An Assignment
On
15th
Amendment of Constitution
In Bangladesh
Definition of
constitution:-
A constitution is a set of fundamental
principles or established precedents according to which a state or other
organization is governed.[1]
These rules together make up, i.e. constitute, what the entity is. When
these principles are written down into a single collection or set of legal
documents, those documents may be said to comprise a written
constitution.
Etymology:-
The term constitution comes
through French from the Latin word constitutio,
used for regulations and orders, such as the imperial enactments (constitutiones
principis: edicta, mandata, decreta, rescripta).[2] Later, the term
was widely used in canon law for an important determinationn, especially a
decree issued by the Pope, now referred to as an apostolic constitution.
Constitution of Bangladesh:-
The Constitution of Bangladesh (Bengali: বাংলাদেশের সংবিধান Bangladesher Shongbidhan) is the supreme law of Bangladesh. It proclaims Bangladesh as a secular democratic republic;,[1] declares the fundamental rights and freedoms of Bangladeshi citizens, spells out the fundamental principles of state policy, and establishes the structure and functions of the executive, legislative and judicial branches of the republic. Passed by the Constituent Assembly of Bangladesh on November 4, 1972, it came into effect from December 16, 1972, on the first anniversary of Bangladesh's victory over Pakistan in the Liberation War. The constitution proclaims nationalism, democracy, socialism andsecularity as the national ideals of the Bangladeshi republic. When adopted in 1972, it was one of the most liberal constitutions of the time.[2][3][4]
The Constitution of Bangladesh (Bengali: বাংলাদেশের সংবিধান Bangladesher Shongbidhan) is the supreme law of Bangladesh. It proclaims Bangladesh as a secular democratic republic;,[1] declares the fundamental rights and freedoms of Bangladeshi citizens, spells out the fundamental principles of state policy, and establishes the structure and functions of the executive, legislative and judicial branches of the republic. Passed by the Constituent Assembly of Bangladesh on November 4, 1972, it came into effect from December 16, 1972, on the first anniversary of Bangladesh's victory over Pakistan in the Liberation War. The constitution proclaims nationalism, democracy, socialism andsecularity as the national ideals of the Bangladeshi republic. When adopted in 1972, it was one of the most liberal constitutions of the time.[2][3][4]
Amendment:-
As of 2011 the Constitution of the People's Republic of Bangladesh has been amended 15 times.
As of 2011 the Constitution of the People's Republic of Bangladesh has been amended 15 times.
Salient features of 15th
amendment:-
Salient features of the 15th amendment of the Constitution passed by
parliament Thursday,June 30,2011.
1.
Caretaker
system abolished
2. Elections to be held under incumbent cabinet
3. Islam as State religion and ‘Bismillah-Ar-Rahman-Ar-Rahim’ retained
4. Revival of Article 12 to restore Secularism and freedom of religion
5. The people of Bangladesh shall be known as Bangalees as a nation and citizens of Bangladesh shall be known as Bangladeshis
6. Inserted articles 7A and 7B in the Constitution after Article 7 in a bid to end takeover of power through extra-constitutional means
7. Basic provisions of the constitution are not amendable
8. In the case of a dissolution Parliament by any reason, election should be held within 90 days of such dissolution
9. Increasing the number of women reserve seats to 50 from existing 45.
10. The Supreme Command of the defense services shall vest in the President and the exercise thereof shall be regulated by law.
11. The Chief Justice shall be appointed by the President, and the other judges shall be appointed by the President in consultation with the Chief Justice.
12. The portrait of the Father of the nation Bangbandhu Sheikh Mujibur Rahman shall be preserved and display at the offices of the President, the Prime Minister, the Speaker, and the Chief Justice and in head and branch offices of all government and semi-government offices, autonomous bodies, statutory public authorities, government and non-government educational institutions, embassies and missions of Bangladesh abroad.
13. Incorporation of historic speech of the Father of the Nation Bangabandhu Sheikh Mujibur Rahman on March 7, 1971, declaration of independence by Bangabandhu after midnight of March 25, 1971 and the proclamation of Independence declared at Mujibnagar on April 10, 1971.
