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Eleventh and Twelfth Amendments of the Bangladesh constitution:Example of National Unity

Written By: NazirAhmed
03/07/2013 22:27 03/07/2013 13:10
Law and Order

The Constitution of the People's Republic of Bangladesh has been amended several times. The Constituent Assembly of Bangladesh adopted a Constitution which came into operation on 16 December 1972, exactly one year after liberation of Bangladesh. Since then and until the present government came to power the Constitution had been changed at least 15 times.  Interestingly, apart from the Eleventh and Twelfth amendments, all other amendments have been made unilaterally by the respective governments.  As a result those amendments received sharp criticism and resentment from various sections of the country including the main opposition parties.  

The Eleventh and Twelfth amendments are real examples in hostile political environment in Bangladesh where government party and opposition party, among others, were united and stood side by side to bring necessary amendments to the Constitution. These examples are also hope and expectation for those who frustratingly say that compromise and consensus are not possible in the hostile and rival political environment in Bangladesh.  Let us see below briefly the changes the two amendments have made and brought, and the political and historical background which led and prompted the main political parties to be in one platform.

After taking over the power from an elected President Justice Abdus Sattar by a bloodless coup Lieutenant General (Retired) Hussain Mohammed Ershad run the country continuously for nearly nine years through martial law as well as so called democratic rule elected by voter less elections.  There were various attempts of mass movement taken by the political parties against the Ershad regime in the 1980s, but these movements could not take any momentum.  Gradually and finally the movement against the Ershad regime intensified in 1990.  Mass people started coming out to the streets of the major cities of the country as we have recently observed in the Middle East.  

In or around October 1990 the movement took a serious turn and the Three Alliances of political parties as well as Jamaat-e-Islami Bangladesh (JIB - the support and active participation in the movement by the JIB was ensured through liaison committee) demanded transfer of power to a caretaker government headed by a neutral person.  The Alliances reached a consensus and made a public declaration setting out the mode and manner of transfer of power.

Ershad had no alternative but to surrender to the demands of the Alliances and hand over power to Justice Sahabuddin Ahmed after appointing him as the Vice President. Justice Sahabuddin Ahmed then formed the caretaker government in line with Joint Declaration of the Three Alliances and conducted the election of the Members of Parliament (commonly known as ‘General Election’).  The new Parliament passed the Constitution (Eleventh Amendment) Act 1991 and Constitution (Twelfth Amendment) Act 1991 respectively.

The Constitution (Eleventh Amendment) Act was passed on 6 August 1991.  It amended the Fourth Schedule to the Constitution by adding a new paragraph 21 thereto which legalized the appointment and oath of Justice Sahabuddin Ahmed, the Chief Justice of Bangladesh, as the Vice President of the Republic and the resignation tendered to him on 6 December 1990 by the then President Hussain Mohammed Ershad.  

This Act ratified, confirmed and validated all powers exercised, all laws and ordinances promulgated, all orders made and acts and things done, and actions and proceedings taken by the Vice President as Acting President during the period between 6 December 1990 and the day (9 October 1991) of taking over the office of the President by the new President Abdur Rahman Biswas, duly elected under the amended provisions of the Constitution. The Act also confirmed and made possible the return of Acting President Justice Sahabuddin Ahmed to his previous position of the Chief Justice of Bangladesh.

On the other hand, the Constitution (Twelfth Amendment) Act 1991, known as the most important landmark in the history of constitutional development in Bangladesh, was passed on 6 August 1991.  It amended Articles 48, 55, 56, 57, 58, 59, 60, 70, 72, 109, 119, 124, 141A and 142.  Through this amendment the parliamentary form of government was re-introduced in Bangladesh as provided in the original Constitution; the President became the constitutional Head of the State; the Prime Minister became the Executive Head; the cabinet headed by the Prime Minister became responsible to the Jatiya Sangsad; the post of the Vice President was abolished; the President was required to be elected by the Members of the Jatiya Sangsad.

Moreover, through Article 59 of the Constitution, this Act ensured the participation of the people's representatives in local government bodies, thus stabilizing the base of democracy in the country.

Pursuant to the Eleventh amendment, the actions and activities of Acting President Justice Sahabuddin Ahmed was given validity retrospectively.  Furthermore, pursuant to the Twelfth amendment, the election of the President was held (President Abdur Rahman Biswas was elected as the first President under the new system) and the new government headed by Begum Khaleda Zia was formed.  

