[🇧🇩] Everything about our constitution

[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...

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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.​

 

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Professionals for power balance between president, PM

Leaders of six professional bodies on Sunday urged the Constitution Reform Commission to recommend measures aimed at rebalancing powers between the president and the prime minister as well as fortifying the judiciary and local government systems...

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Professionals for power balance between president, PM
Staff Correspondent 18 November, 2024, 00:06

Leaders of six professional bodies on Sunday urged the Constitution Reform Commission to recommend measures aimed at rebalancing powers between the president and the prime minister as well as fortifying the judiciary and local government systems.

The call came during meetings with the commission.

Cultural, rights activists and ethnic minority activists also met with the commission on the day.

The meetings held in the Cabinet Room of the Parliament building were presided over by commission chairman professor Ali Riaz.

Several participants confirmed New Age that the professional leaders emphasised the need for comprehensive constitutional reforms to address systemic imbalances and enhance governance.

They urged the commission to submit actionable recommendations to the interim government, reflecting these priorities.

Their meetings underscored growing calls from the civil society for a more accountable and balanced governance structure in Bangladesh.

Emerging from their meeting with the commission, Supreme Court Bar Association president AM Mahbub Uddin Khokon said that they recommended amendment of the present constitution to restore the non-party caretaker government, ensure balance between the powers of the prime minister and the president, and strengthen the local government system.

The Supreme Court Bar Association also emphasised at the meeting strengthening of the judiciary and framing rules for appointment of Supreme Court judges as part of the strengthening of the judiciary.

He said that the students led the movement against discrimination, but they had no mandate to reform the state. Reforming the state is a political action which the interim government did not have the mandate to do, he added.

This revolutionary government can make arrangement for political dialogues over the proposed reform work for creating consensus among the political parties, he added.

Mahbub Uddin Khokon further said that the political parties should reach a consensus that whoever would come to power would bring the recommended reforms in the first or second session of the parliament.

People might cast doubt about the interim government’s intention if they became busy with the reform activities instead of doing day to day work, he said.

The professional bodies represented in the meetings were—Supreme Court Bar Association, represented by its president AM Mahbub Uddin Khokon and executive member Shafiqul Islam; Bangladesh Federal Union of Journalists, represented by its secretary general Kader Gani Chowdhury and treasurer Shahidul Islam; Federation of Bangladesh Chambers of Commerce Industry, represented by Nasrin Begum, Chowdhury Mokimuddin KJ Ali, Jamil Uddin Milton; Institution of Diploma Engineers, represented by Kabir Hossain and Gias Uddin; Garment Shramik Sanghati, represented by its leaders Anjan Das, Mizanur Rahman Chowdhury and Sabina Yasmin; and Bangladesh Institute of Planners, represented by its president Adil Muhammad Khan.

In separate meetings on the day, representatives of indigenous communities also met with the Constitution Reform Commission, urging the removal of terms like ‘ethnic minority’ and ‘tribal’ from the constitution.

They called for these terms to be replaced with ‘indigenous people’ in any proposed constitutional amendments or rewrites, emphasising the importance of accurate and respectful recognition of their identity.

The representatives included Chittagong Hill Tracts Citizen Committee member Nirupa Dewan, former Human Rights Commission member Hari Purna Tripura, and Bangladesh Indigenous People Network leaders Gipishan Kumar Suchiang and Nabadeep Kumar.

Singer Asif Akbar, cultural activist Sarwar Tushar, rights activists Maha Mirza, Arup Rahi, Imran Mahfuz, Syed Nizar, lawyer Arif Khan, ethnic minority rights activist Ilira Dewan, and Dipak Kumar Goswami also had meetings with the commission on the day.

Commission members professors Sumaiya Khayer and Muhammad Ekramul Haque, lawyers Sharif Bhuiyan, Imran Abdullah Siddiq, and Mohammad Moyeen Alam Firozee, writer Firoz Ahmed and right activist Md Mustain Billah were present at the meeting.​

 

[Saif]

Constitution Reform Commission: IRI delegation calls on Prof Ali Riaz

A three-member delegation from the International Republican Institute (IRI) paid a courtesy visit to Prof Ali Riaz, the head of the Bangladesh Constitution Reform Commission today

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Constitution Reform Commission: IRI delegation calls on Prof Ali Riaz

Photo: Collected

A three-member delegation from the International Republican Institute (IRI) paid a courtesy visit to Prof Ali Riaz, the head of the Bangladesh Constitution Reform Commission today.

