Assignment On
Course Code: LAW 201 Course Title: Constitution Constitutional al Law of Bangladesh
Submitted To: Md. Monjurul Islam Lecturer Department of Law Daodil International University
Date of Submission : 160!201"
Submitted By: ID: ID: ID: ID: ID:
141-2-!! 141-2-!4! 141-2-!4" 141-2-!!4 141-2-!4
Section: A Department of Law Daodil International University
To#i$: Amendments of the constitution of Bangladesh: An Analytical study of 4th and 12th Amendment. Table of Contents Sl. No.
Topics
Page No.
01
Introduction
01
02
Constitutional Amendments
02
03
Amendment Procedure of the constitution of Bangladesh
03
0
Amendments of the constitution of Bangladesh
0
0!
Anal"tical stud" on th Amendment
0% #escription of the $ourth Amendment The changes &rought &" th Amendment
0'
Anal"tical stud" on 12 th Amendment
10
#escription of the 12 th Amendment
1!
The changes &rought &" 12 th Amendment
1'
0(
Conclusion
1)
0%
*eferences
20
%ntrodu$tion
In the modern +orld, constitution is the sine-ua-no for an" countr" to operate its all sort of functions properl". Constitution means- the collection of principles according to +hich the po+er of the go/ernment, the rights of the go/erned and the relation &et+een the t+o adusted. Professor ord Br"ce sa"s- Constitution is a set of esta&lished rules em&od"ing and enacting the practice of go/ernment. $inall", constitution is a set of rules or la+s, +ritten or un+ritten +hich determined the organi4ation of go/ernment, the distri&ution of po+ers of /arious organs of go/ernment and the general principles on +hich these po+er are e5ercised. The constitution of the People6s *epu&lic of Bangladesh has &een adopted as the highest la+ of the countr" on 1' #ecem&er, 1)(2 after passing it on No/em&er , 1)(2 in the Constituent Assem&l" of Bangladesh. After that it has &een amended si5teen times.
Constitutional Amendments A constitutional amendment refers to the modification of the Constitution of a nation or state. In man" urisdictions the te5t of the constitution itself is altered7 in others the te5t is not changed, &ut the amendments change its effect. The +a" of modification is t"picall" +ritten into the Constitution itself. 8ost constitutions as reuire that amendments cannot &e enacted unless the" ha/e passed a special procedure that is more stringent than that reuired of ordinar" legislation. 95amples of such special procedures include supermaorities in the legislature, or direct appro/al &" the electorate in a referendum, or e/en a com&ination of t+o or more different special procedures. A referendum to amend the constitution ma" also &e triggered in some urisdictions &" popular initiati/e. Australia and Ireland pro/ide e5amples of constitutions reuiring that all amendments are first passed &" the legislature &efore &eing su&mitted to the people7 in the case of Ireland, a simple maorit" of those /oting at the electorate is all that is reuired, +hereas a more comple5 set of criteria must &e met in Australia :a maorit" of /oters in a maorit" of states is also necessar";. S+it4erland has procedure similar to that of Australia. In Bangladesh, Parliament +as gi/en the po+er to amend the constitution. Art.12 pro/ided for a special procedure for such amendment and prescri&ed that no Bill for amendment should &e presented to the President unless it +as passed &" the /otes of not less than t+othirds of the total num&er of mem&ers of Parliament.
Amendment &ro$edure of the $onstitution of Bangladesh 1. According to our main constitution article 12. If +e +ant to change an" pro/ision +e ha/e to &ring a &ill +riting +hat articles are changed. 2. According to main constitution it is needed the support of 2<3 maorit" of the total num&er of parliament to amend an" article. In 1)(%, The president =iaur *ahman said to change some articles, it is not enough the support of 2<3 &ut it is also needed referendum. Those are pream&le, article %, %, !', 12:1A;.
Amendments of the $onstitution of Bangladesh The Constitution of the People6s *epu&lic of Bangladesh has &een amended se/eral times. The follo+ing is a &rief account of these acts and orders.