2. Elections to be held under incumbent cabinet
3. Islam as State religion and ‘Bismillah-Ar-Rahman-Ar-Rahim’ retained
4. Revival of Article 12 to restore Secularism and freedom of religion
5. The people of Bangladesh shall be known as Bangalees as a nation and citizens of Bangladesh shall be known as Bangladeshis
6. Inserted articles 7A and 7B in the Constitution after Article 7 in a bid to end takeover of power through extra-constitutional means
7. Basic provisions of the constitution are not amendable
8. In the case of a dissolution Parliament by any reason, election should be held within 90 days of such dissolution
9. Increasing the number of women reserve seats to 50 from existing 45.
10. The Supreme Command of the defense services shall vest in the President and the exercise thereof shall be regulated by law.
11. The Chief Justice shall be appointed by the President, and the other judges shall be appointed by the President in consultation with the Chief Justice.
12. The portrait of the Father of the nation Bangbandhu Sheikh Mujibur Rahman shall be preserved and display at the offices of the President, the Prime Minister, the Speaker, and the Chief Justice and in head and branch offices of all government and semi-government offices, autonomous bodies, statutory public authorities, government and non-government educational institutions, embassies and missions of Bangladesh abroad.
13. Incorporation of historic speech of the Father of the Nation Bangabandhu Sheikh Mujibur Rahman on March 7, 1971, declaration of independence by Bangabandhu after midnight of March 25, 1971 and the proclamation of Independence declared at Mujibnagar on April 10, 1971.
Detailed discussion over some important articles:
There are given detailed discussion
over some important issues in pointing:-
Revisiting the four fundamental principles of the
Constitution:-
The Preamble of the 1972 Constitution of Bangladesh envisaged and
emphasised the core ideals for which Bangladesh as a nation struggled for
national liberation. These core lofty ideals were nationalism, socialism,
democracy and secularism- known as four basic principles of the Constitution.
These four principles are also called poll stars, goal or ideology of the state
and “these goals should not be deviated at any event” as has been aptly opined
by the apex court. We have seen to our dismay that these ideologies of the
nation have been turned into silly matters of pull and haul by the military
dictators in the abysmal constitutional discourse of the country. It is claimed
that the 15th Amendment has restored these four principles in the Constitution.
However, this write up evaluates that this claim is marred by the
contradictions in changes with hindsight.
Apparently the 15th Amendment has restored in the preamble the four
principles of nationalism, socialism, democracy and secularism. However, this
restoration is to be examined in view of other changes in the preamble and
Part-II of the Constitution.
First, while secularism has been restored as a state policy, insertion of
“Bismillah-ar-Rahman-ar-Rahim”, retaining 'Islam' as state religion and
granting indirectly a fundamental right to association on the basis of religion
in article 38 will have bewildering effect on secularism. Secularism and state
religion are self-contradictory and these two concepts cannot go hand in hand.
However, the reality is that our Republic has lost its secular character; it is
now with a hybrid polity- a fusion of Islam and secularism- an ideological
hotchpotch which is hardly based on any democratic principle.
Second, by the 15th Amendment 'Islam'- based politics has been given a
new lease of life. Article 2A and 12 are contradictory both in terms and
philosophy, although both the concepts have been given the status of basic
structure of the Constitution. The irony is that this 'internal contradiction
of the Constitution' between secularism and 'Islam' as state religion has been
maintained by a traditionally secular party Awami League. It is likely that
this will open a floodgate for recognition of 'Islamist' parties in the
political discourse of the country.
Third, in fact secularism received so far three upside down setbacks:
first, “absolute trust and faith in the Almighty Allah” was substituted for
secularism by General Ziaur Rahman; second, further blow to secularism was
received when General Ershad inserted 'Islam' as State religion in the
Constitution; and third, the 15th Amendment has now given another death blow to
secularism by reviving it and at the same time retaining 'Islam' as state
religion and putting “Bismillah-ar-Rahman-ar-Rahim” in the beginning of the
preamble.