Dr Geoffrey Macdonald, senior advisor for the Asia-Pacific region, led the delegation while Joshua Rosenbaum, acting resident program director (Bangladesh Program) of IRI, and Stephen Chima, regional director (South Asia) were the other two members of the delegation who met him the commission at its office.

During the meeting, Prof Riaz briefed the delegation on the current activities and plans regarding constitutional reforms.

He informed them that the commission has already engaged in discussions with 28 organisations, 23 representatives of civil society, five constitutional experts, and 10 young thinkers.

Additionally, public opinions on constitutional reforms are being collected through the commission's website.

As of this afternoon, a total of 47,097 opinions have been submitted. A nationwide public opinion survey, facilitated by BBS, is also set to commence soon.

Dr Geoffrey Macdonald said that the organisation is committed to promoting democratic practices worldwide and expressed interest in collaborating with the emerging Bangladesh.

The delegation also showed particular interest in the commission's approach to incorporating stakeholder opinions into the reform process.​

 

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Constitution reform: Hindu Bouddha Christian Oikya Parishad submits proposal

On behalf of Bangladesh's religious and ethnic minority communities, the Bangladesh Hindu Bouddha Christian Oikya Parishad submitted several proposals to the online portal of the Constitution Reform Commission today

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Constitution reform: Hindu Bouddha Christian Oikya Parishad submits proposal

On behalf of Bangladesh's religious and ethnic minority communities, the Bangladesh Hindu Bouddha Christian Oikya Parishad submitted several proposals to the online portal of the Constitution Reform Commission today.

Among the proposals, the council emphasised maintaining the existing preamble of the Constitution without alteration.

They added that the preamble ensures the rule of law, fundamental human rights, and political, economic, and social equality, liberty, and justice for all citizens, regardless of religion, race, or ethnicity.

The council recommended the complete abolition of Article 2A of the Constitution, which declares a "state religion."

They argued that this article is entirely contradictory to the core principles of the Constitution's preamble, which guarantees the rule of law, fundamental human rights, and political, economic, and social equality, liberty, and justice for all citizens.

The article, they said, relegates religious and ethnic minorities to the status of second-class citizens.

The council also proposed retaining the article on "Secularism and Freedom of Religion" without amendment, arguing that it upholds the character and essence of a secular state, ensuring inclusivity for all citizens, irrespective of religion, race, or ethnicity, which is a fundamental principle of the Constitution.

Regarding Article 28 of the Constitution, the Council advocated for its retention in its entirety.

They highlighted the necessity of enacting a Minority Protection Act, establishing a National Minority Commission, and forming a Ministry of Minority Affairs to eliminate existing discrimination against religious and ethnic minorities.

They asserted that these proposals are essential for addressing inequalities faced by minorities in society and for ensuring equal protection under the law.

The Council further proposed adding clauses to Article 28. Clause (5) would constitutionally guarantee adequate representation and participation of religious and ethnic minorities in various constitutional bodies, such as the National Parliament, the Election Commission, the National Human Rights Commission, and the Public Service Commission. Clause (6) would ensure proportional representation of religious and ethnic minorities in the National Parliament based on population demographics.

Meanwhile, the Judicial Reform Commission, led by its chairman, Justice Shah Abu Nayeem Mominur Rahman, former Justice of the Appellate Division, met with the Constitution Reform Commission at the office of the Judicial Reform Commission yesterday.

Representing the Constitution Reform Commission was its chairman, Prof Ali Riaz, along with members Imran Siddiq, Prof Muhammad Ekramul Haque, Sharif Bhuiyan, Senior Advocate M Moin Alam Firozi, and writer Firoz Ahmed.

The other members of the Judicial Reform Commission were present at the meeting.

During the meeting, both commissions briefed each other on the progress of their respective tasks.

The discussion focused on various constitutional matters, particularly those related to the judiciary, and highlighted the need for coordination between the two commissions' work and recommendations.​

 

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BNP submits 62 proposals to Constitutional Reform Commission

The Bangladesh Nationalist Party on Tuesday gave a 62 reform proposals for the constitution that included the reintroduction of the election-time caretaker government, bicameral parliament, provisions aimed at power balance between the prime minister and the president, and introduction of the...

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BNP submits 62 proposals to Constitutional Reform Commission
Staff Correspondent 26 November, 2024, 14:27

BNP standing committee member Salahuddin Ahmed speaks a to journalists after submitting a total of 62 proposals to Constitutional Reform Commission at the Parliament building in Dhaka on Tuesday. | UNB photo

The Bangladesh Nationalist Party on Tuesday gave a 62 reform proposals for the constitution that included the reintroduction of the election-time caretaker government, bicameral parliament, provisions aimed at power balance between the prime minister and the president, and introduction of the vice president and deputy prime minister.

