Constituion of Bangladesh


March 12 saw over a hundred thousand people gather to listen to Khaleda Zia speak. They came, despite the fact that all long-distance transportation to Dhaka, including buses, trains, and ferries, had been stopped the last three days, that police was indulging in mass arrests of anyone even suspected of going to the rally, and that on the day of the rally, AL workers armed with weapons were stationed at various points of the city to “discourage” people from attending the rally.
But you wouldn’t know any of that from reading Afsan Chowdhury’s latest. In fact, his piece is a perfect illustration of the iron-clad rules governing BD journalism. All criticism of AL is generic and vague: “AL came out looking like a bunch of scared rabbits”, “the AL who now stands out looking inept”, “But what the AL also did in its failed attempt to contain the crowds from swelling was use its cadres”, “AL had a bad case of nerves”, “AL decided to add to it by making direct broadcasts impossible”, “the party came out looking so novice like, out of depth and touch, hardly the kind of maturity that can handle a political crisis.”
You see, AL is a party governed by a series of inter-changeable drones, and all members have the exact same contribution to policy-making, so it makes no sense to mention the prime minister, or any of her advisers, or members of her cabinet. The party is governed by a hive-mind. Everyone is equally culpable: no need to mention anyone by name.
By contrast, the criticism of BNP is sharp and personal: “Khaleda where her political imagination is limited by her lack of understanding of what people want”, “she however left out was significant which is any reference to the War Crimes Trial”, “It was a very convenient but unpleasant silence on the part of Khaleda Zia”, “Khaleda has declared a number of new programmes including a hartal. So we are back to the hot and heavy season.”
Simple: BNP bad, Khaleda Zia worse.
Finally, this may come as a shock to Chowdhury, but there is no law “that forbids any criticism” of the war crimes trial. There is, however, Section 39 of the Constitution of Bangladesh, which is titled “Freedom of thought and conscience, and of speech.”  It protects the right of all Bangladeshis to express themselves as citizens of a free and democratic country. Perhaps he should glance at it.

It is always sad when a government with an overwhelming majority like the present Awami League government loses its way. Unfortunately, a host of recent developments all point to that direction. One theme that all these events have in common is that they represent attacks on free speech and political expression, something that should be sacrosanct in all democratic societies.

The most glaring demonstration of this trend has been evinced by the behavior of Prime Minister Sheikh Hasina, who, in her speech in the last session of Parliament, accused the members of parliament of her own parties of “arming her enemies”, by criticizing some members of her cabinet, specifically Communications Minister Syed Abul Hossain. Emboldened by this, Awami League General Secretary and LGRD Minister Syed Ashraful Islam accused the media of “creating the ground for Hasina’s death.” Of course, once the two most important leaders of the ruling party expressed their disdain of dissent in media so openly, other Awami League leaders wasted no time in springing into action. Supporters of Shipping Minister Shahjahan Khan, who has faced a lot of flak for suggesting the unqualified drivers be given long-distance driving permits, have seized bundles of newspapers, and set them to fire. A peaceful human chain organized by BNP to protest the crumbling state of infrastructure was attacked and broken up by Awami League activists. To cap it all, Hasina herself, in a cabinet meeting, instructed intelligence agencies to investigate the organizers of a peaceful rally held in the Shahid Minar on Eid Day.

Unfortunately, the government has made our judicial system an indispensable tool in its all-out war against free speech. Some of the developments are petty: like a sedition case being filed against a cleric for criticizing the government during the weekly sermon. Others are more serious, like Sheershanews editor Ekramul Haq being put in police remand (code for torture) multiple times for writing about corruption charges against certain members of the cabinet, specifically State Minister for Environment Hasan Mahmud. The use of the judiciary to achieve partisan ends only promises to heat up further after the High Court convenes on October 9th after its vacation. BNP acting Secretary General Mirza Fakhrul Islam Alamgir and Standing Committee member Moudud Ahmed have already been summoned to answer charges of contempt of court. If that goes well, the field is already being prepared to embroil Khaleda Zia in the same contempt charges.