History dictates that our political leaders have miserably failed to
steer the nation in accordance with these four ideologies. Nationalism coined
with “Bangalees” has since its adoption in the original Constitution been one
of fundamental points of difference and divergence between mainstream political
forces in the country. This sensitive politics of nationalism has entered into
its third chameleonic phase (the first phase being 'Bangalee nationalism'
(1972-1975); second phase being 'Bangladeshi nationalism' (1975-2011)) with
“Bangalee-Bangladeshi” hybrid nationalism by the 15th Amendment despite the
apex court's ruling on reviving the original provision of secularism. Thus
'Nationalism' as a fundamental principle in the Constitution has lost its
character and instead of being an ideal goal for the nation, it has now been
turned into a silly political matter of pull and haul at the hand of political
parties for their vested interest.
Likewise, socialism received a setback with the political change over in
1975. Socialism was amended by General Ziaur Rahman with qualification to mean
'social and economic justice'.
In the same way, democracy as an ideology did not have any opportunity to
flourish because of weak leadership. The first blow to democracy was hit by the
4th Amendment with one party dictatorship introduced by the very party which
pioneered national freedom and the Constitution making. The second blow was
stricken by General Ziaur Rahman and then by General Ershad through imposition
of Martial law and putting the Constitution, the supreme law of the country, in
subordination of martial law. Democracy had a fresh lease of life after 12th
Amendment in 1991 but again it was pushed to the ground by the then BNP
Government and the President of the Republic in 2007 followed by emergency and
military intervention for two and half years. Struggle always followed to
restore democracy by the opposition parties and once democracy or democratic
environment piped through the widow of the Republic, it was again destroyed by
the party in power for the party interest or power expectation. It was the
Awami League which pioneered movement for free and fair election under CTG and
ultimately it was achieved with huge enthusiasm. Ironically it is now Awami
League which gave, by 15th Amendment, the death-blow to CTG, an instrument of
free and fair election- one of key components of democracy.
The changes that have been brought into the preamble raises one important
question from constitutional jurisprudence: Does the insertion of
“Bismillah-ar-Rahman-ar-Rahim” in the preamble amount to destroying basic
structure of the Constitution? It remains to be seen how the judiciary
reconcile this distorted secularism in view of the judgment in the 8th
Amendment and also of the 5th Amendment cases in which the apex court held
categorically that the preamble is not only a part of the Constitution, it now
stands as an entrenched provision that cannot be amended by the Parliament
alone. Ironically the parliament has not only made this distortion but also
made all the provisions of the preamble 'eternal clause'. We will have to
patiently wait how the apex court comes forward with its judicial activism.
Detailed discussion on
Article 7(A):-
One of the most debatable issues
introduced by the 15th Amendment to the Constitution of Bangladesh is the
provision of sedition as provided in article 7A. In fact this new Article has
created two substantive offences to be termed as Constitutional sedition:
(i) Abrogation, repeal or suspension of the Constitution by
show or use of force or any other unconstitutional means (7A(1)(a)); and
(ii) Subverting the confidence, belief or reliance of the
citizens to the constitution or any Article of it by show or use of force or by
any other unconstitutional means (7A(1)(b));
Side by side two substantive offences this article also
creates a pair of inchoate offences (attempt or conspire) and a pair of
participatory offences (aiding, abetting, instigating, approving, condoning,
supporting, ratifying).
In case of first category of sedition the offender has to
either suspend, abrogate, or repeal the Constitution and any attempt or
conspire to perform these actions will also be an offence and to constitute
this offence the offender must either (i) show force; or (ii) use force; or
(iii) use any other unconstitutional means. For practical purpose, ordinary
citizens have nothing to worry about this first type of sedition since this
show or use of force can in fact be done by the military authority. However,
ordinary citizens will have concerns over the second category of sedition.
