Bangladeshi Constitution

Question: Bangladeshi constitution changes over time but it don’t reflect the demand of the people of Bangladesh. Introduction: Bangladesh Constitution changes over time in different government regime. There have been ongoing controversies and debates on some aspects of the current Bangladesh Constitution, especially every government came to power and amend the constitution according to their will. No specific and written proposal has ever been published by those governments; so we are unaware of the benefit of those Amendments which are intended.

In my study, I tried to discuss about some important amendment about Bangladeshi Constitution. Especially I focused on reflections of the demands and choices of people on these changes. First Amendment: In 1973, the Constitution Act 1973 was passed inserting sub-art (3) in Article 47 whereby law can be enforced over war criminal and then fundamental human rights will be inapplicable. Flaws of this amendment: Govt. an misuse this amendment and accuse someone as war criminal. As a result that accused people will not be able to have any kind of fundamental human rights. This amendment is not reflecting the need of mass people rather some political people. Third Amendment: The Constitution (Third Amendment) Act 1974 was passed to give effect to the agreement with India giving up the claim in respect of Berubari and retaining Dahagram and Angorpota. Flaws of this amendment:

An Enclave is a geographical territory which is completely surrounded by foreign territory (including foreign territorial water) such a territory is called an enclave in respect to the surrounding foreign territory, and an exclave in respect to the territory to which it is politically attached. So after the exchange, the control of the corridor rested with the Indian authorities, and the problems of connecting other enclaves continue as before. Moreover the primary sufferers of this controlled corridor are the people of Bangladesh. Fifth Amendment:

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The Constitution (Fifth Amendment) Act was passed by the Jatiya Sangsad on 6 April 1979. This Act amended the Fourth Schedule to the Constitution by adding a new Paragraph 18 thereto, which provided that all amendments, additions, modifications, substitutions and omissions made in the Constitution during the period between 15 August 1975 and 9 April 1979 (both days inclusive) by any Proclamation or Proclamation Order of the Martial Law Authorities had been validly made and would not be called in question in or before any court or tribunal or authority on any ground whatsoever.

The expression ‘Bismillah ar-Rahman ar-Rahim’ was added before the Preamble of the Constitution. The expression ‘historic struggle for national liberation’ in the Preamble was replaced by ‘a historic war for national independence. ’ One party system was replaced by multiparty parliamentary system. Fundamental principles of state policy were made as ‘absolute trust and faith in the Almighty Allah, nationalism, democracy and socialism meaning economic and social justice. ’ Flaws of Fifth Amendment [1]:

The Fifth Amendment was passed by a military government in the consequences of a series of murderous coups, counter-coups and government change. That period was very painful, undefined and critical for the ‘sovereign existence’ of Bangladesh as it faced hosts of political, economic and security challenges from both within and outside. One may have hesitations about some aspects of this or any other Amendment but it is important also to consider the overall situation prevailing at the time.

And it is wrong, in my opinion, to condemn any or all the Amendments if the existing conditions demanded it, but we have a right, in fact obligations, to look at them critically and reassess the situation [2]. The leaders want to change the present Constitution, because according to them, the Constitution was made ‘Communal’ by introducing the words ‘Bismillah ar-Rahman ar-Rahim’ in the preface and by making ‘Islam’ the ‘state religion’ at the cost of the principle of ‘Secularism’.

This brought about fundamental modifications to Constitution, which is true in my judgment, but I am not sure whether this made Bangladesh ‘more Islamic’ or ‘communal’ than before. It is noted that equal rights, including freedom to exercise all religions, are guaranteed in the Constitution. There may be some uncertainty and it is true that some fringe groups have been mixing for introduction of ‘Sharia Law [3]’. This, of course, is shocking the religious minorities for the potential loss of their religious rights and freedom under an ‘Islamic Republic’ in the style of Pakistan or Afghanistan under Taliban rule.

Majority Muslims of Bangladesh are also concerned since such activities may encourage the extremist groups to adopt violent and terrorist activities for a change of the government and the system. The word ‘Socialism’ was not omitted completely from the Constitution by the subsequent amendments but redefined by saying that it meant ‘economic and social justice’. This assured the West and pro-capitalist elements that Bangladeshi Socialism is not socialism in the real sense; it was not the socialism as it was then accomplished in China or Soviet Russia, and that there is no reason to be frightened.

