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BANGLADESH: CONSTITUTIONAL AMENDMENTS IN TURMOIL

Cover Story

, by DR. WAQUAR ANWAR

The 15th amendment in the constitution of Bangladesh is making big news, at times for wrong reasons. At least three or of the earlier amendments in that constitution had also made big news.

Highlights of the present amendment in the constitution of Bangladesh, inter alia, include:

                 Islam as State religion and ‘Bismillah-Ar-Rahman-Ar-Rahim’ retained.

The words, ‘absolute trust and faith in the almighty Allah’ deleted.

The provisions of consolidating, preserving and strengthening friendly relationship with the Muslim countries from the Constitution repealed.

Secularism restored.

The provision of caretaker government on the eve of election abrogated.

The people of Bangladesh shall be known as Bangalees as a nation and citizens of Bangladesh shall be known as Bangladeshis

Sheikh MujiburRahman declared as the father of the nation and it is made mandatory todisplay his portrait 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.   

 

EARLIER AMENDMENTS

A description of some of the earlier amendments makes an interesting study and shows the background of the present developments. It also shows the turmoil in which Bangladesh has passed and, in fact, is passing.

The Constitution (First Amendment) Act 1973 was passed whereby any law providing for the detention and trial of war criminals was kept out of the purview of the provision relating to fundamental rights. Thus the floodgate of declaring any person a war criminal and denying him or her fundamental rights was opened. This unique undemocratic and uncivil amendment was passed in the initial stages of the history of a newly formed nation proclaiming democracy and justice!

The Constitution (Fourth Amendment) Act 1975 made major changes. The presidential form of government was introduced in place of the parliamentary system; a one-party system in place of a multi-party system was introduced; the powers of the Parliament were curtailed; the Judiciary lost much of its independence; the Supreme Court was deprived of its jurisdiction over the protection and enforcement of fundamental rights. These amendments were passed on January 25 of 1975 in just thirteen minutes. This is worth noting that these amendments were done under the behest of Sheikh Mujibur Rahman, who has now been constitutionally restored as the bangbandhu and father of the nation. He ushered in the one-party dictatorship in place of the multi-party democratic system.

Any reference to the Fourth Amendment puts Awami League leadership in a defensive mode. They shy away from this. They, on the other hand, keep their guns aimed at the Fifth Amendment brought in by Ziaur Rahman. They further have always been scared of the Thirteenth Amendment brought in by General H.M. Ershad that instituted the concept of an independent administration on the eve of polls.

The Constitution (Fifth Amendment) Act was passed by the Jatiya Sangsadin 1979. The expression ‘Bismillahar-Rahmanar-Rahim’ was added before the Preamble of the Constitution. The expression ‘historic struggle for national liberation’ in the Preamble was replaced by ‘a historic war for national independence.’ One-party system was replaced by multi-party parliamentary system. Fundamental principles of state policy were made as ‘absolute trust and faith in the Almighty Allah, nationalism, democracy and socialism meaning economic and social justice.’

The Constitution (Thirteenth Amendment) Act 1996 provided a non-party Caretaker Government which, acting as an interim government, would give all possible aid and assistance to the Election Commission for holding the general election of members of the Jatiya Sangsad (Parliament) peacefully, fairly and impartially. The caretaker government, comprising the Chief Adviser and not more than 10 other advisers, would be collectively responsible to the President and would stand dissolved on the date on which the Prime Minister entered upon his office after the constitution of the new Sangsad.

 

ESTABLISHMENT-SPECIFIC AMENDMENTS

Every political establishment in Bangladesh has left its imprint on the constitution. Amending a constitution is not a new thing. As a human document it has required changes everywhere based on human experiences. The case of Bangladesh is different. It has not been an exercise in improvement. Every establishment has had its own political compulsion in the amendments brought in by it severally and every other establishment has had its own urge to erase what the earlier one did. The original constitution of 1972 has become a plaything to be engaged, rather shuttlecock to be hit, in their respective styles and need.

Sheikh Mujibur Rahman could not handle the turmoil and problems of the newly emerged nation and took recourse of one-party rule. Democracy was obviously a hurdle in the path of lifelong rule by the father of the nation. Such Suharto-like fathers are always in their own web of ambitions.

