The
Constitution (Fourteenth Amendment) Bill, 2004: Merits and demerits
Burhanuddin
Ahmed
After
the birth of Bangladesh as a sovereign country, the then Government
established a Constituent Assembly to frame a Constitution for the newborn
country. The said Assembly framed the Constitution within the shortest
possible time and adopted and enacted the same on the 4th day of November
1972.
In
total 13 amendments have so far been made in the Constitution of the
Peoples Republic of Bangladesh. The first amendment was made in 1973.
The amending Act called Constitution (First Amendment) Act, 1973 provides,
amongst others, that no law providing for detention, prosecution, or
punishment of any person, who is a member of any armed or defence or
auxiliary forces or who is a prisoner of war, for genocide, crimes against
humanity shall be deemed void or unlawful on the ground that such law
or provision thereof is inconsistent with or repugnant to, any of the
provisions of the Constitution.
The
second constitution amendment was also made in 1973 by the Act called
Constitution Second Amendment Act, 1973. This amending Act provides,
amongst other things, that no person who is arrested shall be detained
in custody without being informed, as soon as may be, of the grounds
for such arrest, nor shall be he denied the right to consult and be
defended by a legal practitioner of his choice. If further provides
that every person who is arrested and detained in custody shall be produced
before the nearest magistrate within a period of twenty-four hours of
such arrest excluding the time necessary for the journey from the place
of arrest to the court of the magistrate, and no such person shall be
detained in custody beyond the said period without the authority of
the magistrate.
The
third constitution amendment [The Constitution (Third Amendment) Act,
1974] refers to the agreement between the Government of India and Bangladesh
concerning demarcation of land boundary between the two countries.
The
fourth amendment was made by an Act called (Fourth Amendment) Act, 1975.
This amending act provided, amongst other things, for the establishment
of presidential form of government in place of parliamentary from. It
further authorized the President to establish only one political party
called "National Party" by dissolving all political parties
in the country. The unique characteristic of the one party system was
that any person in the service of the Republic made qualified to be
a member of that National Party.
The
fifth constitution amendment Act [Act no II of 1975] has protected,
amongst others, all Proclamation, Martial law regulations, orders and
other laws made during the period between the 15th August, 1975, and
the 9th April, 1979.
The
sixth constitution amendment Act provided that if a Vice-President is
elected as President or if a President or a Vice-President is elected
as Member of Parliament, he shall not be qualified to be member of Parliament
until he ceases to hold office as President or Vice-President.
The
Constitution (Seventh Amendment) Act 1986 raised the age of retirement
of a Judge from 62 to 65 years. It has further protected all the Proclamations,
Proclamation Orders, Chief Martial Law Administrators Orders, Martial
Law Regulations, etc issued during the period from 24th March, 1982
and the date of commencement of the Constitution (Seventh Amendment)
Act, 1986.
The
Constitution (Eight Amendment) Act, 1988, provides, amongst others,
that the state religion of the Republic is Islam, but other religion
may be practised in peace and harmony in the Republic. It further provided
that "Bangla" shall be inserted in the Constitution in place
of "Bengali." It has also provided that the word "Dacca,"
shall be substituted by the word "Dhaka." It further provided
that the High Court Division and the Judges thereof should sit at the
permanent seat of the Supreme Court and at the seats of its permanent
Benches. It also provided that the High Court Division shall have a
permanent Bench at Barisal, Chittagong, Comilla, Jessore, Rangpur and
Sylhet.
The
Constitution (Ninth Amendment) Act, 1989 provided that the Vice-President
of the Republic shall be elected in accordance with the law by direct
election for a period of five years. If the Vice-President enters upon
his office on any day after the date of entering upon the office by
the President, the term of office of the Vice-President shall expire
on the date of which the term of office of the President expires.
The
Constitution (Tenth Amendment) Act, 1990 provided for the reservation
of 30 seats for women members in Parliament for a period of 10 years
beginning from the date of first meeting of the 5th Parliament and the
election to these reserved seats shall be held through electoral college.
