Barrister Nazir Ahmed
Constitution is the most important written document of the People's Republic of Bangladesh. It is the highest law of the Republic. It is the reflection of peoples' wishes and desires. Constitution of Bangladesh itself declared its supremacy by saying "This Constitution is, as the solemn expression of the will of the people, the supreme law of Bangladesh, and if any other law is inconsistent with this Constitution that other law shall, to the extent of the inconsistency, be void" [Article 7(2) of the Constitution]. All citizens regardless of their position are supposed to obey and follow the Constitution. Specially those who are in power should be the role model in following the Constitution. What will happen if the government itself, more specifically the Prime Minister herself, violates the Constitution in several ways? What will the general public do? Where will they go? We aim to show in this article how the Prime Minister, the head of the current government who herself came to power by the force of the Constitution, has violated the very Constitution in at least seven ways.
Firstly: Under Article 145A of the Constitution, all treaties with foreign countries shall be submitted to the President who shall cause them to be laid before Parliament. The said Article also says provided that any such treaty connected with national security shall be laid in a secret session of Parliament. After the current government came into power following the General Election on 29 December 2008, the Prime Minister visited India and signed some important treaties and bilateral agreements with Indian. None of the agreements and treaties has yet been placed in Parliament. The Treasury Bench MPs have not even seen those agreements and treaties in Parliament, let alone the opposition MPs or other stake holders having a chance to see. Even if those agreements or treaties contained any component of national security at all, they could have been laid in a secret session of Parliament, as provided by the above Article. But the government did not do that. This is clear violation of the Constitution and democratic norms (indeed against the norms and practice of the parliamentary democracy).
Secondly: Article 77 of the Constitution provides a provision for the establishment of the office of Ombudsman. Article 77 says: "(1) Parliament may, by law, provide for the establishment of the office of Ombudsman, (2) The Ombudsman shall exercise such powers and perform such functions as Parliament may, by law, determine including the power to investigate any action taken by a Minister, a public officer or a statutory public authority, (3) The Ombudsman shall prepare an annual report concerning the discharge of his functions, and such report shall be laid before Parliament." In spite of having a clear constitutional provision, no governments since 1972 (when the Constitution was formally adopted) have ever attempted to establish the office of Ombudsman. Parliament passed the 'Ombudsman Act 1980' in 1980 and empowered the government to bring it into force by notification in the official Gazette. The Act has not been brought into force and the office of Ombudsman has not been established yet though more than two decades have elapsed since the passing of the Act. If all the governments, both past and present, have been reluctant to establish the office of Ombudsman, what is the point of keeping such provision in the Constitution? Although the respective Prime Ministers or Presidents since 1972 have been liable for violating this clear constitutional provision, the current Prime Minister cannot deny her liability for her terms.
Thirdly: Under Article 49 of the Constitution, the President shall have power to grant pardons, reprieves and respites and to remit, suspend or commute any sentence passed by any court, tribunal or other authority. This provision has clearly given power to the President to pardon a person or remit or suspend his sentence only after trial and conviction. How can the President pardon a prime murder accused or suspect whose trial has not been commenced or finished yet? The accused's/suspect's culpability and criminality has not been determined yet. Neither this provision has given such power to the President nor did framers of the Constitution contemplate such scenario. Furthermore, can the President pardon convicted murderers on political consideration who received death penalty but all appeal avenues have not been exhausted? It is contrary to the rule of law, justice and fairness. If it is allowed, then the confidence and trust on the judiciary will be lost. The President normally acts on the advice of the Prime Minister. Therefore, The Prime Minister cannot escape her liability in violating or misusing this constitutional provision.