A two-member delegation, led by the party’s standing committee member Salahuddin Ahmed, submitted a copy of the proposals to Constitution Reform Commission chief professor Ali Riaz at the national parliament building in Dhaka.

The Bangladesh Bureau of Statistics, meanwhile, is going to launch a nationwide survey to get public opinions regarding the constitutional reform, Ali Reaz said, adding the findings would help his commission to have a comprehensive view on the issue.

After submitting the BNP proposals on the day, Salahuddin told reporters that his party proposed amendments in the constitution in 62 places, starting from its preamble to the schedule.

He said that his party prepared the proposals keeping in mind the aspirations of the country’s people and the blood pledge of the martyrs of the July-August mass uprising, and to prevent the rise of parliamentary dictatorship in the future.

It has further proposed provisions barring a person to hold the prime minister position more than twice in a row.

‘The BNP has also proposed the creation of an upper house in the parliament, bringing the subordinate courts under the jurisdiction of the Supreme Court, and reintroduction of the referendum provision,’ Salahuddin Ahmed said.

The BNP standing committee member said that all issues, including republic, executive, judiciary, law, election commission, and schedule, were addressed in the proposal so that the reformed constitution outlined a truly democratic system. ‘We have proposed provisions enabling a balance of power in all the state organs,’ he said.

When asked about the recent discussion on rewriting of the constitution, he said that their proposal was for comprehensive amendment of the constitution. ‘We want amendment to transform it to a democratic constitution to fulfil people’s desire,’ he said.

Later, Ali Riaz said that the statistical bureau after doing the survey would give its report to his commission.

‘This survey will help us know the views of all types of people, urban, rural, elderly and young, from all over the country,’ he explained.

The professor, however, noted that the constitution was not only about elections.

‘We will make recommendations for the constitutional reforms regarding elections based on the opinions we would receive from the public,’ he said.

‘When the election will be, and in what process are the matters on which only the government has the say. It’s not something the Constitution Reform Commission can talk about,’ Ali Riaz added.

Mentioning that more than 50,000 opinions had been received from the constitution reform website, he said, ‘We have continued discussions with the stakeholders. We will also talk to some other organisations and leaders.’​

 

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A multi-racial, multi-cultural, gender sensitive constitution

Representatives from civil society and different organisations yesterday proposed for a multi-racial constitution that will acknowledge multiple languages, cultures, religions, and gender sensitivity.

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A multi-racial, multi-cultural, gender sensitive constitution
Propose civil society, orgs to reform commission

Representatives from civil society and different organisations yesterday proposed for a multi-racial constitution that will acknowledge multiple languages, cultures, religions, and gender sensitivity.

They also suggested allowing people with dual citizenship to run for the position of Member of Parliament but not to hold top-level executive positions.

They placed their proposals before the constitutional reform commission led by Prof Ali Riaz, during a meeting that was part of its ongoing stakeholder consultations. The meeting was held at the National Parliament Building.

Justice Iman Ali, Chief of the Chakma Circle Devasish Roy, and Prof Md Robiul Islam gave recommendations on constitutional reforms.

Talking to The Daily Star, Devasish Roy said he proposed to include indigenous people in the constitution-drafting process to ensure that they, too, feel ownership of the constitution.

He also proposed that the preamble of the constitution should recognise the historical role of the people of different ethnic, religious, linguistic, and other backgrounds, alongside marginalised groups, who have been defending the integrity of the country's territory for centuries and nurturing its biodiversity.

"Some of the fundamental principles should be included as fundamental rights so that they are judicially enforceable, like rights to healthcare, food and nutrition, and quality education," he said.

He also demanded that Article 36 should be amended to acknowledge the need to provide reasonable restrictions to the acquisition of land ownership rights in tribal areas in the CHT and plains.

He recommended incorporating laws like the 1900 Regulations and post-CHT Accord laws of 1998 (on regional and district councils), which protect indigenous people, into the first schedule of the constitution.

Prof Mirza Taslima and Kazi Maruful Islam, representing the University Teachers' Network, also proposed several recommendations.

Contacted, Prof Taslima said she emphasised making the constitution multi-racial and acknowledging diverse languages, cultures, religions, and gender sensitivity in the constitution, while Prof Maruful talked about how the parliament should be.

Roman Uddin and Apon Zahir from the Centre for Governance Studies also presented their proposals.

Speaking to the newspaper, Apon Zahir said they suggested that elections should only be considered legitimate if voter turnout exceeds 51 percent.

