Saga of trampled constitution tells a story of brutal betrayal
This saga has become a glaring example of how a severe deficiency in democracy, one of the four fundamental principles of the state, betrays people's aspirations and undermines their rights as enshrined in the Constitution
The current version of the Constitution in our hands does not reflect the same spirit it had when it took effect on 16 December 1972 — on the first anniversary of independent Bangladesh.
The one in our hands is a destroyed and distorted version.
Instead of removing the flaws in the original constitution, successive governments exploited the defects to the fullest to cling to power by trampling the supreme law of Bangladesh.
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Being considered a living instrument, a constitution keeps evolving to address a nation's economic, political, social and cultural hopes and aspirations in the fast-changing times.
Amendments were brought over the years, to be precise 16 times in total since 1973. But none of the amendments could contribute to its growth.
Some of the amendments were brought by the blatant abuse of the legislative power to amend the Constitution by the brute majority of the parties in power.
The amendments themselves destroyed the fabric of the Constitution, trampling people's political and economic rights again and again unchecked.
So, the current Constitution is no longer "the solemn expression of the will of the people" who had struggled for decades for freedom and economic emancipation.
Neither is it a reflection of the will of the young generation who aspire to build a new Bangladesh.
Is the constitution itself responsible for its present situation or those who trampled it?
How was the beginning of the promised land?
Bangladesh emerged as an independent state on the global map on 16 December 1972. The victory came at a heavy cost after nine months of the war, the genocide of around three million, the displacement of another 10 million and rape of 200,000 to 400,000 women.
The first and foremost task of the government of the day was to make the Constitution for an independent country capturing the freedom in the air as the independence turned Bangladesh into a promised land for its people. The same people who aspired to have a free and open society and find happiness and success.
The Constituent Assembly formed through representatives elected in the 1970 election on 4 November 1972 adopted, enacted and gave Bangladesh a new Constitution.
The pledges made in the preamble of the Constitution reflected the will of the people of the time.
"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 freedom, equality and justice, political, economic and social, will be secured for all citizens," pronounces the preamble unequivocally.
In the preamble, "We, the people of Bangladesh" affirmed "that it is our sacred duty to safeguard, protect and defend this Constitution and to maintain its supremacy as the embodiment of the will of the people of Bangladesh so that we may prosper in freedom…"
There was no deficiency in the commitment at that time. Yet, there were some flaws in the Constitution.
Take first Article 70. It imposed stringent restrictions on MPs through which they were made "prisoners of the parties" that nominated them in the elections. Imposing such nefarious restrictions on MPs – chaining their freedom – was strongly denounced when it was being drafted in the Constitution.
Several members of the committee that drafted the Constitution warned that the restrictions would hamper the healthy growth of Bangladesh as a democracy. They even gave a note of dissent in protest.
Their dissenting voices were ignored. In later years, that restriction would continue helping the prime ministers and presidents who led successive governments to keep the parliament under their thumbs and blatantly abused the legislative powers.
The distribution of the executive powers was also flawed. All the executive powers have been vested in the head of the government, be it the prime minister or the president, not in the cabinet or any collective body.
In Article 22 of the Constitution, the state promised to separate the judiciary from the executive branch offering no specific timeframe or measures for an effective separation, allowing the head of the government to enjoy powers on the judiciary through appointments and posting of judges.
This has been continuing for decades allowing the executive branch to influence and undermine the judiciary.
Denying people unfettered freedom of speech and expression and freedom of the press was another flaw in the original constitution. The freedom has been made subject to any reasonable restrictions imposed by law in the interests of the security of the State, public order, defamation or incitement to an offence etc.
Taking advantage of "imposing reasonable restrictions," successive governments enacted draconian laws such as cyber security laws in recent years to crush dissenting voices and, in effect, curb press freedom – proving that fettered freedom is not freedom in the true sense.
Saga of trampling
Within less than a year, those who were in power forgot their "sacred duty to safeguard, protect and defend the Constitution and to maintain its supremacy" as stipulated in the preamble.
The first amendment was brought in July 1973 by the first parliament, empowering the government with sweeping authority to try war criminals. This was done by introducing any law regardless of its inconsistency with any part of the Constitution – and this was just the beginning of the deviation from the Constitution.
The same year, the same parliament passed the Second Amendment Act in September, introducing a provision for declaring a state of emergency by the president. This was not included in the original Constitution.
The amendment also empowered the president to suspend fundamental rights during emergencies. The original Constitution did not give any scope to suspend people's fundamental rights for a single moment. The amendment also introduced a provision for preventive detention, which was a breach of the original constitution – and in the following year, the then-government would enact the controversial Special Powers Act.
As the political situation got volatile, soon after the second amendment, the then-president Mohammad Mohammadullah proclaimed an emergency in December 1974, and suspended many fundamental rights of citizens, on the advice of the then-Prime Minister Bangabandhu Sheikh Mujibur Rahman.
Thirty-five years down the line of the fourth amendment, the much controversial 15th amendment brought by the Hasina government in 2011 has become the latest massive attack on the Constitution.
The emergency would be continued for five years until it was lifted in November 1979.
In November 1974, the first parliament brought in the third amendment as well, changing Article 2 concerning the territory of Bangladesh. The amendment was made to implement the treaty signed between Bangladesh and India in July 1974 on the demarcation of border areas and the exchange of enclaves.
The next year came with the biggest and most cruel attack on the Constitution.
The then-government passed the nefarious fourth amendment in January 1975, through which the form of the government was switched to the presidential form from the parliamentary democracy.
The one-party state was formed banning all other political parties and newspapers – except for four being nationalised. Bangabandhu who was elected as MP in the 1973 election and became the prime minister was made the all-powerful president through the fourth amendment for an indefinite period without election by removing the incumbent president.
