[🇧🇩] Everything about our constitution

[Saif]

Perpetrators of July-August violence will be excluded from constitutional reform process: Ali Riaz

Head of the Constitution Reform Commission Prof Ali Riaz yesterday said individuals, organisations, institutions or parties who were actively involved in the killings during the July-August student uprising will not be included in the constitutional reform process

www.thedailystar.net

Perpetrators of July-August violence will be excluded from constitutional reform process: Ali Riaz

Head of the Constitution Reform Commission Prof Ali Riaz yesterday said individuals, organisations, institutions or parties who were actively involved in the killings during the July-August student uprising will not be included in the constitutional reform process.

In a written address at a briefing of the Constitution Reform Commission held at the LD Hall of Parliament, Prof Riaz said that the commission will seek insights from a broad spectrum of stakeholders, including legal experts, civil society leaders, youth activists, and cultural representatives. "We will also hold discussions with representatives from the Anti-Discrimination Student Movement and the National Citizen Committee," he said.

He further clarified the commission's commitment to neutrality, explaining, "The Reform Commission will not engage directly with political parties but will request written opinions and specific proposals."

At the briefing, chief adviser's special assistant Mahfuj Alam said that constitutional questions emerged with the call for a new political settlement in Bangladesh.

"When the one-point demand was announced, it was stated that the old political settlement would be rejected in favour of a new one. This, essentially, means a new constitution," said Mahfuj Alam. "Hearing this, the people of Bangladesh were inspired to mobilise."

As a member of the commission, Mahfuj emphasised that the commission's recommendations are intended for implementation by the current interim government. Responding to questions about who would carry out the commission's recommendations, he clarified, "It's a political decision. But if I may speak as a student representative, I am confident this government will implement it. Why wouldn't it?"

He acknowledged the unique nature of the interim government, noting, "This government may be unelected, but it represents the people under exceptional circumstances. In this scenario, terms like 'parliament,' 'election,' and 'elected' carry less weight."

He outlined that after the commission submits its proposals, political parties will be invited to discuss and contribute to the implementation process. "There will be participation from political parties," he said, assuring that the process would involve collaboration.

The commission is charged with reviewing, amending, and potentially rewriting the current constitution to better reflect public aspirations.

"The commission will consider equality, human dignity, social justice, and the foundational goals of the Liberation War, aiming to establish a non-discriminatory democratic state," Prof Riaz said, outlining primary objectives for reform.

These include establishing a participatory democracy, ensuring meaningful political involvement, preventing the emergence of authoritarian regimes, balancing the powers of government branches, decentralising authority, and safeguarding the independence of key institutions.

To encourage public involvement, he announced that a dedicated website will go live Tuesday, allowing citizens to submit their suggestions.​

 

[Saif]

Enforcing economic and social rights through constitutional interpretation

The judiciary has a critical role in interpreting the economic and social rights as essential to achieving the preamble’s broad aims.

www.thedailystar.net

Enforcing economic and social rights through constitutional interpretation
The Preamble of Bangladesh’s Constitution, as an internal aid to interpretation, captures both the struggles of the past and the aspirations for the future, offering a profound guide to interpreting economic and social rights.

FILE VISUAL: STAR

As we remember the 52nd anniversary of its constitution, we are reminded of our nation's enduring pursuit of justice, equality, and freedom. However, the constitution's promises of economic and social rights, enshrined in our foundational principles, remain non-justiciable, ostensibly leaving the judiciary without a clear mandate to enforce them. It is a fitting time to explore how these rights, if properly interpreted and applied, could become enforceable by using internal and external interpretative aids, aligned with both the intentions of the constitution's framers and the needs of the people today.

The Preamble of Bangladesh's Constitution, as an internal aid to interpretation, captures both the struggles of the past and the aspirations for the future, offering a profound guide to interpreting economic and social rights. Declaring as a fundamental aim of the state the assurance of "fundamental human rights," the preamble does not differentiate between civil-political and socio-economic rights. This non-differentiation aligns economic and social rights—like social and economic freedom, justice, and equality—with the core duties of the state. Thus, implementing these rights is not an optional exercise but a fundamental obligation underlined by the preamble. The state's duty, as expressed here, is not limited to declarative aspirations; rather, it charges the judiciary, vested with the power of judicial review, to ensure the enforcement of these rights wherever possible.

By referring explicitly to socio-economic ideals like social freedom, economic freedom, and justice "to be secured for all citizens," the preamble urges the judiciary to concretise these goals in real situations. The judiciary, therefore, has a critical role in interpreting and applying these principles, recognising economic and social rights as essential to achieving the preamble's broad aims.