Leaving aside the question of 'show' or 'use' of force, a person may, by 'any
other unconstitutional means' subvert the confidence, belief, or reliance of
the citizens to the Constitution or any of its articles. Here lies the most
crucial and likely abusive part of the offence. Relying on this sub-article
(b), the government of the day may file a case against a columnist or writer or
news presenter or talk show presenter on the ground that the alleged writing,
column, news or presentation or speech was written or presented in such a
manner that it subverts the confidence, belief or reliance of the citizens to
the Constitution. Leaving the question of proving the manner of
'unconstitutional means' aside, this sub-article gives sweeping power to the
executive to harass citizens at the cost of their guaranteed freedom of speech,
expression and press.
The government argues that this provision is an armory or
savers clause and it has been introduced in line with the observation made by
the Appellate Division in 5th Amendment case. In this case the Appellate
Division strongly denounced martial law and suspension of the Constitution and
recommended for suitable punishment to the perpetrators. However, the way the
provision has been inserted in the Constitution has every possibility of being
abused at the cost of peoples' guaranteed right of freedom of speech and press
which in effect will turn it into a sinister clause in the Constitution. This
is because of the following reasons:
First, the provisions in article 7A are identical with those
in article 6 of the Pakistan 1973 Constitution. However, the Pakistan
Constitution does not have the provisions inserted in clause 7A(1)(b) and as
such the provisions in Bangladesh Constitution have been made more draconian
compared to those in the Pakistan Constitution. Further, Pakistan Constitution
provides that parliament shall make law for punishment of persons found guilty
of high treasons. However, the provisions in Bangladesh Constitution leave the
entire matter of punishment with the existing law of the country whereas the
existing law (Penal Code) seems incompatible with these provisions.
Second, the category and status of the crime created in
article 7A also seems clashing with the existing provisions in the Penal Code.
Article 7A creates a separate offence named sedition, better to be termed as
“Constitutional Sedition” but again sub-article 7A(3) states that persons
alleged to have committed the offence shall be sentenced with the highest
punishment prescribed for offences by the existing law. Now plainly speaking,
the offence and its actus reas have been created by the Constitution whereas
the punishment is to be hired from the Penal Code. This inconsistent outlook of
penal jurisprudence in a sacred document like the Constitution seems irrational
and conflicting with the spirit of constitutional jurisprudence. It will
certainly generate unnecessary debate with constitutional interpretation. The
Constitution creates an offence with constitutional significance but it neither
mentions its punishment nor specifies the mode of investigation and proof and
trial by courts etc. leaving many issues uncertain and vague. Which court will
take cognizance of this offence? How will the investigation proceed? What will
be the extent of 'show of force' or 'use of force'? How will the term
'unconstitutional means' be proved and at which standard? Likewise,
'confidence', 'belief' or 'reliance'- these words are uncertain and vague- who
will explain these? How will their explanation be accepted by the courts? It
was incumbent upon the parliament either to outline these or to empower
parliament to make law in this regard.
Third, the way the offence has been designed in clause (2)(b)
it sounds clear that even judicial condonation has been made an offence of
sedition and the Supreme Courts power of judicial review and condonation for
the sake of restoration of democracy has been blocked.
Fourth, the words, 'show of force', 'use of force' and
'unconstitutional means' are not only wide but are always subject to
interpretation and debate. After the passage of the amendment the Prime
Minister Sheikh Hasina stated on several occasions in public that the amendment
has been made with a view to preventing extra-constitutional military take over
only. However, the Prime Minister's contention has relevance only with regard
to the first category of sedition in clause 7A(1)(a) but not with regard to
clause 7a(1)(b). It is not indicated anywhere why the clause (b) (indirect
sedition) was introduced. We should not forget that these stringent provisions
were also inserted in the Constitution of Pakistan but these could not prevent
military take over in that country. Genral Ziaul Haque and Parvez Mosarraf
ruled the country with martial law suspending the Constitution in spite of
these tiger-provisions but ironically they did not face charges of 'high
treason'. Martial law or military take over never comes in force through
constitutional means, and that they know no court verdicts; they don't care
about court rulings; court verdicts are suspended or overruled by force; even
judges become bewildered and succumbed to circumstances and so an amendment to
the constitution is never a solution to prevent military rule. The only
guarantee to hinder the unconstitutional take over of the state power by the
Armed Forces is to install a truly democratic Constitution which articulates
the will of the people and ensures the participation of all the citizens in the
democratic polity. It is now apprehended that anyone who criticizes the
Constitution may be prosecuted for sedition. This is glaringly manifested in
the International Crisis Group Asia Report No 226 13 June, 2012 in which
extensive interviews have been taken recently from experts and leaders but all
are anonymous for fear of being charged with sedition.
