Can the Government really go back to the 1972 Constitution?
Barrister Nazir Ahmed
"We are going to go back to the 1972 Constitution." "We have mandate to implement the 1972 Constitution." "The 1972 Constitution came through muktijuddo and we have no alternative but to go to the 1972 Constitution." These are the rhetorics the nation has been hearing almost every week/every month from the Ministers including the Prime Minister since the current government came into power.
The question is: how is it possible? Are the Ministers serious on what they are saying? Can the clock be turned back? Electronic clocks may be manually turned back, but can the years be turned back or brought back? In this article, we aim to show that the government cannot go back to the original 1972 Constitution in true sense at all for at least eight reasons.
Firstly: The Constitution of the People's Republic of Bangladesh has been amended several times. What would happen to all those amendments (14 in total so far) that have taken place since 1972? Can all these be repealed in order to go back to the 1972 Constitution? Logic and reasons suggest that in order to go to the 1972 original Constitution in true literal sense, all amendments would have to be cancelled. Is the government prepared to do this or is the government able to do that at all? It is easy to say many things by the power of emotion or for mere flattery but it is really difficult to materialise/implement. We are eagerly waiting to see how the government can really go back to the original 1972 Constitution in true sense.
Secondly: The original 1972 Constitution was very liberal and, to some extent, citizens friendly in the sense that it did not have the provision for proclamation of state of emergency and preventive detention. By the Constitution (Second Amendment) Act 1973, passed on 22 September 1973, Article 33 was amended providing for preventive detention of citizens and Part IXA was inserted conferring power on Parliament and the Executive to deal with emergency situations in the country and providing for suspension of enforcement of the fundamental rights during the period of emergency. Since this amendment passed in 1973, all successive governments have been using this provision to arbitrarily arrest and detain citizens. The provision of preventive detention was widely used in early to mid 1970s when the predecessor of the current government was in power. As a result, the then opposition parties termed the provision of preventive detention as 'black law.' In order to go back to the original 1972 Constitution, the government would have to repeal the Second Amendment which introduced the preventive detention provision and the provision of emergency. Is the government prepared to do so? If yes, we would welcome such a move!
Thirdly: The laws and rules in relation to the International War Crime Tribunal are directly contradictory to the Constitution, for these special laws violate, among others, the accused fundamental rights enshrined in Part III of the Constitution. This is why 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. Now if the government wants to go back to the original 1972 Constitution, they will have to repeal the First Amendment, for the original 1972 Constitution did not have such provision. Can the government do that?
Fourthly: The Constitution (Third Amendment) Act 1974 was enacted on 28 November 1974 by bringing in changes in Article 2 of the Constitution with a view to giving effect to an agreement between Bangladesh and India in respect of exchange of certain enclaves and fixation of boundary lines between India and Bangladesh. Under the Third Amendment, Berubari was given to India. Although Berubari was given to India, we have not got full control/ownership, in return, of Dahagram and Angorpota yet. Can the Berubari be brought back? If the Berubari cannot be brought back and if the Third Amendment cannot be repealed, how can the government tell the nation that they want to go back to the 1972 Constitution? This is a self defeating assertion. The nation is not so fool that it cannot realise this.
Fifthly: One of the themes of the 1972 Constitution was the 'Bengali nationalism.' However, it was replaced in the Constitution by 'Bangladeshi nationalism' through the Fifth Amendment. Although the Supreme Court has recently struck out most components of the Fifth Amendment, its analysis and findings in relation to the nationalism seem to be in favour of the 'Bangladeshi nationalism.' What will the government do? Is it going to give effect to the Supreme Court's findings or will they be arrogant, by ignoring the Supreme Court's judgement, to go back to the 'Bengali nationalism' as was put in the original 1972 Constitution?
Sixthly: The Constitution (Thirteenth Amendment) Act 1996 was passed on 26 March 1996. It introduced the provision 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 government will have to repeal this amendment in order to go back to the 1972 Constitution, for the original 1972 Constitution did not have such provision. Can the government do this? The Bangladesh Awami League (BAL) came to power twice after following general elections held under the Caretaker Government. The nation will be led to chaos if the provision of caretaker government is repealed, for no opposition political parties will agree to participate in the future general election under the party government. Former Attorney General Mahmudul Islam, an eminent jurist and constitutional expert, recently warned, while giving his opinion at the Appellate Division of the Supreme Court as an Amicus Curie, that martial law would be imminent if the Caretaker Government provision was to be repealed. We can see the force and reason of logic and warning in his opinion. Repealing the Caretaker Provision would certainly backfire the government. Is the government prepared to take the real risk? To see this we will need to wait.