Unfortunately, these tendencies were in full display during the passage of the Fifteenth Amendment to the Constitution of Bangladesh, which added Article 7A stating that both to “subvert the confidence, belief or reliance of the citizens to this Constitution or any of its article” or to take any action that “abets or instigates… approves, condones, supports or ratifies” this subversion is sedition, and is to be punishable by death. Just to put this matter into perspective, given that this blogpost is fairly critical of Article 7A of the Constitution, I have just committed sedition. If a reader reads this post and approves, she has also committed sedition. Moreover, if someone then forwards this link (I know, highly unlikely) to a friend by email, that’s sedition too.

We are all going to drown in a sea of sedition.

When finalizing this Amendment, Hasina said in the House that she had acted thus to ensure ““empowerment of people, and their democratic and voting rights.” Perhaps, she had in mind, the provision that said that several parts of the Constitution, including one which titled her father Sheikh Mujibur Rahman as Father of the Nation, could not be altered or amended in the future. Although, it seems like depriving future generations of the power to change the document that will affect their lives in such important ways is the express opposite of empowerment.

However, Hasina is not in good company. In the United States, home of the world’s most famous constitution, there has only been, in the country’s entire two hundred years plus history, only a single proposed amendment that sought to place any topic beyond any further debate or amendment, and it was the infamous Corwin Amendment. In this proposed amendment, in a last-ditch effort to avoid the Civil War, it was proposed that subject of slavery would not be open to any future amendments, effectively meaning that no future government could outlaw slavery. As we know, the Civil War was fought, and an alternative amendment, now known as the Thirteenth Amendment, was incorporated to outlaw slavery.

Hasina and her party love to glorify the role of Awami League in the 1971 War of Liberation. Unfortunately, it has been overwhelmingly documented by Dr. Badiul Alam Majumbad of SUJON (not a big fan of BNP), that the inspiration for this Fifteenth Amendment comes directly from the Pakistani Constitution. Around the world, there are have been two prominent laws passed in the last year that punish people for saying something. One was passed in Saudi Arabia, and it mandates jail sentences for anyone who criticizes the King of Saudi Arabia. The other was in Israel, which criminalized “calling for the boycott of Israel.”

This is not good company for Bangladesh to keep. As the current government finds itself increasingly unpopular, the risk remains that it will use these new laws to further crack down on dissent and opposing political parties. Which will be a sad ending for a government that held out so much promise.

Chief Justice ABM Khairul Haque is going on retirement next week.  His retirement will mark the end of, in fellow blogger tacitaerno’s words, a reign of constitutional terror.

With his retirement, Justice Mojammel Hossain will be the new chief justice. Justice Haque could become chief justice and now he is being followed by Justice Mojammel Hossain only because both of them have proven their utmost loyalty to current ruling party and it’s leader. Both of them superseded Justice Shah Nayeem to become chief justices.

Below is a video montage of comments of different sort of legal professionals on the state of Bangladesh judiciary.

Will start with comments of a leading Supreme Court Lawyer Barrister Sara Hossain,

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Updated: Some redemption.

I am a fan of Zafar Iqbal the science-fiction writer. The columnist, not so much. After a long time, he once again wrote a column in the Prothom Alo. According to him, the two greatest problems facing our country are:

1. We don’t know the lyrics of our national anthem.

2. We don’t make our national flag according to the correct specifications.

Compared to Professor Iqbal, Sohrab Hasan is a paragon of reality-based discourse. He very aptly points out the plight of Bangladeshi blue-collar workers in Libya and the AL government’s slothful reaction to this problem. However, then he seeks to balance his attack by blaming the opposition BNP for not going to the Airport when the workers returned from Libya. Given that two months ago, our government did not allow BNP MPs to enter the Airport when Khaleda Zia departed for China, one has to wonder how Sohrab Hasan believes that the same government would have just allowed the BNP leaders to stroll into the airport without any hassle.