It remains to be seen how these offences are dealt with
by the judiciary. However, the constitution- the supreme law of the country is
now full of contradictions and uncertainties.
Detailed
discussion on caretaker
system out:-
The 15th amendment will be known for its actual substance, the abolishing
of the non-partisan caretaker government. The system of having a non-partisan
group in power was developed as a political tool in an environment of complete
political distrust in 1991 between the AL and the BNP after the Ershad
overthrow and was formalised in the constitution in 1996 through the 13th
amendment.
This system actually endorses the fact that politicians in Bangladesh
don’t trust each other particularly in elections. It looks bad but there we
are, that’s us. The people may trust them for five years of their regime but
that is between the supporters/voters and the party, and not between two
parties. The way they behave towards each other when one is in power is a good
reminder why the system had been put in place. What has changed since then that
prompted this change is not clear or even observed.
In 2007, the BNP tried to stay in power by manipulating/abusing the
nomination of the caretaker head of the government and triggered chaos. In the
end through a farcical chain of events, Prof. Iajuddin became the chief adviser
and the president at once becoming a sort of a constitutional clown. But laws
and rules aside, it was the violent street agitation largely under the AL
control that decided the fate of the moment with the army finally stepping in
to restore order amidst public relief.
* * *
Before the change, the AL had invited the BNP for talks but then barring
once in 1991, when the 12th amendment reintroduced the parliamentary system,
they have never even talked to each other. Both will do the same so the
question of getting together and doing something is rather out of the question
so to speak.
But is it possible that the AL wouldn’t think that the BNP wouldn’t do
what it did to the BNP in 2007? It isn’t exactly a complicated thing but just
use the streets to make everything impossible. Knowing that fact, the AL
decision becomes even more intriguing. There is however no way of knowing the
political calculations that went on in the AL mind before deciding this
abolition. Since it became obvious that the government was considering this
change, politicians and commentators have been saying that it puts much of the
future into uncertainty but it has had no effect. One therefore must assume
that the parties involved know the risk that they are taking.
* * *
In Bangladesh, political peace needs blessings and just as in 2007 it was
there, is it possible that the same blessings have arrived in advance?
After all, if India and the US are ready to go along, the possibility of chance
increases. If that happens, it would mean that the Islamist card may have
played another trump because both the powers that matter are bothered by the
Islamic radicals here. Indian PM Manmohan Singh’s comment that a quarter of
Bangladeshis are anti-Indian is an underestimation probably because many are so
without being pro-Islamist. It would have sounded better if he had added that a
quarter of Indians are also anti-Bangladeshi.
Nevertheless, it displays a genuine anxiety on its part. For the US, the
lines are clear and why not? BNP has hobbled itself since birth by playing the
India card and maybe it is going to reap more bitter political harvests.
* * *
Khaleda Zia has already declared that, “All possibilities of holding a
free, fair and impartial general election have been barred with the latest
amendment to the constitution, and with this evildoing, confrontation has
become a certainty in the country.” So confrontation is almost certain.
But it is hardly the same party that challenged Ershad because the
organisation is weaker. Khaleda has yet to give a call but hasn’t and it will
try to put together a structure before a challenge. Has this relatively weak
BNP made the AL take the decision? Only time can tell.
* * *
The Awami League had the parliamentary clout to pass the amendment but do
they think that they can ignore the coming street drama? It is an intriguing
question. Since the AL is a smart party with a long history of agitation, both
in carrying it out and countering it as well, there must be a future plan. But
what that could be is the mystery.
