Tuesday, October 18, 2011

Provisions in 15th Amendment to Bangladesh Constitution Criticized

Constitution and legal experts believe that many important provisions of the 15th Amendment to the constitution more dangerous than Baksal (one-party rule established by the then Awami League government in 1975). According to them, the most dangerous provision of the 15th Amendment is some part of the Article 7 (a). Under this provision, retraction of citizens' confidence and trust in the constitution will be treated as an act of sedition with the highest punishment. This highest punishment means death sentence.
Establishing One-Party Hegemony
According to the experts, there are scopes for using this provision in the spirit of Baksal for establishing one-party hegemony and suppressing the opposition parties and voices of dissent. This can close down the path of freedom of expression and the objective, independent, intellectual and constructive criticism of any article of the constitution. According to the provision, the government may take initiative of arresting and putting behind the bars all writers, speakers, editors for critical articles so far published and discussion held in the mass media. There are also scopes of awarding the highest punishment for these kinds of activities. Such dangerous provisions are not found in the constitution in any democratic country in the world and also even in the states in South Asia.
Article 7(a) (1) says, ‘If any citizen retracts his confidence and trust in this constitution or takes attempt of doing so or conspire against it, his or her activities will be treated as acts of sedition, and the person concerned will be guilty of sedition.’ About punishment, Article 7 (a ) (3) says, ‘The person convicted under the provision of this article will be awarded the maximum punishment prescribed for other criminal activities under the existing law.
According to constitution experts, the second most dangerous aspect of the 15th Amendment is that more than 50 articles of the constitution have been made 'beyond amendment' (cannot be amended). The Amendment has inserted Article 7 (a) restraining addition, revision, replacement, suspension and any other means of brining changes to the 50 articles of the constitution. Even Article 7 (a) has been identified as basic structure and beyond any revision. The provisions have seriously squeezed the authority of the next parliaments.
According to the experts, the provisions under Article 8 (2) of the constitution could be the basic structure of the constitution. There will be no scope of establishing the US style of government and right to education and health as fundamental rights under the provisions.
Article 7 (a) says, ‘The fundamental rules in the constitution are irreversible. Whichever might be in Article 142 of the constitution, the revision, change, replacement, suspension or change through other means of the preamble of the constitution, all articles in the First Chapter, all articles in the Second Chapter, all articles of chapter Three as per the provisions enshrined in Chapter 9. a, and the other Articles relating to basic structure, including Article 150 of the Chapter 11 will be beyond any revision. This Article has made 50 articles of the charter above revision.
Articles Contradictory to Fundamental Rights
About the 15th Amendment to the constitution, elderly Supreme Court Lawyer and Constitution Expert Justice T H Kahn said: ‘I do not know whether any constitution world have articles contradictory to the fundamental rights. This amendment has limited the fundamental rights. Many objectionable things have been inserted in the constitution through the amendment. In a nutshell, arrangements have been made to snatch away the rights of the people. In comparison with Baksal, it is a paradise. Baksal is a one-party system. Whatever done in Article 7 (a) is very dangerous.’
Justice T H Khan said: ‘If we compare the Fourth Amendment (baksal) with sweetmeat the 15th Amendment will be some of bitter taste. Thousands of atom bombs have been added to it. Such provisions have been made that the people wh o debate might have face sedition charges if they criticize the constitution. This bears the signal ‘you are weak party, you will be hanged.’
He further said: ‘Making 50 basic structures of the constitution is totally illogical. Their (government) slogan was to revert to the 1972 constitution. But there were nothing like these in that.’
Baksal System Government
In this regard, Supreme Court Bar Association President Advocate Khandkar Mahbub Hossain said: ‘The 15th Amendment has made the provision for highest punishment for any sort of distrust in the constitution. I do not know whether any constitution in the world has such a provision or whether it has any necessity. There should be limit to intimidating the citizens or cheating them. I think they (Awami League government) have crossed that limit. Some articles have been inserted in the charter in the name of constitution amendment. Like the Fourth Amendment to the constitution, these articles will create severe obstruction to the path of multiparty democracy. This is an ill attempt of reintroducing the Baksal system government. I think the people under no circumstances will accept this.’
Khandkar Mahbub Hossain said: ‘According to the present amendment, more than 50 basic structures have been made in the constitution. A ridiculous provision forbidding the revision of the structures has also been in the amendment, which is absolutely undemocratic and contrary to the basic spirit of democratic state. No constitution in the world has such an instance.’
About the provision made through Article 7 (a) of the 15th Amendment forbidding addition, revision, replacement, suspension and change by any other means of the rules related to articles dealing with the basic structures of the charter, Constitution Expert Dr Shadin Malik said: ‘This has been done out of inability to understand the real meaning and importance of the constitution. Constitution is not like traffic laws that require elaborate rules and regulations. These amendments stem from inability to realize the basic spirit of the constitution. The constitution does not require the provision for whose photos will be displayed at factories and community centers. These are contrary to the basic spirit and course of the constitution.’
Dr. Shadin Malik said: ‘The main function of the constitution is to ensure stability and continuity in running the affairs of the state. In these two yardsticks -- stability and continuity -- the 15th Amendment has failed. Unfortunately the government's prime consideration in the amendment was to retain the authority of the party so that its power remains if force smoothly in future also. The constitution is the document of the people's ownership of power. But now that document is being used to become the owner of power.’
In this regard, Supreme Court Senior Lawyer Barrister Abdur Razzak said: ‘Retraction of citizens' trust and confidence in the constitution will be treated as sedition and highest punishment will be given for this offence -- once Pakistan had introduced such a provision, but it did not sustain. Such provisions cannot be contained in any constitution.’
Dangerous Aspect
About as the basic structures of 50 articles in Article 7 (a), he said: ‘No constitution defines which the basic structures are. The basic structures cannot be changed anyway, how such a provision is included in the constitution.
In this regard, a constitution expert and Dhaka University Law Department Prof Dr Asif Nazrul Islam said: ‘Sheikh Hasina has contained the Baksal system, to some extent, through the 15th Amendment. The Fourth Amendment had killed democracy. And the 15th Amendment has brought about some important changes that could be used for further torturing the opposition parties and weakening those. The matter of most concern is that these provisions have paved the way for closing down the path of free thinking, practicing multidisciplinary opinions, freedom of speech and newspapers.’
Dr. Asif Nazrul Islam said: ‘To my opinion , the most dangerous aspect of the 15th Amendment is some portion of Article 7 (a). Article 7 (a) said: ‘If any citizen retracts his confidence and trust in this constitution or takes attempt of doing so or conspire against it, his or her activities will be treated as acts of sedition, and the person concerned will be guilty of sedition.’ This provision in the spirit of Baksal has scopes for establishing a one-party hegemony and suppressing the opposition parties and voices of dissent. He said that this provision might close down the path of free and intellectual thinking about any article of the constitution, freedom of speech and even constructive criticism.
Antipeople Provision
According to this provision, the government can take initiatives for arresting and detain the writers, speakers and editors for the articles and discussions so far held on the 15th Amendment of the constitution. There is no existence of such an antipeople provision in the constitution of any democratic country in the world and even the South Asian states.’
Dr Asif Nazrul Islam said: ‘The 15th Amendment has severely limited the authority of the next parliaments. Article 7 (a) has described as basic structures at least 50 articles, including the fundamental principle of the constitution have also made those irreversible. And my question -- how the provisions under Article 8 (2) of the constitution could the basic structure as the citizens have no right to enforce the issues through court? If Article 7 (a) persists in the constitution, all coming parliaments will have to accept all the things (amendments) of the present parliament as the final and irreversible.’

No comments: