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Constitution Enactment Day

Fractured political legacy rules nation's destiny

Shakhawat LnoN
TODAY, November 4, is a red letter day in Bangladesh's history. The country's constitution was enacted on this day in 1972.
It was the fruit of the nine-month long bloody War of Liberation. The Constituent Assembly adopted and enacted the constitution within a year of Bangladesh's emergence as an independent country. The constitution makes the people owners of all powers in the Republic. Being the supreme law of the land, the constitution of a country shapes that nation's destiny. How did Bangladesh's constitution shape its people's destiny?
How are people on November 4,2013?
The opposition BNP-led 18 party combine enforces 60-hour countrywide hartal from this morning. Last week also they enforced 60-hour hartal countrywide. The story does not end here. They have planned to intensify their street agitation programmes in the coming weeks by enforcing series of hartals, blockades and sieges. More than a dozen people were killed during last week's hartal. Only God knows how many will be made subject to political violence during the ongoing 60-hour hartal.
People have already suffered immensely, and will have to suffer more in the coming days. Children will not be able to sit for exams, or allowed to go to school. Their education will be hampered. Many people living hand to mouth may face immense difficulty in managing food. Economic activities will come to a halt.
Yet the show must go on until the opposition's demand for installation of a non-party election time government is met by amending the constitution. BNP has been mounting pressure through violent agitation programmes like hartal to have the demand realised. The main opposition party wants to take state power, and election is the only means to achieve it. They know that a non-party election administration is a must for a free and fair election. So, they will keep running the show, what may come!
The other side of the coin is also tainted. By dint of its overwhelming majority in parliament, the Awami League-led government in a whimsical move abolished the non-party election time government in June 2011, triggering political instability. Chucking away the caretaker government system allows the government of Sheikh Hasina to remain in office during the upcoming general elections. This created all the political chaos. But Prime Minister Hasina has kept on saying that she would not budge an inch from the current constitutional provision.
The reason is clear. The present constitutional provision suits her well, but does not suit BNP. So the BNP will never accept it. Khaleda Zia had liked such a provision very much around 18 years ago, when she was the prime minister. At that time, the constitutional provision allowed Khaleda to remain in office during the general election. But AL did not like it. So, AL, under leadership of Hasina, waged a violent street agitation in 1996 to force Khaleda's government to install an election time non-party caretaker government by amending the constitution.
The present political situation exposes the pathetic political bankruptcy. It also reveals the fragile state of the country's democracy, one of the ideals which had inspired our heroic people to dedicate themselves to, and our brave martyrs to sacrifice their lives in, the national liberation struggle. Democracy, nationalism, socialism and secularism had been made the fundamental principles of state policy. The constitution also says that the state shall be a democracy in which fundamental human rights and freedom and respect for the dignity and worth of the human person shall be guaranteed. Today's political situation mocks at the provisions stipulated in the constitution on democracy and fundamental rights of people, who are held hostage during the opposition's hartals.
The country did not arrive here overnight. Bad politics has been ruling the nation's destiny for decades. The constitution, the supreme law of the country, was ignored. Frequent and whimsical attacks on it by the successive governments, run by both civil and military leaders, have damaged the true spirit of the constitution.
Of the 15 amendments brought to the constitution in the last four decades, the Supreme Court has declared three amendments - 5*, 7lh and 13"’ - illegal and void as those either destroyed, or were against, the basic structure of the constitution.
The 5"' and 7"’ Amendments passed in 1979 and 1986 respectively, ratified all orders and actions of the first and second martial law regimes, which were absolute disobedience of the constitution.
The 13th Amendment passed in 1996 introduced the election-time caretaker government system amid growing distrust and confrontational culture of politics over the polls.
The apex court also declared the 8th Amendment partly illegal and void as it destroyed one of the basic structures of the constitution by introducing a provision for setting up permanent benches of the High Court in six other places outside the capital.
The remaining part of the 8,h Amendment, which gave Islam the status as state religion, also became infructuous as the 15"’ Amendment replaced it with a new provision in the constitution. The 15th Amendment also completely deleted the 11th Amendment that ratified Justice Shahabuddin Ahmed's extra-constitutional appointment as the vice-president, and the powers exercised and laws and ordinances made during the tenure that began after the fall of Ershad’s regime in 1990. The 11th Amendment, made in 1991, wrongly ratified Justice Shahabuddin's regime.
There are some other significant amendments that did not fortify the constitution, rather subverted it because of fractured politics.
Soon after the constitution became effective in December 1972, the 2nd Amendment was made in 1973, introducing a provision for declaration of a state of emergency by the president, which was not included in the original constitution. The amendment also empowered the president to suspend people's fundamental rights during emergencies.
Passage of the 4"’ Amendment in 1975 was an attack on the constitution. The 4th Amendment made a drastic inroad into the independence and jurisdiction of the judiciary. A one-party state was established. Presidential form of government was introduced, discarding the parliamentary form.
The 6“' Amendment to the constitution was brought in 1981, allowing the then vice-present Justice Abdus Sattar to contest the presidential election without resigning from the post of vice-president.
Only the 12"’ Amendment, made in 1991, did something positive by restoring the parliamentary form of government, which had been transformed into the presidential form by the 4th Amendment.
The 14'h Amendment was made in 2004. It generated huge controversy as it increased the service age of Supreme Court judges by two years.
The then opposition parties alleged that the government increased the service age of judges to make it legal for then Chief Justice K.M. Hasan to lead the upcoming caretaker government. They refused to accept Justice Hasan as the caretaker chief, which led to a political turmoil at the end of 2006, and a state of emergency was declared in January 2007.
Even the 15,h Amendment is not free from the long legacy of fractured politics of making the constitution subject to the whimsical will of the government. This amendment inserted an absurd provision by imposing a ban on amending the constitution's preamble, including unspecified basic structure and a large number of specific provisions. This means that even if a future parliament wants to fortify the constitution and strengthen people's fundamental rights, it cannot do so due to the ban.
The above instances clearly portray how the constitution enacted in 1972 was gradually damaged and largely lost its authority due to narrow and dirty politics of the successive governments. Thus, fractured political legacy has been ruling the nation's destiny!
The writer is Senior Reporter, The Daily Star.