The guiding function of Article 8(2) of the constitution, which mandates that the principles of state policy "shall be a guide to the interpretation of the Constitution and the other laws of Bangladesh," further empowers the judiciary. This phrase effectively grants the judiciary latitude to interpret any law or constitutional provision through the lens of these fundamental principles, bridging the gap between justiciable and non-justiciable rights. By engaging with the broad aims of Article 8(2), the judiciary can evaluate and analyse not only constitutional provisions but also the nation's laws to advance socio-economic rights.

This interpretive flexibility opens pathways for judicial action, allowing the courts to align statutory interpretations with the broader constitutional goals laid out in Article 8(2). The judiciary's responsibility extends beyond passive recognition of these rights; it encompasses an active role in evaluating provisions and laws in ways that fulfill Bangladesh's fundamental objectives. This interpretive scope requires judges to construe economic and social rights as integral components within the larger structure of justiciable rights and constitutional governance.

The conventional positivist approach interprets constitutional provisions in isolation, which has often restricted the enforceability of economic and social rights. In contrast, a structuralist approach, which emphasises the interdependence of constitutional provisions, reveals a more integrated understanding. Economic and social rights, when interpreted as essential components of broader, enforceable rights, enhance the holistic realisation of justice, equality, and social welfare. For instance, the right to life and personal liberty cannot be fully realised without adequate access to healthcare, education, and shelter—socio-economic rights that are essential to human dignity.

Judicial structuralism encourages a reading of the constitution that aligns enforceable and non-enforceable rights, allowing courts to implement the broader aims set forth by the framers. By interpreting the constitution as an interconnected whole, judges can move beyond the confines of positivism, recognising economic and social rights as foundational to fulfilling the constitution's promises.

While internal aids provide a starting point, external aids also play a crucial role in interpreting socio-economic rights. It is a common interpretative rule that, where language is clear, external aids are unnecessary. However, this approach guided by the positivist school, can overlook broader contextual meanings and legislative intent, potentially missing nuances essential to fulfilling constitutional objectives. Incorporating external aids enriches judicial interpretation, enabling a fuller understanding of statutory objectives, even when the text appears to have a straightforward meaning.

For Bangladesh, these external aids include the historical milestones that shaped the nation's identity and constitution. The War for Liberation in 1971 represents the culmination of a series of significant events, including the Language Movement (1948-1952), the United Front's victory in the 1954 provincial election, the 21-point programme, the 11-point demands, and the Proclamation of Independence. Each of these historical elements captures the evolving aspirations of the people, particularly the commitment to economic and social equality. Post-liberation documents, speeches, and debates from the Constituent Assembly also provide essential context to understanding these rights and underscore the importance of upholding the constitution's socio-economic ideals.

Certain constitutional terms—such as "material and cultural standard of living," "reasonable wage," "reasonable rest, recreation and leisure," and "progressively remove the disparity in the standards of living between the urban and the rural areas"—invite judicial interpretation to define their practical scope. The judiciary, guided by these broader contextual frameworks, has the responsibility to ascertain the most suitable remedies, as these rights speak directly to the needs and aspirations of the people. By grounding judicial interpretations in the historical and constitutional legacy of Bangladesh, judges can justifiably use external aids to interpret these terms in ways that fulfill constitutional objectives.

The framers' intention to address socio-economic justice as a core constitutional goal can be advanced by reading these principles alongside the constitution's mandates for justiciable rights, such as those in Articles 102(2), 111, and 104. Through this combined approach, the judiciary can recognise socio-economic rights as not merely aspirational, but as enforceable components that are vital to achieving the constitution's vision.

To ensure that economic and social rights become part of Bangladesh's enforceable legal framework, it is essential to interpret Article 8(2) in relation with Articles 102(2), 111, and 104. Article 102(2), which empowers the High Court Division to issue writs, allows for indirect protection of economic and social rights when aligned with fundamental rights. Article 111, ensuring binding precedents, enables the judiciary to create lasting interpretations. Article 104 further provides the Supreme Court discretionary powers to do complete justice in any cause or matter pending before it, a mandate that can encompass economic and social concerns.

Together, these provisions support a judicial approach that is both responsive and innovative, one that actively integrates economic and social rights as part of the broader constitutional commitment to justice. The judiciary, by exercising these powers, can embody the constitution's original aims, aligning its interpretations with the ideals of democracy, equality, and social progress.

Today discussions around reforming, or rewriting the original Constitution of 1972 are more prominent than ever. Whatever direction future changes may take, one principle must remain unwavering: the prioritisation of economic and social rights. These rights form the core of our constitution's commitment to justice, equality, and dignity. By embracing both internal and external aids to interpretation, the judiciary has a crucial role in transforming these rights from aspirations into enforceable guarantees, ensuring they retain the prominence our founders envisioned. Through this interpretative approach, the judiciary can honour the constitution's legacy while advancing Bangladesh's foundational commitment to the welfare of all its citizens.