He reiterated the proposal to allow individuals with dual citizenship to run for parliament but not hold top executive roles.

They recommended recognising indigenous identities in the constitution.

They also recommended explicitly declaring all forms of discrimination against indigenous peoples, as well as religious and ethnic minorities, illegal.

The organisations and representatives attending the meeting included Akhtar Hossain Khan from the Newspaper Owners' Association of Bangladesh (NOAB); Sanjida Islam Tulee and Mushfiqur Rahman Johan from Mayer Dak; Tamanna Singh Baraik and Puja Rani from the Dalit Women's Forum; Nadira Parveen and Sultan Md Salauddin Siddique from Nagorik Udyog; Joya Shikder and Sudip Kumar Das from Sampurna; Md Junaid and Mohammad Millat Hossain from the Bangladesh Judicial Service Association; and Nazma Akter from the Combined Garment Workers' Federation.

Members of the commission present at the meeting included Prof Sumaiya Khair, Barrister Imran Siddiq, Prof Mohammad Ikramul Haque, Barrister M Moin Alam Firozi, Firoz Ahmed, and Md Mustain Billah.​

 

[Saif]

Democratic rewrite of constitution

THE call for constitutional change in Bangladesh has intensified, not merely for refinement but as a profound demand for democratic renewal. Reforming the 1972 constitution within its current framework overlooks a critical reality: the document is itself embedded with principles that have...

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Democratic rewrite of constitution
Kazi ASM Nurul Huda 16 December, 2024, 00:00

THE call for constitutional change in Bangladesh has intensified, not merely for refinement but as a profound demand for democratic renewal. Reforming the 1972 constitution within its current framework overlooks a critical reality: the document is itself embedded with principles that have enabled authoritarianism rather than safeguarded against it, which contradicts the spirit of Bangladesh’s 1971 liberation war. The question now is whether a complete rewrite is necessary to eliminate entrenched authoritarian elements to create a future rooted in the values of equality, human dignity and social justice that inspired the nation’s fight for independence.

This debate on reforming versus rewriting goes beyond semantics; it signifies fundamentally different intentions that shape the extent of change. Reform implies a focused attempt to improve specific areas within an existing framework, with the assumption that the foundation is sound but needs updates to address new or evolving needs. In contrast, rewriting signifies a complete rethinking of the entire structure, often suggesting that the current framework is fundamentally flawed, misaligned or outdated.

The choice to rewrite raises questions of intent and often sparks resistance, as it implies inherent flaws in the original document. Supporters of rewriting Bangladesh’s 1972 constitution argue that certain provisions promote authoritarianism, a drift so deeply embedded that only a full overhaul can eliminate this risk. This stance, while contentious, argues that the current constitution is incompatible with modern democratic ideals and requires a new foundation rather than incremental updates.

In contrast, reformation aims to refine or strengthen the existing framework without replacing it entirely. Proponents of constitutional reformation in Bangladesh argue that careful adjustments to select provisions can mitigate authoritarian risks while preserving the essence of the 1972 Constitution. By respecting the original intentions of its framers, reformation offers continuity and proposes a constructive way forward without discarding the document’s core values.

The debate around the constitution also touches a deeper historical chord. The central question surrounding the 1972 constitution is whether it genuinely embodied the high ideals of equality, human dignity, and social justice set forth in paragraph 12 of the 1971 Proclamation of Bangladesh Independence, issued on April 10, 1971, by the provisional government of Bangladesh in Mujibnagar. Although these values appear in the constitution’s preamble, they were not codified as core state principles. Instead, the constitution adopted four guiding pillars — nationalism, socialism, democracy and secularism — that were not part of the original Proclamation. This substitution, ostensibly to uphold the Liberation War’s spirit, may have instead distorted it. For a document foundational to national identity, it is crucial to question why these ideals were replaced and who stood to benefit from this shift.

The long-term consequences of these decisions have grown clearer over time. By embedding the four pillars as the constitution’s core, the framers arguably created a framework that allowed for authoritarian practices in Bangladesh’s politics over the past 50 years. The extended rule of the Awami League from 2009 to 2024 illustrates how these principles have facilitated power consolidation and created a system that prioritises specific political interests over true democratic representation.

A constitution that repeatedly enables authoritarianism likely has inherent issues. The constitution’s foundational pillars have justified selective policies that favour certain interests, compromise freedom of expression, and restrict economic opportunity. Nationalism, for example, has been invoked to justify policies that limit dissent, while secularism, though intended for harmony, has restricted political expression. Similarly, socialism, meant to promote equality, has sometimes justified restrictive economic policies. These foundational principles have promoted an environment where authoritarianism can take root and thrive.

