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November 1, 2003 

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Revival of original Constitution is the way to move forward

Sheikh Hafizur Rahman Karzon

After the independence of Bangladesh, the spectacular achievement scored by the then incumbent authority was the successful enunciation of a good Constitution. Within a span of around thirty-two years after liberation, the Constitution has experienced thirteen amendments. It has undergone changes not for developing constitutionalism, not for paving the way for strong democracy, good governance and rule of law, rather the amendments mutilated the positive features of the original Constitution. Comparison of the present Constitution with that of 1972 would reveal how the successive governments manipulated the Constitution for legalising their usurpation and political purpose. Here I try to present very briefly the major changes made to the original Constitution.

The first major change to the Constitution was made by the Second Amendment, 1973. By this Amendment original article 33 was substituted and under the authority of this amended provision the Special Powers Act was enacted in 1974. This law curtailed citizens' right to liberty giving unscrupulous power to the executive without providing sufficient safeguards to the citizens. All the governments have abused this law and thousands of people became victim due to capricious application of this law.

The Fourth Amendment, 1975 introduced one party system and presidential form of government in the place of parliamentary form of government. Responsible role of parliament and independence of judiciary was undermined by this amendment. Later on the situation was improved, but the ideal status ensured by the original Constitution was never revived. Parliamentary form of government was reinstated in 1991, but independence of judiciary has yet to be ensured.

During the first martial law regime (1975-79) many changes were brought to the Constitution by the Martial Law Proclamations which lacked constitutional validity. When the question as to the supremacy of the Constitution and Martial Law Proclamation came, unfortunately the judges held that the Constitution was subservient to Martial Law Proclamation. (Halima Khatun V Bangladesh, 30 (1978) DLR (SC) 207) Instead of holding supremacy of the Constitution or at least that the Constitution and Martial Law Proclamation were co-extensive, the judges maintained the supremacy of the Martial Law Proclamation who were oath-bound to preserve, protect and defend the Constitution. All the changes made to the Constitution by the Martial Law Proclamations were validated by the Fifth Amendment, 1979.

The Fifth Amendment first slaughtered the Preamble of the Constitution, where basic philosophy of twenty-four years social and cultural struggle and finally the liberation war of Bangalee nation was clearly imprinted. This Amendment inserted "a historic war for national independence" in the place of "a historic struggle for national liberation." This is clear negation of all the social, cultural and political movements of thousands of people including language movement of 1952, education movement of 1962, mass uprising of 1969 and non-cooperation movement of 1971.

The Fifth Amendment together with the Eighth Amendment, 1988 (made during another military ruler) successfully mutilated the provision of secularism and made the Constitution communal at the cost of the people of different religious denominations other than Muslims. Their status, in their language, has been relegated to that of second-class citizen. The above two amendments made some changes along religious line which on the one hand undermined the spirit of all secular movements, on the other negated the different entities of Hindus, Buddhists, Christians and people of other religious identities. The Fifth Amendment changed the Preamble along religious line and the Eighth Amendment inserted Article 2A by which Islam was declared state religion of Bangladesh. Moreover, the Fifth Amendment deleted the proviso of Article 38, which banned the activities of some communal political parties who exploited religion to pursue their political goal. That was an onslaught on the magnificent sacrifice of the martyrs of liberation war.

Successive military rulers usurped state power and amended the Constitution through Martial Law Proclamations and then legalised those amendments and their unconstitutional regimes by manipulating the constitutional mechanism. The Constitution has become hapless victim of the operation of military rulers, which they did promiscuously to suit their needs. By manipulating the provisions of the Fourth Schedule they validated all the Martial Law Proclamations and all the activities of their regimes. Sections 3A, 18 and 19 of the Fourth Schedule declared that all the activities of two Martial Law Regimes "are hereby ratified and confirmed and are declared 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." The Fourth Schedule is in fact a pre-constitutional mechanism to meet up the exigency of war situation. But this pre-constitutional mechanism was utilised to validate post constitutional situation. Both the Martial Law Regimes extending from 1975 to 1990 (with three years interruption) lacked constitutional validity and the processes through which those were validated those were also unconstitutional. Unfortunately the present Constitution has to bear all the vestiges of those unconstitutional activities.

Preamble and Article 8 of the original Constitution very correctly inserted four Fundamental Principles of the newly independent state and provided that secularism, (Bangalee) nationalism, democracy and socialism would constitute the Fundamental Principles of People's Republic of Bangladesh. Democracy was demolished by the Fourth Amendment, later on partially revived during the martial law regimes. Secularism, (Bangalee) nationalism, and socialism were exiled by the Fifth and the Eighth Amendments. Due to the aberrated course taken by the successive rulers, the original Constitution lost its unique feature and complexion. The four fundamental principles on the basis of which the people of this land directed all social, cultural and political movements and finally liberated this country, all the principles except democracy were eliminated from the Constitution.

The only remaining fundamental principle, democracy, cannot step forward due to the antagonistic politics between two major political parties. Absence of independent judiciary, non-establishment of local government at all levels, absence of anti-corruption commission, Ombudsman, strong Election Commission and electronic media are the major causes operational behind the stumbling of democracy. Independence of judiciary was entrenched by the provisions of the original Constitution. Heavy onslaught on the independence of judiciary was made by the Fourth Amendment. Later on Judiciary got partial independence as judicial officers of the lower level are still controlled by the executive. Articles 95, 115 and 116 of the present Constitution should be amended to ensure complete separation of judiciary from the executive. Without an independent judiciary we cannot expect democracy will take institutional shape.

Article 59 of the Constitution enjoined the parliament to establish local government in every administrative unit of the Republic. But successive governments failed to do so. Similarly the establishment of the office of Ombudsman, a mandate assigned to the parliament by Article 77, has not implemented yet. Without fulfilling the pre-conditions required for a strong democracy we should not expect democracy will function smoothly.

Concluding Remarks
An ideal constitution has some fundamental principles on which the basic structure of the constitution lies. Basic structure of the constitution cannot be changed by amendments. It is beyond the constituent power of parliament. If any amendment changes fundamental principles or basic structure of the constitution, that amendment will be declared ultra vires on the touchstone of basic structure principle, a principle which has long been established since Marbury V Madison (1803) 1 Cr. 137. In Bangladesh all the Fourth, Fifth, Seventh and Eighth Amendments have violated the basic structure principle of constitution. The mischief of the Fourth Amendment was undone by the later government, but vestiges of unconstitutional activities made by the military rulers by the Fifth, Seventh and Eighth Amendments still present on the body of the Constitution. The sooner we realise that the resurrection of the original Constitution is the first step to move forward, the better.

Sheikh Hafizur Rahman Karzon is a Lecturer, Department of Law, University of Dhaka.


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