Why such an inflexible stand about the Constitution?
There is no end to the debate on the constitution. In the early nineties when Awami League launched a movement demanding an election-time non-party caretaker government (NCG), BNP rejected the demand, claiming that it was not in the constitution. Now with BNP making the same demand, Awami League not only claims that it is not in the constitution, but also that the party will not budge an inch from the constitution. Under such circumstances, it is only natural for a question to arise in the minds of the general people: why is such an inflexible stand about the constitution? Whose constitution is this, anyway? Does it really represent the will of the people?
Though Bangladesh was created with the vision of establishing the people's right to self-determination, our rulers from the very outset failed to hold free and fair elections. To remedy this, in 1996 the 13th amendment of the constitution was enacted, ushering in the provision of the caretaker government, which represented a political consensus. In fact, it was a political settlement among major political parties because Awami League waged a mass movement for NCG and BNP, after much prevarication, included it in the constitution. This arrangement not only ensured free and fair elections, but also created equal opportunity for all political parties to come to power. Thus, NCG represented a settled matter.
The first blow to the caretaker system was dealt to in 2004, when the BNP government passed, with ulterior motives, the 14th amendment to the constitution, extending the retirement age for judges of the higher judiciary. The second blow was dealt to the NCG by the Appellate Division through its divided “short order” of 10 May 2010. In this order, Chief Justice ABM Khairul Haque prospectively declared the caretaker government system unconstitutional after the 2014 and 2018 election, even though two High Court benches had earlier ruled that the 13th Amendment was constitutional. However, the final blow to the NCG came on 30 June 2011, when it was abolished – about 15 months before the full verdict of the Appellate Division was published –through the unilateral enactment of the 15th amendment to the constitution in a majoritarian manner. The passage of the 15th amendment in essence transformed the constitution into a weapon.
On 21 July 2011, a 15-member special parliamentary committee was formed for amending the constitution in light of the judgments of the higher judiciary, and 12 of the members of the committee were senior leaders of Awami League. On the basis of its consultations with 104 distinguished persons including a former president, the present prime minister, three former chief justices, political leaders, editors, and members of the civil society, the special committee, on 29 May 2011, unanimously recommended to amend the constitution keeping the caretaker government system, with a three-month tenure.
The committee members met with the prime minister on the next day, after which its recommendations changed, and it proposed a constitutional amendment with no provision for the caretaker government. A press briefing was held on 31 May, in which it was claimed that the court had declared the caretaker government system unconstitutional, with an observation that the parliament's approval would be needed if the next two parliamentary elections were to be held under a caretaker government. Unfortunately this was not true – the Appellate Division in its short order of 10 May gave no such observation.
It is thus clear that the 15th amendment of the constitution was passed, before the full judgment of the court was published, to abolish the caretaker government, disregarding the special parliamentary committee's unanimous recommendations and it is based on a misleading interpretation of the court’s short order. This was a self-interested decision taken on the part of the ruling part. In making the decision to enact the 15thamendment, the pleas of the amicus curies to keep the NCG were also ignored. The amendment required holding of future national elections under the party in power and the stewardship of the same prime minister rather than under a caretaker government.
Experts have questioned the legitimacy and constitutionality of the 15th amendment. The constitution reflects the will of the people (article 7) and any amendment without their consent is not legitimate. While the original constitution of 1972 had no provision for referendum, this was included in the constitution through the 5th amendment, though the Supreme Court later found the 5th amendment unconstitutional. However, by consensus between Awami League and BNP, the provision for referendum was added to the constitution in 1991 through the 12th amendment. But, in reality, no referendum was held to get the people's consent before the passage of the 15th amendment.
The constitutional validity of the 15th amendment is questionable on many grounds. Firstly, by passing this amendment without holding the referendum, Article 142 of the constitution was violated. Secondly, the prime minister's rejection of the unanimous recommendation of the special parliamentary committee to keep the NCG was a violation of the principle of separation of powers. Thirdly, about one-third of the constitution was made unamendable by the 15th amendment. Only the “basic structure” of the constitution is unamendable. So by rendering almost one-third of the constitution unamendable, the parliament gave those newly designated articles the status of the basic structure, which itself is a violation of the doctrine of basic structure. Such designation of unamendability is unconstitutional in another way as, according to the constitutional expert, Mahmudul Islam, one parliament cannot bind a successor parliament.
To conclude, due to the scrapping the political settlement of 1996 through the 15th amendment and creating the provision to hold parliament elections under the party in power, there has been an all-encompassing politicalisation, including the politicisation of the Election Commission, bureaucracy, law enforcement agencies and every other institutions, causing the breakdown of our electoral system. Consequently, our last two parliament elections were failed elections. Unless now another political settlement can be arrived at regarding the election-time government, our next election will inevitably be controversial, which will push us, as a nation, towards an uncharted course.
* Dr Badiul Alam Majumdar is Secretary, SHUJAN
* This column appeared in the print and online edition of Prothom Alo and has been rewritten for the English edition by Ayesha Kabir