Bangladesh must have a constitution. The question, what is it?
As Chief justice Khairul Haque suggests, after 5th amendment verdict, the constitution has been automatically amended. In that case, per Chief Justice’s instructions, the the preamble and four basic principles will be like this,
We, the people of Bangladesh, having proclaimed our Independence on the 26th day of March, 1971 and through a historic struggle for national liberation, established the independent, sovereign People’s Republic of Bangladesh;
Pledging that the high ideals of nationalism, secularity, democracy and socialism, which inspired our heroic people to dedicate themselves to, and our brave martyrs to sacrifice their lives in the struggle for national liberation, shall be fundamental principles of the Constitution;
Further pledging that it shall be a fundamental aim of the State to realise through the democratic process, a socialist society free from exploitation, a society in which the rule of law, fundamental human rights and freedoms, equality and justice, political, economic and social, will be secured for all citizens;
However the constitution our CJ took oath to protect ( when he was sworn in a High Court Judge, Appellate division judge and Chief Justice), which was developed in 1972, Amended 13 times by 1st, second, 3rd and 4th parliament was not the same constitution. Ruling party leadership as well as opposition leadership suggests this to be our constitution unless a new amendment passes parliament. This specific constitution has a preamble with different four basic principles which are read in the following way,
We, the people of Bangladesh, having proclaimed our Independence on the 26th day of March, 1971 and through a historic war for national independence, established the independent, sovereign People’s Republic of Bangladesh;
Pledging that the high ideals of absolute trust and faith in the Almighty Allah, nationalism, democracy and socialism meaning economic and social justice, which inspired our heroic people to dedicate themselves to, and our brave martyrs to sacrifice their lives in the war for national independence, shall be fundamental principles of the Constitution;
Further pledging that it shall be a fundamental aim of the State to realise through the democratic process to socialist society, free from exploitation-a society in which the rule of law, fundamental human rights and freedom, equality and justice, political, economic and social, will be secured for all citizens;
Question may arise can a justice, taking oath to protect a constitution, change it? If he had a problem with that constitution, why he would take oath to protect it?
And most importantly, what is the constitution of Bangladesh today? If a case that requires interpretation of constitution, goes in front of appellate division tomorrow– which four basic principle our justices will uphold?
October 4, 2010 at 6:43 am
I guess its easy whatever Chief justice Khairul Haque says is becoming Bangladesh constitution. That much law minister of Awami regime has confirmed it.
If one recalls, in his verdict this judge called for punishment against military takeover. Question now what would be punishment for judicial dictatorship Chief justice Khairul Haque perpetrating?
http://www.sheershanews.com/index.php?option=com_content&view=article&id=27748:2010-10-04-11-18-55&catid=52:2009-07-24-13-37-08&Itemid=59
October 4, 2010 at 6:02 pm
This is actually a dangerous situation and it happened because of a BNP ukil who open bank accounts under 19 different names. Still BNP cannot get rid of this ukil. Patriotic people elected Khaleda Zia with so much hope, and she did nothing for the country and she made a man who cannot even subtract 4 from 36 the chief of the army.
October 4, 2010 at 11:05 pm
Not sure if you are asking the right question, Rumi bhai.
1. Whatever happens, under the current rule, a justice cannot change the constitution. Constitution rules the court, not the other way round.
You are also right in saying that a justice takes oath to protect a constitution. How do they do it? They make sure that the fundamentals of the constitution is protected and the changes are made by the parliament in accordance with the law.
Suppose, the ruling party brought a bill to amend the constitution and passed the bill with “less than” one-third majority and claimed that the constitution has been changed. In this case, the justice can declare that the amendment is invalid (since minimum one-third is required).
Here, the judiciary is not changing the constitution. It is simply ruling a flawed change as unconstitutional.
Similarly, suppose the fundamentals of a constitution does not allow orders by Martial Law Administrators to be public laws. Now, suppose someone took the power following a coup, then conducted an election to win most seats and then puts it in the constitution that “martial law is democratic and all orders by MLA should be treated as democratic public laws”.
In this case, the judiciary, which seeks to protect the constitution, can simply say that the amendment doesn’t go in accordance with the constitution and hence are not valid. Here, the judiciary is not changing the constitution since it simply can’t do that. The judiciary is simply pointing out that this particular amendment is in breach of the constitution. That’s all.
In such case, the earlier version of the constitution, that was established by the parliament (not by judiciary) in accordance with the rules, prevails.
2. When a presidential order to change the constitution is signed, the country gets a new Constitution immidiately. Even if the BG press delays printing of the new constitution by years, the country still goes with the new constitution without having a print of it.
When judges sworn in to protect a constitution, they do not aim to protect a particular printed version, they aim to protect the constitution that is “in effect”. Otherwise, if a particular printout differs with the actual Order due to a printing mistake, then the judges will have to protect that mistake!
