THE CONSTITUTION (FOURTEENTH AMENDMENT) ACT, 2004 - AN UNCONSTITUTIONAL AND ILL MOTIVATED STEP

The four party Government of Alliance could manage to adopt the constitution (Fourteenth Amendment) Bill, 2004 in the Parliament on last 16th May, 2004. They could get the Bill passed on the strength of their so called brute majority. The job was done within unbelievable shortest time and even without any meaningful discussions in the Parliament. Since the Fourteenth Amendment of the constitution is contrary to the basic spirit, structure and characteristics of the Constitution, people's will and in some cases unnecessary, Bangladesh Awami League has straightway rejected it. The justification of rejection will be revealed if this Fourteenth Amendment is examined in the perspective of the above points.

For convenience of examination, the separate provisions having no relevancy with each other and incorporated in a single Bill in the form of a package may be discussed separately :

1. Insertion of new Article 4 A after Article 4 for preservation and display of the portraits of the President and the Prime Minister :

Proviso (i) of clause (1A) of Article 142 regarding Amendment of constitution clearly states that "no Bill for such amendment shall be allowed to proceed unless the long title thereof expressly states that it will amend a provision of the constitution.” Now the question is?was there any provision in the constitution on “portrait" or similar to this ? The answer is no. Amendment of a provision which does not at all exists in the constitution is barred by constitution. The insertion of Article 4A after Article 4 is a new addition and of peculiar nature. Again, in the title of the package Bill for this Amendment, it was stated, “Whereas it is expedient further to amend certain provisions of the constitution”. Here the important point is how the question of further amendment arises, when there was no such provision in the Constitution. Therefore, this so-called amendment is clearly an unconstitutional one and as such of no legal value. This amendment is also not based on the popular will of the people. There was even no demand from any corner. Clause (2) of Article 7 states that the constitution is the solemn expression of the will of the people. Since insertion of the new Article 4A in the constitution is inconsistent with Article 7(2), this amendment is unconstitutional and void.

Further it was neither expedient nor needed to bring this amendment in the constitution. In fact the Alliance Government did this with some ulterior ill motives. With this amendment, a step has been taken to refrain from preservation and display of the portrait of the father of the nation Bangabandhu Sheikh Mujubur Rahamn at Govt. offices, Educational Institutions, Public offices and Bangladesh missions abroad forever. The matter relating to hanging of portrait could be disposed of by an order of the Govt. or by an Act. The amendment of the constitution was not necessary. But their real motive in making an amendment of the Constitution was to make any future change difficult and the word "only" before the word "Prime Minster" has been added in Art 4A (2) very cunningly so that no other portrait can be allowed to be hanged by executive order or an Act without future amendment of the new amendment. Bangabandhu is not only the father of the nation, but also the greatest Bengali of all times. Undermining the father of the nation and the greatest Bengali in the history of Bangladesh is a derogatory act. By doing this the government has also made an attempt to manipulate the true history of Bangladesh. At the same time, they intended to keep the pride & glory of our historic struggle for national liberation under the carpet.

This amendment has also degraded the position of the President. As per clause (2) of Article 48 of the constitution "the President shall, as Head of the state, take precedence over all the persons in the state”. Again, as per warrant of precedence dated 11 September, 1986 issued by the Cabinet Division (amended upto April, 2000) position of the President is at the top and that of the Prime Minister next to him. But, it appears from this constitutional amendment that the President has been brought down at par the Prime Minister. So, with this amendment, the Govt. has violated Article 48 of the Constitution as well as the warrant of precedence.

2. Amendment of clause (3) of Article 65 in the Constitution regarding reserved number of seats exclusively for women members in the Parliament :

Article 65 (3) of the Constitution prior to the fourteenth amendment was as under :
"Until the dissolution of Parliament occurring next after the expiration of the period of ten years beginning from the date of the first meeting of the Parliament of the Constitution (Tenth Amendment) Act, 1990, there shall be reserved thirty seats exclusively for women members, who shall be elected according to law by the members aforesaid. Provided that nothing in this clause shall prevent a woman from being elected to any of the seats provided for in clauses (2)."

