Amendment before reprint
The Fifth Amendment and the Seventh Amendment to the Constitution of Bangladesh have been declared void by the Supreme Court. This has created a very good environment for the exercise of democracy in the country. Both the amendments gave legal and Constitutional validity to two Martial Laws, one proclaimed by Khandaker Mushaque Ahmed in 1975 and practiced by Ziaur Rahman, and the other by H. M. Ershad in 1982.
The first one is worse because it not only legalised the military rule but also gave validity to the assassination of Bangabandhu Sheikh Mujibur Rahman and his family members and other relations. Due to the existence of these amendments democracy-loving people of Bangladesh passed a very panic-stricken time.
The Supreme Court has freed people from this unhappiness and anxiety through declaring these amendments illegal, and so void. This declaration has made scope for turning back to the spirit of the glorious Liberation War of 1971 through which Bangladesh achieved independence. The Constitution now needs reshaping accordingly.
Recently, a debate has arisen as to whether an amendment to the Constitution is necessary for reshaping it according to the verdicts; more clearly, whether the Parliament has to bring the 15th Amendment to the Constitution for this purpose.
It is nowadays argued that for carrying out the Supreme Court judgments an amendment is a necessity. On the other hand, the Chief Justice A.B.M. Khairul Haq and some members of the Constitution Amendment Committee, chaired by Syeda Sajeda Chowdhury, as well as some renowned lawyers like Barrister Amir-ul-Islam and the Law Minister Barrister Shafiq Ahmed, suggested the reprint thereof in the light of the verdicts. The government has to make a prudent decision in this regard so that no question arises in future as to the choice of the way.
It is true that for the reprint of the Constitution in the light of the two judgments only an official order of the Ministry of Law, Justice and Parliamentary Affairs is sufficient, according to which the B.G. Press may publish it in the new form. But whether that would amount to by-passing the Parliament still remains a critical question.
The Supreme Court has the authority, in the light and power of Article 7(2) of the Constitution, to declare void any law inconsistent with the Constitution. But it may be considered that merely a judgment or declaration by the Supreme Court may not be sufficient to amend the Constitution.
It is said in Article 142 of the Constitution that any provision thereof (i.e. of the Constitution) may be amended by way of addition, alteration, substitution or repeal by Act of Parliament. It is clear from Article 142 that only an Act of Parliament is needed to make any change to the Constitution -- no scope for the Supreme Court has been mentioned here.
Therefore if the Parliament is by-passed, political and legal anxiety might arise in the people. Members of the Parliament may think that the Supreme Court is being given more importance than the National Assembly.
Another important thing should not be kept out of the way of probability. The Mahajot led by Awami League and Sheikh Hasina is in power at the moment. It will not be any trouble for the Ministry of Law to give an order for the reprint of the Constitution. But if Awami League fails to form the government again in future and if the future government wants to give a new order through the Ministry of Law to the effect of nullifying the desired reprint, it would create much confusion.
Reprint of the Constitution without an Act of Parliament may tantamount to incompliance with and deviation from the provisions of the Constitution. Not only that, if any writ for the establishment of the provisions of Article 142 is filed in future against the expected reprint without an Act of Parliament what would be the answer of the Supreme Court?
The best way for the expected reshaping of the Constitution is to make a combination of both the verdicts of the Supreme Court and arrangement for the 15th Amendment to the Constitution in the light thereof. Reprint of the Constitution in the light of the Supreme Court decisions is a must, but for avoiding all debates in future that should follow an Act of the Parliament. Thereby, the government may remain beyond all criticisms and questions. Reprint without Parliamentary Act may come in conflict with Article 142 of the Constitution.
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