When the foundational principles themselves allow authoritarian drift, reform alone is unlikely to deliver the transformative change that Bangladesh needs. Isolated amendments might temporarily curb authoritarian tendencies but cannot reshape a framework that ultimately prioritises certain interests over democratic will. Even an extensively revised 1972 constitution would still carry the weight of principles misaligned with democratic ideals. Under these circumstances, reform risks becoming a superficial fix when a fundamental shift is essential. The entrenched values that permeate and compromise the entire document suggest that only a comprehensive rewrite could enable the constitution to authentically reflect the original ideals of the liberation war, ideals that serve neither any particular person’s interest nor any party’s ideology.

Though rewriting a constitution is a significant undertaking requiring thorough justification, the way the 1972 constitution embeds elements that diverge from the Liberation War’s spirit — elements that cater to specific interests over a genuinely inclusive national ethos — suggests that rewriting may be more appropriate than simple or substantial reformation. A rewritten constitution could better align with the ideals of the 1971 Proclamation and more effectively support democratic governance.

What would a rewrite of the constitution entail, and why is it necessary? A comprehensive constitutional rewrite would mean re-examining each element of the document to build a democratic framework from the ground up. This new constitution would need to incorporate the ideals of equality, human dignity, and social justice that inspired the Liberation War and implement safeguards to prevent power consolidation. By starting anew, Bangladesh could craft a constitutional framework that genuinely respects the aspirations of its people rather than historical political interests.

A new constitution would also serve as a symbolic reaffirmation of the liberation war’s values, honouring those who sacrificed for these ideals. This symbolic aspect is no less important than the legal ramifications, as it represents a collective reimagining of national identity and purpose.

Creating a new constitution, however, is not simple. It requires broad consensus, thoughtful debate, and transparency involving diverse voices across Bangladeshi society to ensure that the new document reflects the will of the people rather than a single political ideology or interest. In this way, a new constitution could serve as a bulwark against the cycle of authoritarian governance that has plagued Bangladesh’s history.

While it’s true that a constitution alone, however perfect it is, cannot guarantee democracy, it does provide the essential framework upon which democratic culture and public commitment to democratic principles can grow. Some might argue that rewriting Bangladesh’s constitution risks greater instability in an already politically volatile nation. However, much of the current instability stems from authoritarian abuses embedded in the existing constitutional structure. A new constitution, with strong democratic checks and balances, could actually serve as a stabilising force by dismantling mechanisms that allow power consolidation and political centralization. This foundational change would give Bangladesh a chance to build a political environment rooted in democratic integrity. It would create the essential space for political culture, education, and public awareness to flourish around democratic values instead of being eroded by partisan interests.

In fine, the case for a new constitution in Bangladesh is not merely about legal reform but about reimagining the nation’s political identity. Crafting a document that embodies the genuine spirit of the liberation war and the principles of a democratic society would pave the way towards a future free from authoritarianism. The question, then, is no longer merely whether the constitution needs reform but rather how it should be rewritten to lay the foundation for a genuinely democratic Bangladesh and who is entitled to undertake this task.

Kazi ASM Nurul Huda is an associate professor of philosophy at the University of Dhaka. He holds a PhD in philosophy from the University of Oklahoma, USA.​

 

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Reviving caretaker govt system reflects people’s expectations: Shahdeen Malik

'It will pave the way for a more democratic Bangladesh,' said the constitution expert

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Reviving caretaker govt system reflects people’s expectations: Shahdeen Malik

Eminent jurist Shahdeen Malik today said reviving the caretaker government system certainly reflects people's expectations.

"It will pave the way for a more democratic Bangladesh," said the constitution expert in his impromptu reaction to The Daily Star after a High Court verdict on the 15th amendment of the constitution.

The HC today scrapped a part of the constitution's 15th amendment that cancelled the provision of the non-party caretaker government system and restored the provision of the referendum for bringing any amendment to the constitution.

The abolition of the non-party caretaker government system is void and unconstitutional as it destroyed democracy, free and fair elections, and the independence of judiciary which are the basic structures of the constitution, the court said.

Delivering the verdict on two separate writ petitions, the HC also struck down articles 7(A) and 7(B) of the Constitution, declaring them void and unconstitutional.

"Bringing back the provision for referendum is also certainly a welcome decision," said Shahdeen.

"Articles 7(A) and 7(B) were in conflict with the constitution, so it was expected that these would be declared unconstitutional," he added.


Article 7(A) of the Constitution pertained to the use of force and other unconstitutional means to "abrogate, repeal or suspend" the Constitution or any of its articles.

