Constitutionalism
in Bangladesh: Is it on the right path!
It
is open said that the constitution of Bangladesh is one of the best
constitution of the world. However all the jurists and political scientists
do not express the same opinion, the critics always emphasize on the
amendments which are brought in our constitution, have destroyed its
greatness.
After the enforcement
of the constitution of Bangladesh on 16th December1972, 14th amendments
are brought during 33 years. It is very unfortunate that while adopting
our constitution it contained every kind of fundamental rights, but
subsequently different Govt. brought brutal changes in it. The first,
second and third amendments were not so criticized, though preventive
detention and emergency provisions were introduced by the second amendment.
Preventive detention is now popularly known as the black law in our
country, but the lawyers and other political scientists can not ignore
it's importance, as it is inevitable for every country even it carries
with itself the risk of abuse of power. Some opinion says that there
should be proper guard for upholding the right of the people. So preventive
detention is permissible for our country. But the bold step that was
taken by fourth amendment played most devastating role in the development
of the constitution. It substituted many articles and changed them enormously.
Some of those were recovered by subsequent governments. Among the changes
which were not recovered, the most disputed one is the appointment procedure
of the judges in High Court Division. As to the appointment procedure
it was provided in the original constitution that the Chief Justice
would be appointed by the president and other judges would be appointed
by the president after consulting with Chief Justice (article 95). But
by the forth amendment, the provision of "consultation with Chief
Justice" was withdrawn which was just like a huge slam to the separation
of judiciary. The amendment also omitted the words "at its first
meeting in each session" from the original provision which says
"at its first meeting in each session parliament shall appoint
from among its members the…standing committees…(article 76)", which
gave the government an arbitrary power to form the parliamentary committees
at any time when it thinks fit. It should be noted that till date no
Govt. took any step to abolish them and often misused the constitution
for their own interest, which violated the accountability of the governments.
Moreover the Fifth
Amendment curtailed the parliament's power over the financial matter
which deceived the concept of democracy. In the preamble the words "historic
struggle for national liberation" were replaced by words "historic
war for national independence". Thus the spirit of the struggle,
which continued for long 24 years and also the contribution of the people
of all classes were ignored and undermined. It also omitted one of the
major fundamental principles-secularism and in its place principle of
absolute trust and faith in the almighty Allah was inserted. This change
was only done to get the support from the large section of religious
but politically unconscious people. Nevertheless this cheap popularity
trick made discrimination among the different religions and frustrated
the objects of our liberation war.
Another a new article
2(A), announcing Islam as the state religion was added to the constitution.
Also article 100 and 107 amended and inserted provisions for setting
up six permanent benches of High Court Division outside Dhaka. The changes
was contrary to the unitary character of the republic and by the famous
case of Anwar Hossain vs Bangladesh the court decided that the parliament
can not amend the basic structure of the constitution. Thus it was a
milestone judgment to give restriction over the power of the parliament
which secured the constitution from other kind of changes.
At last by the Thirteenth
amendment non party caretaker government were introduced which does
not go with our constitution and which is a very undemocratic and a
confusing one. Our constitution emphasized on election of the representatives
and denied any kind of selected body. As the caretaker government is
not an elected body, it is a great question before our court whether
it is contradictory to the concept of basic structure of the constitution.
Concept of caretaker government is the sequel to the mistrust among
the political parties of the country. But this mistrust could be minimized
by separating the Election Commission.
About the objective
of amendment Churchill uttered a marvelous comment 'To change is to
improve, to change often is to improve often and to change continuously
is human endeavor for perfection". But Churchill's comment is not
properly applicable in the constitutional history of our country. In
the preamble of our constitution it is said that "… it is our sacred
duty to safeguard, protect and defend this constitution and to maintain
its supremacy as the embodiment of the will of the people of Bangladesh…".
But the violation of constitutional supremacy is an often practice of
our governments. Only the Supreme Court can defend and guard it from
unreasonable changes and keep the government on the way of development
of constitution and not on the way of destruction because constitutionalism
mean constitutional development not destruction.
