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June 13, 2004

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14th amendment of the Constitution: A legal view

Barrister Harun ur Rashid

The 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 Law Administrator.

Core 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.

Why 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.

Limitations 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:

Reservation 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.

Women empowerment 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.

The reservation 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."

The reservation 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.

Display 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.

Raise 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.

Empowerment 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.

Concluding remarks
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.

Barrister Harun ur Rashid is Former Bangladesh Ambassador to the UN, Geneva.


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