The first thing that they can do is what is usually done in such cases —
arrest opposition leaders. Unfortunately, BNP knows this scenario all too well.
Managing a movement using the next set of rulers when the main ones are inside
is old hat for both parties. But who knows what has been planned and on both
sides.
However, as the election is a little far away, the agitation has to be
very long drawn. Again, the AL may be thinking that the BNP doesn’t have the
stamina to carry on for too long. But that’s what every incumbent government
since Ayub Khan of Pakistan had thought about the opposition including the AL
in 1969. It could be true this time but history shows that the agitators have
confounded the government almost every time in Bangladesh.
That is a very remote possibility but a very big gamble with serious
consequence. If this doesn’t work out, it leaves the other factor in, the army
factor.
* * *
In Bangladesh, the three political forces that can claim political power
are the AL, the BNP and the Army. However, it is politically unsmart for the
army to take power directly. Moreover, since the last Fakhruddin-Moeen episode,
the army’s popularity isn’t as high. However, its role during the last election
was much better when it didn’t lean towards the BNP but had a positive result.
Given that record, will it repeat its role again?
Constitutionally of course, the situation against any army action is high
and the provisions against that exist there so the chances of army rule
directly is largely off but how extensive its role can be as a branch of the
executive in support of the government can’t be known and there is no
constitutional bar to that either.
* * *
In 2007, the army was concerned in its takeover about the impact of its
role as rulers on its professional and better paid work as peacekeepers.
However, the prospect of a terribly unstable Bangladesh which could generate a
lot of Islamic militancy was a factor which led the bigger powers to support a
military role in Bangladesh politics that would stabilise the dangerous
situation in 2007. Should the army decide to lend a political helping hand,
what could happen this time? Are the conditions the same or will be when
election time comes? Will the army risk its pay pocket to help out? Is there a
risk?
We are not talking takeovers but extensive support by the military to the
civil, so would the AL have decided without feeling the army’s mood? The army
is the last protector of the government and so is it possible that some sort of
an understanding may already have come into place?
Should the army support the AL and the public perception of it is of a
partisan rather than a national army, what will be the cost and risk of that
transaction? Or will the situation evolve in such a way that its entry will
again become inevitable and then it will be taken from there? But what happens
if a group within the army feels and decides that it is the BNP which is the
more convenient patriotic party and require their support?
The army has become the king maker in Bangladesh politics. Each three
represent one-third of the strength and when two join hands, power shifts that
way.
Is it stability Bangladesh style?
Baksal System
Government:-
In this regard, Supreme Court Bar Association President Advocate Khandkar Mahbub Hossain said: ‘The 15th Amendment has made the provision for highest punishment for any sort of distrust in the constitution. I do not know whether any constitution in the world has such a provision or whether it has any necessity. There should be limit to intimidating the citizens or cheating them. I think they (Awami League government) have crossed that limit. Some articles have been inserted in the charter in the name of constitution amendment. Like the Fourth Amendment to the constitution, these articles will create severe obstruction to the path of multiparty democracy. This is an ill attempt of reintroducing the Baksal system government. I think the people under no circumstances will accept this.’
Khandkar Mahbub Hossain said: ‘According to the present amendment, more than 50 basic structures have been made in the constitution. A ridiculous provision forbidding the revision of the structures has also been in the amendment, which is absolutely undemocratic and contrary to the basic spirit of democratic state. No constitution in the world has such an instance.’
About the provision made through Article 7 (a) of the 15th Amendment forbidding addition, revision, replacement, suspension and change by any other means of the rules related to articles dealing with the basic structures of the charter, Constitution Expert Dr Shadin Malik said: ‘This has been done out of inability to understand the real meaning and importance of the constitution. Constitution is not like traffic laws that require elaborate rules and regulations. These amendments stem from inability to realize the basic spirit of the constitution. The constitution does not require the provision for whose photos will be displayed at factories and community centers. These are contrary to the basic spirit and course of the constitution.’
