Amending the Constitution (or putting the cart before the horse)

People are probably more interested in electricity and price issue than constitutional amendments. But let’s face it- politicians are taking about it, and so are we. Just to help an informed discussion, here are some facts in chronological order related to constitutional amendments in Bangladesh. It only lists events that are related to the current debate, not all amendments… and I am adding new info as I find them:

1972

The Constitution of Bangladesh was introduced. Article 7(2) of the constitution was set to establish the “Supremacy of the Constitution” as it reads-

7. (2) This Constitution is, as the solemn expression of the will of the people, the supreme law of the Republic, and if any other law is inconsistent with this Constitution and other law shall, to the extent of the inconsistency, be void.

While setting the procedures for constitutional amendments, the Constitution established supremacy of the act of parliament in this regard. The Article 142 of the 1972 Constitution noted-

142. Notwithstanding anything contained in this Constitution- (a) any provision thereof may be amended or repealed by Act of Parliament.

1973

The first Parliamentary Election was held on 07 March 1973. Sheikh Mujibur Rahman’s Awami League secured 276 of the 300-seat parliament (73.7% of total vote cast)…more than the required 2/3rd majority to amend the constitution.

The Constitution (First Amendment) Act 1973 was passed to add article 47(3) for the detention and trial of war criminals reducing their fundamental rights.


1975
Using the overwhelming majority in the parliament, Awami League passed the Constitution (Fourth Amendment) Act, 1975. Among other things, it introduced presidential form of government replacing the parliamentary system and imposed a one-party system in place of the existing multi-party political system.

On 15 August, Sheikh Mujibur Rahman was killed along with his most family members. The military proclaimed martial law in the country and suspended the Constitution with effect from August 15, 1975. Khondaker Mostaq Ahmad, x-minister of the assassinated leader’s cabinet, proclaimed himself the President.

The First Schedule of the Constitution was amended by the Second Proclamation Order no III of 1975.

1976

Under a proclamation issued on November 29, 1976, Justice Abusadat Sayem (who assumed the office from Mr Ahmad) handed over the Office of Martial Law Administrator to Major General Ziaur Rahman.

Proclamation Order no IV of 1976 was announced to replace the article 44 (on fundamental rights) of the Constitution.


1977

The new Chief Martial Law Administrator, Ziaur Rahman, announced a series of Martial Law Regulation to amend the Constitution of the country.

Proclamations Order No. 1 of 1977 amended, among others, Article 6 (the citizenship clause); Chapter I of Part VI (the Supreme Court); Article 44 of the Constitution.

The Proclamation also inserted Clause 3A in the Fourth Schedule of the Constitution, which reads–

The Proclamations of the 20th August, 1975, and 8th November, 1975, and Third Proclamation of the 29th November, 1976, and all other Proclamations and Orders amending or supplementing them, hereinafter in this paragraph collectively referred to as the said Proclamations and all Martial Law Regulations, Martial Law Orders and all other laws made during the period between the 15th day of August, 1975 and the date of revocation of the said Proclamations and withdrawal of Martial Law (both days inclusive), hereinafter in this paragraph referred to as the said period, shall be deemed to have been validly made and shall not be called in question in or before any Court or Tribunal on any ground whatsoever.

On 30 May 1977, Ziaur Rahman won 98.9 percent of votes in a referendum on his continuance as the President.

The effectiveness of the Constitution remained suspended by the Martial Law Regulation which continued to rule the country.

1978

On 3 June 1978, Ziaur Rahman won the second Presidential Election of the country securing 76% of total vote cast.

1979
On 18 February 1979, the second Parliamentary Election was held. Ziaur Rahman’s newly formed party, BNP own 207 of the 300-seat parliament (41.16% of total vote cast)… more than the required 2/3rd majority to amend the constitution. The parliament had the authority to bring new changes to the Constitution thenceforth.

It however passed the Constitution (Fifth Amendment) Act, 1979 to validate “suspension of the very constitution” and constitutional amendments made through Martial Law Regulation. In doing so, the Act amended the 4th Schedule of the Constitution to legalize all Proclamations, Proclamation Orders, Martial Law Regulations, Martial Law orders and other laws made during the period between the 15th August 1975, and the 9th April 1979 (both days inclusive).

1981
on May 30, 1981, Ziaur Rahman was assassinated along with bodyguards.

1982
Lieutenant General H M Ershad assumed power in a bloodless coup on 24 March 1982 and proclaimed himself Chief Martial Law Administrator. Ershad announced a series of Martial Law Regulation to amend the rules and Constitution of the country. However, the effectiveness of the very Constitution remained suspended by the Martial Law Regulation which continued to rule the country.

1986
On 7 May 1986, the third Parliamentary Election was held. Ershad’s newly formed Jatiya Party own 251 of the 300-seat parliament… more than the required 2/3rd majority to amend the constitution. The parliament had the authority to bring new changes to the Constitution thenceforth.

It however passed the the Constitution (Seventh Amendment) Act 1986 to ratify martial law orders and proclamations since 1982, including proclamation order that suspended the functioning of the very Constitution. The same Act also amended the retiring age of the Judges of the Supreme Court from 62 to 65.

1988
The Parliament passed the Constitution (Eighth Amendment) Act 1988 to amend
Article 100 of the Constitution to set up High Court Division outside the capital and authorising the President to fix by notification the territorial jurisdiction of the permanent Benches. The Act also made ‘Islam’ as the state religion.

1989
The A
nwar Hussain Vs. Bangladesh case made a landmark verdict whereby the amendment to the constitution (repeal of article 100) made by the parliament was ruled invalid by the Supreme Court. It observed that the “High Court division of the Supreme Court with judicial power over the republic is a basic structure of the constitution and that cannot be altered or damaged and therefore the impugned amendment is void.”

The government implemented the verdict by reviving the original article (no 100).

2005
On August 29, 2005, the High Court in a landmark judgment declared that the Fifth Amendment to the constitution is “illegal”. The Court observed that under the Article 142 of the Constitution, only Act of Parliament can amend the Constitution and Article 7 ensures the supremacy of the Constitution over all law and orders. These are basic structures of the Constitution can Fifth Amendment can’t validate Martial Law Orders that suspend the Constitution (which is in breach of Article 7); or all others amendments made to the Constitution through Martial Law Orders (which is in breach of Article 142 of the Constitution).

2010
Bangladesh Supreme Court’s Appellate Division retain’s High Court’s verdict with few modifications. Meanwhile, the High Court rules the Seventh Amendment of Bangladesh Constitution invalid on the same ground.

As the Judiciary rules the invalidity of the constitutional amendments invalid, government prepares to print the Constitution restoring the deleted articles and removing the new articles (by the now-invalid amendments).

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