Article 7(B) makes certain parts of the Constitution unamendable "by way of insertion, modification, substitution, repeal or by any other means".

The HC declared unconstitutional the parts of the 15th Amendment Act, which scrapped the 13th amendment that had introduced the non-party caretaker government system in 1996, and brought significant changes to the charter.

In the verdict, the HC did not interfere in the provisions of the 15th Amendment Act which deals with the state principles including secularism, socialism, state region, nationalism, father of the nation and the number of reserved seats for women in parliament, saying that the future governments will decide these issues.

The 15th Amendment was passed in the parliament in 2011.​

 

[Saif]

Scrapping caretaker government system unconstitutional: HC

HC also restored provision for referendums for constitutional amendments; repealed articles 7A, 7B; upheld state principles

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Scrapping caretaker government system unconstitutional: HC

HC also restored provision for referendums for constitutional amendments; repealed articles 7A, 7B; upheld state principles

The High Court today scrapped a part of the constitution's 15th amendment that cancelled the provision of the non-party caretaker government system and restored the provision of the referendum for bringing any amendment to the constitution.

The abolition of the non-party caretaker government system is void and unconstitutional as the abolition has destroyed democracy, free and fair elections, independence of judiciary which are the basic structures of the Constitution, the court said.

Delivering verdict on two separate writ petitions, the HC also struck down articles 7 (A) and 7 (B) of the Constitution, declaring them void and unconstitutional.

Article 7 (A) of the Bangladesh Constitution pertained to the use of force and other unconstitutional means to "abrogate, repeal or suspend" the Constitutions or any of its articles.

Article 7 (B) makes certain parts of the Constitution unamendable "by way of insertion, modification, substitution, repeal or by any other means".

The HC declared unconstitutional the parts of the 15th Amendment Act, which scrapped the 13th amendment that had introduced the non-party caretaker government system in 1996, and brought significant changes to the charter.

In the verdict, the HC did not interfere in the provisions of the 15th Amendment Act which deals with the state principles including the secularism, socialism, state region, nationalism, father of the nation and number of reserved seats for women in parliament, saying that the future governments will take the decision about these issues.

The court also clarified the current interim government is not a caretaker government.

It said the present government government is totally different as it was formed by the president after he sought the opinion of the Appellate Division of Supreme Court under article 106 of the constitution.

Article 106 says, "If at any time it appears to the President that a question of law has arisen, or is likely to arise, which is of such a nature and of such public importance that it is expedient to obtain the opinion of the Supreme Court upon it, he may refer the question to the Appellate Division for consideration and the division may, after such hearing as it thinks fit, report its opinion thereon to the President."

The High Court bench of Justice Farah Mahbub and Justice Debasish Roy Chowdhury delivered the verdict following two separate writ petitions challenging the constitutionality of the 15th amendment to the constitution.

On December 5, the bench fixed today as the date for the announcement of the judgement after concluding hearings on the petitions.

The court has heard arguments on the petitions for 12 working days. One of the writ petitions was filed by Mofazzal Hossain, a freedom fighter from Narayanpara, Naogaon.

On October 19, the HC bench led by Justice Farah Mahbub issued a rule asking the government to explain why the Constitution (15th Amendment) Act, 2011, should not be declared unconstitutional. It also questioned why actions taken under the amendment should not be invalidated.

On August 19, another HC bench led by Justice Naima Haider, who is currently on leave, issued a similar rule following a writ petition filed by five citizens.

The petitioners included – Badiul Alam Majumdar, secretary of Shushashoner Jonno Nagorik, along with Tofail Ahmed, M Hafizuddin Khan, Md Jobirul Hoque Bhuiyan, and Zahrah Rahman. The petitioners, submitting their case as a public interest litigation, argued that the abolition of the non-party caretaker government system through the 15th amendment led to three consecutive disputed elections in 2014, 2018, and 2024.

Apart from the writ petitioners and the state, few political parties, including BNP and Jamaat-e-Islami and some SC lawyers have placed arguments before the HC against the 15th amendment and in favour of the caretaker government system.​

 

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তত্ত্বাবধায়ক সরকারব্যবস্থা বিলুপ্তির বিধান বাতিল করলেন হাইকোর্ট

 

[Saif]

Restoration of caretaker system to be proposed

The restoration of the caretaker government and the introduction of a bicameral system in parliament will be among the recommendations to be proposed by the Constitution Reform Commission.

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Restoration of caretaker system to be proposed
Constitution reform commission likely to submit report Jan 7

It is important to follow due process in consultation with the constitution in each step towards achieving reforms. FILE PHOTO: STAR
The restoration of the caretaker government and the introduction of a bicameral system in parliament will be among the recommendations to be proposed by the Constitution Reform Commission.