1st Amendment: The first amendment +as &rought in >ul" 1)(3 in the first elected >ati"a Sangsad under the ne+l" framed constitution. T+o articles +ere incorporated in section ( of the constitution in order to formulate la+s and e5ecute those to tr" criminals +ho committed genocide, crimes against humanit", +ar crimes and crimes under international la+s.
2nd Amendment: The second amendment +as passed on Septem&er 22 in 1)(3 to facilitate the go/ernment to promulgate emergenc" and suspension of fundamental rights, allo+ go/ernment to detain people +ithout trial for certain periods.
3rd Amendment: The third amendment +as made part of the constitution on No/em&er 2%, 1)( in order to implement a treat" &et+een Shei?h 8ui& and Indira @andhi in to hando/er an encla/e named Beru&ari to India.
4t Amendment: The forth amendment to the constitution +as passed on >anuar" 2! in 1)(! through +hich parliamentar" s"stem of go/ernment +as replaced &" presidential form of go/ernment. Introduction of one-part", curtail independence of udiciar" +ere also made part of the constitution.
!t Amendment: The fifth amendment +as &rought on April ' in 1)(). It did not in fact &ring an" change to an" section of the constitution, rather it indemnif" all orders, promulgations and sentences &et+een August 1!, 1)(! and April ', 1)() +hen the +as under martial la+.
"t Amendment: The si5th constitutional amendment +as passed on >ul" 10 in 1)%1 through +hich pro/ision +as made that offices of president, prime minister, ministers, state ministers and deput" ministers +ill not &e considered as offices of profit.
#t Amendment: $rom 8arch 2, 1)%2 to No/em&er 10, 1)%' the countr" +as ruled &" militar" ruler @eneral 9rshad. The se/enth amendment to the constitution +as &rought on No/em&er 11, 1)%' to indemnif" all acts, la+s and orders during the tenure of martial la+. nder this amendment
the age of retirement of the udges +as increased from '2 to '! "ears. It +as declared illegal &" the court on August 2' in 2010.
$t Amendment: The eighth constitution amendment &ill +as passed on >une ) in 1)%%, &" +hich Islam +as declared as State religion, si5 &enches of the igh Court #i/ision +ere set up outside #ha?a, Bengali +as replaced &" Bangladeshi and #acca +as replaced &" #ha?a.
%t Amendment: n >ul" 11, 1)%), the ninth amendment &ill +as passed in +hich a fe+ articles +ere incorporated regarding the president and the /ice-president, speciall" the terms for those posts +ere fi5ed.
1&t Amendment: The 10th amendment to the constitution +as passed on >une 12 in 1))0, &" +hich the num&er of reser/ed seats for +omen in the >ati"a Sangsad +as increased from 1! to 30.
11t Amendment: In the 11th amendment passed in 1))1, it +as declared appointment of the chief ustice as the /ice-president as legal and at the same time pro/isions +ere made that after the election of president /ice-president ma" ta?e the charge of the chief ustice and his tenure as /ice president +ill &e deemed as ustice.
12t Amendment: Through the 12 th amendment to the constitution in 1))1, parliamentar" s"stem of go/ernment +as reesta&lished in the countr" follo+ing an election under a careta?er go/ernment headed &" >ustice Shah&uddin Ahmed.
13t Amendment: The 13th amendment +as passed on 8arch 2', 1))', &" +hich careta?er go/ernment s"stem +as incorporated in the constitution.
14t Amendment: The 1th amendment to the constitution +as passed on 8a" 1', 200, &" +hich the num&er of reser/ed +omen seats in the >ait"a Sangsad +as increased from 30 to !, the age of the Supreme Court udges +as increased from '! to '( "ears and pro/isions for putting portraits of the President and the Prime 8inister at the offices of the President and the Prime minister and the Prime 8inisterDs portrait in go/ernment, semi-go/ernment and autonomous offices and Bangladesh missions a&road +ere made mandator".
1!t Amendment: The 1!th amendment of the Bangladesh constitution is perhaps the most de&ata&le one in the post democratic era that follo+s the 1))0 pu&lic upsurge against autocrac". The often pronounced ustifications offered for this amendment is the EneedsD for returning to the spirit and contents of the founding constitution of 1)(2 of Bangladesh. Fet the 1!th amendment rather accommodates some of the changes &rought out &" the !th and (th amendments, &oth made &" the 8artial a+ regime and recentl" declared illegal and unconstitutional &" the ape5 court of the countr".
