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NEWS ANALYSIS : Restoring 72 Constitution

PM's claim and the reality

SHAKHAWAT LITON
Prime Minister Sheikh Hasina has portrayed the proposed constitutional amendment to restore parliament's powers to remove a Supreme Court judge on grounds of misbehaviour or incapacity as a step towards making the constitution thewayitwasin 1972.
Speaking at a meeting of the Awami League Parliament Party on Sunday, the AL chief also claimed her government's main aim was to restore the constitution of 1972 to its original position.
The reality appears to be the very opposite to her stated aim, as it was none but her AL-led government that shut the door for revival of the constitution adopted in 1972 through the constitutional 15th amendment in 2011.
The 15th amendment has imposed a ban on amending more than 50 articles of the constitution, including all the articles of the first three consecutive parts of the country's charter.
But some of the articles must be amended to restore them to their original 1972 position to return to the spirit of the original constitution.
For example, if the government now wants to do away with Islam as state religion to uphold the spirit of secularism, it will not be able to do so as the article conferring on Islam the status of state religion is currently not amendable.
The government will also not be able to restore the proviso of Article 38, through which a ban was imposed on the use of religion for political purposes, to its original position.
Similarly, citizens' fundamental rights cannot get back the preeminent position as it was in the constitution in 1972. The 1972 constitution had imposed a ban on the state from making laws against any provision of the fundamental rights.
But a constitutional amendment in 1973 introduced the provision that parliament can enact laws against fundamental rights through amending the constitution.
The 15th amendment has made unamendable all the articles dealing with the fundamental principles of state policy and people's fundamental rights.
The Indian parliament amended the constitution in 2002 to make
education a fundamental right for citizens of India. The provision included in the constitution says the state shall provide free and compulsory education to all children of the age of six to fourteen years in such manner as the state may by law determine.
But the Bangladesh parliament cannot make education a fundamental right for citizens as the entire chapter of the constitution dealing with citizens' fundamental rights has been made unamendable.
Thus the 15th amendment also curtailed the constituent powers of present and future parliaments to amend the said 50 articles. Curtailing the powers of parliament is an attack on the powers of the people who elect parliament.
Interestingly, the government now wants to empower parliament by restoring its authority to remove a Supreme Court judge on grounds of m isbehaviour or incapacity by amending the constitution, though the 15 th amendment curtailed the House's powers to a large extent.
The AL-led government, when it last amended the constitution in 2011, also revealed its unwillingness to restore the spirit of the constitu-
tion ofl972.
Take two crucial examples.
The government has not restored Articles 115 and 116 of the constitution to the original position they were in in 1971.
A restoration of the articles to their original positions would empower the Supreme Court to have effective control and supervision over the lower judiciary.
The Appellate Division of the SC in the constitution's fifth amendment case in 2010 had stressed the need for a restoration of the provisions for a meaningful separation of the judiciary from the executive.
The apex court in the caretaker government case termed the present constitutional provision for technocrat ministers undemocratic and contrary to the fundamental principles of the original constitution of 1972.
It expected that the provision regarding appointment of technocrat ministers in the original constitution needed to be restored for the sake of democracy.
The provision in the original constitution had conditionally allowed appointment of a techno-
crat minister, who is not an MP. The condition was that he/she must be elected to parliament within six months of the appointment. In the instance of failure to be elected within that time, he/she would cease to be a member of the council of ministers.
The AL-led government scrapped in 2011 the constitutional provision for the caretaker government system, terming it undemocratic as it was unelected. But it has not restored the provision with regard to technocrat ministers.
The present government still has no plan to restore the articles regarding the empowerment of the SC over the lower courts and technocrat ministers to their original positions, though the articles were not made unamendable.
Similarly, it does not have any plan to lift the ban on amending more than 50 articles of the constitution and to amend some of the articles to restore the spirit of the original constitution of 1972.
Given the examples, one may conclude that the prime minister’s claim about the revival of the constitution of 1972 is mere political bluff.