amendment of the Constitution: A legal view
Harun ur Rashid
14th Amendment to the Bangladesh Constitution of 1972 was adopted on
16th May and the President assented to it on the next day. Since 1972,
the Constitution was amended fourteen times until this day. In comparison,
the Constitution of the USA of 1788 which was the world's first written
Constitution, went through only 27 amendments during more than two hundred
years of its adoption.
In case of Bangladesh,
within a matter of 32 years, the Constitution went through 14 amendments
and this reflects the ups and down of the fate of the Bangladesh Constitution.
During the years, twice extra-constitutional governments were installed
through martial law and the constitutional rule resumed only in 1991.
It is probably a quirk in constitutional history of Bangladesh that
the Chief Justice had to become the head of the extra-constitutional
government in 1975. In simple terms, the Chief Justice who was to preserve,
defend and protect the Constitution assumed the post of the Chief Martial
elements of the 14th amendment
The 14th amendment of the Constitution has four elements:
45 reserved seats
for women in the Parliament
Display of President and Prime Minister's portrait in government offices
and other institutions
Raise the retirement age of the Supreme Court judges, Chairman and members
of the Public Service Commission and the Comptroller and Auditor General
Empowers the Chief Election Commissioner to conduct oath to MPs in the
absence of the Speaker and Deputy Speaker.
The Law Minister
reportedly stated that the amendments were brought after thorough scrutiny,
keeping the fundamental spirit of the Constitution. He regretted that
the opposition abstained from taking part in discussion of the bill
before the Parliament. On the other hand, the Deputy leader of the opposition
in Parliament called it a "black legislation" and stated the
amendments were adopted to serve the purpose of the BNP-Jamaat alliance
in the next election.
constitutional amendments are necessary
The Constitution is not set in stone. It is a living document. It must
serve its purpose. It has to march with the needs of the time. There
are times when it is necessary to amend the Constitution and it is a
serious matter. That is why special provision is incorporated in the
constitution laying down the procedure of amending the constitution.
Since the Constitution reflects the will of the people and not the will
of the government alone, it is imperative that a national consensus
is arrived at with the opposition members of Parliament on issues that
need amendments in the light of the changed situation of the day.
of power of the Parliament on Constitutional amendments
On the withdrawal of the Martial Law, in the Eighth Amendment case (
Anwar Hossain Chowdhury vs Bangladesh : 1989 BLD (Spl.1), it was challenged
that four permanent benches of the High Court Division set up by the
Martial Law Order number 11 of 1982 were unconstitutional. It was submitted
that the basic structure of the Constitution could not be altered by
an amendment on the ground that the Parliament had not the unlimited
power of amending the Constitution if the amendment was inconsistent
with concept of "the supremacy of the Constitution" embodied
in the Preamble and Article 7 of the Constitution.
By a majority judgment
(3:1), the Appellate Division of the Supreme Court agreed with the submission,
thus firmly establishing the doctrine that the "basic structure
of the Constitution" cannot be altered or amended. The Constitution
is not an ordinary legislation. It is a basic structure how a country
is governed. It reflects history, ethos, and aspirations of people of
a country. There are certain basic principles on which a constitution
is founded and these principles must be preserved.
Let us now briefly
examine the core elements of the 14th constitutional amendment:
of seats for women in the Parliament
Article 28(4) of the Constitution provides that the state may make "special
provision in favour of women or children or for the advancement of any
backward section of citizens". This Article is often known as "affirmative
action" provision. This implies that special attention may be given
to these groups who may suffer from certain disadvantages inherently
built on the society.
is a sine qua non in a democratic society. Empowerment of women is a
process that aims at changing in the perception of women of themselves
and the way in which the roles and functions of women are focused. The
reservation of seats in the Parliament for women is considered as one
of the actions that may accelerate the social consciousness about the
status of women in society.
of seats for women in the Constitution is nothing new. It existed before
varied in number of seats and lapsed in 2001, (30 reserved seats). Both
major parties have committed to reservation of seats for women for sometime
to come, although women can get elected from single territorial constituencies
by direct election under Article 65 (3) of the Constitution.
