THE just concluded three-day hartal has been quite violent and
bloody. According to media reports, 18 to 20 people were killed and
thousands injured. There was also widespread destruction of properties.
Such mayhem was unnecessary and our two major political parties — Awami
League and Bangladesh Nationalist Party — must bear its responsibility.
The two major parties have been at loggerheads over the nature of
election-time government since the unilateral adoption of the Fifteenth
Amendment by the Parliament on June 30, 2011, which abolished the system
of Caretaker Government (CTG) from our Constitution.
The opposition has
been demanding the revival of the CTG, as a part of which they called
the three-day hartal to put pressure on the government. The ruling
party, on the other hand, has been dismissing the demand on
constitutional grounds that the CTG is no longer in the Constitution. It
is thus clear that the Fifteenth Amendment is the source of the present
political crisis and the mayhem that followed. However, the amendment’s
legitimacy, and even its legality, are seriously in question.
One may recall that on July 21, 2010, the Hon’ble Prime Minister
proposed the formation of a 15-member special parliamentary committee,
with the Deputy Leader of the House Syeda Sajeda Chowdhury as the Chair
and Mr. Suranjit Sengupta as the Vice-chair, to amend the Constitution.
The opposition BNP was invited to join the committee, but they refused.
The Committee, over the next 11 months, held 27 sessions and consulted
experts, political parties (including the ruling party), journalists and
the civil society representatives.
According to the prepared proceedings, the Committee, in its 14th
meeting held on March 29, 2011, after extensive discussions,
“unanimously decided to keep the existing CTG system intact.” However,
the Committee decided to identify the limitations of the system and
discuss those in its future meetings.
The statements of some of the Committee members in the same meeting
are worth quoting. For example, Mr. Tofail Ahmed, a senior Awami League
leader, stated: “My personal view is that we should not touch any major
aspect of the CTG. We should not create another issue … We should not
unsettle a settled matter.” He opposed the idea of imposing a term limit
on the CTG and warned that with such a limit the present ruling party
may have to fight for the CTG again. He also opposed the idea of
disassociating the judiciary from the CTG.
Mr. Amir Hossain Amu stated: “A lot of complications would arise if
we want to change the CTG and we would get entangled into difficulties.
It is better that the CTG is kept as it is.”
Mr. Abdul Matin Khashru stated: “We agreed in our first meeting that
we would not go into anything that would entangle us into controversies.
We would not touch anything controversial. This proposal was given by
the Hon’ble Member Mr. Tofail Ahmed five meetings ago from today. We all
agreed with him. I want to humbly say that we should keep the system of
CTG as it is. It would not be appropriate for us to touch it. This
would only add to complications. We will give the opposition the
opportunity to protest and wound us.”
Dr. Shirin Sharmin Chowdhury stated: “I also agree that there is no need to make any change in the CTG at this time. If there is question of putting a time limit, we can perhaps make decision about it.”
Dr. Shirin Sharmin Chowdhury stated: “I also agree that there is no need to make any change in the CTG at this time. If there is question of putting a time limit, we can perhaps make decision about it.”
The other members of the Committee present at that meeting, including
Syeda Sajeda Chowdhury, Mr. Suranjit Sengupta, Mr. Rashed Khan Menon,
Mr. Hasanul Haq Inu, Barrister Anisul Islam Mahmud, Advocate Rahmat Ali
and Advocate Fazle Rabbi Mia, also concurred with their colleagues,
making the decision to keep the CTG system unanimous.
On April 27, 2011, a group of Awami League leaders, led by Prime
Minister Hasina, appeared before the special Committee. The PM observed
that the people do not want unelected and undemocratic government
anymore, yet we had such governments in the past because of the
loopholes in the Constitution. She asked the Committee to impose ‘a time
frame by amending Article 58 so that similar opportunities do not
exist’ in the future. Note that the PM recommended the amendment of the
CTG, not its abolition. The finance minister also stated that we would
keep the CTG.
On May 10, 2011, the Appellate Division of the Bangladesh Supreme
Court declared the CTG unconstitutional. The 4-3 split decision also
observed that the Parliament could, for the safety of the state and the
people, keep the CTG for two more terms. It further recommended the
abolition of the Parliament 42 days before the election.
After the pronouncement of short order by the Apex Court, the
Committee decided in its 24th meeting, held on May 16, 2011, to reopen
the issue of CTG after ‘receiving the final judgment of the Appellate
Division of the Supreme Court.’ Absent the final judgment, the
Committee, however, prepared its revised recommendations on May 29,
2011, in which it decided to keep the CTG with two rather minor changes.
The first change called for imposing a time limit of 90 days for the
CTG. The second change imposed restrictions on signing foreign treaties
by the CTG and the ratification of any treaty, if signed, by the next
Parliament.
The Committee met with the PM on May 30, 2011, the day after it
prepared its recommendations. The rest is part of history. The
Committee, in its final report prepared in June, recommended the
abolition of the CTG. On June 20, 2011, before the final judgment was
even written by the Supreme Court, the Fifteenth Amendment bill without
the CTG was approved by the cabinet. On June 25, the bill was introduced
in the Parliament and on June 25 it was passed while the opposition was
boycotting the Parliament. The present crisis, needless to say, is the
result of such a rash and unilateral decision to abolish the CTG, which
remains to be very popular, and the senior Awami League parliamentarians
warned of such consequences.
Our Constitution, according to its Preamble, is ‘the embodiment of
the will of the people of Bangladesh.’ Unfortunately we cannot say the
same thing about the Fifteenth Amendment. It does not even reflect the
will of the Committee members, all of whom belonged to Awami League or
its allies, rather it is the result of the dictate of one person — the
PM. Thus, the legitimacy of the Fifteenth Amendment is highly
questionable.
Even the legality of the Fifteenth Amendment is doubtful. Article 7B
makes about a third of our Constitution unamendable. But as Mahmudul
Islam wrote: “No Parliament can bind the successor Parliament’
(Constitutional Law of Bangladesh, 3rd Edition, p. 31).
Published: The Daily Star, 31st October, 2013
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