The
Constitution (Eleventh Amendment) Act, 1991 provided for the return
of Chief Justice Shahbuddin Ahmed to his original position in the Supreme
Court of Bangladesh. He was also allowed to count the period of services
rendered by him as the Acting President as the services in the office
of the Chief Justice of Bangladesh for the purpose of leave, pension,
etc.
The
Constitution (Twelfth Amendment) Act, 1991, provided for establishment
of parliamentary form of government in place of presidential form. It
has also determined the mode of election to the office of President
and other terms and conditions of his service as such.
The
Constitution (Thirteenth Amendment) Act, 1996 has provided for the establishment
of a Non-Party Caretaker Government for conducting general election
freely, fairly and impartially.
The
fourteenth amendment
The Government has since introduced a Bill proposing fourteenth amendment
in the Constitution. This Bill through one of its proposal seeks to
insert a new article namely 4A after the existing article 4 of the Constitution.
Clause (1) of this new article proposes to provide that the "Portrait
of the President shall be preserved and displayed at the offices President,
the Speaker and all embassies and missions of Bangladesh abroad,".
Clause (2) of the said article proposes to make provisions to the effect
that the Portrait of the Prime Minister, shall be preserved and displayed
at the offices of the President and the Speaker and in head and branch
offices of all government and semi-government offices, autonomous bodies,
statutory public authorities, government educational institutions, embassies
and missions of Bangladesh abroad.
A
close scrutiny of the aforesaid proposed provisions reveals certain
anomalies. Firstly, no provision has been proposed for the preservation
and display of the Portrait of the Prime Minister in his office though
a proposal is there to preserve and display the same (Portrait of Prime
Minister) at the offices of the President and the Speaker. Further,
proposal has not also been made in the Bill for preservation and display
of the Portrait of the President at the office of the Prime Minister.
Secondly, though the President is the head of the state, the Bill does
not propose for the display of his portrait at the head and Branch offices
of all government, semi-government offices, autonomous bodies, statutory
public authorities and government educational institutions. The proposals
contained in the Bill for effecting amendments in the Constitution do
not, therefore, seem to be sound, decent and just. Decency, justice
and fair play demand that no law should be enacted that might be derogatory
to the person holding the highest office in the Republic.
In
this context it seems relevant to mention here that the preservation
and display of portraits of the Head of the State as well as the Head
of the Government has hitherto been regulated by the executive order
of the Government. This has so far worked well. There is, therefore,
hardly any necessity of making any constitutional provision in this
behalf disrespecting the traditional method. The considered view on
the proposal for constitutional amendment is that it will unnecessarily
create political controversy.
The
Bill introduced in the House further proposes insertion of clauses (1A)
and (1B) under clause (1) of article 59 of the Constitution. Clause
(1) seeks to provide that the elected persons of any local government
shall not continue in office after the expiration of the term fixed
by law and during the period from the date next after such expiration
of the term till the date on which a new body reconstituted the local
government of that administrative unit shall vest a in public officer
appointed by the Government for the purpose. Further, Clause (1B) seeks
to provide that election shall be held within ninety days after the
date of such expiration to reconstitute the body with elected representatives.
The
existing provisions under clause (1) of article 59 of the Constitution
provides for running the local government of every administrative unit
of the Republic by a body constituted with elected representatives.
This is fine; but if this provision is to be respected, the election
to a local body has to be held within two or three months ahead of the
date of expiry of the term of the concerned local body. In such a case,
the incumbent elected representatives in power shall have opportunity
to manipulate the results of election in their favour. So, in the interest
of free, fair, and impartial election, the proposal for running the
local government by a public officer for a period of three months seems
to be in line with the holding of general elections to parliament under
the Non-Party Care-Taker Government. This proposal seems to be in order
and deserve consideration.