1!th amendment, li?e most of the pre/ious amendments, also largel" failed to reflect comparati/e constitutional studies. Such stud" is considered essential for learning the e5periences of constitutionalism in rele/ant urisprudences and &orro+ing or adapting them in amending a nationDs o+n constitution.
1"t Amendment: Bangladesh Act No GIII of 201 amended the Constitution of Bangladesh, empo+ering Parliament to impeach Supreme Court udges.H10H11 Part JI, chapter one, article )', of the Bangladesh Constitution, +hich includes pro/isions on the tenure of office of the Supreme Court udges, no+ statesK 1. Su&ect to the other pro/isions of this article, a >udge shall hold office until he attains the age of si5t"-se/en "ears. 2. A >udge shall not &e remo/ed from his office e5cept &" an order of the President passed pursuant to a resolution of Parliament supported &" a maorit" of not less than t+o-thirds of the total num&er of mem&ers of Parliament, on the ground of pro/ed mis&eha/ior or incapacit".
3. Parliament ma" &" la+ regulate the procedure in relation to a resolution under clause :2; and for in/estigation and proof of the mis&eha/ior or incapacit" of a >udge. . A >udge ma" resign his office &" +riting under his hand addressed to the President. :The Constitution of the People6s *epu&lic of Bangladesh :201;, egislati/e and Parliamentar" Affairs #i/ision +e&site.; Before the adoption of the Si5teenth Amendment, articles )' :2; and :3; of the Bangladesh Constitution under Part JI included a pro/ision on impeachment carried out &" the Supreme >udicial Council instead of the Parliament. It statedK 1. A udge shall not &e remo/ed from office e5cept in accordance +ith the follo+ing pro/isions of this article. 2. There shall &e a Supreme >udicial Council, in this article referred to as the Council, +hich shall consist of the Chief >ustice of Bangladesh, and t+o ne5t senior udges.
4 th Amendment The Constitution :$ourth Amendment; Act 1)(! +as passed on 2! >anuar" 1)(!. Amidst of the /iolent uprising of the leftist parties and the &ad impact of 1)( famine, the anarch" pre/ailed e/er"+here in the countr". The A+ami eague :A; @o/ernment declared state of emergenc" in >anuar" 1)(. ater it amended the Constitution :through $ourth Amendment; to control the immense political and economic crises in the countr". Though the" declared this act +as for the short term onl", it created a deep negati/e impact on the leadership of Shei?h 8ui&ur *ahman and his part". 8aor changes +ere &rought into the Constitution &" this amendment. This Act :i; amended Articles 11, '', '(, (2, (, (', %0, %%, )!, )%, 10), 11', 11(, 11), 122, 123, 11A, 1( and 1% of the Constitution7 :ii; su&stituted Articles , (0, 102, 11! and 12 of the Constitution7 :iii; a mended part III of the Constitution out of e5istence7 :i/; altered the Third and $ourth Schedule7 :/; e5tended the term of the first >ati"a Sangsad7 :/i; made special pro/isions relating to the office of the President and its incum&ent7 :/ii; inserted a ne+ part, i.e. part JIA in the Constitution and :/iii; inserted Articles (3A and 11'A in the Constitution.