Snehadri Chakravarty is advocate at the Supreme Court of Bangladesh.​

 

[Saif]

Experts debate constitutional reforms, call for consensus

Legal and academic experts at a discussion on Monday underscored the need for a constituent assembly and a national consensus to amend the constitution, raising questions about the...

www.newagebd.net

Experts debate constitutional reforms, call for consensus
Staff Correspondent 04 November, 2024, 23:58

Legal and academic experts at a discussion on Monday underscored the need for a constituent assembly and a national consensus to amend the constitution, raising questions about the interim government’s mandate to make such changes.

The remarks came during a discussion organised by Bangladesh Ganatantrik Ainjibi Samiti, a platform of left-leaning lawyers, to mark November 4 as Constitution Day.

At the event eminent jurist Dr Kamal Hossain called for public discussions to assess and address any potential shortcomings in the constitution, suggesting that amendments might be necessary if gaps were identified.

Fellow jurist Shahdeen Malik, however, expressed scepticism regarding the feasibility of interim government-led constitutional reforms, cautioning that these efforts might face significant obstacles.

Dr Kamal said that public opinion must be cultivated through open discussions to address the issues, if any, needing correction.

Having urged that any move towards amendment should be grounded in widespread public consensus to reflect the people’s will, the eminent jurist stressed that with the support of a two-thirds majority of the people, the constitution could be amended to resolve identified shortcomings.

Shahdeen Malik criticised Bangladesh’s repeated shifts in governmental structure without addressing the core state issues.

‘Bangladesh is a country where the form of government has been altered repeatedly blaming the government structure for all the troubles, instead of addressing the root problems of the state,’ Shahdeen Malik stated.

While he advocated for a constituent assembly to draft or amend the constitution through broad national consensus, he also expressed doubt whether such consensus could be achieved at all.

Former Dhaka University history professor Syed Anwar Husain remarked that the interim government had the authority only to propose constitutional amendments.

But Supreme Court Bar Association president AM Mahbub Uddin Khokon said that the interim government held the mandate neither to amend the constitution nor to rewrite it since the students did not give it the mandate to reform the state.

Senior lawyer Subrata Chowdhury called on the interim government to designate April 10 as ‘Republic Day’ to honour the formation of Bangladesh’s first government on that date.

He criticised the interim government’s decision cancelling November 4 as Constitution Day, expressing concern over diminishing recognition of key historical milestones of Bangladesh.​

 

[Saif]

Why and how can a constitution be created?

The Students Against Discrimination, a movement that led the former prime minister Sheikh Hasina to flee the country, demanded a new constitution, repealing the...

www.newagebd.net

Why and how can a constitution be created?
by Abuzar Gifari 07 November, 2024, 00:00

The Students Against Discrimination, a movement that led the former prime minister Sheikh Hasina to flee the country, demanded a new constitution, repealing the existing one. On some legal grounds, I fully agree with this demand. Firstly, the legality of the interim government, formed following a successful mass uprising in July-August, may be questioned under the existing Constitution of Bangladesh. There is no provision for establishing an interim government in the constitution. So, the Supreme Court of Bangladesh, the guardian of the constitution, has scope to declare this government unconstitutional in the future following the 5th and 7th amendment cases. Secondly, the existing constitution can no longer be amended because of Articles 7A and 7B. Article 7B limits the parliament from amending two-thirds of articles of the constitution, including Articles 7A and 7B. These limitations are considered ‘constitutional handcuffs’. Further, Article 7A prescribes capital punishment for whoever abrogates, repeals, or suspends the constitution or its any provision by any unconstitutional means. Thirdly, the current constitution consists of many undemocratic and anti-people provisions, including floor-crossing, preventive detention, emergency provisions, unenforceable fundamental rights, etc. Last but not least, there is a constitutional vacuum at this moment in various sectors. For example, it’s unclear to whom the president will resign, how the next election will be organised, etc. Additionally, the constitution can only be amended by the parliament. But no parliament exists at this moment. Who will then amend the constitution? To fill such a different vacuum, ‘people’s will’ should be taken into consideration. Therefore, I think it is inevitable to draft a new constitution to validate the current government, to fill up the constitutional gap, and to keep the spirit of the July revolution intact.

A bundle of questions may arise. Such as, can the current government draft the constitution? How can a constituent assembly be made? How can the people’s will be included in the constitution? This write-up tries to find the answer to these questions from the global constitutional gene pool.

