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Volume 3 Issue 11| November 2010



Original Forum Editorial

Bangladeshi Constitution: A Good Governance Paradigm
--Manzoor Hasan

Interview with Suranjit Sengupta Constitutional Reform: Where does the power lie?
Confusion and Controversy over Reinstitution of the "1972" Constitution
--Asif Nazrul
Multicultarising Secularism through Constitutional Recognition of Adibashis
--Devasish Roy Wangza
The Bumps and Grinds on Our Journey to Secularism--Ziauddin Choudhury
This Time for the Judiciary
--Syeed Ahamed
The Bangladesh Constitution: A restricted document framed by "copyright and ownership"
----Advocate Tanbir Siddiqui
Photo Feature: The Long Wait
--Ami Vitale
Exploring Legal Avenues to Address the Plight of Climate Victims
--M. Hafijul Islam Khan

The Courts to the Rescue
--Julfikar Ali Manik and Kajalie Shehreen Islam

Of Chaos, Confusion and our Constitution
--Shakhawat Liton

Interview with Dr. Kamal Hossain On Realising Our Constitutional Dreams


Forum Home


The Bangladesh Constitution:
A restricted document framed by "copyright and ownership"

ADVOCATE TANBIR SIDDIQUI asks why people do not have access to the book by which their country is governed.

After its adoption on November 4, 1972, and disruption and turbulence over the last 38 years, the Bangladesh Constitution has been passing through a transition period since the final verdict from the Appellate Division on the Fifth Amendment. The apex court of the country has declared the fifth amendment of the Constitution illegal and void. Debates on different articles of the Constitution, diverging opinions of constitutional experts, a variety of news items and commentaries in newspapers, series of discussions in electronic media, various questions regarding the Parliamentary Special Committee on Constitution Amendment, have all made a hodgepodge of the situation.

I cannot but be upset regarding the decision of the said Committee taken on October 12. Are we missing the chance to modify and update the Constitution as per the demand of the times? Ordinary citizens do not know what is embodied in the Constitution, and what is going to be included. Thus this piece is centred on a widely discussed "Caution Notice" of the Ministry of Law, Justice and Parliamentary Affairs, claiming "copyright and ownership" of the Constitution.

Will the Constitution, the document ensuring fundamental rights of the people, ultimately go out of the reach of the common people? Will the common people not be able to see the Constitution even 39 years after independence? Will the document be limited to a few people, like before, though it has been amended 14 times? Will citizens have to apply to the government, i.e. the law ministry, under the Right to Information Law, 2009 to know their fundamental rights?

Many may not believe that the Constitution of the People's Republic of Bangladesh is protected by "All Rights Reserved" and is the "property" of the Ministry of Law, Justice and Parliamentary Affairs. People who have any doubt, or think it is a misinterpretation, are advised to read a "Caution Notice" circulated by the Ministry of Law, Justice and Parliamentary Affairs (DFP-2181-18/07/06), and published in different national dailies on July 23, 2006.

The Caution Notice said: "It is being noticed that without the permission of the government, the Constitution of the People's Republic of Bangladesh is being illegally printed/ photocopied/scanned and sold in the market, violating the copyright of the government. The copyright and ownership of the Constitution, along with other acts are of the government and the said copyright, are within the jurisdiction of the Ministry of Law, Justice and Parliamentary Affairs as per Schedule-1, Rules of Business-1996. As per the Copyright Act, 2000 (Act No. 28 of 2000) unauthorised publication, selling and marketing without permission of the authorship is unlawful and punishable offence. As per Section 82 of the said Act, the person accused with such offence may be punished with imprisonment for a term not exceeding four years and would also be fined Taka 2 lacs."

This Caution Notice was published in the name of a joint secretary of the concerned ministry. This suggests that the ministry possesses ownership of the only asset of the people, the supreme law of the country where fundamental rights of the citizens have been enshrined. Does any individual, ministry or court of law have the power and authority to deprive a citizen from being informed of his/her fundamental rights, which have been enshrined in the Constitution?

What shocks me most is that no one has challenged the circular till now. Common people cannot understand the "copyright and authorship" issue, but it is difficult to understand how this circular was not noticed by the conscious and educated people.

Despite the passage of the fourteenth amendment of the Constitution in May 2004, the law ministry, the claimant of "copyright and authorship," had not published any copy of the Constitution with the latest amendment as on October 28, 2006. Of course, the Constitution was last printed in 2000 after the 13th Amendment.

People have, however, been publishing and selling copies of the Constitution, violating said "copyright and ownership" of the government. The then law minister Barrister Moudud Ahmed, on July 20, 2006, bought copies of the Constitution and said that the police had been asked to seize those unapproved copies from the market. News items were published in different national dailies titled "Pirated constitution in the market", "DMP asked to seize pirated copies of the constitution", "Adulteration in the constitution too?" etc.

Incredibly, copies of the Constitution disappeared from the market overnight. The price of a copy increased from Tk 50 to Tk 300. The law minister announced on July 31, 2007, that the law ministry would publish the Constitution with the latest amendment within one month. Publication was completed in the last week of October but, surprisingly, the date of publication was given as August 1, 2006. As per ministry sources, 2,500 copies were printed at that time, but not a single copy had been provided for the public.

Allegations were made just after the publication of the Constitution. Barrister Moudud Ahmed was sued on December 10, 2006, before the Chief Metropolitan Magistrate Court, Dhaka with the charge of committing sedition. The prosecution alleged that he had fabricated history by crediting Ziaur Rahman as the proclaimer of independence in the preface (it is not part of the Constitution). The joint convenor of the Lawyers Union for Protection of Peoples Right, A.S.M. Iqbal had filed this case. After hearing, the Learned Court sent the matter for judicial enquiry. No more has been heard thereafter.