Des$ri#tion of the 'ourth Amendment and the $hanges brought b( this 8aor fundamental changes +ere &rought into the Constitution &" this amendment. These +ereK 1; The so-called presidential form of go/ernment +as introduced in place of the parliamentar" s"stem. In principle, the presidential form of go/ernment is not undemocratic at all. In fact, it is one of the most common and popular forms of go/ernment in the current democratic +orld. But the t"pe of go/ernment introduced &" the $ourth Amendment +as not a true presidential s"stem in the con/entional sense. It +as reall" a peculiar one in man" respects. 2; A one-part" s"stem in place of the multi-part" s"stem +as introduced. This +as the most significant and far-reaching aspect of the $ourth Amendment. A ne+ Part JIA +ith a ne+ Article +as created for this purpose. nder the ne+ arrangement, the creation of the National Part" +as left +ith the su&ecti/e satisfaction of the President. It +as pro/ided that in order to gi/e full effect to an" of the fundamental principles of State polic" set out in Part II of the Constitution, the President could Ldirect that there shall &e onl" one political part" in the State. nce the President made an rder for one part" under Article 11(A-, 1; all political parties of the State +ould stand dissol/ed and the President +ould ta?e all necessar" steps for the formation of the National Part".....L In accordance +ith the pro/ision of Article 11(A as introduced &" the $ourth Amendment, the President declared the formation of a ne+ National Part" for the countr" under the name of BAMSA on 2 $e&ruar" 1)(!. As a result, all e5isting political parties instantl" stood dissol/ed. Bangladesh &ecame a one-part" State.
3; The po+ers of the >ati"a Sangsad :National Assem&l" - Parliament; +ere curtailed. The $ourth Amendment turned Parliament into a useless forum in man" respects. $irstl", the President could +ithhold his assent to an" Bill passed &" Parliament. e +as armed +ith an a&solute /eto and once /etoed a Bill that Bill could ne/er come out as a la+. The President +as thus gi/en unfettered legislati/e po+er and he +as placed a&o/e Parliament. Secondl", a pro/ision +as made through the $ourth Amendment that Lthere shall &e at least t+o sessions of Parliament in e/er" "ear :Article (2;. Ideall", it +ould not ha/e &een a &ad idea if the session +as length" - &ut the real intension +as to ?eep Parliament a+a" from functioning, for no session in the first Parliament in Bangladesh lasted more than se/en da"s on an a/erage Thirdl", Article (' of the Constitution pro/ided for Parliament to appoint certain standing committees at the first meeting of each session. B" the $ourth Amendment the pro/ision of 6at the first meeting of each session6 +as deleted. $ourthl", under Article (0 of the Constitution, a seat of 8em&er of Parliament :8P; +as to &e /acated for t+o reasons - :i; if he resigned from the part" +hich nominated him as a candidate, or :ii; if he /oted in Parliament against that part". B" the $ourth Amendment inserted an e5planation to the meaning of 6/oting in Parliament against the part"6 &" pro/iding that e/en a&staining from a session of Parliament or a&staining oneself from /oting ignoring the direction of the part" +ould &e deemed to &e /oting against the part". ; The >udiciar" lost much of its independence. The independence of the udiciar" depends on the three important componentsK a fair appointment procedure, securit" of tenure, and adeuate remuneration and pri/ileges. In relation to the appointment procedure of the ape5 court, the original Constitution pro/ided that the Chief >ustice +ould &e appointed &" the President and other >udges +ould &e appointed after consultation +ith the Chief >ustice. !; The Supreme Court +as depri/ed of its urisdiction o/er the protection and enforcement of fundamental rights. The original Constitution pro/ided for around 1% fundamental rights and the igh Court +as empo+ered to enforce those rights. Article guaranteed the right of citi4ens to mo/e to the igh Court and the igh Court could enforce those rights under Article 102. This po+er +as ta?en a+a" &" the $ourth Amendment. '; The $ourth Amendment &uried the +hole concept of local go/ernment. ocal go/ernment is one of the most important institutions in a democrac". A modern nation State is almost unthin?a&le +ithout de/olution of po+er to local go/ernment. #ue to the massi/e increase of population at the geometric rate :according to the theor" of 8althus; and &ecause of huge e5pansion of go/ernmental acti/ities, certain matters of polic" and administration concerning national and international interests are /ested for central go/ernment and the rest of the go/ernmental functions are /ested in local go/ernments. Meeping this in mind, pro/isions +ere made in the original Constitution to de/ol/e the responsi&ilit" for &oth de/elopment acti/ities and administration into the hands of elected representati/es of local go/ernment &odies.
