Introduction

3. Satellite photographs (from Terra-MODIS) and computer-generated models help visualize Bangladesh's place in the world. Located in South Asia, it is virtually surrounded by India and the Bay of Bengal to the south. But in many ways, the country's fate is dominated by the world's highest mountain range looming to the north-the Himalayas.

4. Introduction • There have been ongoing controversies and debates on some aspects of the current Bangladesh Constitution, especially since the BAL government came to power in January 2009. No specific and written proposal has yet been published by the government; so we are still in the dark about what Amendments (if any) are intended. The following discussions, therefore, are mainly academic and based on various comments made by the ruling party leaders on different occasions. The purpose is to enlighten the general public to Constitutional issues and stimulate constructive debates on a very serious national issue. • Before going into any discussion, it is perhaps necessary to give a short account of the Amendments made to Bangladesh Constitution since its adoption after in 1972. The Fourteen Amendments made so far are as follows.

5. First, Second & Third Amendment • In 1973, the Constitution (First Amendment) Act 1973 was passed inserting sub-art (3) in Article 47 whereby any law providing for the detention and trial of war criminals was kept out of the purview of the provision of Part III relating to fundamental rights. • The original Constitution did not have any provision for proclamation of state of emergency and preventive detention. By the Constitution (Second Amendment) Act 1973, Article 33 was amended providing for preventive detention and Part IXA was inserted conferring power on Parliament and the Executive to deal with emergency situations and providing for suspension of enforcement of the fundamental rights during the period of emergency. • The Constitution (Third Amendment) Act 1974 was passed to give effect to the agreement with India giving up the claim in respect of Berubari and retaining Dahagram and Angorpota.

7. Fourth Amendment • The Constitution (Fourth Amendment) Act 1975 made major changes into the Constitution. The presidential form of government was introduced in place of the parliamentary system; a one-party system in place of a multi-party system was introduced; the powers of the Parliament were curtailed; the Judiciary lost much of its independence; the Supreme Court was deprived of its jurisdiction over the protection and enforcement of fundamental rights. 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.

8. Fifth Amendment • The Constitution (Fifth Amendment) Act was passed by the Jatiya Sangsad on 6 April 1979. This Act amended the Fourth Schedule to the Constitution by adding a new Paragraph 18 thereto, which provided that all amendments, additions, modifications, substitutions and omissions made in the Constitution during the period between 15 August 1975 and 9 April 1979 (both days inclusive) by any Proclamation or Proclamation Order of the Martial Law Authorities had been validly made and would not be called in question in or before any court or tribunal or authority on any ground whatsoever. The expression ‘Bismillah ar-Rahman ar-Rahim’ was added before the Preamble of the Constitution. The expression ‘historic struggle for national liberation’ in the Preamble was replaced by ‘a historic war for national independence.’ One party system was replaced by multiparty parliamentary system. Fundamental principles of state policy were made as ‘absolute trust and faith in the Almighty Allah, nationalism, democracy and socialism meaning economic and social justice.’

9. Sixth & Seventh Amendment • Sixth Amendment: The Constitution (Sixth Amendment) 1981 was passed providing, inter alia, that if the Vice President is elected as President, he shall be deemed to have vacated his office on the date on which he enters upon the office of President. • Seventh Amendment: The Constitution (Seventh Amendment) Act 1986 was passed ratifying all the Proclamations and Proclamation Orders and the amendments made in the Constitution by such Proclamations and Proclamations Orders and all actions of the Martial law authorities and declaring those to have been validly made and done. By the same Act the retiring age of the Judges of the Supreme Court was fixed at 65 in place of 62.

10. Eighth Amendment • The Constitution (Eighth Amendment) Act 1988 was passed amending Article 100 of the Constitution and thereby setting up six permanent Benches of the High Court Division outside the capital and authorising the President to fix by notification the territorial jurisdiction of the permanent Benches. By the same Act, ‘Islam’ was made the state religion of Bangladesh . This Act also amended (i) the word 'Bengali' into 'Bangla' and 'Dacca' into 'Dhaka' in Article 5 of the Constitution, (ii) Article 30 of the Constitution by prohibiting acceptance of any title, honours, award or decoration from any foreign state by any citizen of Bangladesh without the prior approval of the President.

11. Ninth & tenth Amendment • Ninth Amendment: The Constitution (Ninth Amendment) Act 1989 was passed in July 1989. This amendment provided for the direct election of the Vice-President; it restricted a person in holding the office of the President for two consecutive terms of five years each; it also provided that a Vice-President might be appointed in case of a vacancy, but the appointment must be approved by the Jatiya Sangsad. • Tenth Amendment: The Constitution (Tenth Amendment) Act 1990 amended, among others, Article 65 of the Constitution, providing for reservation of thirty seats for the next 10 years in the Jatiya Sangsad exclusively for women members, to be elected by the members of the Sangsad.

