Amendments to Bangladesh Constitution | 2019-03-19 | daily-sun.com

Amendments to Bangladesh Constitution

Prof. Zahurul Alam

19 March, 2019 12:00 AM printer

Adopted on 4 November 1972 the Constitution of Bangladesh underwent 17 amendments. Of those, six took place during military regimes. The first three constitutional amendments in Bangladesh continue to remain as three important milestones in our political history since those aimed at protecting the sovereignty of the newborn state and consolidating state power by defying anti-liberation forces.

After the independence, one of the political priorities of the Government of the newborn state was to initiate trial of the war criminals. Although 93,000 Pakistani troops and servicemen surrendered to Allied Forces on 16 December 1971, the 50,000 local collaborators never did that. Most of them escaped with their arms and the newly independent state was under the threat of sabotage. The first amendment to the Constitution was made by the Bangabandhu Government to ensure trial of the war criminals.

On 24 January 1972 The Bangladesh Collaborators (Special Tribunals) Order was announced. Accordingly the first amendment to the Constitution of Bangladesh was made on 15 July 1973 to include Article 47(3) for prosecution and trial of persons accused of genocide, crimes against humanity or war crimes and other crimes under international law. On 20 July 1973 The International Crimes (Tribunals) Act, 1973 came in effect to try Pakistani war criminals. Subsequently, 73 special tribunals were formed, more than 37,000 cases were filed, around 50,000 suspected war criminals were arrested and 752 were punished immediately under this Act.

The whole exercise relating to the trial of the war criminals by the Bangabandhu Government was initiated and materialised in accordance with relevant international laws, acts, provisions, conventions and practices, specifically The Geneva Conventions, Tokyo Tribunal,  Nuremberg Tribunal (and Principles); and London Charter. The first amendment to the Constitution provided the Government with sufficient authority to try the war criminals without facing legal or administrative impediments, since clause (3) of Article 47 barred the accused from the protection of part III of the Constitution (fundamental rights).  The provisions under Article 47(3) were further strengthened by 47(A). This amendment reflected the Bangabandhu Government’s clear commitment to the trial of the war criminals.

After the assassinations of Bangabandhu and the four national leaders, Ziaur Rahman repealed the Act on 31 December 1975 that provided complete legal protection to the occupation forces and their local collaborators from any trial or legal and judicial action in future. Later in April 1979 Zia enacted 5th amendment to the Constitution to validate all his actions since the killings of 1975 till the enactment of the amendment. In fact with repeal of The International Crimes (Tribunals) Act, 1973 the process of rehabilitation of the collaborators and war criminals in the politics of Bangladesh started. Some of the leading collaborators such as Shah Azizur Rahman and Moulana Mannan became cabinet Ministers of Ziaur Rahman’s Government. The political parties that collaborated directly with the occupation forces: Jamaat-e-Islami, Muslim League, Nejam-e–Islami, etc. and their subsidiary organisations were rehabilitated simultaneously. 

1972 manifested accelerated activities of ultra-leftist groups. These groups and their leaders were sceptical about the Liberation War, independence of Bangladesh and the split of Pakistan. During Liberation War these radical groups opposed Mukti Bahini and confronted Liberation Forces consistently. On the other hand war time socio-political peculiarities provided them ample scope for acquiring additional military strength. They attacked police stations and small groups of Mukti Bahini and captured arms and ammunitions which they used against the establishment and ruling party activists after the liberation. Prominent among these groups were Purbo Bangla Sarbohara Party (PBSP) of Siraj Sikder and Purbo Banglar Communist Party led by Abdul Matin and Alauddin Ahmed. The underground radical groups were also supported and sponsored by Mohammd Toaha, Abdul Huq and Shukhendu Dastidar.

After the liberation the Purbo Bangla Sarbohara Party (PBSP) of Siraj Sikder emerged as an organised underground force. Sikder consolidated his position by forming Maoist Unity Group (MUG), which subsequently became a safe shelter for the absconding with arms anti-liberation forces. PBSB started challenging the police in different areas and raided rural police stations and captured weapons. The ‘People’s War’ of Siraj Sikder targeted ruling party workers and leaders in the villages in the name of liquidation of the class enemies. Some of the PBCB cadres got involved in murder, robbery, extortion, land grabbing and abduction for ransom. The activities of ultra-leftist groups instigated unprecedented unrest and lawlessness in the new-born country.

