Вы находитесь на странице: 1из 13

Assignment

On
Amendments of the constitution of
Bangladesh: An Analytical study of 4 th and
12 th Amendment.

Course Code: LAW 201


Course Title: Constitutional Law of Bangladesh
Submitted To:
Md. Monjurul Islam
Lecturer
Department of Law
Daffodil International University

Date of Submission : 16-04-2015

Submitted By:
ID:
ID:
ID:
ID:
ID:

141-26-565
141-26-545
141-26-549
141-26-554
141-26-546

Section: A
Department of Law
Daffodil International University

Topic:

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

04

Amendments of the constitution of Bangladesh

04

05

Analytical study on 4th


Amendment

08
Description of the Fourth
Amendment
The changes brought by 4th
Amendment

06

Analytical study on 12th


Amendment

10

Description of the 12th


Amendment

15

The changes brought by 12th


Amendment

16

07

Conclusion

19

08

References

20

Introduction

In the modern world, constitution is the sine-qua-no for any country to operate its all sort of
functions properly. Constitution means- the collection of principles according to which the
power of the government, the rights of the governed and the relation between the two
adjusted. Professor Lord Bryce says- Constitution is a set of established rules embodying
and enacting the practice of government. Finally, constitution is a set of rules or laws,
written or unwritten which determined the organization of government, the distribution of
powers of various organs of government and the general principles on which these power are
exercised.
The constitution of the People's Republic of Bangladesh has been adopted as the highest law
of the country on 16 December, 1972 after passing it on November 4, 1972 in the Constituent
Assembly of Bangladesh. After that it has been amended sixteen times.

Constitutional Amendments
A constitutional amendment refers to the modification of the Constitution of a nation or state.
In many jurisdictions the text of the constitution itself is altered; in others the text is not
changed, but the amendments change its effect. The way of modification is typically written
into the Constitution itself.
Most constitutions as require that amendments cannot be enacted unless they have passed a
special procedure that is more stringent than that required of ordinary legislation. Examples
of such special procedures include supermajorities in the legislature, or direct approval by the
electorate in a referendum, or even a combination of two or more different special
procedures. A referendum to amend the constitution may also be triggered in some
jurisdictions by popular initiative.
Australia and Ireland provide examples of constitutions requiring that all amendments are
first passed by the legislature before being submitted to the people; in the case of Ireland, a
simple majority of those voting at the electorate is all that is required, whereas a more
complex set of criteria must be met in Australia (a majority of voters in a majority of states is
also necessary). Switzerland has procedure similar to that of Australia.
In Bangladesh, Parliament was given the power to amend the constitution. Art.142 provided
for a special procedure for such amendment and prescribed that no Bill for amendment
should be presented to the President unless it was passed by the votes of not less than twothirds of the total number of members of Parliament.

Amendment Procedure of the constitution of Bangladesh


1. According to our main constitution article 142. If we want to change any provision we
have to bring a bill writing what articles are changed.
2. According to main constitution it is needed the support of 2/3 majority of the total number
of parliament to amend any article. In 1978, The president Ziaur Rahman said to change some
articles, it is not enough the support of 2/3 but it is also needed referendum. Those are
preamble, article 8, 48, 56, 142(1A).

Amendments of the constitution of Bangladesh


The Constitution of the People's Republic of Bangladesh has been amended several times.
The following is a brief account of these acts and orders.

1st Amendment:
The first amendment was brought in July 1973 in the first elected Jatiya Sangsad under the
newly framed constitution. Two articles were incorporated in section 47 of the constitution in
order to formulate laws and execute those to try criminals who committed genocide, crimes
against humanity, war crimes and crimes under international laws.

2nd Amendment:
The second amendment was passed on September 22 in 1973 to facilitate the government to
promulgate emergency and suspension of fundamental rights, allow government to detain
people without trial for certain periods.

3rd Amendment:
The third amendment was made part of the constitution on November 28, 1974 in order to
implement a treaty between Sheikh Mujib and Indira Gandhi in to handover an enclave
named Berubari to India.

4th Amendment:
The forth amendment to the constitution was passed on January 25 in 1975 through which
parliamentary system of government was replaced by presidential form of government.
Introduction of one-party, curtail independence of judiciary were also made part of the
constitution.

5th Amendment:
The fifth amendment was brought on April 6 in 1979. It did not in fact bring any change to
any section of the constitution, rather it indemnify all orders, promulgations and sentences
between August 15, 1975 and April 6, 1979 when the was under martial law.