No doubt, most of the constitutions of the world are created by the constituent assembly. Such as the American Constitution, the French Constitution, the Bangladesh Constitution 1972, etc. Contrarily, some constitutions are made by a single political actor. These types of constitutions are usually created in authoritarian regimes or during periods of significant political upheaval. For example, the Constitution of the Soviet Union (1924). After the Russian Revolution, Vladimir Lenin and the Bolshevik Party created this constitution by a small group of leaders, reflecting the party’s ideology and goals, without substantial input from the general populace or other political factions. Furthermore, Kim Il-Sung and the Workers’ Party of Korea established the first constitution, the Constitution of the Democratic People’s Republic of Korea 1948, which reflected the leader’s ideology. Bangladesh is not now governed by any autocratic regime, so there is no option to create a constitution other than by the constituent assembly.

Jon Elster observed in his article ‘Forces and mechanisms in the constitution-making process’ (1995) that the constituent assembly has two kinds of constraints while making a constitution. Upstream and downstream constraints. Upstream constraints are imposed by the upstream actors, i.e., the creator of the constituent assembly. A constituent assembly is usually created by two means. On one side, there is the authority or person who decides to establish a constituent assembly. In 1787, this decision was made by the Continental Congress in the United States. In France, the King made the decision in 1789. In Germany in 1949, the Western occupying powers made the decision. On the other side, there’s the process for choosing the representatives for the assembly. In the US and Germany, the state legislatures picked the delegates. In Bangladesh, the constituent assembly was formed consisting of the elected representatives of the 1970 election, which falls under the second category. The people or groups that organise the assembly often try to set limits on how it works or what the constitution should include. For example, the Continental Congress told the Federal Convention to suggest changes to the Articles of Confederation, not to create a completely new constitution. On the other hand, downstream constraints occur when a proposed document must be approved by another group. The people drafting the document are limited by what they know about the preferences of that group. For example, in the US, since the constitution needed approval from the states, the drafters couldn’t disregard the states’ interests.

However, in his article ‘Importance of constitution making’ (2011), David Landau found the biggest risk in creating a constitution, that strong individuals or political parties can use either genuine or fake majorities to force their version of the constitution on everyone else in society. So, he urged constitutional theorists to construct a model that will obstruct the new authoritarian or semi-authoritarian regime that comes after a revolution. Since the interim government of Bangladesh or the next elected government will have a chance to become autocratic, the people’s will must be taken into account in an effective way, like a referendum.

As per the above practices and observations, it can be argued that the interim government can be given power to select delegates of the constituent assembly, and later such a constitution should be ratified by the elected representatives or by referendum. Therefore, the assembly must consider the interests of the ‘people’ without whose ratification the constitution will not come into effect.

Abuzar Gifari is a lawyer and research officer at the International Institute of Law and Diplomacy.​

 

[Saif]

What is constitutional reform, how this to be carried out?

The Constitution Reform Commission, formed on 6 October, will provide necessary recommendations for constitutional reforms after reviewing and evaluating the existing constitution, according to a gazette issued by the government. So the commission does not have the authority to draft a new...

en.prothomalo.com

What is constitutional reform, how this to be carried out?
Ridwanul Haque
Updated: 06 Nov 2024, 16: 44

After the successful revolution of July-August, public gathering in the National Parliament. They are now facing a new Bangladesh on 5 August.Shuvra Kanti Das

The Constitution Reform Commission, formed on 6 October, will provide necessary recommendations for constitutional reforms after reviewing and evaluating the existing constitution, according to a gazette issued by the government. So the commission does not have the authority to draft a new constitution.

The process for constitutional reform – whether through a new constitution or amendments – has not been decided yet. However, one of the main coordinators of the Students Against Discrimination (SAD) has already presented a five-point demand for state reform. Their first demand is to abolish the 1972 constitution and draft a new one.

With a few exceptions, the power and authority to create a new constitution lies with the constituent assembly or a constitution council. The power to amend the constitution rests with parliament. The 1972 constitution chose the parliamentary democracy system as the method of governance for the state.

The people were recognised as the ultimate source of power. The four fundamental principles - democracy, socialism, Bengali nationalism, and secularism - were established as the constitutional identity. The constitution safeguards the fundamental human rights of citizens and grants the High Court the power to enforce these rights.

The journey of the constitution, which promised a bright future, faltered within two years. In January 1975, through the Fourth Amendment, a one-party BAKSAL system was established. A presidential system, characterised by strong authoritarian rule, was introduced overnight. Freedom of speech, press freedom, and citizens’ rights were suspended, and the judiciary became subordinate to the president.