It is to be noted that the Bangladesh Nationalist Party (BNP) did not get absolute majority to be able to form the government, let alone getting 2/3 majority required for the amendment of the Constitution.  151 seats out of 300 needed to be able to form the government.  The number of seats the BNP was able to gain was below 140.  The BNP could not even form the government without the support of the JIB. Although the BNP formed the government with the JIB’s support, they could not amend the Constitution unless the then main opposition party, Bangladesh Awami League (BAL), supported the BNP.

Long dictatorial and autocratic rule of the Ershad regime and his so called voter less elections compelled the main political parties to be united for free and fair election to be held under a neutral body.  There is a saying that “Necessity is the mother of all invention.”  Thus, when main political parties realized that the Ershad regime could hold and run election only to win but not to be defeated, then the idea of having a fair election came to emerge.  But how?  On what constitutional provision?  Who could trust whom?  Under these chaotic circumstances a consensus was developed that the election would be held under the then Chief Justice and his actions [as the Constitution did not have provision for such actions) that would be required by him to do would be ratified by the party forming the government.  

Being the two women coincidentally leading the two major political parties helped them to realize, to great extent, that the parliamentary system of government would better suit them to their personality as well as serve the country well.  Since more or less 90% of the population of the country were behind the two main political parties, more specifically behind the two persons, Sheik Hasina and Begum Khaleda Zia, a national consensus had grown that prompted the then main opposition party to support the government in bringing about the above amendments.

We, as a nation, have propensity to emotion at optimum level.  We have shown and proved this time and again.  What we say or do today may not be remained committed to do so tomorrow.  Liking one thing or two of a party or being frustrated on one party we tend to rally massively behind and vote another party overwhelmingly resulting in that particular party gaining 2/3 majority without thinking the consequence of giving such a mandate.  We are even quick to take u-turn for trivial matters.  Gaining such emotional mandate the government becomes ferocious, untouchable and uncontrollable. That creates political instability in the country.  We have seen this at least four times in our nation’s 42 years history.  In those circumstances, unexpected incidents or extra constitutional intervention becomes imminent.

Constitution is an important written document in any country. It is the reflection of peoples’ wishes and desires. Constitution of Bangladesh itself declared its supremacy by saying “This Constitution is, as the solemn expression of the will of the people, the supreme law of Bangladesh, and if any other law is inconsistent with this Constitution that other law shall, to the extent of the inconsistency, be void” [Article 7(2) of the Constitution]. Unlike normal laws, its changes should not be thought and considered lightly. Constitution can, of course, be changed, but its change must be for national interest in accordance with people’s expectation and desires.  National interest must be well above the personal, party or political interests.

Those who are in power will certainly not remain so for good. They changed the Constitution unilaterally, their opposition will change it when they will go into power with a 2/3 majority.  In a country like Bangladesh where voters are led by emotional issues instead of policies, it is not difficult for a party at times to get a 2/3 majority.  In this way there will not be a constitutional certainty and continuity in the county, whereas constitutional certainty and continuity are vital for democratic and political stability.  We have seen in the past on many occasions how the Constitution was cut into pieces/mutilated in the name of amendments.  Did those unilateral actions bring any fruitful results?  Often they were counterproductive.  Those unilateral amendments of the Constitution brought to the nation bitterness, animosity and hostility, for which the country has been facing barriers time and again in moving forward.  

The Fourteenth amendment brought in by the then government keeping, among others, one particular thing in mind (increasing the retirement age of Supreme Court Judges from 65 to 67 years).  Did it go in their favour?  Therefore, the government should think very carefully about the major changes they made unilaterally in the Constitution.  It should have refrained from making major changes without a national consensus being reached. It is worth remembering that the current government is neither the last not the final government.  

If there are lessons to be learned from the past history, the government should not be slow to learn those.  If the government could create a momentum to create a national consensus that we had seen during the time of Eleventh and Twelfth amendments, then that would be better for the government as well as for the nation.  Can the government make the history? It is worth mentioning that making the history and be in the history are not the same.

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About NazirAhmed

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  • Name: Barrister Nazir Ahmed
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    Nazir Ahmed is a UK qualified solicitor with many years of experience of advising and training the public sector on all aspects of immigration and nationality Law, civil litigation, constitutional law welfare rights law and environmental health and safety law.
    He is a director of Policyy Review Centre(PRC), London and a consultant with Lincolns Chambers Solicitors. He has conducted training sessions for many national organisations as well as local authorities. His notable clients include various government departments. 
    Apart from his legal profession he is a prolific writer, authored few books and analyst on socio political issues.
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