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April 18, 2004

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The Constitution (Fourteenth Amendment) Bill, 2004: Merits and demerits

Burhanuddin Ahmed

After the birth of Bangladesh as a sovereign country, the then Government established a Constituent Assembly to frame a Constitution for the newborn country. The said Assembly framed the Constitution within the shortest possible time and adopted and enacted the same on the 4th day of November 1972.

In total 13 amendments have so far been made in the Constitution of the Peoples Republic of Bangladesh. The first amendment was made in 1973. The amending Act called Constitution (First Amendment) Act, 1973 provides, amongst others, that no law providing for detention, prosecution, or punishment of any person, who is a member of any armed or defence or auxiliary forces or who is a prisoner of war, for genocide, crimes against humanity shall be deemed void or unlawful on the ground that such law or provision thereof is inconsistent with or repugnant to, any of the provisions of the Constitution.

The second constitution amendment was also made in 1973 by the Act called Constitution Second Amendment Act, 1973. This amending Act provides, amongst other things, that no person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest, nor shall be he denied the right to consult and be defended by a legal practitioner of his choice. If further provides that every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of twenty-four hours of such arrest excluding the time necessary for the journey from the place of arrest to the court of the magistrate, and no such person shall be detained in custody beyond the said period without the authority of the magistrate.

The third constitution amendment [The Constitution (Third Amendment) Act, 1974] refers to the agreement between the Government of India and Bangladesh concerning demarcation of land boundary between the two countries.

The fourth amendment was made by an Act called (Fourth Amendment) Act, 1975. This amending act provided, amongst other things, for the establishment of presidential form of government in place of parliamentary from. It further authorized the President to establish only one political party called "National Party" by dissolving all political parties in the country. The unique characteristic of the one party system was that any person in the service of the Republic made qualified to be a member of that National Party.

The fifth constitution amendment Act [Act no II of 1975] has protected, amongst others, all Proclamation, Martial law regulations, orders and other laws made during the period between the 15th August, 1975, and the 9th April, 1979.

The sixth constitution amendment Act provided that if a Vice-President is elected as President or if a President or a Vice-President is elected as Member of Parliament, he shall not be qualified to be member of Parliament until he ceases to hold office as President or Vice-President.

The Constitution (Seventh Amendment) Act 1986 raised the age of retirement of a Judge from 62 to 65 years. It has further protected all the Proclamations, Proclamation Orders, Chief Martial Law Administrators Orders, Martial Law Regulations, etc issued during the period from 24th March, 1982 and the date of commencement of the Constitution (Seventh Amendment) Act, 1986.

The Constitution (Eight Amendment) Act, 1988, provides, amongst others, that the state religion of the Republic is Islam, but other religion may be practised in peace and harmony in the Republic. It further provided that "Bangla" shall be inserted in the Constitution in place of "Bengali." It has also provided that the word "Dacca," shall be substituted by the word "Dhaka." It further provided that the High Court Division and the Judges thereof should sit at the permanent seat of the Supreme Court and at the seats of its permanent Benches. It also provided that the High Court Division shall have a permanent Bench at Barisal, Chittagong, Comilla, Jessore, Rangpur and Sylhet.

The Constitution (Ninth Amendment) Act, 1989 provided that the Vice-President of the Republic shall be elected in accordance with the law by direct election for a period of five years. If the Vice-President enters upon his office on any day after the date of entering upon the office by the President, the term of office of the Vice-President shall expire on the date of which the term of office of the President expires.

The Constitution (Tenth Amendment) Act, 1990 provided for the reservation of 30 seats for women members in Parliament for a period of 10 years beginning from the date of first meeting of the 5th Parliament and the election to these reserved seats shall be held through electoral college.

The Constitution (Eleventh Amendment) Act, 1991 provided for the return of Chief Justice Shahbuddin Ahmed to his original position in the Supreme Court of Bangladesh. He was also allowed to count the period of services rendered by him as the Acting President as the services in the office of the Chief Justice of Bangladesh for the purpose of leave, pension, etc.

The Constitution (Twelfth Amendment) Act, 1991, provided for establishment of parliamentary form of government in place of presidential form. It has also determined the mode of election to the office of President and other terms and conditions of his service as such.

The Constitution (Thirteenth Amendment) Act, 1996 has provided for the establishment of a Non-Party Caretaker Government for conducting general election freely, fairly and impartially.

The fourteenth amendment
The Government has since introduced a Bill proposing fourteenth amendment in the Constitution. This Bill through one of its proposal seeks to insert a new article namely 4A after the existing article 4 of the Constitution. Clause (1) of this new article proposes to provide that the "Portrait of the President shall be preserved and displayed at the offices President, the Speaker and all embassies and missions of Bangladesh abroad,". Clause (2) of the said article proposes to make provisions to the effect that the Portrait of the Prime Minister, shall be preserved and displayed at the offices of the President and the Speaker and in head and branch offices of all government and semi-government offices, autonomous bodies, statutory public authorities, government educational institutions, embassies and missions of Bangladesh abroad.

A close scrutiny of the aforesaid proposed provisions reveals certain anomalies. Firstly, no provision has been proposed for the preservation and display of the Portrait of the Prime Minister in his office though a proposal is there to preserve and display the same (Portrait of Prime Minister) at the offices of the President and the Speaker. Further, proposal has not also been made in the Bill for preservation and display of the Portrait of the President at the office of the Prime Minister. Secondly, though the President is the head of the state, the Bill does not propose for the display of his portrait at the head and Branch offices of all government, semi-government offices, autonomous bodies, statutory public authorities and government educational institutions. The proposals contained in the Bill for effecting amendments in the Constitution do not, therefore, seem to be sound, decent and just. Decency, justice and fair play demand that no law should be enacted that might be derogatory to the person holding the highest office in the Republic.

