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Fourth Amendment of the Constitution: a black chapter in the history of Bangladesh


Written By: NazirAhmed
26/07/2013 1:04
Law and Order

Introduction

The Constitution of Bangladesh has been amended fifteen times so far.  Within those fifteen amendments, the most controversial amendment was the Fourth Amendment, for it fundamentally changed the nature and character of the Constitution.  Yet surprisingly, there has be no visible discussion or debate or public resentment on the Fourth Amendment, its impact and the damage it has done to our Constitution, democratic norms of our country and the spirits of our liberation struggle.  Unfortunately and mysteriously, the judiciary and civil society are keeping a deep silence over this amendment.     

 "In our Constituent Assembly, this eighteenth day of Kartick 1379 BS, corresponding to the fourth day of November 1972 AD, do hereby adopt, enact and give to ourselves this Constitution", the preamble of the Constitution of the People's Republic of Bangladesh solemnly testifies.  The quest of the Bengalis for political and economic emancipation through constitutional rule and democracy culminated into a liberation war in 1971 out of which Bangladesh was born.  The struggle was closely linked with the aspirations of the people for establishing a civil society with an orderly and just government elected through free and fair choice in a democracy where fundamental human rights are guaranteed and where an independent judiciary acts as the custodian of the Constitution. This was the genesis of the Constitution of the People's Republic of Bangladesh as the people of Bangladesh made pledge to themselves after a heroic struggle for national liberation.  Bangladesh started its journey with a parliamentary form of democracy, derailed afterwards from the fundamental aspiration of democratic governance by introducing one-party political system with an 'all powerful head of the State - the President.’  The change took place in early 1975 by way of a notorious amendment to the Constitution.  Through the infamous Constitution (Fourth Amendment) Act, 1975, one party dictatorial system known as Bangladesh Krishok Sromik Awami League (BAKSAL) was substituted for a responsible parliamentary system.

 Description of the Fourth Amendment and the changes brought by this

The Constitution (Fourth Amendment) Act 1975 was passed on 25 January 1975. Amidst of the violent uprising of the leftist parties and the bad impact of 1974 famine, the anarchy prevailed everywhere in the country.  The Awami League (AL) Government declared state of emergency in January 1974.  Later it amended the Constitution (through Fourth Amendment) to control the immense political and economic crises in the country.  Though they declared this act was for the short term only, it created a deep negative impact on the leadership of Sheikh Mujibur Rahman and his party.  Major changes were brought into the Constitution by this amendment.  This Act (i) amended Articles 11, 66, 67, 72, 74, 76, 80, 88, 95, 98, 109, 116, 117, 119, 122, 123, 141A, 147 and 148 of the Constitution; (ii) substituted Articles 44, 70, 102, 115 and 124 of the Constitution; (iii) amended part III of the Constitution out of existence; (iv) altered the Third and Fourth Schedule; (v) extended the term of the first Jatiya Sangsad; (vi) made special provisions relating to the office of the President and its incumbent; (vii) inserted a new part, i.e. part VIA in the Constitution and (viii) inserted Articles 73A and 116A in the Constitution.

Major fundamental changes were brought into the Constitution by this amendment.  These were:

1)    The so called presidential form of government was introduced in place of the parliamentary system.  In principle, the presidential form of government is not undemocratic at all.  In fact, it is one of the most common and popular forms of government in the current democratic world.  But the type of government introduced by the Fourth Amendment was not a true presidential system in the conventional sense and this is why I used the term ‘so called’ to describe it.  It was really a peculiar one in many respects.  Firstly: there was neither separation of power in the system nor any mechanism of maintaining check and balance between the three organs.  According to Mahmudul Islam, an eminent jurist, “The parliamentary form of government was replaced by a form of government which was an apology of a presidential form as the normal checks and balance of presidential form of government were not incorporated.”  Secondly: in a presidential system the President is supposed to be directly elected by the voters.  But ironically Sheikh Mujibur Rahman was made President for an unlimited period by inserting a special provision in the Fourth Schedule which reads: “(b) Bangabandhu Sheikh Mujibur Rahman, ...., shall become, and enter upon the office of the President of Bangladesh and shall, as from such commencement hold office as President of Bangladesh as if elected to that office under the Constitution as amended by the Act.”  Thirdly: as the fundamental character of the government was changed, it was essential to hold an election or referendum so that the people could give a mandate to the President and Parliament.  Surprisingly, like the life of President the life of the Parliament was also given automatic extension by inserting a special provision in the Fourth Schedule, which reads: “Notwithstanding anything contained in the Constitution, the Parliament functioning immediately before the commencement of this Act shall, unless sooner dissolved by the President, stand dissolved on the expiration of the period of five years from such commencement.”    

