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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


Constitutional Reform

Where does the power lie?

Seasoned politician SURANJIT SENGUPTA, co-chair of the parliamentary special committee for constitutional amendment, and also chief of the parliamentary standing committee on the law, justice and parliamentary affairs ministry, talks about the role of the 15-member strong Jatiya Sangsad (JS) body led by deputy leader of the House Syeda Sajeda Chowdhury in bringing necessary changes to the Constitution in an effort to restore the spirit of the original Constitution of 1972. He also speaks about the implications of the recent landmark judgement on the Constitution's fifth amendment case and constitutional development following the August 15, 1975 bloody changeover to SHAKHAWAT LITON and KAJALIE SHEHREEN ISLAM.

FORUM: For the first time in the parliamentary history of independent Bangladesh, the JS has formed a parliamentary special committee assigning it to review the Constitution and come up with proposals for bringing necessary changes to the country's supreme charter. Do you think the committee will be able to come up with the necessary proposals for some major changes to the Constitution to restore the spirit of the Constitution of 1972?

Suranjit Sengupta (SS): It is true that such a committee has been formed for the first time in the history of our parliament. Of the total of 14 amendments made to the Constitution since 1973, only the eleventh and twelfth amendments were brought with the consensus of both ruling and opposition parties in parliament.

Of the two amendments, the twelfth amendment restored the parliamentary form of government in 1991. At that time, the twelfth amendment bill was placed in parliament first and then it was sent to the select committee constituted by the parliament for scrutiny. The committee, comprising of ruling and opposition lawmakers, examined the bill and placed its report in parliament with some recommendations. But this time, the parliament has formed the special committee to draft proposals for bringing necessary changes to the Constitution. On reviewing the Constitution thoroughly, the special committee will place its report in the House. On the basis of the committee's recommendations, the government will place a bill to this effect.

After cancellation of the Fifth Amendment Act, the law ministry is working to print the Constitution, restoring the articles which were either repealed or amended through martial law proclamations during the first martial law regime. The Constitution's fifth amendment ratified and validated all the changes. On receiving the re-printed copy of the Constitution, we will start examining it thoroughly and to identify inconsistencies, if any.

We will be working for further democratisation, liberalisation and decommunalisation of the constitution. We want to democratise the Constitution more, opening it up for all backward communities and to remove other impediments and hindrances, which stand in the way of constitutional development.

FORUM: Since its formation last July, the special committee has already held six meetings, so far. What is the position of the committee on some other crucial matters including bringing amendments to Article 70 to allow members of parliament (MP) to perform their due role independently, restoring the parliament's authority provided by the original Constitution and to the caretaker government system?

SS: The basis of the Constitution of 1972 was the parliamentary form of government, that means everything arose of the parliament. The two other organs -- the executive entirely and the judiciary in certain areas were accountable to the parliament. Later, some vital changes were made to the Constitution with regard to the appointment of judges and impeachment of the judges and to other necessary laws. Executive powers were not accountable to the parliament. It became independent. During the presidential form of government, the president was not accountable to the parliament.

Now, it requires political decision to bring major changes to the Constitution. So, we will work to improve the Constitution based on consultation with our leader and instruction of the party, government and the ruling alliance. The special committee has already decided to sit with Leader of the House Sheikh Hasina, seeking her instructions on some crucial issues.

Of course, we will examine the caretaker government provisions to make it democratised. It's a midnight law introduced by the past Bangladesh Nationalist Party (BNP) government in 1996. According to the parliamentary language, midnight law means bad law. It was a result of a one-party controversial parliament. In our experience, we faced difficulties. Even the BNP is now opposing the provision for appointing immediate past chief justice as chief adviser to the caretaker government.

FORUM: The main opposition BNP did not nominate its lawmaker to work in the special committee. Do you think absence of the main opposition in the committee will have any negative impact on the entire process of constitutional reform?

SS: The Constitution is a fundamental document, the supreme law of the country, and it should be kept above partisan politics. Thus, the main opposition BNP too should perform its due role by shunning traditional negative politics, adjusting to modern politics and entering 21st century politics with the aim of advancing the country and its people. The door is still open for them. They can still nominate its lawmaker to the special committee. The main opposition may not agree with many possible changes to the Constitution. The BNP was born amid the constitutional misadventures following August 15, 1975 and a beneficiary of the fifth amendment.

But, those days are gone. What will the BNP gain from the confrontational political culture which prevailed in the country after 1975? The party should join the special committee to express its stance on possible changes to the Constitution. They have every right to oppose and give note of dissent to every proposal. If I were in their position, I would have joined the committee in order to voice my opinions. It is the essence of parliamentary democracy. Unfortunately, in our country, parliamentarism has not really grown. There are certain obstacles in political philosophy.

I again urge the BNP to join the special committee, shunning the politics of opposition for the sake of opposition. If they do not come eventually, they will miss the opportunity to ventilate their opinion.

