The cost of ignoring the Constitution

Our history is full of glaring examples of how narrow political interests of successive military and political governments have undermined the fundamental spirit of our Constitution considered the fruit of the historic Liberation War. 

The enactment of the Constitution within a year of the independence of Bangladesh was a matter of great pride. The Constituent Assembly adopted the Constitution on November 4, 1972. When people were celebrating the first anniversary of Victory Day on December 16, 1972, the Constitution came into force with an emphatic recognition of their sovereignty, declaring them the supreme authority over all powers of the State.

In its preamble, the Constitution pledged that the high ideals of nationalism, socialism, democracy and secularism would be its fundamental principles as these ideals had inspired our heroic people to dedicate themselves to, and our brave martyrs to sacrifice their lives in, the national liberation struggle.

The Constitution made these high ideals fundamental principles of State policy. And it announced that the State shall be a democracy in which fundamental human rights and freedoms and respect for the dignity and worth of the human person shall be guaranteed. People's fundamental rights got pre-eminence in the original Constitution.

In less than a year that the Constitution came into force, however, the first attack on people's fundamental rights came in the form of the second amendment in September 1973 introducing emergency provisions. The original Constitution did not leave any scope for suspension of people's fundamental rights in any situation and no law could be made abridging those rights even by amending the Constitution. But the emergency provisions introduced by the second amendment empowered the government to suspend some of the fundamental rights by declaring a 'state of emergency'. In similar fashion, a new provision was included in the Constitution, empowering the Parliament to bring constitutional amendments conflicting with people's fundamental rights.

Then the infamous fourth amendment in January 1975 reversed the whole system. Through this amendment, the country was switched to a presidential form of government from the parliamentary system; one party rule was introduced through the national party-Baksal; independence of judiciary was trampled. In the Hamidul Huq Chowdhury vs. Bangladesh case, the Appellate Division of the Supreme Court observed: "The first three amendments do not appear to have altered the basic structure of the Constitution. But the fourth amendment of the Constitution clearly altered the basic structure of the Constitution."

Six months after the fourth amendment, the assassination of Bangabandhu Sheikh Mujibur Rahman and overthrow of his government on August 15, 1975 paved the way for more vicious attacks on the Constitution. Martial law was declared; the Constitution was made subservient to the martial law proclamation and orders. Through proclamations, martial law rulers Justice Sayem and General Zia frequently amended the Constitution. During the martial law period, the principle of secularism was completely deleted from the Constitution and replaced by absolute trust and faith in Almighty Allah. Even above the preamble of the Constitution, the phrase, "In the name of Allah, the beneficent, the merciful" was inserted. The ban on religion based politics was withdrawn, allowing the anti-liberation Jamaat-e-Islami and other Islamic parties to resume their activities. Thus, martial law ruler General Ziaur Rahman finally made politics difficult for the politicians. All of their misdeeds were validated by the fifth amendment to the Constitution in 1979 by abusing the Parliament's power to amend the Constitution.

The country was again put under martial law in March 1982, suspending the Constitution. The military ruler General Ershad followed the same path of Zia to validate all of his unlawful deeds, including grabbing power by ousting an elected president. All of his wrongdoings were ratified through the seventh amendment of the Constitution.

The Constitution has been amended 16 times since 1973. But none of the amendments were able to fortify people's fundamental rights and improve the mechanism for democracy. The 15th amendment in 2011 is even more unfortunate, as it blocked the door for further advancement of people's fundamental rights. This is because this amendment imposed restrictions on amendments of around 56 Articles, including those dealing with people's fundamental rights. The 15th amendment also abolished the election time caretaker government system, triggering political unrest which led to a one-sided parliamentary election in January 2014.

Other amendments

The first amendment in 1973 provided the Jatiya Sangsad with sweeping authority to enact any law to hold the trial of war criminals. The third amendment in 1974 empowered the government to implement the July 1974 treaty between Bangladesh and India on border demarcation and exchange of enclaves. For Justice Sattar, the then vice-president, the sixth amendment was brought in 1981, allowing him to contest the presidential election. The eighth amendment was brought in 1988 to set up permanent benches of the High Court in six places outside the capital and made Islam the state religion.

The ninth amendment in 1989 limited the tenure of the offices of president and vice-president. The 10th amendment in 1990 increased tenure of seats reserved for women in Parliament. The 11th amendment in 1991 validated then Chief Justice Shahabuddin Ahmed's taking charge of the interim government after the fall of autocratic Ershad. The 12th amendment in 1991 restored the parliamentary form of government from the presidential form which was introduced in 1975. The 13th amendment passed in 1996 introduced the election-time caretaker government system amid growing distrust and confrontational culture of politics over the polls.

The 14th amendment in 2004 increased the retirement age of Supreme Court judges, generating a political crisis. The then opposition parties alleged that the government increased the service age of judges to make it legal for then Chief Justice K.M. Hasan to lead the upcoming caretaker government. They refused to accept Justice Hasan as the Caretaker Chief, which led to a political turmoil by the end of 2006 and a state of Emergency was declared in January 2007. The 16th amendment in 2014 empowered Jatiya Sangsad to remove SC judges on grounds of misconduct and incapacity.

Of them, three amendments - 5th, 7th and 13th - were completely scrapped by the Supreme Court, as those were enacted by the Parliament, disregarding the constitutional limitations imposed on Parliament. The eighth amendment was partly cancelled by the SC as it violated the basic structure of the Constitution. The 11th amendment was deleted by the 15th amendment as it was made wrongly. Recently, the High Court scrapped the 16th amendment. Two other amendments, the 6th and the 9th, have no effectiveness.     

Democratic deficiency exposed

Article 142 gives power to the Parliament to amend any provision of the Constitution by way of addition, alteration, substitution or repeal. Legal experts state that a Constitution is meant to be permanent, but as all changing situations cannot be envisaged and amendment of the constitution may be necessary to adopt future developments, provision is made in the Constitution itself to effect changes required by the changing situations.

But, the changes made so far have contributed little towards the betterment of the country's citizens and further refinements of their constitutional position, as most of the amendments were not for that purpose.

A severe deficiency in democracy in political parties running the government and their disobedience to the supreme law betrays people's aspirations and undermines their rights as enshrined in the Constitution. The continuous disregard for the basic spirit of the Constitution has not done any good for the people, rather it has led to political unrest and poor governance.

Those who carried out the cruel attacks on the Constitution have committed offences, according to the Supreme Court's verdict on the Constitution's fifth amendment case as the Apex Court stated: "If the Constitution is wronged, it is a grave offence of unfathomed enormity committed against each and every citizen of the republic. It is a continuing and recurring wrong committed against the republic itself. It remains wrong against future generations of citizens."

The writer is Senior Reporter, The Daily Star.