The commission, led by political scientist Ali Riaz, is likely to recommend the inclusion of equality, human dignity, and social justice in the preamble to the constitution.

Its proposal, which is currently being prepared along with the rationale, is scheduled to submit its recommendations by January 7.

"I would say the biggest consensus we received is on the caretaker government. If I were to say 100 percent, it would not be an exaggeration," Riaz told The Daily Star.

Additionally, the commission will propose a two-term limit for the office and curbing the prime minister's absolute power.

It will also recommend establishing a balance of power between the prime minister and the president.

The commission plans to strengthen the parliamentary standing committees to enhance their ability to monitor and hold the government and the prime minister accountable.

It will also recommend repealing Article 70 of the constitution.

Asked whether the commission is amending or rewriting the constitution, Riaz clarified that it is not drafting a new constitution but rather compiling recommendations so that the constitution would guarantee that no one can snatch the voting rights of the masses and no potential autocrat can grab power.

So far, the commission has received proposals from 28 political entities, including 25 political parties and three alliances.

It has also held discussions with 43 organisations, including civil society groups, some of which have provided written submissions.

Moreover, the commission consulted seven constitutional experts and sought opinions from 27 prominent citizens.

It also took opinions from 10 youths who contributed songs, poems and graffiti during the July uprising. They were not associated with the Student Against Discrimination movement or the Jatiya Nagorik Committee.

The commission has undertaken two broader initiatives.

Riaz said, "First, we collected public opinions through our website, receiving 50,573 responses. While these inputs were helpful, they had limitations due to the lack of demographic information about the respondents, such as age, gender, location or profession, which weakened their scientific credibility."

To address this, the commission collaborated with the Bangladesh Bureau of Statistics to conduct a household survey using a methodologically sound and scientifically rigorous process.

"This survey collected 45,925 opinions, which we are now analysing. This approach ensured a more representative and inclusive understanding of public sentiment," Riaz added.

Thus far, the commission has conducted 46 meetings: 23 for consultations and 23 among its members.

"Through these efforts, we have extensively and inclusively gathered opinions and analysed 121 countries' constitutions -- we are working toward making well-informed recommendations," Riaz also said.​

 

[Saif]

‘We’re not drafting constitution’

Ali Riaz, a distinguished Bangladeshi-American political scientist and acclaimed author heading the constitution reform commission, sat down with Star to inform on the commission’s progress and some of the key consensuses obtained.

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‘We’re not drafting constitution’
Says Ali Riaz

Ali Riaz, a distinguished Bangladeshi-American political scientist and acclaimed author heading the constitution reform commission, sat down with Star to inform on the commission's progress and some of the key consensuses obtained.


DS: What is the progress of the commission?

AR: We have been entrusted with two main tasks: one is to review the existing constitution and the other is to propose recommendations. The foundation of the recommendations is to make the constitution more democratic, ensure the participation of the people and reform it in a way that prevents the possibility of autocratic rule in the future.

In my opinion, it has essentially been rewritten twice: once through the Fourth Amendment and again through the Fifteenth Amendment. I emphasise the notion of "rewriting" the constitution because, with the Fourth Amendment, the character of the state, the rights of its citizens and the structure of power were fundamentally altered.

The same fundamental changes were made through the Fifteenth Amendment. The core character of the constitution was altered and the rights of the people were not adequately protected. Essentially, this means the constitution was rewritten.

In reviewing Bangladesh's constitution, we also studied the constitutions of 121 countries to compare and analyse the unique provisions of our constitution and identify similarities or differences with other countries.

For example, Bangladesh's constitution includes provisions like displaying Bangabandhu's portrait in government offices and incorporating the Declaration of Independence. Our researchers analysed these aspects thoroughly.

This analysis involved two approaches. First, we examined how the constitution evolved into its current form. Second, we are focused on what the commission will propose.

I believe the commission's recommendations will not be the final word as the constitution is a political document that reflects the people's aspirations and provides guidelines for the state.

To develop these recommendations, we engaged with the largest stakeholders: the people. This also involves discussions with political parties, civil society groups, professional bodies and eminent individuals.

DS: What are the key points of consensus among stakeholders, or what proposals is the commission planning to recommend?

AR: I won't say what we will propose but I can share the areas where I have observed significant consensus. The most prominent consensus I have seen is that people want a participatory government system that ensures voting rights. They want these rights to be constitutionally protected so no one can undermine or take them away.