The changed Constitution also forced MPs elected in the first election of Bangladesh in 1973 to join the only national party, BAKSAL, within a time specified by the president to save their memberships.
Another special provision extended the tenure of the first parliament, which was constituted through elections held at the end of 1973 for five years. The local government was abolished as a whole.
The judiciary was brought under her thumb as the president was empowered with absolute powers to appoint and remove judges curtailing the parliament's power for their removal.
"The first three amendments do not appear to have altered the basic structure of the Constitution. But the fourth amendment of the Constitution clearly altered the basic structure of the Constitution," the Appellate Division of the Supreme Court observed in the case of Hamidul Huq Chowdhury v Bangladesh.
Analysing the impact of the Fourth Amendment, former Chief Justice Mustafa Kamal in his book titled "Bangladesh Constitution: Trends and Issues" said, "The Fourth Amendment made a drastic inroad into the independence and jurisdiction of the judiciary."
Within seven months of the drastic change in the governance system, then-President Bangabandhu was assassinated and his government was overthrown on 15 August 1975.
The newborn nation plunged into a disaster and constitutional crisis just over three and a half years into the bloody struggle, which put it on the world map. The country was placed under martial law.
The 5th and 7th amendments to the Constitution were passed in 1979 and 1986 by the governments led by Ziaur Rahman and HM Ershad, respectively, validating all orders and actions of the first and second martial law regimes.
Both amendments were made to abuse the parliament's legislative authority, which were scrapped by the Supreme Court between 2005 to 2010. The court found them completely illegal and void as those either destroyed or were against the basic structure of the Constitution.
The parliament was not in existence during both martial law regimes that also amended the Constitution frequently through martial law orders. During the martial law regime of Gen Ershad, the Constitution was even kept suspended until mid-1985 from March 1982.
The 6th amendment was passed in September 1981, allowing the then vice-president Justice Abdus Sattar to contest in the presidential elections held in November of the same year, while in office, after the assassination of President Zia in May.
Justice Sattar, who became the acting president after the assassination of President Ziaur Rahman on 30 May 1981, contested the presidential elections as a Bangladesh Nationalist Party (BNP) nominee and was elected to the office of president but would be ousted by Gen Ershad in a coup in March 1982.
The 8th amendment to the Constitution, brought by the parliament during the Ershad government in 1988, was declared partly illegal and void by the apex court the same year as "it destroyed one of the basic structures of the Constitution by introducing a provision for setting up permanent benches of the High Court in six other places outside the capital."
The remaining part of the 8th amendment, which gave Islam's status as a state religion, also became infructuous as the latest 15th amendment in 2011 replaced it with a new provision in the constitution.
The 9th Amendment was passed in 1989, introducing the office of vice-president. After the amendment, the then-president HM Ershad appointed Moudud Ahmed as vice-president. It is said that the office of vice-president was introduced only for Moudud Ahmed.
The 10th amendment was brought in June 1990, five months before Ershad's downfall, extending the tenure of the reserved seats for women in parliament for another 10 years.
The 11th amendment was brought in August 1991 to validate the justice Shahabuddin Ahmed government, which was formed after the fall of the autocratic Ershad regime in December 1990. The government held the 1991 election facilitating the transition to democracy.
The same year, in September, the parliament passed the 12th amendment switching to the parliamentary form of the government from the presidential one, introduced by the fourth amendment in 1975.
The 13th amendment passed in 1996 introduced the election-time non-partisan caretaker government system in the Constitution amid growing distrust and confrontational culture of politics over the polls.
The 14th amendment was passed in 2004 during the BNP government, increasing the number of women's reserved seats in parliament from 30 to 45. The amendment, however, generated controversy as it also increased the service age of Supreme Court judges by two years.
The then-opposition parties alleged that the government increased the service age of judges to make ex-chief justice MA Hasan lead the caretaker government at the end of 2006. The country plunged into a political crisis within the next two years resulting in the declaration of the state of emergency, which continued for nearly two years.
Making of a despotic regime
Thirty-five years down the line of the fourth amendment, the much controversial 15th amendment brought by the Hasina government in 2011 has become the latest massive attack on the Constitution.
Hasina began her 15-year-long regime in January 2009 by winning the election with the promise to strengthen democracy, judiciary and parliament. But she moved in the opposite direction and planned to cling to power.
Through the 15th amendment, the Hasina government abolished the election-time caretaker government. Through this amendment, one-third of the Constitution was made unamendable. It abolished the referendum system too.
The abolition of the non-partisan election-time government allowed Hasina to remain in power during the elections but the country again plunged into a bigger political crisis.
The rest has become history.
Hasina with the help of the deeply politicised administration and the law enforcement agencies staged three consecutive controversial elections in 2014, 2018 and January 2024 – denying people's voting rights.
Her government, formed after the one-sided election in 2014 brought the 16th amendment to the Constitution empowering the parliament to remove Supreme Court judges on grounds of misconduct.
It was labelled as another move by Hasina to consolidate her grip tighter on the judiciary. The amendment, however, was declared illegal by the apex court which angered Hasina's government resulting in the resignation of then-chief SK Sinha.
She clung to the power by denying people's voting rights, crushing the opposition parties and dissenting voices. Her regime was marked by rampant corruption by ministers, MPs, her government officials, violation of human rights, extra-judicial killings and enforced disappearances.
Her failure to crush the latest agitation by students and people grew bigger than her capacity to quell the movement – forcing her to resign and flee the country for India.
The Supreme Court will now decide the legality of the 15th Amendment as its legality has been challenged by the apex court.
The saga of the trampled constitution has become a glaring example of how a severe deficiency in democracy, which has been announced as one of the four fundamental principles of the state, betrays people's aspirations and undermines their rights as enshrined in the Constitution.