Fourthly: Article 36 of the Constitution provides the provision for freedom of movement. It says "Subject to any reasonable restrictions imposed by law in the public interest, every citizen shall have the right to move freely throughout Bangladesh, to reside and settle in any place therein and to leave and re-enter Bangladesh." Since the current government came into power, dozens of important persons (who have, in fact, been holding very important positions of the cabinet or government in the past including the Law Minister, the Foreign Minister, the Communication Minister, the Speaker, the Vice President and so on) have been stopped at airport for no apparent reasons or flimsy grounds (mostly they were said to have been stopped for superior order – no written order or reasons were even shown!). Those who have the financial ability have challenged to the High Court by way of Writs and the High Court, after issuing show causes and hearing the matters, ordered the government to let them leave and re-enter. Not a single High Court order in such cases went in government's favour. Still the government has been harassing important personalities – mainly of their politically rival organisations. This is clear violation of Article 36 of the Constitution. The Prime Minister cannot escape liability, as head of the government, of growing such alarming bad precedents of stopping important personalities at the airport in the name of superior order.
Fifthly: Under Article 30 of the Constitution, no citizen shall, without the prior approval of the President accept any title, honour, award or decoration from any foreign State. The Prime Minister has taken/received dozens of awards and degrees from around the world during her last term of government. In her current term she has already taken a few foreign awards including Indira Gandhi award from India. We do not know whether she had taken any prior approval of the President at all before receiving those degrees and awards. We have not seen any such news/report of prior approval in the newspapers. If she did not take prior approval of the President, she had clearly violated the Constitution.
Sixthly: The provision for equality before law is ensured in Article 27 of the Constitution. Article 27 says "all citizens are equal before law and are entitled to equal protection of law." Enacting or passing law or laws for certain people in the name of 'protecting family members of the father of the nation' is clear violation of Article 27. The State is supposed to give equal protection to all its citizens. Since all citizens are equal before law and are entitled to equal protection of law, certain people cannot be given priority or separate distinct/special protection. Any future legal action by way of Writ in the High Court before an impartial Bench would certainly find this law as ultra virus or unconstitutional, for Article 26(2) of the Constitution says "The State shall not make any law inconsistent with any provisions of this Part [Fundamental Rights], and any law so made shall, to the extent of such inconsistency, be void."
Seventhly: Article 23 of the Constitution says "The State shall adopt measures to conserve the cultural traditions and heritage of the people . . . ." Importing or promoting and encouraging to import porno, indecent and alien cultures (almost naked or three-quarter naked dances in open daylight at stadium in the capital of a country with at least 85% Muslim population) from neighbouring country even in the month of language movement is directly contradictory to our rich, decent and healthy culture. This is clear violation of Article 23 of the Constitution. As the head of government, the Prime Minister cannot escape her liability.
The above accounts of violation of the Constitution are at the top level. But in reality, there have been widespread violation of constitutional provisions in the field or lower level by the various State organs and actors, especially in relation to fundamental rights [Article 26 to 47] as guaranteed in Part III of our Constitution. Some well off citizens could get relief from the higher court. But many violations go unchallenged, unnoticed and unaccounted.
Finally, the irony is that although our Constitution is quite detailed and elaborative (In fact, much bigger than most Constitutions of the world), it does not provide any sanction or punishment for violating the Constitution. A citizen can be punished, reprimanded or held liable for violation of the ordinary law of the country. Surprisingly, there is no punishment prescribed for violating the highest law of the land! As a result, those who are in power or in authority do not often care in violating the Constitution. We also see how gross violators and mutilators of the Constitution (such as, Lt. Gen Hussain Mohammed Ershad, General Moin U Ahmed, Dr Fakruddin Ahmed and others) could easily get away. It is often surprisingly observed that some violation goes year after year, term after term or even decade after decade! For our democracy not being healthy and for the Parliament not being effective, the government in general and the Prime Minister in particular go unaccounted and unaccountable. This is pity and irony for our relatively new and immature democracy.
Water naturally flows from the top of the mountain, not the vice versa. Those who are in power should be the role models in following each and every provision of the Constitution. From them citizens should learn and practise to obey. If the protector becomes the violator, then the country will gradually be directed towards anarchy and chaos. Can we, as a nation, afford to go in that direction since we got our independence after scarifying a sea of blood?
E-mail: ahmedlaw2002@yahoo.co.uk
__._,_.___