There is also a strong desire to prevent excessive concentration of power in the hands of a single individual.

As for solutions, there are various opinions. Some emphasise the importance of balancing power, while others point out that the prime minister has become overly powerful due to the constitution.

To address this, it has been suggested to empower and strengthen parliamentary standing committees to prevent the misuse of power.

Additionally, some stakeholders believe the prime minister should not hold multiple positions to avoid accumulating excessive authority.

DS: Many people have discussed the idea of a bicameral parliamentary system. Is the commission planning to propose it?

AR: A significant number of stakeholders have proposed a bicameral parliamentary system. Their reasoning is rooted in a desire to decentralise power, believing that such a system could help prevent the misuse of authority.

The proposals for a bicameral system and limiting the prime minister's tenure to a maximum of two terms reflect the people's aspirations to curb the concentration of power, establish constitutional safeguards against autocracy and create institutions that protect their rights.

Ultimately, we will make recommendations based on the political and cultural context, the aspirations of the Bangladeshi people and the political behaviour of the country.

DS: Have you received proposals for amending or rewriting the constitution? What is the commission planning to recommend: amend or rewrite?

AR: I would suggest not framing it that way. First of all, we are not drafting the constitution. Our role is to present what our stakeholders and analyses have indicated needs change.

How these changes will be implemented is a political process and is to be carried out by the political parties that govern the country.

They will draft the constitution, consulting stakeholders in their ways. We are not specifically proposing amendments or a complete rewriting of the constitution.

What we are saying is that, for a democratic Bangladesh, certain principles and provisions need to be incorporated into the constitution.

Whether this is done through political consensus or an electoral process is up to the political parties.

DS: The president's role has largely been symbolic. Did the stakeholders propose increasing the president's powers? Will the commission recommend balancing the powers of the president and the prime minister?

AR: This issue was raised significantly. It came up in discussions about reducing the absolute power of the prime minister.

One suggested approach is to grant more powers to the president. However, there are both positive and negative aspects to this.

As a political science teacher, I see two potential approaches. One is vertical power distribution: granting some power to the president (at the top) and empowering the people (at the bottom) by ensuring their voting rights.

The focus should be on distributing power in a way that ensures the prime minister is accountable not only to the people but also to the system itself.

To achieve this, we need robust institutions. Strengthening parliamentary standing committees is essential, as they can monitor not just the prime minister but the entire government.

Additionally, we need constitutional institutions such as a stronger National Human Rights Commission to protect human rights and a more effective Anti-Corruption Commission to combat corruption.

We are considering the broader picture. Distributing power alone will not solve everything; institutional reforms are critical for balancing power.

DS: Some have proposed the idea of a second republic, inspired by the spirit of the July Uprising, similar to how the constitution reflects the spirit of the Liberation War. Is the commission planning to recommend including this in the constitution?

AR: Some stakeholders have proposed the inclusion of a second republic. However, as a commission, it is not our responsibility to decide on this matter. This is a political decision.

DS: Will the commission propose changes to the preamble of the constitution?

AR: The most important aspect of the preamble is its foundation. We believe the foundation lies in the Declaration of Independence during the Liberation War, which emphasised equality, human dignity and social justice. These ideals are the foundation of our state.

This foundation was not created in a single day or suddenly on April 10, 1971. It emerged from the long struggles of the Bangladeshi people: the anti-British movement, the struggle against Pakistan and the movements of peasants and labourers. These aspirations must be included in the preamble.

Unfortunately, these ideals were not fully reflected in the constitution of 1972, even though they were part of the pledges made during our independence.

The state is essentially [based on] a social agreement. We created this agreement to build a state that ensures equality, human dignity and social justice.

It won't happen overnight, but these foundational principles are what we aim to propose for inclusion in the preamble of the Constitution.

DS: Will the commission recommend the caretaker government system?

AR: We did not encounter any dissenting views regarding the caretaker government. Most stakeholders expressed their support for reinstating the caretaker government system.

DS: Is the commission hopeful that its proposals will be reflected in the constitution?

AR: We are hopeful because this stage has been reached through an unprecedented mass uprising. History will not chart our path, but can we ignore the bloodshed, the sacrifices of lives and the pain of those who are still suffering?

These sacrifices must have meant something and they give us hope.

DS: Compiling these extensive proposals, analysing them and preparing recommendations is a long and rigorous process. Do you think you will be able to complete it within the stipulated timeframe of January 7?

AR: We are hopeful for two reasons. First, we have received significant support from the people, institutions, political parties and researchers. This support gives us confidence that we will be able to submit our draft proposals within the stipulated timeframe.​