2)    A one-party system in place of the multi-party system was introduced.  This was the most significant and far-reaching aspect of the Fourth Amendment.  A new Part VIA with a new Article was created for this purpose.  Under the new arrangement, the creation of the National Party was left with the subjective satisfaction of the President.  It was provided that in order to give full effect to any of the fundamental principles of State policy set out in Part II of the Constitution, the President could “direct that there shall be only one political party in the State.  Once the President made an Order for one party under Article 117A-, 1) all political parties of the State would stand dissolved and the President would take all necessary steps for the formation of the National Party.....”  In accordance with the provision of Article 117A as introduced by the Fourth Amendment, the President declared the formation of a new National Party for the country under the name of BAKSAL on 24 February 1975.  As a result, all existing political parties instantly stood dissolved.  Bangladesh became one party State. 

3)    The powers of the Jatiya Sangsad (National Assembly - Parliament) were curtailed.  The Fourth Amendment turned Parliament into a useless forum in many respects.  Firstly: The President could withhold his assent to any Bill passed by Parliament.  He was armed with an absolute veto and once vetoed a Bill that Bill could never come out as a law.  The President was thus given unfettered legislative power and he was placed above Parliament.  Secondly: a provision was made through the Fourth Amendment that “there shall be at least two sessions of Parliament in every year (Article 72).  Ideally, it would not have been a bad idea if the session was lengthy - but the real intension was to keep Parliament away from functioning, for no session in the first Parliament in Bangladesh lasted more than 7 days on average!  Thirdly: Article 76 of the Constitution provided for Parliament to appoint certain standing committees at the first meeting of each session.  By the Fourth Amendment the provision of ‘at the first meeting of each session’ was deleted.  Fourthly: under Article 70 of the Constitution, a seat of Member of Parliament (MP) was to be vacated for two reasons – (i) if he resigned from the party which nominated him as a candidate, or (ii) if he voted in Parliament against that party.  By the Fourth Amendment inserted an explanation to the meaning of ‘voting in Parliament against the party’ by providing that even abstaining from a session of Parliament or abstaining oneself from voting ignoring the direction of the party would be deemed to be voting against the party.

4)    The Judiciary lost much of its independence.  The independence of the judiciary depends on the three important components: a fair appointment procedure, security of tenure, and adequate remuneration and privileges.  In relation to the appointment procedure of the apex court, the original Constitution provided that the Chief Justice would be appointed by the President and other Judges would be appointed after consultation with the Chief Justice (Article 95).  However, by the Fourth Amendment, the provision of “consultation with the Chief Justice” was deleted.  The obvious purpose appeared to be to make appointments on the basis of political consideration and favouritism as opposed to merit and competence.  Such an unchecked appointment and nomination for appointment of Judges by the executive was not recognised in any democratic countries.  In relation to the security of tenure, the original Constitution provided that a Judge could not be removed unless Parliament passed a resolution supported by a majority of not less than two-third of the total MPs on the grounds of the proved misbehaviour or incapacity [Article 96(2)].  The Fourth Amendment deleted this provision of impeachment through Parliament and instead provided that the President could remove a Judge including the Chief Justice simply by an order on the ground of misbehaviour.  The incapacity and misbehaviour did not need to be proved.  President’s desire and wish, no matter how malafide it might be, became the sole reason to remove a Judge.  The President thus became both the sole appointing and removing authority of the Judges.  The subordinate judiciary was also made purely executive dependent through the Fourth Amendment by amending Article 115 and 115 of the Constitution.    

 

5)    The Supreme Court was deprived of its jurisdiction over the protection and enforcement of fundamental rights.  The original Constitution provided for around 18 fundamental rights and the High Court was empowered to enforce those rights.  Article 44 guaranteed the right of citizens to move to the High Court and the High Court could enforce those rights under Article 102.  This power was taken away by the Fourth Amendment.  