Provisions of this Article in the constitution was made in accordance with the directives of Article 10 of part-II of the constitution on Fundamental Principles of State Policy. This Article reads as under :

" Steps shall be taken to ensure participation of women in all spheres of national life." So, this Article is directly related with the fundamental principles of state policy. The universally accepted practice is that any constitutional amendment on fundamental principles of state policy should be based on popular demand and also be consistent with the fundamental state policy. The spirit of Article 10 of the constitution is to empower the women community in all spheres of national life with due honour & dignity. The popular demand in this regard was to increase the existing numbers of seats exclusively for women in the parliament upto 100. The demand of the women community and different women Organizations of the country was also the same. The demand was for increased reserved seats, through direct election. The women community considers the indirect election systems as humiliating & disgraceful. This popular demand was generated from the desire or will of the people to empower the women in the true sense. It was also one of the firm commitments of B.N.P as included in their election manifesto of 2001. But, the Govt. has deceived the people in general and the women community in particular by mere increase of the women seats from 30 to 45. In addition, no provision has been made for direct election as demanded by the people. Even the voting rights of the people and rights to be elected has been denied.

So, by bringing this amendment in the Constitution, the Govt. has not only violated the fundamental Principals of State Policy, but also ignored the popular demand. On the other hand, Awami League Govt. during their tenure has reserved one third seats at all local Bodies exclusive for women to be elected through direct election. This was done as a measure of empowering the women in the true sense. This step of Awami League was highly appreciated by all corners.

In the title of the package amendment bill, it was said that amendment of certain provisions of the constitution including women seats had become expedient. Whereas, in the statement on objectives and reasons, the Govt. admitted that the temporary provisions concerning women seats in the Parliament expired long before the formation of the present Parliament. From this statement, it is clear that the provisions for reserved women seats expired before October 2001 and the Govt. has placed this Bill in the Parliament in May 2004. By this time, more than 21/2 years time have been passed. So, if it was at all felt to be expedient, the Govt. could easily do this in the Parliament immediately after its formation in October, 2001. Refraining from doing this, casts shadow of doubts about the honesty of the Govt. In fact, the Govt. made this delay with some ill motive. This was to get the other controversial issues like preservation and display of portraits, enhancing the retirement age of the Judges of the Supreme Court etc. passed at a time as a package.

Lastly, the Govt. had also made a temporary special Provision regarding women members in the Parliament by adding a new paragraph 23 after paragraph 22 in the 4th schedule of the Constitution. This schedule is intended to accommodate transitional and temporary provisions in the Constitution. It was also aimed at maintaining continuity and interim arrangements made in the period between the day of declaration of Independence on 26th March 1971 and the commencement of this constitution on 4th November 1972. It was also meant to accommodate Ordinances, Proclamations & similar acts etc. in the constitution in absence of the parliament and when under any circumstances the constitution is kept in abeyance. But no such situation is now prevailing in the country. There exists a parliament and it is functioning. So, no scope lies for any transitional provisions now. Therefore, this amendment is inconsistent with the constitution and as such liable to cancellation.

3. Amendment of Article 96 (1), 129 and 139 of the constitution enhancing the retirement age of the Judges of the Supreme Court, Auditor General and Chairman & other members of Public Service Commission :

All the Public servants of the Republic had been demanding for a long time to enhance their retirement age. Persons holding some constitutional posts were also demanding the same. But, by ignoring the popular demand of the servants of the Republic, enhancement of retirement age of the above 3 Categories of persons appears to be ill motivated. The Govt. brought this amendment as a package deal cunningly in order to mislead the people from a vital national issue. The ill motive, cunningness and misleading attitude of the Govt. would be apparent from the following discussions:

3 (i) Enhancement of retirement age of the supreme Court Judges:

On principles, nobody has got any reservation in enhancing the retirement age of the Supreme Court Judges. This could be done unanimously on discussions with all political parties and the Lawyers community. This amendment has got direct bearing on formation of the next Care-Taker Govt. as per Article 58A of the Constitution. According to this Article, a Non-Party Care-Taker Govt. would be formed when the parliament is dissolved or stands dissolved. This Govt. shall be headed by a Chief Adviser who will be the last retired Chief Justice of Bangladesh. The prime responsibility of the Care-Taker Govt. is to hold General election of members of Parliament peacefully, fairly and impartially.

