In the political debate over how the forthcoming election can be fair, free and of democratic standards, on behalf of ruling Awami League it has been repeatedly said that constitutionalism will be followed in holding the election. In their words, there can be no deviation from the constitution, After a meeting with the British High Commissioner, Awami League general secretary Obaidul Quader asked journalists how the elections in Westminster were held. When he referred to Westminster democracy, he perhaps forgot how easy it was in British democracy to question the prime minister, to change the government. The question of the constitution doesn’t even arise. There really is no constitution in Britain in the conventional sense of the term. There are many fundamental laws regarding fundamental rights and running the government and these are considered equivalent to constitutional laws.
In our country where trust in the election has dropped to the nadir, where the rule of law is now the rule of the executive, and where the freedom of expression and of assembly has been constricted to the extreme, will the argument pertaining to the constitution not simply complicate the situation even further? Many law experts are saying that the so-called argument for the constitution is nothing but a political tool being used in individual and party interests.
The caretaker government system was ushered in through the 13th amendment, following legal procedure, in context of a political crisis related to free and fair elections
They say that the unconstitutional amendment of the constitution is being used for this purpose. The issue of Bangladesh in the matter of unconstitutional amendments, particularly studies on the 15th amendment, has been raised by several academics and researchers in the 2022 publication, ‘The Law and Politics of Unconstitutional Amendments in Asia’. In an article in this book published by Routledge, fellow of Australia’s Charles Darwin University, Ridwanul Hoque, explained how amendments to the constitution even in keeping with the laws, can be unconstitutional.
In the article, The Politics of Unconstitutional Amendments in Bangladesh, he analyses in detail the 8th and 15th amendments. I am just highlighting in brief his deliberation on the 15th amendment. Firstly, in explaining why the 15th amendment is unconstitutional, he points to the process of making this amendment and the context. He said that even though Awami League won a fair election in 2008, their election manifesto had no mention of abolishing the caretaker government. So this was an initiative outside of their mandate.
Secondly, the caretaker government system was ushered in through the 13th amendment, following legal procedure, in context of a political crisis related to free and fair elections. Thirdly, while not all parties had the opportunity to vote for the approval of the 13th amendment, there was an all-party consensus or understanding behind the amendment. Fourthly, led by the major parties, there was widespread protest against the abolition of the caretaker system, though it was then argued that there was no public support for that amendment.
He also explained in his analysis of the series of events why it was felt that the executive’s influence was behind the unlawful declaration in the Appellate Division of the Supreme Court regarding the 13th amendment. After the High Court had declared the 13th amendment to be legitimate, the Appellate Division suddenly took initiative for a hearing even though the appeal had been lying in court for over 5 years. The hearing was finished in the shortest possible time so that the amicus curie views could be sidestepped and with a 4-3 difference in the Appellate Division a concise order was passed, giving no chance for a thorough study of the court decision.
With the full verdict being published after over a year, there was no chance to discuss the views of the minority. Using the excuse of the preliminary concise order, the 15th amendment was passed. In order to avoid political unrest, the court had given its opinion in favour of a caretaker government for the two subsequent elections, but this was ignored. This too tarnished the legitimacy of the amendment.
He pointed to another reason to consider the 15th amendment to be unconstitutional, saying that the part making the constitution unchangeable had added certain statements, documents and concepts that were not in the original constitution of 1972, not even before the 13th amendment. These snatched away to power of the future parliaments to amend the constitution. He considered that just as the political party had made the unconstitutional amendment in political interests, the Supreme Court too was part of this process. If the legitimacy of the 15th amendment is raised in court in the future, an explanation and answer to these questions may be found.
Also, in the research article published by London University’s School of Oriental and African Studies, The Politics or Constitutional Amendments in Bangladesh: The Case of the Non-Political Caretaker Government, researcher Adeeba Aziz Khan reviewed 17 of the constitutional amendments and concluded that these amendments were made to change the nature of politics and in the interests of the ruling party. About the process of the 15th amendment, she pointed to how democratic institutions were used to amend the constitution.
Referring to the minutes of the 14th meeting of the special parliamentary committee held on 29 March 2011, Adeeba pointed out that the only agenda of the committee was the caretaker government system and there was a high level debate in the issue. After the debate, all members agreed on retaining the caretaker government, but this decision was not included in the report that was placed in the parliament session three months later. There were indications of influence of the executive behind the scenes. Due to the overwhelming majority of the ruling party and alliance, there was no further meaningful debate in parliament on the issue.
Professor Ridwanul Hoque and Adeeba Aziz Khan both highlighted the observations that were added to the Supreme Court’s brief order, a matter little discussed. These observations and views were perhaps ignored due to the controversy created over the role of the Chief Justice at the time, ABM Khairul Haque. In this observation they have predicted that if the caretaker government was repealed before the 10th parliamentary election, this was put the safety of the people and the state at risk. The court thus spoke in favour of keeping the caretaker government in place for the next two elections.
It is undeniable that the sidestepping of the court’s observation and views had exacerbated the political conflict and pitched public life and the state into serious risk. The neighbouing country has interfered in the 2014 election and now our sovereignty is more at risk in the geopolitical games. So why will the court’s observations not be considered relevant now and not be followed? It will be possible if we do not restrict the recommendation for two more caretaker governments to the 10th and 11th parliaments
One of the successors of Khairul Haque, a former chief justice, declared in 19 January 2016, that writing the judgement after retirement is a violation of the constitution. In that context, doesn’t the 13th amendment ruling issued the 16 months after Khairul Haque’s retirement stand to be contrary to the constitution?
* Kamal Ahmed is a senior journalist
* This column appeared in the print and online edition of Prothom Alo and has been rewritten for the English edition by Ayesha Kabir