Seventhly: 'Socialism' was put in the 1972 original Constitution as one of the fundamental state policies. The Fifth Amendment defined the 'socialism' meaning 'social justice.' The very word 'socialism' was neither in the historical '6 points demands,' nor in the '11 points demands' of 1969 students' mass movement or in the 'Proclamation of Independence', the historical chain of our independence.' One has every right to wonder how it then came to our Constitution. In fact, it was cut and pasted into our Constitution by the framers of the Constitution. It might be the belief and thought of the framers of the Constitution, but certainly it was not the belief and desire of the majority people of newly born Bangladesh. The framers might have been influenced having seen it in some socialist countries. During that period the socialism was in win win situation in many countries of the world led by one of the two superpowers in the cold war era. Those days have gone. The world has changed. The very socialist countries have been changing their social and economic policies by way of reforms. In these circumstances, the government should think very carefully whether it would be a right approach to adopt the socialism as a State policy.
Furthermore, the socialism visualised in a socialist society is different from modern democratic society. A normal democratic society cannot be turned into a socialist society overnight. In order to implement the socialist policy into a society, the party needs to have a strong cadre based workforce. They have to be trained and prepared with sacrifice mentality rising from the grass root level. They will work like a machine and be role models for the rest of the society. This unique approach was adopted by the countries who had implemented the socialism. Does the current government have that sort of workforce? More particularly, does the BAL have a distinct workforce with sacrifice mentality? In fact, their work forces have been classified and considered as burguoges by the political parties working to implement the socialism in Bangladesh. Practically, we do not see much difference in economical policy and social policy of Bangladesh Nationalist Party (BNP) and the BAL when they come into power. In such scenario, the government should think twice before adopting the socialism as a State policy. Otherwise, the government itself would suffer a lot. They, with unskilled and untrained workforce, would have to be in an awkward position internationally (due to globally dominant economic policy of the capitalism) as well as domestically as we have seen during the early and mid 1970s.
Eighthly: Like the socialism, the secularism was put in the 1972 original Constitution as one of the fundamental State policies. The Fifth Amendment replaced it with 'absolute faith and trust on Almighty Allah.' Again, the very word 'Secularism' was neither in the historical '6 points demands,' nor in the '11 points demands' of 1969 students' mass movement or in the 'Proclamation of Independence.' One could again wonder how it came to our Constitution. Once again, it might be the belief and thought of the framers of the Constitution, but certainly it did not reflect wishes and expectation of the overwhelming majority population of the country. The interesting thing is that the very country, which had influenced the framers of the Constitution, incorporated the secularism in their own Constitution in 1976, four years after our Constitution was adopted! Why were framers of our Constitution so keen and enthusiastic in putting the secularism in our Constitution? Explanation is needless.
Running the country by the BAL with the policy of secularism during the early to mid 1970s is not praiseworthy or even noteworthy. Comparatively the BAL had run the country better during 1996-2001 without the secularism in the Constitution. Even if we compare us with our big neighbouring secular country, our records and statistics in communal harmony are much better than them.
Water and oil cannot coexist; presence of one prompts loosing the other's character. Similarly secularism and Bismillahir Rahmanir Rahim/State Religion Islam cannot coexist together. Those who are advocating for co-existence are either ignorant or knowingly trying to mislead the nation. The very definition and interpretation of the secularism in the world major/famous dictionaries including the Oxford Dictionary do not support their contention. If you are brave enough, delete Bismillahir Rahmanir Rahim/State Religion Islam outright from the Constitution and then see how the mass people response and react.
Finally, Constitution is not the Quran or the Bible that it cannot be changed. Of course, it can be changed with the passage of time to accommodate the contemporary needs and demands, but attempt for changing the Constitution should only be made for national interest and only if national consensus is built up. Otherwise, it will backfire. It is also be bound to be counterproductive. Previous history clearly shows us this. The government should avoid being arrogant to go to a particular period or particular mode. Much water has flown in the rivers since 1972. The government cannot go back to the 1972 original Constitution in true literal sense for the reasons stated above. Even if they can, it can be said for granted that they will not go. Thus, we are not surprised when Senior BAL leader Mohammad Nasim said, on 16 April 2011 at a discussion meeting held in Dhaka organised by Janatar Prottaysa, a pro-Awami League organization at Dhaka Reporters Unity (DRU), ''It's not possible to restore the 1972 Constitution in exact form. If we are to go back to the original Constitution, we'll go 40 years back. We need to have a Constitution suitable for the modern times." If that is so, it is better for them to refrain from making mere rhetoric or empty sound.
However, if the government thinks that the inclusion of secularism is all about when they say 'we will go back to the 1972 Constitution,' they are living in the paradise of fool. People of Bangladesh are not so fool. They know what is what. The government should realise that they can make fool 'some of the people for all of the time or all of the people for some of the time, but they cannot certainly fool all of the people for all of the time!'