In the light of the major changes in the world economic and power relations over the last decades (especially since the collapse of Soviet model, end of Cold war, amendments in the Chinese model), debates on this ‘modernizing socialism’ in the Constitution is rather muted. Some of our former ‘Socialist revolutionary leaders’ are happily co-habiting with semi-feudal, pro-capitalist parties. The debate on ‘Nationalism’ (Bangali vs Bangladeshi) seems to be driven by emotion. Individually, I feel quite comfortable being known as a ‘Bangladeshi’ national with ‘Bangali’ cultural and linguistic tradition and with a Muslim faith.

Citizens who are not Bangali but of other ethnic and cultural roots and profess any of the non-Muslim faiths should feel quite relaxed if their nationality is ‘Bangladeshi’. I find no contradiction in this kind of arrangement. But it is wrong to define all the citizens of Bangladesh as ‘Bangali’; they would not feel comfortable with is this classification. Those who raise controversies and unnecessary debates on this issue are not helping Bangladesh to establish its individual national identity. The issue of ‘Secularism’ is more complex as it is supposed to be more rogressive and all embracing as opposed to the word ‘Islam or Muslim’ in the Constitution. Whether the present Bangladesh Awami League government really wants to delete the words ‘Bismillah ar-Rahman ar-Rahim’ from the preface and ‘Islam is the state religion’ from the Constitution to reinstate the word ‘Secularism’, remain to be seen. Still we may create a few comments for general conversation.

[1] http://thetrajectory. com/blogs/index. php/2009/05/the-fifth-amendment-crisis-in-bangladesh/ [2] http://www. scribd. om/doc/2599618/12-Amendment-in-Bangladesh-Constitution [3] Sharia, or Islamic law, influences the legal code in most Muslim countries. A movement to allow sharia to govern personal status law, a set of regulations that pertain to marriage, divorce, inheritance, and custody, is even expanding into the West. Tenth Amendment: The Constitution (Tenth Amendment) Act 1990 amended, among others, Article 65 of the Constitution, providing for reservation of thirty seats for the next 10 years in the Jatiya Sangsad exclusively for women members, to be elected by the members of the Sangsad. Flaws of this amendment:

The tenth amendment reflects the right of women regarding the participation in Jatiya Sangsad. But there are biasness regarding the female candidate selection procedure. Moreover some female member of parliament is worse then male MP, this unjustified selection makes the public representation procedure vague. Thirteenth Amendment: The Constitution (Thirteenth Amendment) Act 1996 provided for a non-party Caretaker Government which, acting as an interim government, would give all possible aid and assistance to the Election Commission for holding the general election of members of the Jatiya Sangsad peacefully, fairly and mpartially. The caretaker government, comprising the Chief Adviser and not more than 10 other advisers, would be collectively responsible to the President and would stand dissolved on the date on which the Prime Minister entered upon his office after the Constitution of the new Sangsad. Flaws of this amendment: The introduction of caretaker government is not as effective as it was thought. The caretaker govt. forms after a political party handover the power to the caretaker govt. and the duty of caretaker govt. is to make necessary procedure to arrange a free and fair election.

But the previous political party can easily influence the caretaker govt. and then caretaker govt. will tilt the election procedure towards them. As a result the previous political party remains in the govt. position for nest 5 years. So there must be more clauses in the 13th amendment to rectify the behavior of caretaker govt. member. Analysis and Comments: It is observed from the above, that the Amendments made at one time under certain circumstances were replaced by another Amendment, and also that majority of these had a broad nationwide debate.

But a few of those Amendments were enacted without proper debates and discussions. Whereas, people from different political view, religion should be involved in this process. Amendments that were the result of autocratic thought obviously come under severe criticisms, sometimes for valid reasons and sometimes for political purposes. Constitution is the superlative law of Bangladesh . It is the reflection of people's demands and needs. The government should think very carefully before making any fundamental changes in it.

It should refrain from making major changes unless a national harmony is attained. History tells us fundamental changes of the Constitution by the one-sided action of the government have not brought successful result. Rather, it created hostility and division within the country when stability and unity were greatly needed for national prosperity. In any event, if any fundamental changes are to be made in the current Constitution, the prescribed procedure outlined in the very Constitution must be followed.

Reference

• Daily ittefaq, Article on ‘Contemporary debates for fundamental changes of the Constitution’, [online, retrieved on February 27, 2010], available at: http://www. ittefaq. com/issues/2010/02/27/news0888. htm
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• ESDAL, Article on ‘The Constitution of the People's Republic of Bangladesh ’, [online, retrieved on October 12, 2010], available at: ;lt; http://www. esdal. org/Archivo/ban-pIII. htm;gt;
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• Wikipedia 1, 2010, Indo-Bangladesh enclaves. [online retrieved on October 8, 2010], available at:  http://en. wikipedia. rg/wiki/Indo-Bangladesh_enclaves
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