Under normal situations, the next parliament election will be held in the year 2006. It may also be held earlier. Whatever may be the timing of holding the parliamentary election, it is now clear that the next Care-Taker Govt. would be Headed by the last retired Chief Justice of Bangladesh Justice K.M. Hasan. The burning question is whether it is at all possible to hold a peaceful, fair and impartial election by a Caretaker Govt. headed by Justice K. M. Hasan. It is widely known that at one time Justice Hasan was the International Affairs Secretary of BNP. During eighty's, he was re-warded by late President Ziaur Rahman by posting him as Ambassador of Bangladesh to Iraq. As a Judge in the High Court Division, he expressed embarrassed to hear the Appeal case of Bangabandhu murder case. The reason for his such embarrassment has been learnt to be that one of the convicted accused is his nearest relation. Being an active member of a political Party, strong allegiance to that party, serving as an Ambassador on political appointment and close relation of one of the killers of the Father of the Nation, his case for elevation from High Court Division to the Appellate Division was not considered during the period of Awami League Govt. However, when the Alliance Govt. came to power, Justice Hasan was again re-warded not only by elevating him to the Appellate Division, but also appointing him as Chief Justice of Bangladesh. The oath taking ceremony of Justice Hasan as Chief Justice and his 1st appearance in the Supreme Court in full bench was also boycotted by a large number of the Supreme Court Advocates. It was due to his controversial past and allegiance to a Political Party. Now, how could the nation can expect peaceful, fair and impartial election from a Govt. headed by a partisan and controversial person ? Here lies the objection of Bangladesh Awami League and other political parties. Govt. made this amendment with the ulterior motive to clear the way of Justice K.M. Hasan to become the chief Advisor of the next Caretaker Govt. so that they can re-capture the power through rigging. But the people would like to see an impartial & non-political person as Chief Advisor in accordance with the concept, spirit and objective of the Non-Party Caretaker Govt.

On the other hand, Justice Mahumudul Amin Chowdhury was the Chief Justice immediately before the appointment of Justice Hasan as Chief Justice. It was heard that Justice Chowdhury personally lobbied with the present Govt. for enhancing the retirement age of the Supreme Court Judges. But, Govt. did not listen to him. If it was done at that time, Justice Chowdhury would become the last retiring Chief Justice.

In the title of the bill for this amendment alongwith other provisions, the use of the term "expedient'' seems to be contradictory with the steps taken by the Govt. If this amendment was at all expedient, the Govt. could do it when Justice Chowdhury was the Chief Justice of Bangladesh. Failure to do this appears to be ill motivated. On the otherhand, if this amendment in the constitution has not been made immediately after the retirement of Justice Hasan, the present Chief Justice of Bangladesh Justice. J. R Mudasser Ahmed would become the last retiring Chief Justice leading him to become the Chief Adviser of the next Care-Taker Govt. But the Govt. has also blocked his chances to become the Chief Advisor of the next Care-Taker Govt. Now, it is crystal clear that this amendment has been made only to pave the way of Justice Hasan to become the Chief Advisor of the next Care-Taker.

Again, as regards the needs for this amendment, the Govt. said that the bill had been brought in order to improve the quality of the Judiciary by utilizing the experiences of the Judges. This is clearly a deceiving statement. If, Govt. would really mean this, they could do it, much earlier, i.e. when Justice Chowdhury was the Chief Justice. This amendment made provision to increase the retirement age of the Supreme Court Judges from 65 t0 67 year's. Here, the question arises ? why not 68, 69 or more ? What is the basis or justification of raising the retirement age upto only 67 years. If a Judge is able to discharge his Judicial responsibilities efficiently upto the age of 67, he might also be able to do the same job even at more than 67 year's of age.

From the above discussion, it is crystal clear that the statement regarding objectives & reasons of the Bill as given by the Law Minister in the Parliament is nothing but a deceiving one. The Govt. brought this amendment in the Constitution with the ill intention to rig the ensuing Parliamentary election in mass scale under the future Care-Taker Govt. headed by Justice Hasan.

3 (ii) Enhancement of retirement age of the Auditor General and Chairman & Member of P.S.C :

As regards amendment of Article 129 and 139 of the Constitution for enhancing the retirement age of the Auditor General and Chairman & Members of the Public Service Commissions upto 65 year's there would be no criticism, if the retirement age of the other servants of the Republic were also raised to a considerable extent. Ignoring the genuine demands of the other class of Civil Servants to increase their retirement age would create grievances among them. As such, this amendment is also not acceptable to Bangladesh Awami League.

4. Amendment of Article 148 of the Constitution :

Making provision for administering oath of the newly elected members of the Parliament by the Chief Election Commissioner is unprecedented. No single instance would be found in any country of the world authorizing a person not constitutionally elected to administer oath of the members of the Parliament. This amendment not only undermine the powers and status of the Speaker, but also undermines the Sovereignty of the Parliament as an Institution. It is also inconsistent with para 5 of the 3rd Schedule of the Constitution.

In conclusion, it can be said that when the country has been facing so many burning national issues hike killing, extortion, kidnapping, raping, humiliation, terrorism corruption, price like of essential commodities etc. why the Govt. has become so much interested to bring these unnecessary and un-warranted amendments in the constitution instead of redressing the national burning issues. The people as such, are searching answer to those questions.

Newsletter _______________________
Vol. 3, No. XII, 27 June, 2004
Bangladesh Awami League Publication

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