12. Eleventh & Twelfth Amendment • Eleventh Amendment: The Constitution (11th Amendment) Act 1991 ratified all actions taken by the caretaker government headed by Justice Shahabiuddin Ahmed. It also ratified the appointment of Chief Justice Shahabuddin Ahmed as the Vice President who later became Acting President upon Ershad’s resignation. In addition, the Act also confirmed and made possible the return of Acting President Shahabuddin Ahmed to his previous position of the Chief Justice of Bangladesh. • Twelfth Amendment: The Constitution (12th Amendment) Act 1991 re-introduced the parliamentary form of government; the President became the constitutional Head of the State; the Prime Minister became the executive Head; the cabinet headed by the Prime Minister became responsible to the Jatiya Sangsad; the post of the Vice-President was abolished; the President was required to be elected by the members of the Jatiya Sangsad.

13. Thirteenth Amendment • Thirteenth Amendment: The Constitution (Thirteenth Amendment) Act 1996 provided for a non-party Caretaker Government which, acting as an interim government, would give all possible aid and assistance to the Election Commission for holding the general election of members of the Jatiya Sangsad peacefully, fairly and impartially. The caretaker government, comprising the Chief Adviser and not more than 10 other advisers, would be collectively responsible to the President and would stand dissolved on the date on which the Prime Minister entered upon his office after the Constitution of the new Sangsad.

14. Fourteenth Amendment • Fourteenth Amendment: The Constitutional (fourteenth Amendment) Act 1994 was passed providing, among others, the following provisions: reservation of 45 seats for women on a proportional representation basis for the next 10 years; increase in the retirement age of Supreme Court Judges from 65 to 67 years; and displaying of portraits of the President and the Prime Minister in all government, semi-government and autonomous offices and diplomatic missions abroad.

15. 15th Amendment

16. Analysis and comments • It is observed from the above summary, that a few Amendments made at one time under certain compelling circumstances were subsequently removed by another Amendment, and also that several of these had a broad nationwide consensus. But a few of the Amendments were enacted without proper debates and thorough discussions involving all the stake holders including people adhering to different, sometime opposing, ideological or political views. Amendments that were the result of one-dimensional thought, lack of respect for democratic practices or expediency have obviously come under severe criticisms, sometimes for valid reasons and sometimes for sectarian political purposes.

17. Analysis and comments • The BAL leaders want to amend the present Constitution, because according to them, the Constitution was made ‘Communal’ by introducing the words ‘Bismillah ar-Rahman ar-Rahim’ in the preamble and by making ‘Islam’ the ‘state religion’ at the expense of the principle of ‘Secularism’. This brought about fundamental changes to Constitution, which is true in my opinion, but I am not sure whether this made Bangladesh ‘more Islamic’ or ‘communal’ than before. It is noted that equal rights, including freedom to practice all religions, are guaranteed in the Constitution. There may be some ambiguity and it is true that some fringe groups have been agitating for introduction of ‘Sharia Law’. This, of course, is scaring the religious minorities for the potential loss of their religious rights and freedom under an ‘Islamic Republic’ in the style of Pakistan or Afghanistan under Taliban rule. Majority Muslims of Bangladesh are also concerned since such arrangements may encourage the extremist groups to adopt violent and terrorist methods for a change of the government and the system.

18. Analysis and comments • The BAL leaders and their die-hard supporters allege that the Fifth Amendment is the root of all evils in Bangladesh , and that all mischief, corruption, intolerance, politics of conspiracy, ‘Islamic Extremism and militancy’, etc., started only after the overthrow of the BKSAL regime in 1975. But they remain conspicuously silent on the Fourth Amendment enacted by a civilian government which established a one-party (BKSAL) dictatorial system or even the Third Amendment which ceded Bangladesh territory to a different country. It is also alleged that the Fifth Amendment destroyed ‘the values and spirit’ of the liberation war and so this should be cancelled. They argue that the original state principles (nationalism, democracy, socialism and secularism) as incorporated as fundamental state principles in the 1972 Constitution should be restored, to establish the ‘Rule of Law’ and prevent ‘Islamic Terrorism’.

19. Analysis and comments • The Fifth Amendment was enacted by a military government in the aftermath of a series of murderous coups, counter-coups and regime change. The period was very painful, uncertain and critical for the ‘sovereign existence’ of Bangladesh as it faced hosts of political, economic and security challenges from both within and outside. One may have reservations about some aspects of this or any other Amendment but it is important also to consider the overall situation prevailing at the time. And it is wrong, in my view, to condemn any or all the Amendments if the existing circumstances demanded it, but we have a right, in fact obligations, to look at them critically and reassess the situation. • The most controversial part of the Amendment was the Indemnity for the killings in the aftermath of the August 15, 1975 coup that overthrew the BKSAL regime. The ousted government was led by civilian politicians but it was undisputedly a dictatorial regime with unlimited powers in the hands of the President who could be elected for as many terms as possible (most people took this for a ‘President-for Life’ arrangement).

