LAW SCHOOL

Law Discipline
Khulna University

An Assignment On Which Amendments to the Constitution of

Bangladesh Have Been Repealed and the Reason for Cancellation

Course Code: LJ3107

Course Title: General Clauses Act and Interpretation

Submitted to:
Sourov Ghosh
Lecturer, Submitted by:
Law Discipline Sujan Das
Khulna University Student ID: 182810
3rd Year, 1st Term
Khulna University

Date of Submission: 31th August, 2020.

Introduction
Knowing the Constitution of Bangladesh is very important for every law students. It’s also be an
important to know which amendments to the Constitution of Bangladesh have been repealed and
the reason for cancellation. The Constitution of the People's Republic of Bangladesh was adopted
and enacted on 4 November 1972, after the victory of the independent country on 16 December
1971. As of 2018 the Constitution has been amended 17 times. Amendment the Constitution of
Bangladesh is the process of making changes to the nation's fundamental law or supreme law.
An amendment is a formal or official change to make a law, contract, constitution, or other legal
document. It is based on the verb to amend, which means to change for better. A constitutional
amendment is a modification of the constitution of a polity, organization or other type of entity.
Amendments are often interwoven into the relevant sections of an existing constitution, directly
altering the text. Conversely, they can be appended to the constitution as supplemental additions
(codicils), thus changing the frame of government.

Content Summary
Here I’ll shortly discuss about the amendments to the Constitution of Bangladesh which have been
repealed and the reason for cancellation. To date, 17 amendments have been made to the
constitution of Bangladesh. Of these amendments, the 5th, 7th, 8th, 13th and 16th of the five
amendments to the validity of the case the country's highest court, the Appellate Division of the
Supreme Court declared the five amendments invalid. The Fifth and Seventh Amendments
legitimized the military government during the rule of Ziaur Rahman and Ershad. The Eighth
Amendment established six permanent benches of the High Court Division of the Supreme Court
in Barisal, Chittagong, Comilla, Jessore, Rangpur and Sylhet outside the capital city of Dhaka. The
Thirteenth Amendment introduced a non-partisan caretaker government to run an election
government after the dissolution of Parliament for reasons other than expiration or expiration of
term. The Sixteenth Amendment introduced the practice of parliamentary impeachment to remove
Supreme Court judges.

The following amendments to the constitution of Bangladesh have been repealed

And the reason for cancellation are:-
Fifth Amendment
This Amendment Act was passed by the Jatiya Sangsad on 6 April 1979. This Act amended the
Fourth Schedule to the constitution by adding a new paragraph 18 thereto, which provided that all
amendments, additions, modifications, 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.
This amendment was declared unconstitutional in 2005 by the High Court Division in Bangladesh
Italian Marble Works Ltd v Bangladesh (2006) BLT (Special) (HCD) 1. Subsequently, the
Appellate Division upheld the decision of the HCD in Khondhker Delwar Hossain v Bangladesh
Italian Marble Works Ltd and Others (2010) 62 DLR (AD) 298.

Seventh Amendment
The Constitution (Seventh Amendment) Act, 1986 provided, among others, that all proclamations,
proclamation orders, Chief Martial Law Administrator's Orders, Martial Law Regulations, Martial
Law Orders, Martial Law Instructions, ordinances and other laws made during the period between
24 March 1982 and 11 November 1986 had been validly made.

This amendment was declared unconstitutional in Siddique Ahmed v Bangladesh (2011) 33 BLD
(HCD) 84 by the High Court Division.
The Constitution (Eighth Amendment) Act, 1988 declared, among others, that Islam shall be state
religion (Article 2A) and also decentralized the judiciary by setting up six permanent benches of
the High Court Division outside Dhaka (Article 100).
Change in original Article 100 regarding the seat of the HCD was challenged and the Appellate
Division in Anwar Hossain Chowdhury v. Bangladesh (1989) BLD (AD) (Special) 1 declared the
amendment of Article 100 unconstitutional.
The Constitution (Thirteenth Amendment) Act, 1996 introduced a non-party Caretaker
Government (CtG) system which, acting as an interim government, would give all possible aid
and assistance to the Election Commission for holding the general election.

The vires of this amendment was questioned in Salim Ulloa v Bangladesh (2005) 57 DLR (HCD)
171, in which the HCD validated the CtG system. Subsequently, the decision was challenged in
the Appellate Division which, in Abdul Mannan Khan v Bangladesh (2012) 64 DLR (AD) 1,
decided against the HCD and by a four-to-three decision prospectively declared the Thirteenth
Amendment unconstitutional.
The Constitution (Sixteenth Amendment) Act, 2014 gave power to the parliament to remove
superior court judges if allegations of incapability or misconduct against them are proved.
The HCD declared this amendment unconstitutional in Siddiqui and Others v Asaduzzaman
Bangladesh (Writ 5 May 2016). The Petition No. 9989 of 2014; decision of Appellate Division
upheld the HCD's decision in Government of Bangladesh and others v Advocate Asaduzzaman
Siddiqui and others (Civil Appeal No. 6 of 2017; decision of 3 July 2017).
Military rule is against the honor and glory of a nation. This is a great blow to the dignity
of the people of Bangladesh.
The preamble of the constitution are called 'Dhrubatara'.This means that the preamble
shows the way to the state and its people. It is the basic structure of a constitution.
 Parliament cannot change that either the participation of the Bengali nation in the liberation
war of 1971 was mentioned as aimed at national liberation and national liberation struggle.
But in the 5th amendment, national liberation and national liberation struggle were deleted
and 'national independence' was replaced. It was written in the preamble that the spirit of
self-sacrifice and self-sacrifice of the national liberation struggle was fourfold.
These will be the basic principles of the constitution, nationalism, socialism, democracy
and secularism The 5th Amendment eliminates secularism. Article 8 of the Constitution
stated that these four principles would be the main source of governing the state. Even
these four principles will be the source of interpretation of law and constitution. But the
5th Amendment also changed this paragraph.
The title of Article 9 of the original constitution of the seventy-two was nationalism. It was
written here that the unity and solidarity of the Bengali nation, which has achieved
independence and sovereignty through the war of national liberation in a united and
democracy, will be the foundation of Bengali nationalism. It was abolished in the 5th
amendment.
Article 10 of the Constitution of 1972 was abolished. In this article it is said that, "A
socialist economic system will be established with a view to ensuring the attainment of a
just and egalitarian society free from the exploitation of man by man''. But in the 5th
amendment it is said that, to ensure the participation of women at all levels of national life.
In the constitution of Seventy-two, there was no referendum to amend the constitution.
With a two-thirds majority, the way was open to change or amend any article of the
constitution. But the Fifth Amendment changed the basic structure of the Constitution. The
5th Amendment states that Parliament is not sufficient to have a provision in the
Constitution which provides for the amendment of preamble or Article 6,48,56,57,60,92a
or Article 142.It has to pass by the referendum.