Dr. Shadin Malik said: ‘The main function of the constitution is to ensure stability and continuity in running the affairs of the state. In these two yardsticks -- stability and continuity -- the 15th Amendment has failed. Unfortunately the government's prime consideration in the amendment was to retain the authority of the party so that its power remains if force smoothly in future also. The constitution is the document of the people's ownership of power. But now that document is being used to become the owner of power.’
In this regard, Supreme Court Senior Lawyer Barrister Abdur Razzak said: ‘Retraction of citizens' trust and confidence in the constitution will be treated as sedition and highest punishment will be given for this offence -- once Pakistan had introduced such a provision, but it did not sustain. Such provisions cannot be contained in any constitution.’
Dangerous Aspect
About as the basic structures of 50 articles in Article 7 (a), he said: ‘No constitution defines which the basic structures are. The basic structures cannot be changed anyway, how such a provision is included in the constitution.
In this regard, a constitution expert and Dhaka University Law Department Prof Dr Asif Nazrul Islam said: ‘Sheikh Hasina has contained the Baksal system, to some extent, through the 15th Amendment. The Fourth Amendment had killed democracy. And the 15th Amendment has brought about some important changes that could be used for further torturing the opposition parties and weakening those. The matter of most concern is that these provisions have paved the way for closing down the path of free thinking, practicing multidisciplinary opinions, freedom of speech and newspapers.’
Dr. Asif Nazrul Islam said: ‘To my opinion , the most dangerous aspect of the 15th Amendment is some portion of Article 7 (a). Article 7 (a) said: ‘If any citizen retracts his confidence and trust in this constitution or takes attempt of doing so or conspire against it, his or her activities will be treated as acts of sedition, and the person concerned will be guilty of sedition.’ This provision in the spirit of Baksal has scopes for establishing a one-party hegemony and suppressing the opposition parties and voices of dissent. He said that this provision might close down the path of free and intellectual thinking about any article of the constitution, freedom of speech and even constructive criticism.
Antipeople Provision:-
According to this provision, the government can take initiatives for arresting and detain the writers, speakers and editors for the articles and discussions so far held on the 15th Amendment of the constitution. There is no existence of such an antipeople provision in the constitution of any democratic country in the world and even the South Asian states.’
Dr Asif Nazrul Islam said: ‘The 15th Amendment has severely limited the authority of the next parliaments. Article 7 (a) has described as basic structures at least 50 articles, including the fundamental principle of the constitution have also made those irreversible. And my question -- how the provisions under Article 8 (2) of the constitution could the basic structure as the citizens have no right to enforce the issues through court? If Article 7 (a) persists in the constitution, all coming parliaments will have to accept all the things (amendments) of the present parliament as the final and irreversible.’
In this regard, Supreme Court Bar Association President Advocate Khandkar Mahbub Hossain said: ‘The 15th Amendment has made the provision for highest punishment for any sort of distrust in the constitution. I do not know whether any constitution in the world has such a provision or whether it has any necessity. There should be limit to intimidating the citizens or cheating them. I think they (Awami League government) have crossed that limit. Some articles have been inserted in the charter in the name of constitution amendment. Like the Fourth Amendment to the constitution, these articles will create severe obstruction to the path of multiparty democracy. This is an ill attempt of reintroducing the Baksal system government. I think the people under no circumstances will accept this.’
Khandkar Mahbub Hossain said: ‘According to the present amendment, more than 50 basic structures have been made in the constitution. A ridiculous provision forbidding the revision of the structures has also been in the amendment, which is absolutely undemocratic and contrary to the basic spirit of democratic state. No constitution in the world has such an instance.’
About the provision made through Article 7 (a) of the 15th Amendment forbidding addition, revision, replacement, suspension and change by any other means of the rules related to articles dealing with the basic structures of the charter, Constitution Expert Dr Shadin Malik said: ‘This has been done out of inability to understand the real meaning and importance of the constitution. Constitution is not like traffic laws that require elaborate rules and regulations. These amendments stem from inability to realize the basic spirit of the constitution. The constitution does not require the provision for whose photos will be displayed at factories and community centers. These are contrary to the basic spirit and course of the constitution.’