20. Analysis and comments • The Fifth Amendment was enacted by a military government in the aftermath of a series of murderous coups, counter-coups and regime change. The period was very painful, uncertain and critical for the ‘sovereign existence’ of Bangladesh as it faced hosts of political, economic and security challenges from both within and outside. One may have reservations about some aspects of this or any other Amendment but it is important also to consider the overall situation prevailing at the time. And it is wrong, in my view, to condemn any or all the Amendments if the existing circumstances demanded it, but we have a right, in fact obligations, to look at them critically and reassess the situation. • The most controversial part of the Amendment was the Indemnity for the killings in the aftermath of the August 15, 1975 coup that overthrew the BKSAL regime. The ousted government was led by civilian politicians but it was undisputedly a dictatorial regime with unlimited powers in the hands of the President who could be elected for as many terms as possible (most people took this for a ‘President-for Life’ arrangement).

21. Analysis and comments • Of course, there are deficiencies, in some cases contradictions, in the Constitution as it has evolved during the last 37 years and these should be rectified in the light of aspirations and practical needs of a modern democratic and civilised society. The Constitution should serve the people, all the people, irrespective of creed, caste, gender and ethnicity. Constitutional provisions must guarantee equal rights, privileges as well as responsibilities for all citizens of the state; none should feel marginalised and discriminated by any provision of the Constitution. And, no act of treason or murder, whether committed by individual or any state organ, should be condoned or indemnified by any Constitutional provision. • The 1972 Constitution had four basic principles: Nationalism (Bangalee), Democracy, Socialism and Secularism. Three of these principles (Democracy, Socialism and Secularism) were perhaps taken from Indian Constitution.

22. Analysis and comments • The Constitution was adopted immediately after the birth of Bangladesh , and those were the days when Bangladesh was strongly allied with India and Soviet Russia, and still lacked formal recognition from Pakistan , China and most of the Arab and Muslim countries. Those were also the days of Vietnam and the slogan of Socialism inspired millions of young activists throughout the third world including Bangladesh . It is also a fact that the Bangladeshi students and youths were in the forefront of our independence struggle. Senior political leaders including Sheikh Mujibur Rahman (who had been pro-capitalist and pro-western throughout his political career) had to accommodate the wishes and zeal of this vast youth force. But the irony is that BAL had no real understanding or genuine commitment to Socialism as opposed to Capitalism. Socialism was only a convenient slogan to nationalize the Banks and other financial institutions from the hands of their former owners (mainly from West Pakistan or Muslim expatriates from India ). The USA and pro-western elements thought that this was a disastrous step and there was another potential ‘red republic’ in the making.

23. Analysis and comments • The word ‘Socialism’ was not omitted altogether from the Constitution by the subsequent amendments but redefined by saying that it meant ‘economic and social justice’. This assured the West and pro-capitalist elements that Bangladeshi Socialism is not socialism in the real sense, it was not the socialism as it was then practised in China or Soviet Russia, and that there is no reason to be panicked. In the light of the major changes in the world economic and power relations over the last decades (specially since the collapse of Soviet model, end of Cold war, revisions in the Chinese model), debates on this ‘revisionist socialism’ in the Constitution is rather muted. Some of our former ‘Socialist revolutionary leaders’ are happily co-habiting with semi-feudal, pro-capitalist parties. • The debate on ‘Nationalism’ (Bangalee vs Bangladeshi) seems to be driven by emotion. Personally, I feel quite comfortable being known as a ‘Bangladeshi’ national with ‘Bangalee’ cultural and linguistic heritage and with a Muslim faith. Citizens who are not Bangalee but of other ethnic and cultural roots and profess any of the non-Muslim faiths should feel quite comfortable if their nationality is ‘Bangladeshi’. I find no contradiction in this kind of arrangement. But it is wrong to define all the citizens of Bangladesh as ‘Bangalee’; they would not feel comfortable with is this definition. Those who raise controversies and unnecessary debates on this issue are not helping Bangladesh to establish its distinct national identity.

24. Analysis and comments • The issue of ‘Secularism’ is more sensitive as it is supposed to be more progressive and all embracing as opposed to the word ‘Islam or Muslim’ in the Constitution. Whether the present BAL government really wants to delete the words ‘Bismillah ar-Rahman ar-Rahim’ from the preamble and ‘Islam is the state religion’ from the Constitution to reinstate the word ‘Secularism’, remain to be seen. Still we may make a few comments for general discussion. • In my opinion, it would be very controversial and difficult to remove the words from the preamble. Whether it was right or wrong at the time of its addition to the Constitution is another question. But doing this now would send a wrong signal to the vast majority of Muslims about the intention of the BAL government.