Hasan commits the added offense of minimizing the current controversy of the reprinting of the Constitution ( সরকারি ও বিরোধী দল বাহাসে লিপ্ত হয়েছে সংবিধান পুনর্মুদ্রণ, গণ-আদালতে বিচার এবং তত্ত্বাবধায়ক সরকার থাকা না-থাকা নিয়ে). Prothom Alo’s Mizanur Rahman Khan has been conducting a one-man war against the complete chaos regarding the new, phantom Constitution. His columns on this matter should be mandatory reading for anyone concerned with the fate of parliamentary democracy in Bangladesh.

But no amount of myopia can compete with that displayed by the government in its handling of Prof. Yunus. Sheikh Hasina is going to look back to the day when she decided to launch her vendetta against Prof. Yunus and rue it.

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?

Justice Khairul Haque, appointed Chief Justice, after superseding two senior Appellate division judges, took oath of office today. This blog will do some public service posts in introducing the readers who Justice Khairul Haque really is, what was his political philosophy, how he felt about our national political leaders and what he he thinks our nations’ political identity must be. To avoid being unfair to him and to remain within the context, we have decided to base our analysis solely on the verdicts he wrote. This posts will not be influenced by any other writing on Justice Haque.

Most contentious of his verdicts is his verdict on fifth amendment of Bangladesh constitution. Detail discussion about 5th amendment verdict took place in this and this superb posts by tacit.

So lets quote Justice Haque and try to understand him.

“We further enquired under what provision of the Constitution Justice
Sayem and Major General Ziaur Rahman B.U., PSC., amended the Constitution of
Bangladesh, from time to time, which Charls I or even Lord General Oliver Cromwell could not do without the Parliament.”

All along the fifth amendment verdict text and his later verdict on declaration of war, Mr Justice Khairul Haque has been very unfairly harsh on founder of main opposition party ( The party that ruled Bangladesh longest since independence) late President Ziaur Rahman.  tacit discusses Justice Khairul haque’s pathological hatred of Ziaur Rahman in this illuminating post. It is very unsettling to see that nation’s chief justice refuses to accept Ziaur Rahman ( The man who and whose party generally commands support of nearly 40% of the population) as a president or a political leader of Bangladesh. Throughout the verdict, he calls late President Ziaur Rahman as Major General Ziaur rahman B.U. Psc. This was Zia’s rank as of 15th August 1975. Since then President Zia’s rank was promoted to Lt General and when he died, he died as the elected President of Bangladesh.Even in government documents included in 5th Amendment verdict, Ziaur Rahman was addressed as Lt General. But Mr Khairul Haque ignores all these and keeps him referring to as Major general Ziaur Rahman and always mentioned him as an Army commander, never as a politician, let alone national or even political leader.

“…when we specifically asked him to show us any Constitutional or legal provision in justification of the seizure of State – Power of the Republic , he ( The Attorney General) was without any answer although he mumbled from time to time about the Fourth Amendment.”

The harsh, hateful rhetoric Mr Justice Haque resorted to in his verdicts are appalling. Unlike the current day trend, when Attorney General keeps the whole Judiciary under constant suppression, this above treatment of the Attorney General took place in BNP rule. Seeing the culture of these  days, it is difficult to imagine how he could deliver such a scathing series of comments against BNP’s founder and treat the BNP’s AG so rudely under BNP rule.

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Watching Bangladesh’s higher judiciary in action always reminds of Goldilocks and the Three Bears. They can’t be too independent, but they can’t be blatantly servile either. The result is an eternal attempt to walk the fine line.

The Appellate Division’s verdict is another fine example on this. The committee to amend the Constitution announced more than a week ago that they would be having their first meeting on July 29. And through an extremely fortunate coincidence, the full copy of the verdict is released two days before that. Which is a relief, because this means that Sheikh Hasina and the members of this committee are only 50% in contempt of court, as opposed to the full 100% as they would have been if they had started the deliberations of the committee without getting the final copy. Of course, for all you over-suspicious types keeping track, Justice Khairul Huq was appointed by Awami League, and four of the six justices who delivered this verdict (Chief Justice Fazlul Karim, Justices Bijan Kumar Das, Justice Md. Muzammel Hossian, and Justice Surendra Kumar Sinha) were also elevated to their position by Awami League.

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