Bangladesh, in article 65, for clause (3) the following shall be substituted,
“(3) Until this dissolution of Parliament occurring next after the expiration of the period of ten years beginning from the date of the first meeting of the Parliament next after the Parliament in existence at the time of commencement of the Constitution (Tenth Amendment Act, 1990 there shall be reserved thirty seats exclusively for women members, who shall be elected according to law by the members aforesaid:
Provided that nothing in this clause shall prevent a woman from being elected to any of the seats provided for in clause (2).”
Comments on Article 65
Article 65 provides for Parliament known as Jatiya Sangshad in Bangladesh. The legislative power of the Republic is vested in the Parliament. Under clause (3) of Article 65, thirty (30) seats were exclusively reserved for women Members. At the moment there is no women Member in the reserved seats as the period for which the reservation of seats was fixed had expired on the dissolution of the Seventh Parliament.
In the case of Fazle Rabbi Vs. Election Commissioner, 44 DLR 14, the question raised was whether the election to reserved seats for women members in the Parliament ought to wait till Completion of oath of all 300 members of Parliament. F.H.M.H. Rahman, J. on consideration of Articles 65(2)(3) and 67(1 )(a) (vacation of seats of members) held at Paragraph 8 as follows :
“When clauses (2) and (3) of Article 65 are read together, it clearly means that the election to the thirty reserved seats for women Members of Parliament cannot take place before the general election to al! the three hundred territorial constituencies are held and that results are published by the Election Commission of the General Election of all the said three hundred territorial constituencies. It is nowhere provided either i in Article 67(l)(a) or in any other article of the Constitution that if one or some of the said three hundred representatives declared by direct election do not make and subscribe the oath or affirmation for a member of the Parliament as prescribed in the Third Schedule to the Constitution, the election to the thirty seats exclusively reserved for women Members under Article 65(3) of the Constitution cannot held.” Ir, the case of Bangladesh & ors-15, M/S Eastern Beverage Industries Ltd. 23 BLD (AD) 68, Article 65 (1) of Parliament’s delegated authority was considered. (Paragraphs 14. 22 & 26).
Constitutionality of the Tenth Amendment – Article 65(3) and Articles 121 and 122(1)
The case of Dr. Ahmed Hussain vs. Bangladesh, 44DLR (AD), 109, decided on March 2, 1992.
In this case, the petitioner having unsuccessfully challenged the vires of the aforesaid Tenth Amendment of the Constitution sought leave to appeal from the judgment of the High Court Division dated 28-11-91 in Writ Petition No. 2306 of 1990. The leave petition was dismissed on 2-3-92, 44DLR (AD) 109, decided on March 2, 1992. The petitioner Dr. Ahmed Hussain challenged the Tenth Amendment of the Constitution being violative of Articles 121 and 122(1) of the Constitution. Article 121 provides that there shall be one electoral roll for each constituency for the purposes of elections to Parliament, and no special electoral roll shall be prepared so as to classify electors according to religion, race, caste or sex. Article 122(1) provides that the elections to Parliament shall be on the basis of adult franchise. It was held by the Appellate Division that the principle of single electoral roll for each constituency and the principle of adult franchise are not violated in the case of election to reserved seats for 30 women members, because the Constitution on the date of its commencement provided for two different kinds of elections. 300 members in general seats are to be elected directly on the basis of adult franchise. Additionally, some seats reserved for women members are to be filled up by a method of indirect election. There is thus no conflict between the Constitution (Tenth Amendment) Act and Articles 121 and 122(1) of the Constitution.
It was also argued that the method of indirect election for the seats reserved exclusively for women has destroyed the principle of democracy as expressed in the Preamble, in clause (1) of Article 7 and in Articles 8 and 11 of the Constitution. The Appellate Division held (judgment by M.H. Rahman, J.) that a system of indirect election cannot be called undemocratic. It is provided in the Constitution itself. Article 28 clause (4) of the Constitution provides that nothing in this article shall prevent the State from making special provision in favour of, among others, women and therefore the amendment is also not violative of Article 28.
So 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 approved by the Jatiya Sangsad.
Analysis and comments on the Amendments & Recent Issues of Amendment
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 ‘Bismillahir-Rahmanir-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 ail 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 civilized 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 marginalized 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 (Bengalee), 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 practiced 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 cohabiting 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 ‘Bismillahirr-Rahmanir-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.
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.
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 practiced. 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. (A presentation from Barrister Nazir Ahmed.)
It is seen from the above abstract, that few Amendments ended at one time under certain forceful situation were consequently detached by another Amendment and also that numerous of these had a nation wide harmony. But a long some of the Amendments were endorsed without appropriate arguments and through discussions concerning all the pledge holders including people adhering to diverse, sometime differing, ideological or opinionated views Amendments that were the consequences of unsophisticated thought, lack of esteem for democratic practices or suitability have clearly come under severe disapprovals, sometimes for suitable motives and sometimes for sectarian political Ideas. The US constitution says-
“Its power drives from the people; It was adopted by the people, it functions at the behest of and for the benefit of the people. Given all this, if the people, as a whole, some how demanded a change to the constitution, should not the people be allowed to make such a change?”
Similarly Article 7 of our constitution all powers in the republic belong to the people. So before doing change the constitution it is a must to take the public opinion so that disorder may not be created. The Amendments that are taken place, some of them are not done taking the opinion from the public as a result it was only that which the ruling govt. wanted. Before doing any Amendment to constitution the govt. must think about the people of our the country. In conclusion my opinion is that we have no objection in enacting another or as much we need by the present or future government, but if and when this is done, there must be full debates and participation by all the political parties, intellingentsia and concerned citizens of the country.
- The Constitution of the PeoplesRepublic of Bangladesh.
- Bangladesh Constitution: Trends & Issues by Justice Mustafa Kamal.
- Constitution, Constitutional Law & Politics: Bangladesh Perspective by Md. Abdul Halim.
- The Constitution of the PeoplesRepublic of Bangladesh with Comments & Case Laws by Justice Latifur Rahman.
- researches.lawyers njuries.com
- The blacks law dictionary.