25. Analysis and comments • The fact remains that in many ‘secular’ western countries, belief in the Almighty God (Allah) remains a cardinal principle. These countries have Christian majority populations, and Christian traditions, rituals and culture dominate the social and cultural life of most people, although legitimate rights of people practicing other religious faiths, as well as those of atheists or agnostics, are acknowledged, respected, and legally guaranteed. There are extremists and fanatics also within these secular Christian societies, but the legal system is strong enough to contain their activities that advocate hatred, racism and violence. The societies are economically, socially and politically more advanced and mature with a high degree of tolerance for different religions, culture and opposing views. Bangladesh society is relatively backward in economy, political and social culture compared with the European societies and what is acceptable in Europe may not be acceptable in Bangladesh. • Does religion clash with secularism? According to many people, it does so when religion and only religion is the guiding force for all political and social activities within a state. We have witnessed this in Afghanistan , Sudan or Somalia , Kashmir , Chechnya or even in Iran to some extent. But the matter is more complex that it appears on the surface. There are dozens of other reasons for the instability, turmoil, and conflicts in most of these societies.

26. Analysis and comments • The question of religion (Islam) is often invoked by certain quarters (both at home and abroad), but the underlying unresolved national questions (right of self determination as guaranteed by the UN Charter), foreign aggressions and occupation associated with extreme violations of basic human rights to life, property and dignity are often ignored. Blaming Islam for all the ills of the world is clearly one-sided and wrong. We are dismayed to see that many people condemn Pakistan, for example, for branding itself as an ‘Islamic’ country but they have no problem in supporting the purely ‘Jewish’ nature of Israel, a settler colonial, racist state that is acting as an advanced outpost of the militarist imperialists and bent on destroying the Palestinian people and subjugating other Middle Eastern Muslim states. Despite anti-Islam, anti-Bangladesh propaganda by some R&AW inspired elements, independent Bangladesh has not witnessed any serious communal riots or systematic repression of religious minorities, whereas in India, which has a ‘secular’ label, repression of religious and ethnic minorities, communal riots, caste and class violence happen more or less regularly. The main point is not what you profess but what you do.

27. Analysis and comments • Personally, I do not support that the idea that politics and state structure of a modern country should be based exclusively on a very rigid interpretation of holy books, although I have no problem in accepting the basic teachings of honesty, tolerance, fellowship and humanity which are the core values of all religions. Unfortunately, some people who themselves are devoid of any moral values dominate our politics and exploit the name of religion to fool the common people. • One such person is he who staged a coup to overthrow a democratically elected government in 1982 and amended the Constitution to make ‘Islam’ the State Religion. Many people believe that this was done not for the love of Islam but for his own political agenda. He was the worst type of political manipulator, financially and ethically corrupt, and he did everything that goes against the basic teachings of Islam. • The irony is that the same person is now a partner in the current BAL government. What would he say if and when the government amends the Constitution to remove ‘Islam’ and incorporates ‘Secularism’ in its place? Would that be acceptable to the majority Muslim population? Honestly, I do not know. But I have a feeling that it will arouse intense emotional feelings to cause greater dissension and destabilisation. There is every chance of the issue or intention of the government being misinterpreted. Can the government handle the situation, even with its more than two-thirds majority in the parliament?

28. Analysis and comments • We can write many good words and sentences in the Constitution, but this by itself does not guarantee a system of democracy and good governance, unless the rule of law and justice providing equal opportunity for all religious and ethnic communities are practised. Secularism was a part of the Constitution until the Fifth Amendment, but was the socio-political situation better then? The answer is a clear ‘No’. We are still alive to tell the story of mismanagement, nepotism, corruption, grabbing of ‘enemy’ properties and industries, one-party dictatorship, mad made famine, factional fighting and state sponsored killings by Rakkhi Bahini and other killer groups. What led to the coups and counter-coups in 1975, only after a few years of the country’s independence? We should give up emotion and half-truths and do an objective analysis based on facts. Blaming only this person or that person, this country or that country, for all ills of the country’s failure to establish a genuine democratic order and just society is not good enough. We must do some soul-searching and work together to analyse the problems and find the best possible solution. • In conclusion, we have no objections in enacting another Amendment by the present or future governments, but if and when this is done, there must be full debates and participation by all the political parties, intelligentsia and concerned citizens.

29. Analysis and comments • The present essay is based on the presentations made by Barrister Nazir Ahmed (account of the Amendments described herein) and the author (analysis and comments) in a round table conference on “Bangladesh: Contemporary Debates for Fundamental Changes of its Current Constitution”, organized by ‘Justice for Bangladesh’ (London) on 6 December 2009 at Davenant Centre, Whitechapel Road, London. • http://sonarbangladesh.com/article.php?ID=1615