Thus, notwithstanding the version of the written constitution, the justice have taken oath to protect the constitution that is “in effect”. If the verdict says that a particular amendment was invalid, then the Constitution “in effect” is the one that was passed by the parliament before that now-invalid amendment.
3. After the two-year long CTG, Bangladesh’s political discourse is enjoying another gray area what is called “Mushtabahat” in Islam that is found in between Halal and Haram (it’s like asking if dinosaur-meat is haram or halal).
We are in deed under the old (pre-MLA) constitution now, since subsequent amendments were ruled unconstitutional (see point 1). However, politicians also know the problems of time-travel. So they will play around this “constitution in effect” until they bring in another amendment to “fix” the inconsistencies.
Then the interesting question will come—should we call the next amendment fourteenth or twelfth?
I guess, admitting “6th parliament” was easier 🙂
October 5, 2010 at 9:14 am
Correction: I meant– should we call the next amendment fifteenth or thirteenth? Is it legal to count an invalidated amendment? I wonder.
October 6, 2010 at 8:16 am
Syeed, the judiciary is defiintely changing the Constitution. To pretend otherwise is mere denial.
Even after Fifth Amendment is overthrown, to insist that Bangladesh is a secular country while Islam is Bangladesh’s state religion is sheer stupidity or blind partisanship, you may take your pick. By the same dint, railing against the Fifth Amendment because it takes away the Supreme Court’s jurisdiction while 47 (3) and 47 (A) exists in our Constitution is another example of the same sort of behavior.
If our judges resort to this level of fraud, then what remains of the rule of law in our country? By the latest DS-Nielsen poll, 47% of people already think our judiciary is partisan, an increase of almost 50% since AL came to office. If the judiciary still doesn’t see the consequence of their conduct, then they will be solely responsible for the irreparabe harm they are causing to the entire institution of the judiciary.
October 6, 2010 at 3:44 pm
Two things here… confusing them would be mere denial or blind partisanship, you make your pick.
1. “Secularism” was installed in the Constitution by the parliament in 1972 (a change that was made in between by martial law proclamation is now invalid).
Then “State Religion” was installed in the Constitution by the parliament in 1988 (through 8th amendment).
Now, if two acts by the “Parliament” contradicts, you can’t blame it on Judiciary. You can however now ask the Judiciary to review if 8th amendment contradicts with the Constitution.
2. That 47% probably would include me, not because of the verdict itself, but because of the partisan reasonings, some of which you brilliantly quoted here in another post.
Using wrong reasoning to oppose wrong doing isn’t right- and the abridged verdict of AD confirms that.
[I’m being candid only to the extent that it doesn’t amount to contempt of court.]
October 6, 2010 at 9:23 pm
Chorjapod, you raise a good question in 1. However, the whole point of an amendment (here the Eighth Amendment) is to change/add something that was not otherwise in the Constitution.
Let us take as example. The Seventeenth Amendment to the US Constitution contradicts Article I, § 3 of the Constitution. No one sits and wonders what this contradiction means. The amendment trumps the original body of the document. Thus, if the Eighth Amendment contradicts secularism, that means that secularism no longer exists.
Moreover, this is an extremely fundamental rule of statutory interpretation: something they teach you the second day of law school. However, our judiciary has constructed a whole fantasy-land by pretending otherwise.
October 7, 2010 at 2:11 am
1. Well, superiority of new amendment is subjective. As in this 17th amendment vs Article I, § 3; Bangladesh’s first amendment also supersedes Part III of the constitution for those facing war crimes trial. A repeatedly used phrase in new constitutional amendments and laws goes something like this— “Nothing in this …shall apply…”
2. However, constitution in many countries has articles that either forbids the amendment of some basic articles of the Constitution, or rules that, no future amendment can supersede these basic articles (Germany—Article 79/3, Turkey— Article 4, France—XVI/Article 89, US—last part of Article 5). In fact, Article 26 of Bangladesh constitution was one such Article. But I’m not sure why 26(3) doesn’t contradict with it.
Anyway, instead of having a particular article such as these countries, India established a new doctrine—the basic structure doctrine. India’s Supreme Court ruled that no matter what change is brought to the laws/constitution, the basic structure of the constitution overrules everything. Same argument was given in our 18th amendment case. I guess, similar arguments were there in “subsequent cases” which got buried in “dhan vantey zia-r gee(bo)t” texts 🙂
October 7, 2010 at 12:20 pm
I’m not sure what “superiority of new amendments is subjective” means.
If the Constitution of Bangladesh says:
142. Power to amend any provision of the Constitution
(1) Notwithstanding anything contained in this Constitution-
(a) any provision thereof may by 92 amended by way of addition, alteration, substitution or
repeal by Act of Parliament
Then what is the relevance of India, Turkey, etc.?