Ziaur Rahman gauged the mood of the population well and placed the expression ‘Bismillahar-Rahmanar-Rahim’ above the preamble of the constitution; inserted ‘absolute trust and faith in the Almighty Allah’ as part of the fundamental principles of state policy; and reversed the one-party system to multi-party system. It is another matter that for a military dictator one-party or multi-party systems are synonymous to no-party system! Their personal ambitions are above the democratic system. Ziaur Rahman, further opened the door of close and special relationship of Bangladesh with Muslim countries.

General H.M. Ershad brought in the concept of independent administration on the eve of general elections but the credential of this move was lost as his own stay on the seat of power was unaffected by this provision. A system, however good, cannot serve if it is not accompanied by equally good intentions.

 

THE NEW AMENDMENT

The new political administration led by Sheikh Haseena Wajed tried to undo the amendments in the constitution done by Ziaur Rahman and H.M. Ershad. It has been partly successful and partly unsuccessful. Both success and failure are marked.

Let us first begin with the success story as per the announced intentions of the move. The words ‘absolute trust and faith in the almighty Allah’ has been deleted. The provision of consolidating, preserving and strengthening friendly relationship with the Muslim countries repealed. Secularism restored. The system of caretaker government on the eve of elections has been repealed. Sheikh Mujibur Rahman declared father of the nation.

The failures are also noteworthy. Islam is retained as State religion and ‘Bismillah-Ar-Rahman-Ar-Rahim’ remains at the altar of the constitution, placed above its preamble. It is an interesting situation. The constitution begins with ‘Bismillah-Ar-Rahman-Ar-Rahim’ and states that Islam is the State religion but the expression ‘absolute trust and faith in the almighty Allah’ stands deleted! So it lacks faith in Allah but proclaims Islam as its religion in the name of Allah. Another point is that the constitution as it now stands has not put an embargo on the religion-based politics, much against the expectation after a recent remark of the apex court.

 

BLURRED VISION

The failures in bringing in all the intended amendments have placed the ruling group led by Awami League in a precarious situation. It is itself not satisfied with the Amendment and is saying that other pending amendments shall be done if it gets another victory in the next general election. So it needs another overwhelming majority of two-thirds for clarity of its own blurred vision.  Excerpts from the press statement of Awami League’s Local Government Minister Syed Ashraful Islam are self-explanatory. The minister said, “We will say ‘no’ if anyone asks us if we are absolutely satisfied with the constitutional amendment...but some realities made it impossible for Awami League to return to the 1972 constitution…Islam was kept as the state religion as a means to show respect to the people’s desire…ultimate goal is to restore '72 charter…politics is an art of compromise and possibilities…the constitution will be amended further over time. The aspirations that could not be fulfilled through this amendment will be fulfilled in the next ones if Awami League comes to power again.”

It is obvious that the ruling combine is not successful in keeping all its constituencies happy. But it cannot disregard the popular mood of the overwhelming majority of the masses. It dare not scratch Islam as the State religion.

As regards the wishful thinking of reverting to the 1972 verdict a sarcastic comment of an expat is worth mentioning. He wrote, “Awami League will not be fully happy until it restores the 1972 constitution. In fact, they will not be happy until they can establish one-party rule.”

 

OPPOSITION

BNP and Jamaat-e-Islami, the two major opposition parties of Bangladesh, have condemned the amendments. Both called for protest rallies and strikes which were done effectively. Bangladesh Jamaat-e-Islami Acting Ameer Makbul Ahmad and Acting Secretary General ATM Azharul Islam strongly condemned and protested the passage of the Fifteenth Amendment bill to the Constitution that repealed the words ‘absolute trust and faith in the almighty Allah’ and the provisions of consolidating, preserving and strengthening friendly relationship with the Muslim countries from the Constitution. The Jamaat leaders, in a joint statement, said the AL-led government severely hit the religious faith of crores of Muslims of the country through removing ‘absolute trust and faith in the almighty Allah’ and restoring 'secularism and communism' in the Constitution.

The day (June 30) would remain identified as a ‘black day’ in the history of the country like the day ‘January 25 of 1975’, they said. On January 25, 1975, incumbent Prime Minister Sheikh Hasina’s father Sheikh Mujibur Rahman passed the Fourth Amendment to the Constitution in 13 minutes, banning then all political parties and formed a one-party rule.



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