Was this significant change or constitutional decline a result of the weaknesses of the 1972 constitution? I believe this change was made possible by certain constitutional and extra-constitutional factors.

First, then prime minister Sheikh Mujibur Rahman misused his charismatic leadership.

Second, parliament abused its power to amend the constitution due to its majority.

Third, article 142, which outlines the process for constitutional amendments, was flawed. In that system, there was no provision for a referendum or broad public consultation before amending the constitution’s fundamental principles.

Fourth, article 70, which imposes restrictions on voting against one's party, prevented the rise of opposition voices in parliament.

Fifth, there was no democracy within the ruling party, and the “one leader, one nation” mentality encouraged nepotism in governance.

Less than seven months after the four amendments, Sheikh Mujibur Rahman and his family were brutally assassinated on 15 August 1975. From then until 6 December 1990, military governments ruled the country. During this period, the state was governed by a presidential system.

Between 1975 and 1990, some hopeful reforms were made to the constitution and the constitutional system. Although democracy was absent and elections were controlled and manipulated by the governing party, key reforms included giving various political parties space to engage in politics, and the formation of the BNP and Jatiya Party, which led to political competition.

Another significant change was the alteration and revision of the four fundamental principles. Instead of Bengali nationalism, Bangladeshi nationalism was introduced, which made indigenous and non-Bengali communities feel more at ease. Although controversial, the recognition of Islam as the state religion, replacing secularism, satisfied Islamist parties. However, the ruling elite made these changes primarily to serve their political interests.

Another notable reform was the introduction of a referendum for amendments to the constitution, including those concerning the form of government and other key principles.

The political plurality that emerged during this time led to the popular anti-authoritarian movement, which forced president Ershad to resign in December 1990. This culminated in the establishment of a democratic government through free and fair elections under the leadership of the interim president Shahabuddin Ahmed in February 1991. The BNP formed the government, and the Awami League emerged as a strong opposition.

In a historic and unique moment in the country's politics, all political parties agreed to reinstate the parliamentary system of governance through the 12th Amendment. This amendment also retained the provision for a referendum on constitutional amendments, albeit with some modifications.

Unfortunately, despite the promising restoration of democracy in 1991, the BNP government, towards the end of its tenure, began to manipulate the electoral system in an effort to regain power. Eventually, due to the strong stance, struggle, and firm demands of the Awami League, the BNP established a caretaker government system through the 13th Amendment.

In the 1996 elections held under this caretaker system, the Awami League won and formed the government. After the end of that government’s term, another caretaker government oversaw the 2001 elections, in which the BNP returned to power.

The next election, originally scheduled for 2006, faced complications when the BNP increased the retirement age for Supreme Court judges through the 14th Amendment. Their intention was to appoint the most senior judge, justice KM Hasan, as head of the caretaker government. The Awami League opposed this, resulting in a new political crisis.

With indirect military intervention, a caretaker government was formed. This government, which stayed in power for two years instead of the constitutionally prescribed 90 days, held parliamentary elections in December 2008. In those elections, the Awami League won by a landslide and formed the government.

From the 1991, 2001, 2006, and 2008 elections, we observed that the BNP and the Awami League alternated in power, with neither party serving two consecutive terms. After the 2008 elections, the Awami League formed the government in January 2009. Over time, prime minister Sheikh Hasina began influencing and corrupting the democratic and constitutional institutions.

Ridwanul Haque

At one point, the Awami League with an evil design unilaterally abolished the caretaker system from the constitution in 2011. This was done under pressure from the courts, which had ruled against it, and with the backing of the then chief justice, who was reportedly involved in a self-serving conspiracy. In 2010, the Supreme Court’s Appellate Division declared the caretaker government system unconstitutional, with a 4-3 verdict.

Predictably, the BNP boycotted the 2014 elections, and the Awami League formed a government through a largely unopposed, one-sided election. No opposition parties were present in Parliament, and the Jatiya Party was coerced into participating, later joining the government as a partner.

The country essentially returned to a one-party system without changing the constitution. Over the past decade and a half, Sheikh Hasina became an authoritarian leader, consolidating power through patronage networks in the party, administration, police, and other state institutions. This led to massive corruption, especially in political, financial, and constitutional areas.

The elections of 2014, 2018, and 2024 were marred by fraud, looting, and manipulation, destroying the electoral system. In the 2018 elections, the BNP was left with only 6-7 seats. Opposition parties were silenced through repression, disappearances, and killings, while millions of crores of public money were siphoned off through corrupt business networks. Like any autocrat who becomes crazy to stay in power, the ruling party Awami League, the police and the administrative officials were indulged in unlimited corruption at all levels.