The question is:
Who elects them? What are their constituencies? These are the basic
issues that divide the government and the Opposition and Women Rights
activists. According to them, the women should elect the MPs. They argue
that if the women members of the parliament are elected on the basis
of party representation in the parliament, it not only denies empowerment
of women but also undermines the very concept of "affirmative action."
of seats is not a "favour" for women but is a cornerstone
of making women productive in society. It is reasonable that gender-based
balance of power is gradually introduced in the parliament to enable
women's views to be taken into account at every levels of legislative
process. Arguably, there is a strong merit of their case in electing
women MPs by women. Indirect election at the beginning of the 21st century
is to be regarded as something which is archaic and ancient in a vibrant
democratic society prevailing in Bangladesh where the male-dominate
mould of leaderships has been broken since 1990.
of portraits in government offices
Ordinarily display of portraits of political leaders is regulated by
law and regulations and not by the constitutional provision. Constitutional
provision for such action is like "killing a fly with a gun".
Since a state is headed by a monarch or by a President, it is their
portrait that is usually displayed. A government may come and go but
the state exists and the head of the state continues in office.
However in Bangladesh
display of portraits of political leaders has unfortunately been embroiled
in bitter controversy. The major political parties have their own entrenched
views on this issue and have not been able to come to an agreed view.
It appears that the present amendment is designed to ensure that portraits
of current political leaders (the President and the Prime Minister)
are displayed and not those of past leaders.
There is a view
that only the portrait of the President, being the head of the state,
should have been displayed. There is a distinction between the head
of the state and the head of the government, even though the powers
of the head of the state are purely ceremonial.
The national emblem
of a state is different from the logo or emblem of the government.
Article 4(3) provides
that the national flower "Shapla" resting on water, having
each side an ear of paddy and being surmounted by three connected leaves
of jute with two stars on each side, represents the emblem of Bangladesh
state and not of the government. This implies that government may not
use the "Shapla emblem", earmarked only for the head of the
state or his /her representatives overseas.
the retirement age of Judges in Supreme Court
The innocuous amendment has become controversial, in particular the
retirement age of the Supreme Court Judges including that of the Chief
Justice. This has a particular reason. The Non Party Caretaker government,
under Articles of 58B and 58C of the Constitution, involves the last
retired Chief Justice to become the Chief Adviser (chief executive)
of the interim government. What was a purely the highest judicial office
in the country has been given a political role after retirement under
these provisions and the office of the Chief Justice seems to be perceived
now through the prism of these provisions.
Many think that
retired Chief Justices will have a political role to play given the
timing of their retirement. This is regrettable, to say the least. There
is a view that the political leaders should not have involved the retired
Chief Justices in the Caretaker government. There should have been other
mechanisms including consideration of panel of impartial persons from
which the Chief Advisor would have been selected.
of the Chief Election Commissioner to conduct the oath of the MPs
Ordinarily such provision is not necessary because the outgoing Speaker
or Deputy Speaker continues in office until a new Parliament is elected.
They hold a unique position in parliamentary style of government. With
the dissolution of the government, they do not lose their positions
because they are tied up with the continuity of the tenure of the Parliament
and not of the government.
Given the continuing
mistrust between the two major political parties, it seems that the
amendment is designed to ensure smooth transition from out-going parliament
to the new one.
It would have been appropriate that the election to the reserved seats
for women should have been through direct election to reflect the democratic
principles of the Constitution. Indirect election is alien to parliamentary
democracy. Other amendments are to be seen in the light of the charged
climate of political parties in the country. Until and unless there
is mutual respect, tolerance and accommodation of views of political
parties, such anomalies may creep in the Constitution. The dictum seems
to be that the winners get all.
Harun ur Rashid is Former Bangladesh Ambassador to the UN, Geneva.