6)    The Fourth Amendment buried the whole concept of local government.  Local government is one of the most important institutions in a democracy.  Modern nation State is almost unthinkable without devolution of power to local government.  Due to the massive increase of population at the geometric rate (according to the theory of Malthus) and because of huge expansion of governmental activities, certain matters of policy and administration concerning national and international interests are vested for central government and the rest of the governmental functions are vested in local governments.  Keeping this in mind, provisions were made in the original Constitution to devolve the responsibility for both development activities and administration into the hands of elected representatives of local government bodies.  The Constitution Makers envisaged the newly independent Republic to be a democratic system in which ‘effective participation by the people through their elected representatives in administration at all levels shall be ensured.’ (Article 11).  Unfortunately, all these aspirations of the Constitution Makers were removed by the Fourth Amendment.  The entire Chapter II of Part IV of the Constitution dealing with ‘Local Government’ was deleted.  Also the democratic provision of ‘effective participation by the people through their elected representatives in administration at all levels shall be ensured’ in Article 11 was deleted.  Thus, the intention appeared to be to uproot the entire democratic base from the local level and to replace this with a system of one man’s and one party’s whims. 

7)    The Fourth Amendment was a direct attack on the press freedom.  In June 1975, the government promulgated the Newspaper (Annulment of Declaration) Ordinance which allowed only four newspapers (Dainik Bangla, Bangladesh Observer, Ittefaq & Bangladesh Times - these four newspapers were, in fact, owned and managed by the State) to continue their publication and banned the rest of the press and newspaper industries. It brought the whole news media completely under the absolute control of the government.

 

Conclusion

The Fourth Amendment was a black chapter in the history of Bangladesh.  According to Mahmudul Islam, an eminent jurist and former Attorney General of Bangladesh, “In January 1975 the Constitution (Fourth Amendment) Act 1975, was passed transforming the Constitution beyond any resemblance with the original” (Constitutional Law of Bangladesh).  He further said “The system introduced was a mishmash of parliamentary and presidential form and the upshot was that the President emerged as the all-powerful authority in the Republic” (ibid).  In Hamidul Huq Chowdhury v Bangladesh 34 DLR 381, the High Court Division observed that by the Fourth Amendment the basic and essential features of the Constitution were altered and destroyed.  In the same case, the Appellate Division of Supreme Court observed: "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 Fourth Amendment has been the most debateable amendment in the constitutional history of Bangladesh, for it altered and virtually destroyed all basic and essential features of Constitution.  The AL- government introduced one national party through this amendment. This amendment turned Parliament into a useless forum.  Any reference to the Fourth Amendment puts AL leadership in a defensive mode.  They shy away from this.  They, on the other hand, keep their guns aimed at the Fifth Amendment brought in by Ziaur Rahman.  The senior leaders of the AL often make comment that their desire is to revert to the 1972 Constitution.  Is it really what they mean?  What is going to happen on the changes brought in through the Fourth Amendment by their great leader Sheikh Mujibur Rahman?  In fact, AL will not be fully happy even upon restoring the 1972 Constitution.  They will probably not be happy until they can establish one-party rule.  This is why Mahbul Alam Hanif, an influential leader of the AL, said few years ago “we still bear the philosophy of the BAKSAL.”

On June 1975, all political parties were banned and were asked to join the newly formed BAKSAL. Many Newspapers were banned. All these triggered massive resentment against Mujib Government.  The day of June the 30th would remain identified as a ‘black day’ in the history of the country like the day ‘January 25 of 1975’ when current Prime Minister Sheikh Hasina’s father Sheikh Mujibur Rahman passed the Fourth Amendment to the Constitution in 13 minutes, banning then all political parties and formed a one-party rule.  Although Fifth Amendment and other Amendments have rectified many things, some viruses still exist in the Constitution.  Therefore, there should be a continuous debate and discussion on the Fourth Amendment and its impact and consequences so that the new generation can learn and remember.  At the same time the older generation can take lessons.  In a suitable time in future, the entire Fourth Amendment should specifically be challenged in the Supreme Court so that the Supreme Court could give a well thought out milestone judgment - identifying the viruses and removing them from the Constitution - which could be used as reference both inside and outside.


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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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