4th Amendment BD CON
4th Amendment BD CON
Bangladesh
Introduction
The Constitution of Bangladesh has been amended fifteen times so far.
Within those fifteen amendments, the most controversial amendment was
the Fourth Amendment, for it fundamentally changed the nature and
character of the Constitution. Yet surprisingly, there has be no visible
discussion or debate or public resentment on the Fourth Amendment, its
impact and the damage it has done to our Constitution, democratic norms of
our country and the spirits of our liberation struggle. Unfortunately and
mysteriously, the judiciary and civil society are keeping a deep silence over
this amendment.
"In our Constituent Assembly, this eighteenth day of Kartick 1379 BS,
corresponding to the fourth day of November 1972 AD, do hereby adopt,
enact and give to ourselves this Constitution", the preamble of the
Constitution of the People's Republic of Bangladesh solemnly testifies. The
quest of the Bengalis for political and economic emancipation through
constitutional rule and democracy culminated into a liberation war in 1971
out of which Bangladesh was born. The struggle was closely linked with the
aspirations of the people for establishing a civil society with an orderly and
just government elected through free and fair choice in a democracy where
fundamental human rights are guaranteed and where an independent
judiciary acts as the custodian of the Constitution. This was the genesis of the
Constitution of the People's Republic of Bangladesh as the people of
Bangladesh made pledge to themselves after a heroic struggle for national
liberation. Bangladesh started its journey with a parliamentary form of
democracy, derailed afterwards from the fundamental aspiration of
democratic governance by introducing one-party political system with an 'all
powerful head of the State - the President. The change took place in early
1975 by way of a notorious amendment to the Constitution. Through the
infamous Constitution (Fourth Amendment) Act, 1975, one party dictatorial
system known as Bangladesh Krishok Sromik Awami League (BAKSAL) was
substituted for a responsible parliamentary system.
5)Supreme Court was deprived of its jurisdiction over the protection and
enforcement of fundamental rights.The original Constitution provided for
around 18 fundamental rights and the High Court was empowered to enforce
those rights.Article 44 guaranteed the right of citizens to move to the High
Court and the High Court could enforce those rights under Article 102.This
power was taken away by the Fourth Amendment.
7)The Fourth Amendment was a direct attack on the press freedom.In June
1975, the government promulgated the Newspaper (Annulment of
Declaration) Ordinance which allowed only four newspapers (Dainik Bangla,
Bangladesh Observer, Ittefaq & Bangladesh Times - these four newspapers
were, in fact, owned and managed by the State) to continue their publication
and banned the rest of the press and newspaper industries. It brought the
whole news media completely under the absolute control of the government.
Conclusion
The Fourth Amendment was a black chapter in the history of Bangladesh.
According to Mahmudul Islam, an eminent jurist and former Attorney General
of Bangladesh, In January 1975 the Constitution (Fourth Amendment) Act
1975, was passed transforming the Constitution beyond any resemblance
with the original (Constitutional Law of Bangladesh). He further said The
system introduced was a mishmash of parliamentary and presidential form
and the upshot was that the President emerged as the all-powerful authority
in the Republic (ibid). In Hamidul Huq Chowdhury v Bangladesh 34 DLR 381,
the High Court Division observed that by the Fourth Amendment the basic
and essential features of the Constitution were altered and destroyed. In the
same case, the Appellate Division of Supreme Court observed: "The first
three amendments do not appear to have altered the basic structure of the
constitution. But the fourth amendment of the constitution clearly altered the
basic structure of the constitution."
The Fourth Amendment has been the most debateable amendment in the
constitutional history of Bangladesh, for it altered and virtually destroyed all
basic and essential features of Constitution. The AL- government introduced
one national party through this amendment. This amendment turned
Parliament into a useless forum. Any reference to the Fourth Amendment
puts AL leadership in a defensive mode. They shy away from this. They, on
the other hand, keep their guns aimed at the Fifth Amendment brought in by
Ziaur Rahman. The senior leaders of the AL often make comment that their
desire is to revert to the 1972 Constitution. Is it really what they mean?
What is going to happen on the changes brought in through the Fourth
Amendment by their great leader Sheikh Mujibur Rahman? In fact, AL will not
be fully happy even upon restoring the 1972 Constitution. They will probably
not be happy until they can establish one-party rule. This is why Mahbul
Alam Hanif, an influential leader of the AL, said few years ago we still bear
the philosophy of the BAKSAL.
On June 1975, all political parties were banned and were asked to join the
newly formed BAKSAL. Many Newspapers were banned. All these triggered
massive resentment against Mujib Government. The day of June the 30th
would remain identified as a black day in the history of the country like the
day January 25 of 1975 when current Prime Minister Sheikh Hasinas father
Sheikh Mujibur Rahman passed the Fourth Amendment to the Constitution in
13 minutes, banning then all political parties and formed a one-party rule.
Although Fifth Amendment and other Amendments have rectified many
things, some viruses still exist in the Constitution. Therefore, there should be
a continuous debate and discussion on the Fourth Amendment and its impact
and consequences so that the new generation can learn and remember. At
the same time the older generation can take lessons. In a suitable time in
future, the entire Fourth Amendment should specifically be challenged in the
Supreme Court so that the Supreme Court could give a well thought out
milestone judgment - identifying the viruses and removing them from the
Constitution - which could be used as reference both inside and outside.