Amendments of Fundamental Principles of Constitution of Bangladesh: A critique with emphasis on latest move


It pledges nationalism. political. Background of constitution making: Proclamation of Independence remained valid until the 10th January 1972. fundamental human rights and freedoms as well as equality and justice. and lays down the framework defining fundamental political principles of the state and spells out the fundamental rights of citizens.On 11th January. it came into effect from December 16. The constitution declares Bangladesh to be a unitary. It declares Bangladesh as a secular democratic republic where sovereignty rests with the people. Bangabandhu Sheikh Mujibur Rahman as a president of Peoples republic of Bangladesh promulgated an order changing presidential system of government to a govt. of parliamentary. one day after coming back from his captivity in Pakistan. 2 . secularity. Passed by the Constituent Assembly of Bangladesh on November 4. which will be known as the People's Republic of Bangladesh. the day commemorated as Victory Day in the country.the rule of law. founded on a struggle for national liberation. marking the defeat of the Pakistan Army in the Bangladesh Liberation War. independent and sovereign Republic.Constitution of Bangladesh: The Constitution of Bangladesh (Bangladesh Shongbidhan) is the supreme law of Bangladesh. democracy and socialism as the fundamental principles defining the Republic and declares the pursuit of a society that ensures its citizens. 1972. economic and social. 1972.

some suggestion came as well criticism. Four Principles of Constitution: The 1972 Constitution had four basic principles: Nationalism (Bangalee). 3 . Socialism and Secularism. the first victory day of Bangladesh. As the draft was originally prepared in Bangla. On 4 November. The President also asked the constituent assembly to formulate a constitution of Bangladesh in a shortest possible of time in order to make Bangladesh really a people’s republic.Major correction was only one. Three of these principles (Democracy. Socialism and Secularism) were perhaps taken from Indian Constitution. it prepared a final draft. Democracy. 1972 the constituent assembly approved the draft proposal with 65 different amendments of which 64 were simply minor correction . The constituent assembly accepted it and made it public for suggestion. The constitution assembly started its work on 17th April 1972 and in next 54 days on 10th June 1972.The president in his order created a constituent Assembly (Ganaparishad) comprising the 167 members elected in the national Assembly and 236 members who elected in the provincial assembly through a general election held spanning from 7 December 1970 to 17 January 1971. The constitution adopted by the constituent assembly was put into effect on 16th December 1972. 1972. so it was shown to Bengali “Pundits and Specialist” to check the language and presented it to constituent assembly on 12t October.

The USA and pro-western elements thought that this was a disastrous step and there was another potential ‘red republic’ in the making. debates on this ‘revisionist socialism’ in the Constitution is rather muted. Socialism was only a convenient slogan to nationalize the Banks and other financial institutions from the hands of their former owners (mainly from West Pakistan or Muslim expatriates from India). The word ‘Socialism’ was not omitted altogether from the Constitution by the subsequent amendments but redefined by saying that it meant ‘economic and social justice’. But the irony is that AL had no real understanding or genuine commitment to Socialism as opposed to Capitalism. and those were the days when Bangladesh was strongly allied with India and Soviet Russia. Senior political leaders including Sheikh Mujibur Rahman (who had been pro-capitalist and pro-western throughout his political career) had to accommodate the wishes and zeal of this vast youth force.The Constitution was adopted immediately after the birth of Bangladesh. it was not the socialism as it was then practiced in China or Soviet Russia. Some of our former ‘Socialist revolutionary leaders’ are happily co-habiting with semi-feudal. In the light of the major changes in the world economic and power relations over the last decades (specially since the collapse of Soviet model. China and most of the Arab and Muslim countries. 4 . revisions in the Chinese model). procapitalist parties. and that there is no reason to be panicked. and still lacked formal recognition from Pakistan. This assured the West and pro-capitalist elements that Bangladeshi Socialism is not socialism in the real sense. Those were also the days of Vietnam and the slogan of Socialism inspired millions of young activists throughout the third world including Bangladesh. end of Cold war. It is also a fact that the Bangladeshi students and youths were in the forefront of our independence struggle.