----------------------------
Nazir Ahmed FRSA FCMI
Advocate, Supreme Court of Bangladesh, Barrister-at-Law (Lincoln's Inn)
E Mail : ahmedlaw2002@yahoo.co.uk
http://newsfrombangladesh.net/view.php?hidRecord=353409
The question is: how is it possible? Are the Ministers serious on what they are saying? Can the clock be turned back? Electronic clocks may be manually turned back, but can the years be turned back or brought back? In this article, we aim to show that the government cannot go back to the original 1972 Constitution in true sense at all for at least eight reasons.
Firstly: The Constitution of the People's Republic of Bangladesh has been amended several times. What would happen to all those amendments (14 in total so far) that have taken place since 1972? Can all these be repealed in order to go back to the 1972 Constitution? Logic and reasons suggest that in order to go to the 1972 original Constitution in true literal sense, all amendments would have to be cancelled. Is the government prepared to do this or is the government able to do that at all? It is easy to say many things by the power of emotion or for mere flattery but it is really difficult to materialise/implement. We are eagerly waiting to see how the government can really go back to the original 1972 Constitution in true sense.
Secondly: The original 1972 Constitution was very liberal and, to some extent, citizens friendly in the sense that it did not have the provision for proclamation of state of emergency and preventive detention. By the Constitution (Second Amendment) Act 1973, passed on 22 September 1973, Article 33 was amended providing for preventive detention of citizens and Part IXA was inserted conferring power on Parliament and the Executive to deal with emergency situations in the country and providing for suspension of enforcement of the fundamental rights during the period of emergency. Since this amendment passed in 1973, all successive governments have been using this provision to arbitrarily arrest and detain citizens. The provision of preventive detention was widely used in early to mid 1970s when the predecessor of the current government was in power. As a result, the then opposition parties termed the provision of preventive detention as 'black law.' In order to go back to the original 1972 Constitution, the government would have to repeal the Second Amendment which introduced the preventive detention provision and the provision of emergency. Is the government prepared to do so? If yes, we would welcome such a move!
Thirdly: The laws and rules in relation to the International War Crime Tribunal are directly contradictory to the Constitution, for these special laws violate, among others, the accused fundamental rights enshrined in Part III of the Constitution. This is why 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. Now if the government wants to go back to the original 1972 Constitution, they will have to repeal the First Amendment, for the original 1972 Constitution did not have such provision. Can the government do that?
Fourthly: The Constitution (Third Amendment) Act 1974 was enacted on 28 November 1974 by bringing in changes in Article 2 of the Constitution with a view to giving effect to an agreement between Bangladesh and India in respect of exchange of certain enclaves and fixation of boundary lines between India and Bangladesh. Under the Third Amendment, Berubari was given to India. Although Berubari was given to India, we have not got full control/ownership, in return, of Dahagram and Angorpota yet. Can the Berubari be brought back? If the Berubari cannot be brought back and if the Third Amendment cannot be repealed, how can the government tell the nation that they want to go back to the 1972 Constitution? This is a self defeating assertion. The nation is not so fool that it cannot realise this.
Fifthly: One of the themes of the 1972 Constitution was the 'Bengali nationalism.' However, it was replaced in the Constitution by 'Bangladeshi nationalism' through the Fifth Amendment. Although the Supreme Court has recently struck out most components of the Fifth Amendment, its analysis and findings in relation to the nationalism seem to be in favour of the 'Bangladeshi nationalism.' What will the government do? Is it going to give effect to the Supreme Court's findings or will they be arrogant, by ignoring the Supreme Court's judgement, to go back to the 'Bengali nationalism' as was put in the original 1972 Constitution?
Sixthly: The Constitution (Thirteenth Amendment) Act 1996 was passed on 26 March 1996. It introduced the provision 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 government will have to repeal this amendment in order to go back to the 1972 Constitution, for the original 1972 Constitution did not have such provision. Can the government do this? The Bangladesh Awami League (BAL) came to power twice after following general elections held under the Caretaker Government. The nation will be led to chaos if the provision of caretaker government is repealed, for no opposition political parties will agree to participate in the future general election under the party government. Former Attorney General Mahmudul Islam, an eminent jurist and constitutional expert, recently warned, while giving his opinion at the Appellate Division of the Supreme Court as an Amicus Curie, that martial law would be imminent if the Caretaker Government provision was to be repealed. We can see the force and reason of logic and warning in his opinion. Repealing the Caretaker Provision would certainly backfire the government. Is the government prepared to take the real risk? To see this we will need to wait.