October 7, 2010 at 3:14 pm
There are two doctrines on subjectivity: most countries implicitly or explicitly keep an article in the Constitution to overrule other articles. And in other cases, Judiciary within its legal power to provide explanation to Constitutional Articles, rules some articles to have such overruling power.
For instance, Article 7 and 26 of Bangladesh constitution overrules Article 142 (even though it says: Notwithstanding anything contained in this Constitution, because many other articles uses such phrase too and if there is a conflict, you know who has the right to explain).
Which means, under Article 142, if you make an amendment that contradicts with Article 7 or 26, that will be void.
However, India’s Basic Structure doctrine and it’s reference to our 8th amendment case is Greek to me.
October 5, 2010 at 1:16 pm
A) In USA the president always says after each speech “God Bless America”.
In Bangladesh we will say
“Secularity Bless Bangladesh”.
B) Before, “high ideals of absolute trust and faith in the Almighty Allah .. fundamental principles of the Constitution” could not STRAIGHTEN our politicians from crime, corruption and exploitation of the nation.
Now, “Secularity” will fix them !!!
October 5, 2010 at 7:39 pm
The whole 5th amendment verdict hoopla is based on a illogical reasoning that fundamental principles of constitution can not be changed.
Khairul Haque and those who are trying to justify him are simply playing the century old scripture logic. They are speaking in ‘Shariah’ language.
Khairul Haques are telling us that Bangladesh constitution is like Quran. It’s fundamental principles are God’s word, no question can be asked about their authenticity as GOD’s words and definitely these are complete and absolutely unchangeable Ohi for Bangladesh.
Lord Protector Khairul Haque and his followers are saying that Bangladesh constitution’s ‘fundamental’ ( whatever portion Lord protector and his disciples find convenient) has to be same even 1500 or 15000 years later as long as a country called Bangladesh exists.
Hush! Hush!! Can’t change God’s words, God’s book is complete, nobody ever can change this complete life guidance for Bangladesh.
October 5, 2010 at 9:15 pm
Three issues should be judged separately:
1. Can the basic structure be changed?
– I didn’t find any restriction on amending fundamentals of Constitution in most countries. The only frequent reference made by our Judiciary in 1988 and in 2005 was India’s Basic Structure doctrine that came following “Kesavananda Bharati v. State of Kerala”.
Even discussion on US constitutional amendment says–
And I agree.
2. Can Constitution be suspended or changed through Martial Law Orders?
– The Constitution, even after its 5th and 7th amendment, says no. Those amendments only added some para in the Schedule to proclaim that certain Martial Law orders cannot be questioned. However, Martial Law orders that suspended Constitution was in breach of article 7 of the Constitution which affirmed Constitution’s supremacy over Martial Law.
3. Can the Judiciary, while invalidating the Martial Law Orders, pick and choose them?
– Well, if one argues that certain Martial Law Orders can be kept for the benefit of the people, why can’t same argument be applied to all of the Orders?
To end this dispute once and for all, the next Parliament should–
a. bring an amendment to clearly mark that Democracy, however gets defined by the people in the course of time, cannot be undermined by martial law or authoritarian orders.
b. disown martial law or authoritarian rules of 4th, 5th and 7th amendments (if necessary, required texts can be restored formally in accordance with the Constitutional procedure)
October 6, 2010 at 8:32 pm
“Its power derives from the people; it was adopted by the people; it functions at the behest of and for the benefit of the people.”
—–
In BD, the things that people REALLY WANT, for people’s benefit are never adopted, because, either politicians or their crony judges make the changes. Only those items that politicians believe will benefit their RE-CORRUPTION (re-election), are pushed into change.
What I want, what we want, to see change in constitution, to really build a democratic nation, are:
1) severe punishment for corruption
2) term limit for PM’s office
3) democratic operation of party politics
4) checks & balance
5) separation of governance powers
6) independant judiciary
But, above changes are against their interest, so they will not be adopted. The “secularism” issue is a DUMMY amendment, made in extremely undemocratic fashion, and is total authoritarian politics – NOT “democracy”.
If we are to keep changing Constitution through partisan judges, then my advice is to shutdown the dysfuctional Shongshod Building, and just save electricity. Let the bogus judges do the dummy amendments, and let the nation continue to rot.
May 22, 2011 at 9:46 am
1.what do you understand by wel fare state
2.do you think Bangladesh is a wel fare state?
3.discuss with reference to provisions of Bangladesh constitution.
May 28, 2011 at 4:14 pm
Bangladesh is not a welfare state, its a FAREWELL state !!
Farewell to freedom and welcome corruption, aka bogus democracy state.