Whether the present AL government really wants to delete the words ‘Bismillah ar-Rahman ar-Rahim’ from the preamble and ‘Islam is the state religion’ from the Constitution to reinstate the word ‘Secularism’. The issue of ‘Secularism’ is more sensitive as it is supposed to be more progressive and all embracing as opposed to the word ‘Islam or Muslim’ in the Constitution. Bangladeshi) seems to be driven by emotion. remain to be seen. Among the amendments the fifth amendments was basically on the change of fundamental principles. But it is wrong to define all the citizens of Bangladesh as ‘Bangalee’.The debate on ‘Nationalism’ (Bangalee vs. they would not feel comfortable with is this definition. It’s quite comfortable being known as a ‘Bangladeshi’ national with ‘Bangalee’ cultural and linguistic heritage and with a Muslim faith. Those who raise controversies and unnecessary debates on this issue are not helping Bangladesh to establish its distinct national identity. There is no contradiction in this kind of arrangement. Citizens who are not Bangalee but of other ethnic and cultural roots and profess any of the non-Muslim faiths should feel quite comfortable if their nationality is ‘Bangladeshi’. The Fifth Amendment was- 5 . A short account of the Amendments made to Bangladesh Constitution since its adoption after in 1972. Amendments of fundamental principles in the Constitution: The Constitution of the People's Republic of Bangladesh has been amended several times.

substitutions. omissions and additions to the constitution were indiscriminately made during the martial law rule that began immediately after the assassination of Bangabandhu Sheikh Mujibur 6 . The expression ‘Bismillah ar-Rahman ar-Rahim’ was added before the Preamble of the Constitution.The Constitution (Fifth Amendment) Act was passed by the Jatiya Sangsad on 6 April 1979. nationalism. This Act amended the Fourth Schedule to the Constitution by adding a new Paragraph 18 thereto.’ The depth of 5th amendment (in the context of 1975): Changes made to the constitution in around four years after the August 15. substitutions and omissions made in the Constitution during the period between 15 August 1975 and 9 April 1979 (both days inclusive) by any Proclamation or Proclamation Order of the Martial Law Authorities had been validly made and would not be called in question in or before any court or tribunal or authority on any ground whatsoever. and provided political right to anti-liberation forces including Jamaat-e-Islami and war criminals that resulted in an alarming growth of political parties and organisations based on religion. The expression ‘historic struggle for national liberation’ in the Preamble was replaced by ‘a historic war for national independence.’ One party system was replaced by multiparty parliamentary system. Fundamental principles of state policy were made as ‘absolute trust and faith in the Almighty Allah. which provided that all amendments. Besides. democracy and socialism meaning economic and social justice. 1975 changeover altered the fundamental principles of state policy. additions. modifications. destroyed the secular character of the constitution and allowed politics based on religion. the changes replaced Bangalee nationalism with Bangladeshi nationalism. All those amendments. modifications.

The principle of socialism was also given a new explanation. saying. Trial of war criminals stopped and their political rehabilitation began with the scrapping of Bangladesh Collaborators (Special Tribunal) Order 1972 by Khandaker Mushtaque Ahmed. democracy and secularism --. Socialism and freedom from exploitation in articles 9 and 10 were substituted by the concepts of promotion of local government institutions and participation of women in national life. was amended to omit secularism and insert the words "absolute trust and faith in Almighty Allah". The changes transformed secular Bangladesh into a "theocratic state" and "betrayed one of the dominant causes for the war of liberation of Bangladesh". Article 8 of the original constitution. "These changes were fundamental in nature and changed the very basis of our war for liberation and also defaced the constitution altogether. which contained secularism and freedom of religion. The amendment omitted article 12. And the constitution's Fifth Amendment bill passed in the second parliament during the rule of Ziaur Rahman in 1979 ratified all the actions that also made the supreme law of the land subordinate to martial law proclamations. 7 ." the HC observed in its watershed verdict. who assumed presidency and put the country under martial law following the killing of Bangabandhu. orders and regulations. which speaks of the four fundamental principles of state policy--nationalism.Rahman. socialism. “Socialism” would mean economic and social justice".