(; The $ourth Amendment +as a direct attac? on the press freedom. In >une 1)(!, the
go/ernment promulgated the Ne+spaper :Annulment of #eclaration; rdinance +hich allo+ed onl" four ne+spapers :#aini? Bangla, Bangladesh &ser/er, Ittefa O Bangladesh Times - these four ne+spapers +ere, in fact, o+ned and managed &" the State; to continue their pu&lication and &anned the rest of the press and ne+spaper industries. It &rought the +hole ne+s media completel" under the a&solute control of the go/ernment.
12th Amendment 12 Amendment made 1%th Septem&er 1))17 this amendment introduced some fundamental changes in constitution.
Des$ri#tion of the 'ourth Amendment and the $hanges brought b( this A) &osition of the &resident
The President is no+ titular head of the state +hile the Prime 8inister id the Chief e5ecuti/e &" the pro/isions of Art % O !! of the amended Constitution. The posts of the JicePresident ha/e &een a&olished. In the original Construction the President +as to &e elected &" mem&ers of the parliament in poll &" secret &allot as pro/ide &" second schedule of the constitution. But 12 amendments did not restore that second schedule. nder the pro/isions introduced &" the th amendment the President could remain in office for unlimited num&ers terms. These undemocratic pro/isions ha/e &een a&olished and after 12 amendment, president shall hold office for more than t+o terms, +eather o tot teams are consecuti/e Art !0:2;. nder original constitution President can e5ercise onl" one function independentl", after 12 amendment President can e5ercise t+o :2; functions indecentl". Appoint Prime 8inister and appoint the Chief >ustice. Compared to the original Constitution the 12 amendment has imposed dou&le chec? on the PresidentDs po+er to summon, prorogue O dissol/e parliament & " inserting a ne+ pro/iso to Art (2. #eclaration of emergenc" Art 11A has &een amended to the effect that &efore declaration of emergenc" counter signature is need for its /alidit". The impeachment and remo/al of the President the pro/ision of the original constitution ha/e &een re/i/ed.
B) The &rime *inister + the Cabinet
It has &een categoricall" pro/ide in Art !! that the e5ecuti/e po+er of the *epu&lic shall &e e5ercised &" or on the authorit" of the Prime 8inister and ca&inet shall &e collecti/el" responsi&le to the Parliament. The President shall appoint the Prime 8inister, +ho the most trust+orth" or supported person form the mem&ers, other 8inister shall &e appointed &" him Art !'. Introduced &" the 12 amendment as regards the Ca&inet In the original constitution under Art !' ministers could &e appointed form outside the parliament &ut such minister +ould ha/e to &e elected as a 8em&er of Parliament +ithin si5 :'; month. But after 12 amendment one-tenths of the total num&er of minister can &e appointed form outside form parliament and need not &e elected as mem&ers &ut the" must &e ualified for election as mem&ers of parliament. In uestion of tenure of the office of Prime 8inster the original pro/ision +as that if the Prime 8inister ceases to retain the support of a maorit" of the mem&ers of parliament, he shall either resign his office or ad/ise the President to dissol/e the parliament. But after 12 amendment if the President satisfied that no other mem&er ha/e support onl" then President can dissol/e the Parliament
C) The %ssue of 'loor Crossing + *inisterial ,es#onsibilit(
12 amendment has introduced more tough procedures. T+o su&-section ha/e &een added to Art (0. Section (0:2; pre/ents forming an" re&el group +ithin the part". Section (0:3; pro/ides that if an" independent mem&ers oin an" political part" he +ill come under the pre/ie+ of anti-defection pro/isions. #. The pro/ision as to the inter/ening period &et+een t+o sessions of parliament as pro/ided for in Art (2 +ere re/erted to that of the original Constitution. 9. Chapter 3 dealing +ith the pro/isions of local go/ernment of Part of the Constitution +hich +as omitted &" the th amendment has &een re/i/ed &" the 12 amendment.
,eferen$es 1. Constitution, Constitutional a+ and PoliticsK Bangladesh Perspecti/e. B" 8d. A&dul alim. 2. Constitutional a+ of Bangladesh. B" 8ahmudul Islam. 3. en.wikipedia.org/wiki/Constitution _of_ Bangladesh . www.clcbd.org !. www.ebanglapedia.com