6th Amendment:
The sixth constitutional amendment was passed on July 10 in 1981 through which provision
was made that offices of president, prime minister, ministers, state ministers and deputy
ministers will not be considered as offices of profit.

7th Amendment:
From March 24, 1982 to November 10, 1986 the country was ruled by military ruler General
Ershad. The seventh amendment to the constitution was brought on November 11, 1986 to
indemnify all acts, laws and orders during the tenure of martial law. Under this amendment

the age of retirement of the judges was increased from 62 to 65 years. It was declared illegal
by the court on August 26 in 2010.

8th Amendment:
The eighth constitution amendment bill was passed on June 9 in 1988, by which Islam was
declared as State religion, six benches of the High Court Division were set up outside Dhaka,
Bengali was replaced by Bangladeshi and Dacca was replaced by Dhaka.

9th Amendment:
On July 11, 1989, the ninth amendment bill was passed in which a few articles were
incorporated regarding the president and the vice-president, specially the terms for those
posts were fixed.

10th Amendment:
The 10th amendment to the constitution was passed on June 12 in 1990, by which the number
of reserved seats for women in the Jatiya Sangsad was increased from 15 to 30.

11th Amendment:
In the 11th amendment passed in 1991, it was declared appointment of the chief justice as the
vice-president as legal and at the same time provisions were made that after the election of
president vice-president may take the charge of the chief justice and his tenure as vicepresident will be deemed as justice.

12th Amendment:
Through the 12th amendment to the constitution in 1991, parliamentary system of government
was reestablished in the country following an election under a caretaker government headed
by Justice Shahbuddin Ahmed.

13th Amendment:
The 13th amendment was passed on March 26, 1996, by which caretaker government system
was incorporated in the constitution.

14th Amendment:
The 14th amendment to the constitution was passed on May 16, 2004, by which the number of
reserved women seats in the Jaitya Sangsad was increased from 30 to 45, the age of the
Supreme Court judges was increased from 65 to 67 years and provisions for putting portraits
of the President and the Prime Minister at the offices of the President and the Prime minister
and the Prime Ministers portrait in government, semi-government and autonomous offices
and Bangladesh missions abroad were made mandatory.

15th Amendment:
The 15th amendment of the Bangladesh constitution is perhaps the most debatable one in the
post democratic era that follows the 1990 public upsurge against autocracy. The often
pronounced justifications offered for this amendment is the needs for returning to the spirit
and contents of the founding constitution of 1972 of Bangladesh. Yet the 15th amendment
rather accommodates some of the changes brought out by the 5th and 7th amendments, both
made by the Martial Law regime and recently declared illegal and unconstitutional by the
apex court of the country.

15th amendment, like most of the previous amendments, also largely failed to reflect
comparative constitutional studies. Such study is considered essential for learning the
experiences of constitutionalism in relevant jurisprudences and borrowing or adapting them
in amending a nations own constitution.

16th Amendment:
Bangladesh Act No XIII of 2014 amended the Constitution of Bangladesh, empowering
Parliament to impeach Supreme Court judges.[10][11] Part VI, chapter one, article 96, of the
Bangladesh Constitution, which includes provisions on the tenure of office of the Supreme
Court judges, now states:
1. Subject to the other provisions of this article, a Judge shall hold office until he attains
the age of sixty-seven years.
2. A Judge shall not be removed from his office except by an order of the President
passed pursuant to a resolution of Parliament supported by a majority of not less than
two-thirds of the total number of members of Parliament, on the ground of proved
misbehavior or incapacity.

3. Parliament may by law regulate the procedure in relation to a resolution under clause
(2) and for investigation and proof of the misbehavior or incapacity of a Judge.
4. A Judge may resign his office by writing under his hand addressed to the President.
(The Constitution of the People's Republic of Bangladesh (2014), Legislative and
Parliamentary Affairs Division website.)
Before the adoption of the Sixteenth Amendment, articles 96 (2) and (3) of the Bangladesh
Constitution under Part VI included a provision on impeachment carried out by the Supreme
Judicial Council instead of the Parliament. It stated:
1. A judge shall not be removed from office except in accordance with the following
provisions of this article.
2. There shall be a Supreme Judicial Council, in this article referred to as the Council,
which shall consist of the Chief Justice of Bangladesh, and two next senior judges.