upon withdrawal of martial law on April 6. which were constitutionally banned immediately after the independence for their antiliberation role. which banned politics based on religion. During his military rule. nationalism. 1976. 1975: It was that elected parliament which. Constitution after 15 Aug. democracy and secularism" were replaced with "absolute trust and faith in Almighty Allah. 1977. omitted the proviso to Article 38 of the constitution. Zia brought some fundamental changes to the constitution by a proclamation on April 23. The preamble also underwent two changes--the words "a historic struggle for national liberation" were replaced with "a historic war for national independence". In the light of the proviso. and the Merciful). socialism.By the second proclamation on May 3. But omission of the proviso radically altered the nature of political activities in the country. who became president later. the Beneficent. 1979. and "nationalism. enacted the Fifth Amendment and amended the Fourth Schedule (by 8 . The preamble to the constitution was preceded by "Bismillah-ar-Rahman-arRahim" (in the name of Allah. It led to the rise of religion-based political parties. the Special Powers Act provides for punishment for use of religion for political purpose. Justice AM Sayem. democracy and socialism meaning economic and social justice". The constitutional bar on war criminals convicted under Bangladesh Collaborators (Special Tribunal) Order 1972 from becoming voters and contesting parliamentary elections was also lifted during the rule of Zia.

Finally. Although. led by Sheikh Mujib. This is hypocrisy. Ironically. Besides. inter alia. during the August 15. some experts believe. through the Proclamation Order No. to validate the martial law acts. proclamation of martial law does render constitutional governance null & void. It replaced. 1975 used the same Presidential power. who chose not to suspend the efficacy of the Constitution. the validity of those acts must be traced to the validity of the Constitution. the redundancy of the Fifth Amendment may call into probation the legality of the Fourth Amendment. I of 1977. which constituted an act of sedition against the Republic.'75-Apr. by a civilian president.'79: Thirdly. the Proclamation Order of August 20. and. at the time of the abdication of power by Justice Sayem. They argue. the ruling AL may face legal challenges in the future due to there being no party called AL during the statutory period (August 1975 to April 1979).adding a new clause 3A). No AL during Aug. the post-August 1975 regime did not choose to tread that path. To the contrary. the martial law proclamation that had suspended the Constitution in 1982 was welcomed by the AL then. on April 9. which remained in force following the coup of 15 August 1975. the proclamation order relating to the declaration of martial law in March 1982 suspended the Constitution. by implication. brought an end to AL. As Mujib made himself President and vested sweeping power on himself through the Fourth Amendment (of January 1975) to the Constitution. BKSAL was the party in power. 1979. 1975 coup. multi-party parliamentary democracy with a one party presidential system. The President was vested with 9 . which had altered the fundamental fabrics of the 1972 Constitution. who had himself. and the surrogate born of that unconstitutional conjugation is an ally of the AL now.

power to do and undo anything he liked. the holding by Zia of 10 . 1977. after having appointed Zia as the President. and. which resulted in Moshtaque's forcible removal from power on 6 November 1975. If Zia's becoming President is not deemed as illegal." As the proclamation did not suspend the Constitution. 72). following the second coup on 3 November 1975. Zia was sucked into the fray by rebelling soldiers and Justice Sayem became the President. It was President Sayem who declared the incumbent Chief of the Army.beyond-reproach. Like now. Legality of Martial Law: The HC ruling's terming of Martial Law of 1975 as illegal needs justification and evidence of higher merit to sustain. Sayem too resigned on 21 April 1977. due to the manner by which he became a President. Zia arrested. on 29 November 1976. which the HC verdict seemed to have acknowledged without much hesitation. amended that aspect of the Constitution that relates to the modalities of electing a President for the Republic. The Fourth Amendment empowered the President to dissolve Parliament at any time by public notification (Art. Zia. The legality of the post-August 1975 Martial Law was derived from the proclamation of 20 August 1975 that stated: "The President may make martial law regulations and orders. General Zia and many other senior officials of the military did not like that. convicted. Maj.66% majority in the House. as the Chief Martial Law Administrator. the AL then had 97. notwithstanding anything contained in the Constitution. and. Upon becoming the CMLA. for the abuse of powers. and imprisoned Moshtaque on February 24. Gen. the Moshtaque regime used the sweeping Constitutional power of the President that the pre-August 1975 Constitution offered. The second coup having failed.