In such a context, the country saw the appointment of a former officer from the controversial S Alam Group as President, who had previously served as a commissioner in the Anti-Corruption Commission.

This system is inconsistent and contradictory. In practice, neither the prime minister nor the cabinet is accountable to parliament. Judicial power lies with the judiciary, and legislative power resides in parliament, so the executive power should not be concentrated in a single individual.

In a democratic system, the prime minister holds the highest position among the executive leaders. Our current constitution deviates from this principle. Moreover, there is no limit on how many terms a person can serve as the prime minister. During the adoption of the 1972 constitution, discussions had taken place on this matter, and senior members considered the parliamentary power to remove a prime minister through a no-confidence vote as a safeguard against authoritarianism.

However, it is well-known that in our political culture, parliament lacks the opportunity to become a powerful institution. Key reasons for this include article 70, lack of internal democracy within political parties, and clan-based party politics. Another major flaw is that the constitution did not establish binding rules for political parties.

Article 70's restrictions on MPs voting freely must be abolished to ensure political pluralism and empower parliament. Two key reforms are urgently needed to ensure executive accountability and parliament’s empowerment: 1) A limit on the number of terms a prime minister can serve, and 2) Reducing parliament's term from five to four years. Additionally, the independence of the judiciary should be ensured by democratising the appointment and removal of judges and embedding this process in the constitution.

There is an important and different issue concerning the current constitution's weakness, which needs addressing: Bengali nationalism. Bengali nationalism is an authoritarian concept and is contrary to inclusive democracy and constitutionalism. The 1972 constitution failed to recognize indigenous and non-Bengali communities and excluded them from the constitutional definition of the people. The armed struggles in the Chittagong Hill Tracts in the 1970s were a direct consequence of this constitutional exclusion.

Many argue that there was no balance of power between the president and prime minister. I disagree with this opinion. In a parliamentary system, there is no need for a balance of power between the president and the prime minister. The real issue is the lack of balance of power between the legislature, executive, and judiciary. Under the current constitution, the judiciary cannot exercise its power independently, and the appointment of judges is controlled by the government. Over the years, we have witnessed the government's influence over the appointment and removal of judges.

There is no doubt that certain inherent weaknesses in the constitution have helped the prime minister become increasingly authoritarian. However, a comparison between the past 15 years of the Awami League government and the post-1990 Awami League and BNP governments presents a different picture. Under the same constitution, the government of Sheikh Hasina from 1996 to 2001 was not authoritarian. After being democratically elected in 2009, it was only after a couple of years that Sheikh Hasina gradually steered Bangladesh towards authoritarianism. The flaws in the amendment process of the constitution, which were present in the original document, were first addressed during Zia's time and later through the 12th Amendment, based on political unity.

Certain provisions of the constitution, particularly the requirement for a referendum for amendments (Article 142), were initially established. However, the Awami League government ignored this and, through the 15th Amendment, illegally altered or abolished fundamental provisions of the constitution, most notably the abolition of the caretaker government system, which amounted to a form of constitutional deception.

It wasn't just the Awami League; the BNP had also amended the constitution to serve its own interests and to undermine its opponents. Therefore, the process of constitutional amendments should be critically examined.

The current demand for a new constitution does not provide any clarity on the method. I do not believe a new constitution can be created without forming a Constituent Assembly. My reasoning for this stance is that the force and rationale behind the revolution of July (2024) is different from the force and cause of the 1971 liberation war.

After the great Liberation War of 1971, Bangladesh adopted its constitution through a Constituent Assembly (not a parliament) formed through free and fair elections. The Proclamation of Independence issued by the Constituent Assembly before the constitution came into effect on 16 December 1972, served as the temporary constitution. That constitutional assembly was formed on the basis of election.

In the current political context, if we are to create a new constitution or amend the existing one for constitutional reforms, we must move towards a broader political consensus. Political parties are essential for constitutional politics and governance. They represent the 'constitutional people' or citizens and act as agents of the people. Political parties are the foundation of democracy, and they provide the means for the people's participation in state affairs.

Therefore, in the interest of sustainable constitutional reforms, all political parties must reach a minimal consensus on two key issues: First, what reforms do they want in the constitution? Second, what method should be followed for those reforms—whether to create a new constitution or amend the existing one?

The Students Against Discrimination could play a role in encouraging and bringing political parties together. If all parties unite, a constitutional council could be formed before the next elections to begin the process of reform.

After the July revolution, we, as a nation, have truly arrived at a unique constitutional moment. This revolution, a people's uprising, is distinct from other popular movements or uprisings in post-1971 Bangladesh. However, everyone involved must remember that any constitution will only work when all the forces within society, all stakeholders, and institutions accept and abide by it. This is why we must rely on political parties and other political-social forces, and ensure the democratisation of political parties. The people must take their rightful role as the ultimate holders of state power—not as servants or subordinates of political parties or the ruling authorities.