Maruf
Ahmed. 3rd year LLB Dhaka University.
****
Is
Article 49 Unconstitutional?
Article
49 (Prerogative of mercy) of the Constitution of Bangladesh gives the
President the power to grant pardons, reprieves and respites and to
remit, suspend or commute any sentence passed by any court, tribunal
or other authority. How democratic could that be?
Article 22 states that the State shall ensure the separation of the
judiciary from the executive organs. But allowing the President to pardon,
suspend or commute any sentence passed by any court we are not only
going against the core value of the independence of the judiciary but
also we are questioning the integrity of our judicial system.
Article 35 (3) of the Constitution ensures that every person accused
of a criminal offence shall have the right to a speedy and public trial
by an independent and impartial court or tribunal established by law.
If we have enough trust and believe on the judicial system, why do we
have to delegate such authority on the President?
We have seen before many known criminals have asked pardon from the
President after being sentenced to death from the High Court under article
49. If the President did or does grant pardon to these known criminals
they will be walking on the roads as a free person. We already are living
in a society where there is so much economical, financial and political
imbalance. The thought that today of a known criminal walking free on
the roads is another addition to the list of torments that a citizen
has to go through every day in their lives. Also there is no clause
for appealing against the order passed by the President. In a democratic
society vesting such arbitrary power on the President alone is against
the fundamental principles of a democratic society.
Even if we look at India's Constitution article 72 gives power to the
President to grant pardons, etc., and to suspend, remit or commute sentences
in certain cases. Article 45 of the Pakistan constitution also gives
the power to the President to grant pardon, reprieve and respite, and
to remit, suspend or commute any sentence passed by any court, tribunal
or other authority.
The judiciary is a major means for the protection of rights. It has
the power to receive complaints of the violation of rights, to hear
evidence, and to provide redress for violations, including punishment
for violators. The judiciary can only perform this function if the legal
system is strong and well organized. The members of the judiciary should
be competent, experienced and have a commitment to human rights, dignity
and justice. They should be independent from the legislature and the
executive. Otherwise there is no way Bangladesh as a democratic country
can fully blossom.
Advocate
Farzana Chowdhury Toronto, Canada
*****
Article-67
needs amendment
In
1991 we have regained parliamentary democracy after a long battle with
the then autocratic government. It is very unfortunate that even after
fourteen years of resuming parliamentary democracy, it appears from
the activities of our political parties that they could not yet adapt
with this system. During last decade, in many cases, the opposition
lawmakers have been remaining absent in the parliament, on some trifle
issues. The situation is the same in case of lawmakers from the ruling
party. So quorum problem has become a daily affair. The lawmakers are
taking all the benefits attached to their office without discharging
their duties. In most of the cases such decision to boycott parliament
is taken by the high ups of the political parties and the lawmakers
are bound by such decisions. Otherwise, in accordance with article-70
of the constitution, their parliament membership will be lost. This
is what happened to Major(rtd) M. Aktaruzzaman, a lawmaker from BNP
in 7th parliament who joined the parliament session defying the party
decision to boycott parliament. After being absent for eighty consecutive
days, the lawmakers appear at the house only for one day to save their
membership and again remain absent for another eighty days. They adopt
such tactics because the constitution of Bangladesh has provided, in
article-67.1(b), that any member of parliament remaining absent from
parliament, without the leave of the parliament for 90 (ninety)consecutive
sitting days, shall be ceased to be a member of parliament. Article
-67.1(b) of the constitution should be amended to the effect that this
stipulated period of ninety days is reduced to 20 (twenty) days. In
that case the lawmakers will not remain absent in the parliament more
than twenty days at a stretch. This seems to be the best possible solution
because many steps have been taken to put an end to such malpractice.
So, this is high time we put constitutional obligation to end such malpractice
because only such provision can restrict the political parties from
taking such an undemocratic decision. The present Government, having
two-third majority in the parliament, is very much able to amend the
constitution and they have already amended some provisions thereof.
But now the question is whether they will do it? Whether they have such
good wishes for democracy in its true sense.
Aminul
Hoque, LL.M, Dhaka University