could not be interpreted as illegal either. 1979. 1975 and April 9. The menace of that dreaded storm has hit home with devastating consequences lately. meaning that the governments during that period-led respectively by Khandker Mushtaque Ahmed. due to the opposition BNP having refused on July 20 to join the proposed all-party committee. "Since the opposition lawmakers do not want restoration of 1972's Constitution. a day before. The Fifth Amendment ratified all changes made to the Constitution between August 15. having said. The government of Prime Minister Sheikh Hasina. who recommended the committee to the House. Recent Movement of amending Constitution (in 2010): As the clock ticks towards the prospective Constitutional amendment. sweeping assertion is too difficult to sustain . The opposition parties opposed the move by keeping out. and." The main concern now is not whether the government can affect the desired amendments. they may not be included in the committee. but whether it should. the judiciary of the nation may be blamed for having stirred a political storm that it could have easily deflated. hopes to amend the constitution and debate its basic tenets socialism and secularism that were altered by past military-led 11 .presidential election on 3 June 1978. Bangladesh to Review its Constitution: Bangladesh’s parliament Wednesday formed a 15-member parliamentary committee to begin a review of the country’s 1972 constitution. amid martial law. committee's chief steward-designate. Suranjit Sengupta MP. Abu Sadaat Mohammad Sayem and Major General Ziaur Rahman-were unlawful. Such a generalized.legally and politically. and parliamentary election on 18 February 1978.

Main opposition Bangladesh Nationalist Party (BNP) secretary general Khandaker Delwar Hossain termed the formation of the All Party Parliamentary Committee (APPC) to decide on restoring of the 1972 Constitution “anti-constitutional and against the parliamentary rules of procedure”. democracy. consulted legal and constitutional experts before taking the decision. the leader of the opposition in parliament. Jatiya Samajtantrik Dal’s Hasanul Haq Inu and National Awami Party’s Amina Ahmed. 12 . Workers Party’s Rashed Khan Menon.governments. socialism was dropped and secularism was replaced by a declaring country as an Islamic republic. After the assassination of country’s founding father Sheikh Mujibur Rahman and during the 1975-90 military-led phase of governance. Nationalism. BNP chairperson Khaleda Zia.Representatives from other parties include Jatiya Party lawmaker Anisul Islam Mahmud. Other members to be included are Foreign Minister Dipu Moni and those who fought in the 1971 freedom movement including Abdur Razzak and Tofael Ahmed. Bangladesh enacted its statute in 1972. secularism and socialism were enshrined as the basic tenets. Deputy Leader of the House Syeda Sajeda Chowdhury has been made the chairperson of the committee while Awami League lawmaker Suranjit Sengupta is the co-chairperson.

secularism and socialism. he will be included in the committee. If they nominate a lawmaker. The constitution. had four basic tenets: nationalism. deputy leader of the house. as main opposition Bangladesh Nationalist Party (BNP) had declined to name a lawmaker for the 15-member committee. the premier said her government “has no intention to ban politics of any party”. Sajeda Chowdhury. The Daily Star newspaper said. the country’s largest Islamist party and other religion-based political parties. enacted after Bangladesh became independent in 1971 on separation from Pakistan. Bangladesh’s Supreme Court has restored ’secularism’ 13 .Different issues regarding recent movement in constitution change: > Bangladesh constitution to retain ‘Bismillahir Rahmanir Rahim’: Bangladesh Prime Minister Sheikh Hasina has said the phrase “Bismillahir Rahmanir Rahim” would not be excluded from the constitution that will be reviewed by a parliamentary committee. political observers said. said Hasina. The government would not “allow anyone do politics using religion as a tool”. who heads the government of the predominantly Muslim majority nation that was declared an Islamic Republic by a past military-led government. On continuation of Bangladesh Jamaat-e-Islami.” > Court restores “secularism” in Bangladesh constitution: In a far-reaching move. Socialism was dropped and secularism was replaced by Islamic republic. democracy. The parliamentary committee has no representation from the opposition. said: “The door is still open. This would mean that ’secularism’ will not be restored as one of the basic tenets of the 1972 constitution.