In this context it seems relevant to mention here that the preservation and display of portraits of the Head of the State as well as the Head of the Government has hitherto been regulated by the executive order of the Government. This has so far worked well. There is, therefore, hardly any necessity of making any constitutional provision in this behalf disrespecting the traditional method. The considered view on the proposal for constitutional amendment is that it will unnecessarily create political controversy.

The Bill introduced in the House further proposes insertion of clauses (1A) and (1B) under clause (1) of article 59 of the Constitution. Clause (1) seeks to provide that the elected persons of any local government shall not continue in office after the expiration of the term fixed by law and during the period from the date next after such expiration of the term till the date on which a new body reconstituted the local government of that administrative unit shall vest a in public officer appointed by the Government for the purpose. Further, Clause (1B) seeks to provide that election shall be held within ninety days after the date of such expiration to reconstitute the body with elected representatives.

The existing provisions under clause (1) of article 59 of the Constitution provides for running the local government of every administrative unit of the Republic by a body constituted with elected representatives. This is fine; but if this provision is to be respected, the election to a local body has to be held within two or three months ahead of the date of expiry of the term of the concerned local body. In such a case, the incumbent elected representatives in power shall have opportunity to manipulate the results of election in their favour. So, in the interest of free, fair, and impartial election, the proposal for running the local government by a public officer for a period of three months seems to be in line with the holding of general elections to parliament under the Non-Party Care-Taker Government. This proposal seems to be in order and deserve consideration.

The Bill in question also contains a proposal for reservation of forty-five seats for women members in Parliament for a period of ten years beginning from the next Parliament. It further proposes to fill up those seats by the votes of three hundred members of Parliament elected from the general seats.

In the context of the aforesaid proposal, it is mentioned that the proposal for reservation of 45 seats in Parliament and filling of those seats by the votes of three hundred members elected to Parliament from the general seats has already been rejected by the organizations representing the interests of women folk of the country. Currently, there are three separate demands from three separate groups of the women activists. One of the groups is demanding reservation of 150 seats in Parliament while another group is pressing for 100 seats. There is still another group who pleads for only 64 seats i.e. one seat for each district. But all the groups are united on the mode of election. They are persistently demanding direct election to the reserved seats on the ground that indirect election is not only undemocratic, but also makes the women members accountable to 300 members of Parliament elected from the general seats instead of making them accountable to the people of the constituency they will represent.

In addition, the procedure proposed in the bill for election of women members to reserved seats suffers from several serious defects. Firstly, it safeguards the interest of only the women activists of the major political parties at the cost of the activists of the minor political parties and the independent candidates. Secondly, the proposal is inconsistent with the principles of democracy and universal suffrage. Thirdly, the proposal is in violation of the pledge made by the major political parties on the eve of the last general election.

The proposal for holding election to reserved seats through electoral college formed with 300 MPs from general seats has apparently been made on the ground that direct election will, in addition to creating problem of campaign due to vastness of the constituency, create funding problem of unbearable magnitude for the women candidates. If this is the ground for holding election through electoral college, then it can be said that the ground is not well founded. If the history of 1954 general election in the then East Pakistan (now Bangladesh), is traced, it will be found that 10 seats were reserved for women in the Legislative Assembly of the then East Pakistan and those seats were filled in by direct election on the basis of separate electorate. At this time, the communication system was very poor; the financial condition of the women was unimaginable; politically and educationally they were much backward. Notwithstanding all these disadvantages, the women fought that election very successfully.

The country, at the moment, is connected with an efficient net-work of communication system; the percentage of literacy has by this time improved considerably; the financial and social conditions of the probable women candidates have also improved many times; politically they are now well trained and sufficiently experienced. There is, therefore, no justifiable reason for filling up the reserved seats through indirect election against the will of the women folk who represent 50% of total population of the country.

In view of the facts narrated hereinbefore, the proposal for indirect election has created a wide-spread impression that this is a calculated measure of the ruling party to accommodate their women activists in the Parliament to create a vote-bank for their convenient use as and when occasion arises. The proposal for distribution of the members elected to the reserved seats among the political parties in proportion to their representation in the Parliament is nothing but a clever attempt to cool down probable agitation against the proposal by the major opposition block.

In the circumstances, it appears to be fit and proper for the ruling party to honour their commitment for increasing the number of reserved seats and filling up those seats by direct election.

Under the existing arrangement, the members-elect of Parliament are to make and subscribe an oath before the outgoing Speaker and in his absence, before the outgoing Deputy speaker and in the absence of both of them before a person designated for the purpose by the outgoing Speaker. The proposal made in the Bill in this behalf is that if, within three days next after publication through the official gazette of the result of a general election of members of parliament, the person specified for the purpose or such other person designated by that persons for the purpose, is unable to or does not, administer oath to the newly elected members of Parliament, on any account, the Chief Election Commissioner shall administer such oath within three days next thereafter.

The proposal in the Bill for involving the Chief Election Commissioner in matter of administering the oath to the members-elect seems to be in order and be helpful in solving the problem if arises due to the inability of administering the oath to members-elect by the outgoing Speaker or the Deputy Speaker or by a person designated by him.

The author is a former Deputy Secretary of Election Commission.


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