FORUM: All signs predict that the BNP may not participate in the entire process of constitutional reform. Do you think if BNP comes to power in future and gets the two-thirds majority required to amend the Constitution, it will be able to reverse the amendments to be made by the present parliament?

SS: If they come to power and get required majority in parliament to amend the Constitution, they can bring amendments in line with their political decision. But the significant thing has been settled that the basic structure of the Constitution cannot be changed. Therefore, no overwhelming majority will help them to do so. If they do so whimsically with their majority, the amendment will be declared illegal and void.

FORUM: Is de-communalisation possible with a Constitution which begins in the name of Allah with 'Bismillah-ar-Rahman-ar-Rahim'? Can a nation claim to be secular when its constitution stipulates a state religion?

SS: 'Bismillah-ar-Rahman-ar-Rahim' comes before the text and even the preamble of the Constitution, thus it is not technically a part of it and does not affect the secular principle of the Constitution. As for Islam as the state religion and other such phrases, once the Constitution is reprinted in line with the apex court's verdict, we will examine and try to improve it based on consultation with our leader and instructions of the party, government and alliance. Political decision is required to address the issue.

FORUM: There has been much activity and some controversy surrounding the constitutional developments and amendments made to it in the past. How do you view these?

SS: The politics of Bangladesh can be divided into two eras -- pre-and post-1975 -- and the basic character of these was different. After the country's liberation and before 1975, the basis was secularism or non-communalism, as against Pakistan's two-nation theory. A country was born out of cultural nationalism as against religious nationalism. After 1975, we witnessed the induction of religion into politics. The basis of pre-1975 politics was democracy, post-1975, was autocracy. Pre-1975 politics consisted of pro-liberation forces, post-1975 saw the rehabilitation of anti-liberation forces. The economic philosophy of pre-1975 was socialism and nationalisation while the economic philosophy of post-1975 was denationalisation, free economy, which saw emergence of a neo-rich bourgeoisie.

Secularism, nationalism, democracy and socialism were the four main pillars of the 1972 Constitution. After 1975, we witnessed the emergence of a new Constitution in which secularism was omitted, nationalism was changed, a new explanation given to socialism and the position of the parliament was undermined through the martial law proclamations.

Those in power needed constitutional validation to legalise their illegal tasks. Therefore, they needed a sort of parliament loyal to their new political philosophy which would be ready to ratify and validate all misdeeds. There was a loss of parliamentary power, where the parliament was merely a rubber stamp for validation or non-validation. Politicians were accountable and responsible to the autocrats rather than to the people. Thus the then second parliament, which was nothing more than a rubber stamp, passed the constitution's Fifth Amendment Act, ratifying and validating all misdeeds of the martial law regimes between August 15, 1975 to April 9, 1979.

This infamous amendment reversed and denied the rule of law and saw the emergence of a new judicial, moral jurisprudence in support of the martial law regime. The law of indemnity was passed and the electoral process was fouled up. There was an emergence of a new political ethics. A new political culture emerged, democracy was replaced by autocracy, anti-communalism by pro-communalism. The people lost their power; the values of the freedom struggle were completely lost.

It is natural that violence begets violence. Other military rulers came following the same path and used the parliament to validate their misdeeds.

These forces ruled Bangladesh for a long time. Communalism was nurtured into the state, it was developed further with the induction of state religion in the Constitution through the eighth amendment, which has now given rise to international terrorism and caused Bangladesh to lose its image as a secular country.

FORUM: What, in your opinion, are the implications of the recent judgements on the fifth and seventh amendments to the Constitution?

SS: In 21st century South Asia, there has been no other judgement so huge, historical than the verdict on the Constitution's fifth amendment case. It is a politico-judicial judgement. It is revolutionary. It has revolutionised all segments of society, including history. It is a historical event and it rose out of politics. It is an important judgement, reversing the country's political trends. The High Court Division delivered the historic ruling on the constitution's fifth amendment case in 2005 when the BNP was in power. So, there is no scope to label the verdict as politicisation.

With the watershed judgement getting approval of the Appellate Division of the Supreme Court, it has become a part of law. The verdict is binding upon everybody, including the BNP that has been opposing it. The only thing remaining is its incorporation into the Constitution.

After discussion between the special committee members as well as legal and constitutional experts, it has been decided that the Constitution will be reprinted in line with the landmark verdict.

After the verdict on the fifth amendment got finality, the High Court delivered another landmark verdict declaring illegal and void the Constitution's Seventh Amendment Act, which ratified and validated all misdeeds of the second martial law regime.

FORUM: The apex court in the fifth amendment verdict strongly denounced extra-constitutional takeover of state power. It also said the perpetrators of such illegalities should be suitably punished and condemned so that in future "no adventurist, no usurper, would dare to defy the people, their constitution, their Government, established by them with their consent". However, it is the parliament which can make law in this regard. What is your take on this?

SS: There are many declarations in the verdict. The declaration is not binding on us. However, we will take into consideration the apex court's expectations and declaration made in the verdict.

Shakhawat Liton is Senior Reporter, The Daily Star.


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