would be retained. established by them with their 14 . Responding to the ruling. Although the restored portion of the constitution disallows functioning of religion-based parties. Bangladesh witnessed radical political and constitutional changes introduced by a series of military-led governments. continue to be an Islamic republic. 1975 was to the date when the country’s founding father Sheikh Mujibur Rahman was assassinated. however. “The perpetrators of such illegalities should also be suitably punished and condemned so that in future no adventurist. nationalism and socialism. Bangladesh has a 90 percent Muslim population. The appellate division of the apex court said: “Preamble and the relevant provisions of the Constitution in respect of secularism. their constitution.” The reference to Aug 15. “Bismillahir Rahmanir Rahim”. After Mujib’s killing. The court ruling said: “We are putting on record our total disapproval of martial law and suspension of the constitution or any part thereof in any form. but introduced subsequently by a military-led regime. The apex court’s verdict upheld a 2005 high court ruling that annulled the constitution’s Fifth Amendment that validated declaration of martial law and changes in the statute book brought about by military rulers. Bangladesh’s top law officer. after the apex court’s 186-page order was made public. their government. Attorney General Mahbubey the country’s constitution. would dare to defy the people. which is not in the original 1972 constitution. as existed on August 15. Prime Minister Sheikh Hasina said she had no intention of banning Islamist parties recognised by the Election Commission. no usurper. will revive. 1975. It has also denounced the declaration of martial law in the past and sought safeguards to end “extra-constitutional adventures”. said the country would.

The government should not add anything to the constitution suddenly without unanimity. whose Jatiya Party is a key member of the alliance. and it should not be justified in future on any ground.” Sengupta said as the 15-member committee began its task.” it observed. Media reports carried comments that Prime Minister Sheikh Hasina could face a political problem in acting against former military ruler Gen. Finally. The committee will be considering recommending that the house introduce a law to this effect. let us say that as it goes to work. lawmaker and co-chair of a parliamentary committee tasked to review the constitution. “Let us bid farewell to all kinds of extra constitutional adventure forever. without building consensus”. Kamal Hossain. Ershad. The court’s ruling on military takeovers was hailed by Suranjit Sengupta. (retd) H.” It also said military rule was wrongly justified in the past. We also think the constitution is sacred. has said that the government should not amend the constitution “in haste. “A law should be enacted to ensure punishment. Recommendation: The principal architect of Bangladesh’s 1972 constitution.M.consent. the committee must make it a point to consult the foremost constitutional experts in the country in order to make the 15 .

Rather. Of course. 16 . History tells us fundamental changes of the Constitution by the unilateral action of the government have not brought fruitful result. In any event. the prescribed procedure outlined in the very Constitution must be followed. Boycotting the JS or refusing to cooperate with the government on every issue is not doing the party any good. it created bitter hostility and division within the country when stability and unity were immensely needed for national prosperity.entire exercise properly satisfying for all. It should refrain from making major changes unless a national consensus is reached. it must now rethink its position on the issue. It is the reflection of peoples’ wishes and desires. the government could have avoided rushing into the matter of constitutional amendment in such a hurried manner and instead could have waited for the BNP to link up with it. As for the BNP. if any fundamental changes are to be made in the current Constitution. Conclusion: Constitution is the supreme law of Bangladesh. The government should think very carefully before making any fundamental changes in it.

References: 17www. Sudhangshu Sekhar Roy Adjunct 17www. • All of our fellow mates.banglapedia.Acknowledgement: • Special thanks to our course Instructor: • 17 . Dept. of Social Sciences East West University.wikipedia.

net/ 18 .• www.thedailystar.

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