Dr. Shadin Malik said: ‘The main function of the constitution is to ensure stability and continuity in running the affairs of the state. In these two yardsticks -- stability and continuity -- the 15th Amendment has failed. Unfortunately the government's prime consideration in the amendment was to retain the authority of the party so that its power remains if force smoothly in future also. The constitution is the document of the people's ownership of power. But now that document is being used to become the owner of power.’
In this regard, Supreme Court Senior Lawyer Barrister Abdur Razzak said: ‘Retraction of citizens' trust and confidence in the constitution will be treated as sedition and highest punishment will be given for this offence -- once Pakistan had introduced such a provision, but it did not sustain. Such provisions cannot be contained in any constitution.’
Dangerous Aspect
About as the basic structures of 50 articles in Article 7 (a), he said: ‘No constitution defines which the basic structures are. The basic structures cannot be changed anyway, how such a provision is included in the constitution.
In this regard, a constitution expert and Dhaka University Law Department Prof Dr Asif Nazrul Islam said: ‘Sheikh Hasina has contained the Baksal system, to some extent, through the 15th Amendment. The Fourth Amendment had killed democracy. And the 15th Amendment has brought about some important changes that could be used for further torturing the opposition parties and weakening those. The matter of most concern is that these provisions have paved the way for closing down the path of free thinking, practicing multidisciplinary opinions, freedom of speech and newspapers.’
Dr. Asif Nazrul Islam said: ‘To my opinion , the most dangerous aspect of the 15th Amendment is some portion of Article 7 (a). Article 7 (a) said: ‘If any citizen retracts his confidence and trust in this constitution or takes attempt of doing so or conspire against it, his or her activities will be treated as acts of sedition, and the person concerned will be guilty of sedition.’ This provision in the spirit of Baksal has scopes for establishing a one-party hegemony and suppressing the opposition parties and voices of dissent. He said that this provision might close down the path of free and intellectual thinking about any article of the constitution, freedom of speech and even constructive criticism.
Antipeople Provision:-
According to this provision, the government can take initiatives for arresting and detain the writers, speakers and editors for the articles and discussions so far held on the 15th Amendment of the constitution. There is no existence of such an antipeople provision in the constitution of any democratic country in the world and even the South Asian states.’
Dr Asif Nazrul Islam said: ‘The 15th Amendment has severely limited the authority of the next parliaments. Article 7 (a) has described as basic structures at least 50 articles, including the fundamental principle of the constitution have also made those irreversible. And my question -- how the provisions under Article 8 (2) of the constitution could the basic structure as the citizens have no right to enforce the issues through court? If Article 7 (a) persists in the constitution, all coming parliaments will have to accept all the things (amendments) of the present parliament as the final and irreversible.’
References:-
1."HC rules Bangladesh secular | Bangladesh". bdnews24.com.
2.Thedailystar.net. 2010-02-03. Retrieved 2012-05-28.
1."HC rules Bangladesh secular | Bangladesh". bdnews24.com.
2.Thedailystar.net. 2010-02-03. Retrieved 2012-05-28.
3.
"Constitution to get back on '72
track".
Thedailystar.net. 2010-02-03. Retrieved 2012-05-28.
4. "Index of /pmolib/constitution". Pmo.gov.bd. 2009-06-14. Retrieved 2012-05-28.
http://www.thedailystar.net/newDesign/news-details.php?nid=192303
http://deshcalling.blogspot.com/2011/06/constitution-fifteenth-amendment-bill.html
http://newsdawn.blogspot.com/2011/10/provisions-in-15th-amendment-to.htm.
4. "Index of /pmolib/constitution". Pmo.gov.bd. 2009-06-14. Retrieved 2012-05-28.
http://www.thedailystar.net/newDesign/news-details.php?nid=192303
http://deshcalling.blogspot.com/2011/06/constitution-fifteenth-amendment-bill.html
http://newsdawn.blogspot.com/2011/10/provisions-in-15th-amendment-to.htm.