* Ridwanul Haque: Associate Dean at a higher education institution in Melbourne; former Professor at the Department of Law, University of Dhaka.

** This article has been rewritten in English by Rabiul Islam​

 

[Saif]

‘Caretaker govt, 2-term limit for prime minister’

Propose eminent citizens to constitutional reform commission

www.thedailystar.net

‘Caretaker govt, 2-term limit for prime minister’
Propose eminent citizens to constitutional reform commission as changes

It is important to follow due process in consultation with the constitution in each step towards achieving reforms. FILE PHOTO: STAR

Eminent citizens yesterday proposed the restoration of the caretaker government and introduction of a bicameral legislature in the constitution while holding meetings with the constitutional reform commission.

They also proposed limiting the tenure of a prime minister to two terms and a balance of power between the president and the PM.

They said this while attending separate meetings held in the parliament building.

Prof Robaet Ferdous and Dilip Kumar Roy placed written proposals on behalf of Shushashoner Jonno Nagorik at one of the meetings. Later Shujan secretary Badiul Alam Majumdar explained the details of the demands.

According to the meeting sources, Shujan proposed the restoration of the caretaker system in the constitution, but the judiciary should not be included in it.

It proposed that the tenure of the caretaker government should be six months.

Shujan also made proposals regarding a prime minister not being in office for over two terms and the balance of power between the president and the PM.

It also proposed a bicameral legislation, increasing parliament constituencies to 400, of which 100 should be reserved for women. Bicameral is a type of legislature that is divided into two separate assemblies, chambers, or houses.

According to the proposal, direct elections should be held in all seats. In 200 of those seats, a proportionate representation system will be followed. The tenure of the parliament will be four years.

Shujan said the constitution should be a document of truly non-communal characteristics with the recognition of all ethnic minorities.

"The constitution is the supreme law of the state, so it must always be upheld. The Constitution can be amended in the public interest. But as long as a matter is enshrined in the constitution, it has to be followed properly," Shujan said.

The reform commission held separate meetings with Prothom Alo Editor and Publisher Matiur Rahman and The Daily Star Editor and Publisher Mahfuz Anam.

Mahfuz Anam at the meeting proposed making amendments to the constitution and not rewriting it.

He proposed the restoration of the caretaker government system, making a provision that a person cannot be the PM for more than two terms, reducing the absolute power of the PM, and giving powers to the president in some cases.

He also proposed the restoration of balances of power among the executive, legislative, and judiciary.

He also sought a bicameral parliament, while making the judiciary completely independent. A mechanism should be devised to monitor whether the judiciary is functioning properly, he said.

He also proposed making the parliament a place that will ensure accountability of the executive and forming an independent constitution commission to oversee whether the constitution is being followed properly.

The Daily Star editor also said the Anti-Corruption Commission, Human Rights Commission and Information Commission, should be made constitutional bodies and the process of appointment of the heads of these agencies should be mentioned in the constitution.

Anam also proposed ensuring freedom of expression, press and media in the constitution.

In the current constitution, the freedom of media is subjected to any reasonable restrictions imposed by law in the interests of the security of the State, friendly relations with foreign states, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence.

Anam proposed the exclusion of the rest of the issues except national security. However, the definition of the national interest should be specific, he said.

The reform commission also held meetings with Prof Salimullah Khan, political analyst Jahed Ur Rahman, mufti Saiful Islam, and mufti Abdullah Masum.

Reform commission's head Prof Ali Riaz and other members attended the meetings.​

 

[Saif]

Govt seeks to repeal most parts of 15th amendment

Attorney general Md Asaduzzaman argued before the High Court on Wednesday that the interim government wanted to declare the ousted Awami League’s 15th amendment to the constitution largely unconstitutional, retaining only select provisions...

www.newagebd.net

Govt seeks to repeal most parts of 15th amendment
Staff Correspondent 14 November, 2024, 00:12

Attorney general Md Asaduzzaman argued before the High Court on Wednesday that the interim government wanted to declare the ousted Awami League’s 15th amendment to the constitution largely unconstitutional, retaining only select provisions.

He contended that the 2011 amendment was strategically crafted to establish an authoritarian government, enabling the Awami League to retain power for an indefinite period.

Asaduzzaman, however, argued for the retention of Article 2A, which designates Islam as the state religion while ensuring equal rights for other faiths, including Hinduism, Buddhism, and Christianity.

