How the controversial 15th Amendment curtailed people's power

IN a major breakthrough in the history of the country's people's fundamental rights, the Indian parliament amended the constitution in 2002 to make education a fundamental right. The provision included in the constitution says the state shall provide free and compulsory education to all children of the age of six to fourteen years in such manner as the state may, by, law determine.
Nearly eight years after that amendment, the Indian parliament enacted a law in 2009 to enable the implementation of the fundamental right. The landmark law styled 'The Right of Children to Free and Compulsory Education Act' and the constitutional provision came into force from April 2010. The new law makes it obligatory on part of the state governments and local bodies to ensure that every child gets education in a school in the neighbourhood.
The Indian government can now be held accountable through the judiciary for its negligence toward ensuring free education for children of the age of six to fourteen. Before it was made fundamental right, it was a directive principle and was not judicially enforceable. So, the making of education a fundamental right and enactment of the subsequent law have enlarged Indian's future generation's fundamental right.
People of Bangladesh are not as lucky as the Indian people. One of the fundamental principles of the state as per the constitution is to ensure free and compulsory education to all children. As per the constitution, the state shall take effective measures for this purpose. But this is a directive principle. It is not judicially enforceable. The constitution itself imposes a bar on its judicial enforcement. So, the government cannot be held accountable for its negligence to perform this duty properly and effectively.
The government may be held accountable only when education is made a fundamental right. Some non-government organisations on different occasions have raised the demand for making education a fundamental right. The demand did not get momentum in the past. Any campaign for making education a fundamental right will not yield result because the constitution's concerned provisions cannot be amended again to meet the demand. The Awami League-led government had shut the door when it amended the constitution in June 2011.
The 15th constitutional amendment passed in June 2011 imposed a ban on amending more than 50 articles, including those dealing with fundamental principles of state policy and people's fundamental rights.
Prime Minister Sheikh Hasina and her colleagues in the cabinet and party have been reiterating that the latest constitutional amendments have ensured empowerment of the people. But the underlying truth is that the amendments have curtailed people's power largely by restricting parliament's jurisdiction to bring about changes in some provisions of the constitution.
The amendments mean that if parliament, at present or in future, wants to bring about changes to any of the articles concerned for further advancement of citizens' fundamental rights, it will not be able to do so until or unless the ban is lifted.
Similarly, it will not be able to do much for workers, peasants and women by bringing in changes to the provisions on the fundamental principles of state policy. And no parliament will be able to amend the constitution in order to recognise basic necessities, notably food, clothing, shelter, education and medical care, as people's fundamental rights.
Even if a future parliament, the supreme political institution, wants to translate again the true spirit of the War of Liberation in the constitution by going for a restoration of secularism through doing away with Islam as state religion, it will not be able to do so as the article providing Islam with the status of state religion is not amendable now.
Thus, the Awami League-led government has limited the power of parliament which is constituted of lawmakers elected by the people to govern the country through forming a government. And in so doing, the government has in fact curtailed people's power.
The government seems to have done it with ulterior and narrow partisan motives to protect a newly inserted constitutional provision through which it was made mandatory for all government and semi- government offices to preserve and display the portrait of the Father of the Nation.
Previous experience might have prompted the government to do so. The AL-led government in its previous term had enacted a law making it mandatory for preserving and displaying the portrait of Bangabandhu at all government offices. The BNP, assuming office through the October 2001 parliamentary elections, repealed the law. But this time, the way the ban was imposed on amending more than 50 articles is nothing but making a mockery of the constitutional amendment.
Will the amendments be able to protect the portrait of the Father of the Nation? What will happen if the BNP-led alliance again assumes power through the next parliamentary polls and obtains a two-thirds majority required to amend the constitution? Or do AL policymakers think that no political party or alliance will get a two-thirds majority in future?
In this political game, the AL-led government has clearly demonstrated its undemocratic mindset.
However, this crucial issue has been suppressed by the controversy over the cancellation of the caretaker system. The 15th Amendment also abolished the non-partisan election time government system. Cancellation of the caretaker government system has also made it uncertain whether a participatory parliamentary election and peaceful transition of power will be possible.
The premier and her party colleagues have, however, been reiterating that the latest constitutional amendment has also ensured people's democratic and voting rights by blocking the way for an extra-constitutional takeover in future. But the reality is different.
Only inclusion of a stringent provision in the constitution may not be able to prevent extra-constitutional forces from seizing state power. Pakistan is a glaring example of that. Such stringent provision could not prevent military generals from grabbing state power defying the constitution.
Prime Minister Hasina and her colleagues in the cabinet and the party however have been vehemently defending the current constitutional provisions. They have taken a stance against further amendment of the constitution to refuse the opposition BNP's demand for restoration of the caretaker government system.
They should think carefully about what they have done through 15th Amendment. Didn't they take stance against people's empowerment blocking the further advancement of people's fundamental rights?

The writer is Senior Reporter, The Daily Star.