The most important political incident was the formation of the Jatiyo Samajtantrik Dal (JSD) in 1972 by the left leaning leaders of Sramik League, Chhatra League and retired army officials: Sirajul Alam Khan, A.S.M Abdur Rab, Shahjahan Siraj, Major (Retd.) M.A Jalil and others. From the very beginning JSD aimed at toppling the Mujib Government and with that purpose formed armed wing of the party known as Gonobahini. Colonel Abu Taher, one of the valiant Sector Commanders of the Liberation War was the de facto commander of the Gonobahini. Although all the founders and leaders of the JSD were freedom fighters and they were loyal to the people of Bangladesh, the party ultimately became a safe shelter for the anti-liberation forces, who desperately searched for a political and armed platform for conducting their anti-Bangladesh activities. By 1973 the anti-Government activities of JSD spread drastically all over the country. The local Awami League leaders were killed indiscriminately, banks were looted and anti-liberation propaganda reached culminating points.

The increasing political and social unrest instigated by the anti-liberation forces with the support of ultra-leftists compelled the Government to undertake preventive measures. One of those was the provision of declaring the state of emergency via the second amendment to the Constitution.  This amendment of 22 September 1973 sanctioned provisions for the declaration of emergency and curtailment and suspension of certain fundamental rights of the citizens during emergency. Article 141A elaborates provisions for proclamation of emergency by the President if he is ‘satisfied that a grave emergency exists in which the security or economic life of Bangladesh, or any part thereof, is threatened by war or external aggression or internal disturbance.’ The amendment pronounced that a proclamation of emergency ‘shall cease to operate at the expiration of hundred and twenty days’ unless before the expiration that is approved by the Parliament.

Notably, the provision for declaration of emergency happens to be an essential component of the Constitutions of almost all countries of the world, including those with high democracy and governance indicators: USA, UK, Australia, etc.  For example, during 1976-2001 the Presidents of the United States declared 32 national emergencies for different purposes. Interestingly, the Bangladesh Constitution initially did not have any such provision. As mentioned above, at the backdrop of emerging opposition from the radicals, both legal and underground and with the deterioration of the law and order situation, the second constitutional amendment was enacted which aimed at inserting relevant provisions to tackle the emerging difficulties. Later these provisions were indiscriminately used by the military regimes to consolidate their power and suppress democratic movements. 

Another priority of independent Bangladesh was to resolve its long lasting territorial disputes with India. The Radcliffe Mission’s (1947) hastily created demarcation lines between India and Pakistan, particularly between India and East Bengal on the east and India and Punjab on the west went through densely populated and established settlements and resulted in creation of 192 enclaves in India and Pakistan: 119 inside India were claimed by East Pakistan and 75 inside East Pakistan claimed by India. The fate of more than 50,000 inhabitants of these enclaves depended on the political solution of the problem. During the initial 23 years, India and Pakistan took only one initiative in 1952 to resolve this problem, when Jawaharlal Nehru and Firoze Khan Noon agreed to exchange the enclaves. Ultimately the initiative was proven futile due mainly to the lack of political will from both sides. The subsequent Governments of Pakistan, especially those of Iskandar Mirja, Ayub Khan and Yahya Khan opted for confrontational politics with India aimed at instigating anti-Indian sentiment among the people of Pakistan and thereby diverting the attention of the people from internal chaos, corruption and mismanagement. After the liberation the Bangabandhu Government undertook practical measures to resolve territorial disputes with India and with that purpose made the 3rd amended to the Constitution.

On 16 May 1974 Bangabandhu and Indira Gandhi signed Agreement Concerning the Demarcation of the Land Boundary. The objective was to exchange the enclaves and abolish or minimise disagreements over common international boundaries. The third amendment to the Constitution was made on 28 November 1974 to pave the way for resolving long lasting territorial disputes in accordance with the signed agreement of May 1974. However, after the assassination of Bangabandhu the implementation of the 1974 Agreement was not in the priority list of the successive governments. After 41 years of signing the Mujib-Indira Agreement and the promulgation of the third constitutional amendment, on 6 June 2015 the government of Sheikh Hasina in collaboration with Modi government succeeded in resolving the long-lasting territorial disputes between Bangladesh and India. 

 

The writer is the President, Governance and Rights Centre (GRC).

 


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