He also supported retaining Article 95, governing the appointment and retirement age of Supreme Court judges, and Article 96, which establishes the Supreme Judicial Council for the removal of judges for incapacity or misconduct.

The attorney general noted that the Appellate Division had recently clarified issues related to Articles 95 and 96 in its verdict in the 16th amendment which was incorporated in the constitution in 2014 empowering the parliament to remove Supreme Court judges.

Asaduzzaman’s argument came during the final hearing of a public interest litigation challenging the legality of the 15th amendment.

On August 19, 2024, the High Court had issued a rule questioning why the 15th amendment—abolishing the caretaker government system—should not be declared unconstitutional and why actions based on it should not be invalidated.

The petitioners include prominent citizens, among others, Sushashoner Jonno Nagorik president M Hafizuddin Khan, secretary Badiul Alam Majumder, and local government expert Tofail Ahmed.

The bench of Justice Farah Mahbub and Justice Debasish Roy Chowdhury adjourned the hearing until Thursday.

In his arguments, the attorney general claimed that the 15th amendment was designed to entrench Awami League eventually ousted in a student-led uprising on August 5 this year.

He asserted that the amendment undermined democratic principles, the independence of the judiciary, and fundamental rights, allowing suppression of opposition through extrajudicial killings, enforced disappearances, and politically motivated cases.

Asaduzzaman pointed to controversial provisions within the amendment, such as the classification of citizens as ‘Bangalees’ or ‘Bangladeshis’ and the formal recognition of Sheikh Mujibur Rahman as the ‘Father of the Nation’—a designation absent in the original constitution.

He noted that under the amendment, derogatory remarks against Sheikh Mujib were now treated as treasonous offences.

The attorney general also criticised Article 7A, which criminalises any attempt to repeal, suspend, or subvert the constitution through force or unconstitutional means, prescribing capital punishment for sedition. He argued that this restriction limits democratic change and disregards the recent mass uprising that deposed the Awami League government.

Further, Asaduzzaman expressed opposition to the amendment’s emphasis on socialism and freedom from exploitation as fundamental state principles, stating that socialism was not part of the constitution’s original structure.

He also objected to Article 8(1), which enshrines nationalism, socialism, democracy, and secularism as foundational state policies, and Article 9, which defines citizens as ‘Bangalees’ on the basis of Bangalee nationalism.

Asaduzzaman argued that the mother tongues of the national minority people were denied by calling them ‘Bangalees’.​

 

[Saif]

Constitution must ensure fundamental rights, professionals tell commission

Representatives from several professional bodies on Thursday recommended that the constitution make the fulfillment of the citizens’ fundamental rights binding for the state...

www.newagebd.net

Constitution must ensure fundamental rights, professionals tell commission
Staff Correspondent 15 November, 2024, 00:29

Representatives from several professional bodies on Thursday recommended that the constitution make the fulfillment of the citizens’ fundamental rights binding for the state.

The recommendation came at a meeting of the constitution reform commission with the representatives of these professional bodies and constitution experts that was held as part of the commission’s preparation for drafting reform proposals to submit to the interim government chief adviser by January 4, 2025.

Thursday’s was the fourth in a series of meetings the commission is holding with different groups for the purpose.

According to the commission, National Press Club president Hasan Hafiz, Doctors’ Association of Bangladesh organising secretary Sayeed Mehbub Ul Quadir, Doctors Platform for People’s Health vice president Faizul Hakim and member Md Harun-Rashid, Justice Abdul Matin, lawyer Hasnat Quaiyum, professor K Shamsuddin Mahmud and Law Commission adviser AK Mohammad Hossain spoke at the discussion.

Faizul Hakim told New Age that he demanded constitutional provisions that would make ensuring fundamental rights, including public health, of the citizens legally binding for the state.

He also proposed that the country get a fresh constitution as the existing one, which originated in 1972, had transformed the state system into a monster.

‘However, there needs to be an elected body to write the new constitution. The reform proposals from the interim government would guide its drafting,’ Faizul said.

Talking to New Age, lawyer Hasnat Quaiyum said that he recommended that the reformed constitution would free fundamental rights from any terms and conditions.

‘The Article 149 of the existing constitution gives legal acceptance to all the pre-independence acts. The reform commission must propose removal of all rights violating acts,’ Hasnat said.

He also recommended transfer of the management of both the crime investigation and jail system to the judiciary from the police department which is currently responsible for both.

Commission chief professor Ali Riaz and members Dhaka University professors Sumaiya Khair and Muhammad Ekramul Haque, lawyers Imran Siddique , Sharif Bhuiyan and M Moin Alam Ferozi, writers Firoz Ahmed and Md Mustain Billah were present during the meeting.​