The 7th amendment changed the basic principles of the constitution with the spirit of liberation
war. This killed the main pillar of the state. The slogan of the liberation war 'Joy Bangla' was
deleted. Bangladesh Betar was made Radio Bangladesh.
 Freedom opponents were rehabilitated.
 HM Ershad also seized power illegally, which is anti-democratic.

Eighth Amendment
The Eighth Amendment to the Constitution declares Islam to be the state religion by adding article
2A to the Constitution. The then government, Ershad used the religious sentiments of devout
Muslims to declare Islam as the state religion to stay in power. The 7th Amendment, by adding
Article 2A to the Constitution, states, “The state religion of the republic is Islam, but other religions
can also be observed in the peace of the republic."
Article 100 of the Constitution was radically changed through the 8th Amendment. For this reason
the Supreme Court is decentralized. The Eighth Amendment replaces Article 100 of the
Constitution and established six benches of the High Court Division outside Dhaka. The
amendment to Article 100 of the Constitution through the 7th Amendment is unconstitutional, out
of power and ineffective.
The case of Anwar Hussain .Vs. Bangladesh popularly known as
8thAmendment case is a historic judgment in the constitutional history of independence Banglad
esh.
The case of Anwar Hussain Chowdhury vs. Bangladesh commonly known as 8th amendment case
is an important judgment in the constitutional history of independent Bangladesh. This is the first
decision whereby the Supreme Court of Bangladesh overruled an amendment to the constitution
by the parliament. In this case, the supreme court of Bangladesh in a 1989 famous decision case
recognized the basic structure doctrine or the idea of ‘unconstitutional constitutional amendment’
ruling that parliament lacks authority to amend the Constitution in a system that would abolish its
basic structure. The case which judicial review is shown in sub article 5 of article 100 is
inconsistent with articles 44 and 114. However, Mohammad Moin Uddin and Kariba Nabi, who
said that “While judicial review itself is a debated phenomenon in democratic countries, its use in
constitutional amendments adds further complexity to the debate” Because the amending power
of the parliament does not extend to that which can change the basic structure of the constitution.
This case is in relation to changing six benches of high court division outside of the Dhaka, which
is contradictory to Bangladesh constitution. The aim of this paper is to maintain the basic structure
of the constitution, which the parliament eliminated through their amendment powers.
Nevertheless, this paper will firstly the fact of the case and then will do critical analysis what was
the problem in the 8th amendment of independence Bangladesh which goes against public laws.

Thirteen Amendment
The Thirteenth Amendment of the Constitution of the People’s Republic of Bangladesh, in 1996,
introduced the Non-Party Caretaker Government (NCG) system in Bangladesh, with a view to
holding free and fair elections for the national Parliament. Three elections have been successfully
carried out under the NCG system (1996, 2001, and 2008). The unique form was brought into
effect. Due to extreme distrust between the ruling and the opposition political parties. Bangladesh’s
people were mostly satisfied with this system, as NCG performed its duties successfully. However,
the NCG was abolished by the Parliament in 2011 on the basis of an adverse decision of the
Supreme Court. The political Parties (ruling and main opposition) are engaged in a confrontation
now over whether the elections will be held under NCG or under the current, political,
Government. This paper intends to explore the reasons for and realities of the abolition of NCG.
The research fully depends on secondary literature. The study reveals that NCG is still
indispensable to ensure free and fair elections, considering the present political culture in
Bangladesh.
Sixteenth Amendment
The Sixteenth Amendment of the constitution gave power to the parliament to remove superior
court judges if allegations of incapability or misconduct against them are prove. As a result, in this
situation, a judge will not be able to do justice from above.
In the article 22 of the constitution, it is said that, the state shall ensure the separation of the
judiciary from the executive organs of the state. But the power to remove a judge is vested in
Parliament by the 16th Amendment. As a result, there will be no independence of the judiciary, no
independence of the work of the judiciary. It violates the doctrine of ' Separation of Power’.
The separation of powers is a representation for the governance of a state. Under this model, a
state's government is divided into branches, each with separate, independent powers and
responsibilities so that powers of one branch are not in conflict with those of the other branches.
Thus, the 18th Amendment contradicts with the article 22 of the Constitution. “It is also a violation
of Article 94 (4) and Article 148 (2) of the Constitution. At the same time, it also violates Article
7 (b) of the Constitution. So, 16th amendment of the constitution is unconstitutional.

Following Methodology above this content

I have come across so many study and work then effort to get the information. Some information
which are collected through direct study from different publications and books others annual report
and internet etc.