In July 2007, a national daily published a series of five reports under the heading "Fabrication in the publication of the Constitution", covering the Constitution, its non-availability and various factors centred on this. The report elaborated the chronology of the publication of the Constitution and the role of the law ministry. The then chief advisor asked the law ministry for a summary concerning publication and selling of the Constitution as well as the next step to be taken by the ministry. The summary only said that the law ministry was the owner of the Constitution. The ministry told the chief advisor that reprinting of the Constitution would be undertaken immediately. Eventually, the ministry did not publish even a single copy and the then chief advisor's office also did not want to know anything. Consequently, the issue of reprinting of the Constitution was forgotten.

Because of many debates and criticism, the government at last published the Constitution in the last week of May 2008 (according to information obtained from BG press), four years after the fourteenth amendment and eight years after the last publication and release in the market. But the prefaces of the Constitution printed in 2006, 2007 and 2008 were different. The focal point is, what is the basis of "copyright and ownership" of the Constitution that the law ministry has been claiming? Nowhere in the Constitution has it been incorporated that copyright of the Constitution belongs to the ministry.

Secondly, can the Rules of Business deny the fundamental rights of the people and their right to have the Constitution in hand? Rules of enunciate the functions and jurisdictions of different ministries and departments of the government. It describes the scope and limits of 45 functions of the Ministry of Law, Justice and Parliamentary Affairs. Function 8 says that "copyright in government law publication" {(section 30(8), Allocation of Business)}.

The Constitution is the supreme law of the republic, where provisions regarding fundamental principles of state policy including the fundamental rights of the citizens; the powers of the president, prime minister and cabinet, parliament, caretaker government, the Supreme Court, and the Public Service Commission; laws relating to emergency period and issues governing administration of the state mechanism; and relevant directions for the concerned authorities have been embodied. The Constitution has not empowered anybody to deprive citizens from obtaining this esteemed document. The question is whether the Constitution or the "Rules of Business" is more important.

The then chief advisor was further assured by the law ministry that, to make the Constitution of Bangladesh available to the public, the Bengali and English versions had been included in the official website of the law ministry. The Bengali version had been launched in the official website of the ministry in July 2007. Doubtlessly, this is an appreciable undertaking. The question is, how many people in the country have access to the internet?

The British Council in Dhaka took an initiative to reach the Constitution to the people free of charge, publishing Bengali and English editions in 1996 during the British-Bangla Law Week celebration and distributing them to the public. It is uncertain whether any individual or organisation will be charged with selling the Constitution if they provide it at no cost. The British Council reprinted pocketbook size copies, which were given to the public free of cost, during the celebration of 50 years of the Universal Declaration of Human Rights in 1998. Now that the Constitution has been installed in the websites of different agencies, how can the ministry stop someone from downloading and publishing it? More surprisingly, a leading publishing house published copies of the original hand-written Bangladesh Constitution in February 2010 and sold them at Tk 4,000 each. The publisher also presented copies to prominent political leaders and lawyers. When asked about the copyright issue, a law ministry official said that they just "overlooked" it and were "carefully careless" about the issue.

Due to the holdup in printing the Constitution, the civic education and human rights organisation Change Makers applied to the law ministry on October 10, 2005 seeking permission to print 5,000 copies, mentioning that they would be used for civic education and would be distributed free of cost among high school students. The ministry did not give permission. On November 4, 2008, Justice Syed Amirul Islam said in a program on ntv: "The law ministry is obliged to grant permission if anyone seeks permission from the ministry to print the Constitution."

It is quite strange that all the information posted after July, 2007 in the official website of the ministry has been converted to PDF file. In the constitution segment, every page has been overprinted with "copyright@ Ministry of Law, Justice and Parliamentary Affairs."

By using the name of the ministry and copying the monogram of the government, one can sell copies of the Constitution; the ministry or law-enforcing agencies will not stop you. But the ministry will stop you if you want to print the Constitution for educational activities and distribute them free of charge, even if you do this with the approval of the ministry and with due regard for the laws. One of the reasons given for not allowing others to print the Constitution is, who will take the liability for any mistake in those copies?

Why should any person or organisation not be able to print the Constitution if they take responsibility? As per the ministry, "illegal or pirated" copies of the Constitution have met the demand of the people since independence. How many mistakes have been detected? Why has the ministry suddenly become worried about "copyright and ownership" of the Constitution?

Dr Kamal Hossain and Barrister Amirul Islam said in a television interview: "This decision of the law ministry is not proper. Anybody can print the Constitution for educational purpose and the ministry should help in this respect." Except Dhaka, in how many districts is the Constitution available, even a pirated copy?

The circular of the law ministry made it seem that the Constitution of Bangladesh was a highly "sacred book" which should not be available to the people. The Constitution is of course a sacred book but, more importantly, it is a very vital and necessary document that has been framed for the well-being of the common people of the country, the main document for governing the state.

The supply of pirated copies has not been blocked even after the publication of the Caution Notice. They are even sold in the Supreme Court complex. If the circular of the law ministry is correct, the institution that violated the "copyright and ownership" of the law ministry, and published, printed and distributed copies of the Constitution among the advocates is the Bangladesh Bar Council, which deals with certifying the competence of people in the legal profession.

Since the birth of the Constitution about 38 years ago till today, the people have been kept in the dark about its contents. In this connection, Patrick Henry said: "The constitution is not an instrument for the government to restrain the people; it is an instrument for the people to restrain the government -- lest it come to dominate our lives and interest."

Dr Kamal Hossain said in a discussion on Constitution Day that it would take only five minutes to resolve the matter but 38 years have already elapsed. How long will our government "lock-up" the Constitution and in whose interest?

Advocate Tanbir Siddiqui is founder and chief executive, Change Makers.



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