The
Bill in question also contains a proposal for reservation of forty-five
seats for women members in Parliament for a period of ten years beginning
from the next Parliament. It further proposes to fill up those seats
by the votes of three hundred members of Parliament elected from the
general seats.
In
the context of the aforesaid proposal, it is mentioned that the proposal
for reservation of 45 seats in Parliament and filling of those seats
by the votes of three hundred members elected to Parliament from the
general seats has already been rejected by the organizations representing
the interests of women folk of the country. Currently, there are three
separate demands from three separate groups of the women activists.
One of the groups is demanding reservation of 150 seats in Parliament
while another group is pressing for 100 seats. There is still another
group who pleads for only 64 seats i.e. one seat for each district.
But all the groups are united on the mode of election. They are persistently
demanding direct election to the reserved seats on the ground that indirect
election is not only undemocratic, but also makes the women members
accountable to 300 members of Parliament elected from the general seats
instead of making them accountable to the people of the constituency
they will represent.
In
addition, the procedure proposed in the bill for election of women members
to reserved seats suffers from several serious defects. Firstly, it
safeguards the interest of only the women activists of the major political
parties at the cost of the activists of the minor political parties
and the independent candidates. Secondly, the proposal is inconsistent
with the principles of democracy and universal suffrage. Thirdly, the
proposal is in violation of the pledge made by the major political parties
on the eve of the last general election.
The
proposal for holding election to reserved seats through electoral college
formed with 300 MPs from general seats has apparently been made on the
ground that direct election will, in addition to creating problem of
campaign due to vastness of the constituency, create funding problem
of unbearable magnitude for the women candidates. If this is the ground
for holding election through electoral college, then it can be said
that the ground is not well founded. If the history of 1954 general
election in the then East Pakistan (now Bangladesh), is traced, it will
be found that 10 seats were reserved for women in the Legislative Assembly
of the then East Pakistan and those seats were filled in by direct election
on the basis of separate electorate. At this time, the communication
system was very poor; the financial condition of the women was unimaginable;
politically and educationally they were much backward. Notwithstanding
all these disadvantages, the women fought that election very successfully.
The
country, at the moment, is connected with an efficient net-work of communication
system; the percentage of literacy has by this time improved considerably;
the financial and social conditions of the probable women candidates
have also improved many times; politically they are now well trained
and sufficiently experienced. There is, therefore, no justifiable reason
for filling up the reserved seats through indirect election against
the will of the women folk who represent 50% of total population of
the country.
In
view of the facts narrated hereinbefore, the proposal for indirect election
has created a wide-spread impression that this is a calculated measure
of the ruling party to accommodate their women activists in the Parliament
to create a vote-bank for their convenient use as and when occasion
arises. The proposal for distribution of the members elected to the
reserved seats among the political parties in proportion to their representation
in the Parliament is nothing but a clever attempt to cool down probable
agitation against the proposal by the major opposition block.
In
the circumstances, it appears to be fit and proper for the ruling party
to honour their commitment for increasing the number of reserved seats
and filling up those seats by direct election.
Under
the existing arrangement, the members-elect of Parliament are to make
and subscribe an oath before the outgoing Speaker and in his absence,
before the outgoing Deputy speaker and in the absence of both of them
before a person designated for the purpose by the outgoing Speaker.
The proposal made in the Bill in this behalf is that if, within three
days next after publication through the official gazette of the result
of a general election of members of parliament, the person specified
for the purpose or such other person designated by that persons for
the purpose, is unable to or does not, administer oath to the newly
elected members of Parliament, on any account, the Chief Election Commissioner
shall administer such oath within three days next thereafter.
The
proposal in the Bill for involving the Chief Election Commissioner in
matter of administering the oath to the members-elect seems to be in
order and be helpful in solving the problem if arises due to the inability
of administering the oath to members-elect by the outgoing Speaker or
the Deputy Speaker or by a person designated by him.
The
author is a former Deputy Secretary of Election Commission.