Seventhly: 'Socialism' was put in the 1972 original Constitution as one of the fundamental state policies. The Fifth Amendment defined the 'socialism' meaning 'social justice.' The very word 'socialism' was neither in the historical '6 points demands,' nor in the '11 points demands' of 1969 students' mass movement or in the 'Proclamation of Independence', the historical chain of our independence.' One has every right to wonder how it then came to our Constitution. In fact, it was cut and pasted into our Constitution by the framers of the Constitution. It might be the belief and thought of the framers of the Constitution, but certainly it was not the belief and desire of the majority people of newly born Bangladesh. The framers might have been influenced having seen it in some socialist countries. During that period the socialism was in win win situation in many countries of the world led by one of the two superpowers in the cold war era. Those days have gone. The world has changed. The very socialist countries have been changing their social and economic policies by way of reforms. In these circumstances, the government should think very carefully whether it would be a right approach to adopt the socialism as a State policy.
Furthermore, the socialism visualised in a socialist society is different from modern democratic society. A normal democratic society cannot be turned into a socialist society overnight. In order to implement the socialist policy into a society, the party needs to have a strong cadre based workforce. They have to be trained and prepared with sacrifice mentality rising from the grass root level. They will work like a machine and be role models for the rest of the society. This unique approach was adopted by the countries who had implemented the socialism. Does the current government have that sort of workforce? More particularly, does the BAL have a distinct workforce with sacrifice mentality? In fact, their work forces have been classified and considered as burguoges by the political parties working to implement the socialism in Bangladesh. Practically, we do not see much difference in economical policy and social policy of Bangladesh Nationalist Party (BNP) and the BAL when they come into power. In such scenario, the government should think twice before adopting the socialism as a State policy. Otherwise, the government itself would suffer a lot. They, with unskilled and untrained workforce, would have to be in an awkward position internationally (due to globally dominant economic policy of the capitalism) as well as domestically as we have seen during the early and mid 1970s.
Eighthly: Like the socialism, the secularism was put in the 1972 original Constitution as one of the fundamental State policies. The Fifth Amendment replaced it with 'absolute faith and trust on Almighty Allah.' Again, the very word 'Secularism' was neither in the historical '6 points demands,' nor in the '11 points demands' of 1969 students' mass movement or in the 'Proclamation of Independence.' One could again wonder how it came to our Constitution. Once again, it might be the belief and thought of the framers of the Constitution, but certainly it did not reflect wishes and expectation of the overwhelming majority population of the country. The interesting thing is that the very country, which had influenced the framers of the Constitution, incorporated the secularism in their own Constitution in 1976, four years after our Constitution was adopted! Why were framers of our Constitution so keen and enthusiastic in putting the secularism in our Constitution? Explanation is needless.
Running the country by the BAL with the policy of secularism during the early to mid 1970s is not praiseworthy or even noteworthy. Comparatively the BAL had run the country better during 1996-2001 without the secularism in the Constitution. Even if we compare us with our big neighbouring secular country, our records and statistics in communal harmony are much better than them.
Water and oil cannot coexist; presence of one prompts loosing the other's character. Similarly secularism and Bismillahir Rahmanir Rahim/State Religion Islam cannot coexist together. Those who are advocating for co-existence are either ignorant or knowingly trying to mislead the nation. The very definition and interpretation of the secularism in the world major/famous dictionaries including the Oxford Dictionary do not support their contention. If you are brave enough, delete Bismillahir Rahmanir Rahim/State Religion Islam outright from the Constitution and then see how the mass people response and react.
Finally, Constitution is not the Quran or the Bible that it cannot be changed. Of course, it can be changed with the passage of time to accommodate the contemporary needs and demands, but attempt for changing the Constitution should only be made for national interest and only if national consensus is built up. Otherwise, it will backfire. It is also be bound to be counterproductive. Previous history clearly shows us this. The government should avoid being arrogant to go to a particular period or particular mode. Much water has flown in the rivers since 1972. The government cannot go back to the 1972 original Constitution in true literal sense for the reasons stated above. Even if they can, it can be said for granted that they will not go. Thus, we are not surprised when Senior BAL leader Mohammad Nasim said, on 16 April 2011 at a discussion meeting held in Dhaka organised by Janatar Prottaysa, a pro-Awami League organization at Dhaka Reporters Unity (DRU), ''It's not possible to restore the 1972 Constitution in exact form. If we are to go back to the original Constitution, we'll go 40 years back. We need to have a Constitution suitable for the modern times." If that is so, it is better for them to refrain from making mere rhetoric or empty sound.
However, if the government thinks that the inclusion of secularism is all about when they say 'we will go back to the 1972 Constitution,' they are living in the paradise of fool. People of Bangladesh are not so fool. They know what is what. The government should realise that they can make fool 'some of the people for all of the time or all of the people for some of the time, but they cannot certainly fool all of the people for all of the time!'
----------------------------
Nazir Ahmed FRSA FCMI
Advocate, Supreme Court of Bangladesh, Barrister-at-Law (Lincoln's Inn)
E Mail : ahmedlaw2002@yahoo.co.uk
http://newsfrombangladesh.net/view.php?hidRecord=353409
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