Amendments, Commissions, Constitutions in a Country- Who is for Whom

Amendments, Commissions, Constitutions in a country- who is for whom

Collected by:

Md. Rezaul Karim, Assistant Professor, Southern University Bangladesh

Constitutional bodies usually enjoy peoples trust and confidence since these bodies are manned by respectable, non-partisan and neutral persons, having proven records of high morals, probity and integrity. The governments in such democracies do take special care while selecting individuals to run the constitutional bodies that are mandated to take decisions independently, without any fear or favour, even if such decisions on occasions embarrass the governments. Yet their institutional independence is upheld and regarded by all concerned. Fortunately Bangladesh, which claims to be a democracy, has a very poor scorecard as far as preserving the independence of its constitutional bodies, such as the Election Commission, the Public Service Commission and other statutory commissions, is concerned, although their independence is guaranteed by law. In a bid to maintain control over the activities and decision-making processes of such bodies, successive governments appointed individuals who, in many cases, were found to be more loyal to the party-in-power than the Constitution. When political loyalty takes precedence over qualities such as morality, honesty and integrity while selecting people for very responsible positions in the constitutional and statutory bodies, one can hardly expect their decisions to be not influenced by direct or indirect government interference. This situation seems to have been aggravated in recent years, leading to a loss of people’s trust and confidence in the independent commissions and constitutional bodies.

In such a backdrop, the Bangladesh Chapter of Transparency International (TI-B) recently carried out a study on the process of appointing chairmen and members to these bodies. Based on the findings of this study report, a host of measures have been recommended by the TI-B to make the process transparent enough so that competent, non-partisan and neutral people, having the right kind of professional competence and high moral integrity, are appointed to the constitutional and statutory commissions, without interference by the political authorities in power. The report has pointed out some of the lacunae in the existing system that creates the scope for the government to meddle in the selection process for the top positions of the constitutional and statutory bodies. The TI-B recommends forming a special parliamentary committee, headed by the Speaker of the House and represented by an equal number of members from both ruling party and opposition in parliament, to oversee the appointment of key personnel to these bodies. However, it is difficult to predict, considering the functioning of the parliament and its different standing committees, under the circumstances prevailing in the country, whether entrusting a parliamentary committee with the job would at all be able to achieve the desired goal. Much would depend here on the mindset of those who are placed in privileged positions to call the shots in the political power-game. If this mind-set is not positive enough to let democracy function in the way it should- to help establish the rule of law and promote transparency and accountability in the true sense – the independence of constitutional bodies and commissions will remain a pious wish, only making a mockery of real democracy.  

Law derives its authority from obedience of people. This universal philosophy of law was reflected in Bangladesh’s Constitution in Article 21 that says: ‘It is the duty of every citizen to observe the Constitution, the laws and to maintain discipline.’ But the nation’s constitutional history shows how mighty people exercising state power disobeyed and disregarded the constitution, the country’s supreme law, only for their own political purpose.  Again, all successive governments in the past brought amendments to the constitution, paying no heed to the true spirit of amendment.  Article 142 gives power to the parliament to amend any provision of the constitution by way of addition, alteration, substitution or repeal. Legal experts state that a constitution is meant to be permanent, but as all changing situations cannot be envisaged and amendment of the constitution may be necessary to adopt the future developments, provision is made in the constitution itself to effect changes required by the changing situations.

But, nothing was able to prevent the political governments and particularly military rulers from undermining the supremacy of the constitution. Hence, the changes contributed little towards further advancement of the country’s citizens and further refinements of their constitutional position. If one goes through all the amendments, including the latest one, s/he must be shocked by the fact that how a better constitution enacted in 1972 was gradually damaged and largely lost its authority due to lack of obedience to it. Of the 15 amendments, the Supreme Court has already declared three amendments — the 5th, 7th and 13th – completely illegal and void as those either destroyed or were against the basic structure of the constitution.

The 5th and 7th amendments passed in 1979 and 1986 respectively ratified all orders and actions of the first and second martial law regimes, which were nothing but absolute disobedience of the constitution. But both the amendments were made abusing the parliament’s authority to validate the regimes as a whole. The 13th amendment passed in 1996 introduced the election-time caretaker government system amid growing distrust and confrontational culture of politics over the polls. The apex court also declared the 8th amendment partly illegal and void as it destroyed one of the basic structures of the constitution by introducing a provision for setting up permanent benches of the High Court in six other places outside the capital.

Remaining part of the 8th amendment which gave Islam’s status as state religion also became infractuous as the latest 15th amendment replaced it with a new provision in the constitution. The 15th amendment also deleted completely the 11th amendment that ratified Justice Shahabuddin Ahmed’s extra-constitutional appointment as the vice-president, and the powers exercised and laws and ordinances made during the tenure that began after the fall of Ershad’s regime in 1990. The 11th amendment made in 1991 wrongly ratified Justice Shahabuddin’s regime. There are some other significant amendments that did not fortify the constitution, rather contributed much to subvert it. Soon after the constitution became effective in December 1972, the second amendment was brought in 1973, introducing a provision for declaring a state of emergency by the president, which was not included in the original constitution. The amendment also empowered the president to suspend people’s fundamental rights during emergencies.

Passage of the fourth amendment in 1975 was an attack on the constitution. In Hamidul Huq Chowdhury Vs. Bangladesh case, the Appellate Division of Supreme Court observed: ‘The first three amendments do not appear to have altered the basic structure of the constitution. But the fourth amendment of the constitution clearly altered the basic structure of the constitution.’ The 4th amendment made a drastic inroad into the independence and jurisdiction of the judiciary. A one-party state was established. Presidential form of the government was introduced discarding the parliamentary form. Interestingly, the 6th amendment was brought to the constitution in 1981, allowing the then vice-present Justice Abdus Sattar to contest the presidential election without resigning from the post of vice-president.

Only the twelfth amendment made in 1991 did some positive thing by restoring the parliamentary form of government, which had been transformed into the presidential form by the fourth amendment. The fourteenth amendment was made in 2004. It generated huge controversy as it increased the service age of Supreme Court judges by two years. The then opposition parties alleged that the government increased the service age of judges to make it legal for then Chief Justice K.M. Hasan to lead the upcoming caretaker government. They refused to accept Justice Hasan as the caretaker chief, which led to a political turmoil by the end of 2006 and a state of emergency was declared in January 2007. Even the 15th amendment is not free from the long legacy of making the constitution subject to the whimsical will of mighty people. This amendment inserted an absurd provision by imposing a ban on amending the constitution’s preamble, including unspecified basic structure and a large number of specific provisions. It also imposed ban on a just introduced provision which makes it mandatory to display the portrait of Father of the Nation Bangabandhu Sheikh Mujibur Rahman in all government offices.

Introduction of the 15th amendment is being blamed for blocking the future parliament’s authority to bring amendments to those specified provisions. This means even if a future parliament wants to fortify the constitution and strengthen people’s fundamental rights, it cannot do so as the 15th amendment made un-amendable all the provisions stated in the fundamental rights and fundamental state principles. But, in contrast to that, the 15th amendment took a bold step against suspension or cancellation of any provision of the constitution by unconstitutional means or show of force. It introduced a provision for stringent punishment for such moves, terming those as “sedition.”  It criminalizes the abrogation, repeal or suspension of the constitution by means of show of force or use of force or by any other unconstitutional means. The way the provision was introduced in the constitution drew widespread criticism as many people fear its ill-motivated use against political opponents by giving wrong interpretation. It is true that it is not possible to ensure honour to the constitution by only putting pressure or making stringent provisions. It of course needs to ensure practice of democracy wholeheartedly.