4th Amendment
The Constitution (Fourth Amendment) Act 1975 was passed on 25 January 1975. Amidst of
the violent uprising of the leftist parties and the bad impact of 1974 famine, the anarchy
prevailed everywhere in the country. The Awami League (AL) Government declared state of
emergency in January 1974. Later it amended the Constitution (through Fourth Amendment)
to control the immense political and economic crises in the country. Though they declared
this act was for the short term only, it created a deep negative impact on the leadership of
Sheikh Mujibur Rahman and his party. Major changes were brought into the Constitution by
this amendment. This Act (i) amended Articles 11, 66, 67, 72, 74, 76, 80, 88, 95, 98, 109,
116, 117, 119, 122, 123, 141A, 147 and 148 of the Constitution; (ii) substituted Articles 44,
70, 102, 115 and 124 of the Constitution; (iii) amended part III of the Constitution out of
existence; (iv) altered the Third and Fourth Schedule; (v) extended the term of the first Jatiya
Sangsad; (vi) made special provisions relating to the office of the President and its
incumbent; (vii) inserted a new part, i.e. part VIA in the Constitution and (viii) inserted
Articles 73A and 116A in the Constitution.

Description of the Fourth Amendment and the changes brought


by this
Major fundamental changes were brought into the Constitution by this amendment. These
were:
1) The so-called presidential form of government was introduced in place of the
parliamentary system. In principle, the presidential form of government is not undemocratic
at all. In fact, it is one of the most common and popular forms of government in the current
democratic world. But the type of government introduced by the Fourth Amendment was not
a true presidential system in the conventional sense. It was really a peculiar one in many
respects.
2) A one-party system in place of the multi-party system was introduced. This was the most
significant and far-reaching aspect of the Fourth Amendment. A new Part VIA with a new
Article was created for this purpose. Under the new arrangement, the creation of the National
Party was left with the subjective satisfaction of the President. It was provided that in order to
give full effect to any of the fundamental principles of State policy set out in Part II of the
Constitution, the President could "direct that there shall be only one political party in the
State. Once the President made an Order for one party under Article 117A-, 1) all political
parties of the State would stand dissolved and the President would take all necessary steps for
the formation of the National Party....." In accordance with the provision of Article 117A as
introduced by the Fourth Amendment, the President declared the formation of a new National
Party for the country under the name of BAKSAL on 24 February 1975. As a result, all
existing political parties instantly stood dissolved. Bangladesh became a one-party State.

3) The powers of the Jatiya Sangsad (National Assembly - Parliament) were curtailed. The
Fourth Amendment turned Parliament into a useless forum in many respects. Firstly, the
President could withhold his assent to any Bill passed by Parliament. He was armed with an
absolute veto and once vetoed a Bill that Bill could never come out as a law. The President
was thus given unfettered legislative power and he was placed above Parliament. Secondly, a
provision was made through the Fourth Amendment that "there shall be at least two sessions
of Parliament in every year (Article 72). Ideally, it would not have been a bad idea if the
session was lengthy - but the real intension was to keep Parliament away from functioning,
for no session in the first Parliament in Bangladesh lasted more than seven days on an
average! Thirdly, Article 76 of the Constitution provided for Parliament to appoint certain
standing committees at the first meeting of each session. By the Fourth Amendment the
provision of 'at the first meeting of each session' was deleted. Fourthly, under Article 70 of
the Constitution, a seat of Member of Parliament (MP) was to be vacated for two reasons - (i)
if he resigned from the party which nominated him as a candidate, or (ii) if he voted in
Parliament against that party. By the Fourth Amendment inserted an explanation to the
meaning of 'voting in Parliament against the party' by providing that even abstaining from a
session of Parliament or abstaining oneself from voting ignoring the direction of the party
would be deemed to be voting against the party.
4) The Judiciary lost much of its independence. The independence of the judiciary depends
on the three important components: a fair appointment procedure, security of tenure, and
adequate remuneration and privileges. In relation to the appointment procedure of the apex
court, the original Constitution provided that the Chief Justice would be appointed by the
President and other Judges would be appointed after consultation with the Chief Justice.
5) The 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.
6) The Fourth Amendment buried the whole concept of local government. Local government
is one of the most important institutions in a democracy. A modern nation State is almost
unthinkable without devolution of power to local government. Due to the massive increase of
population at the geometric rate (according to the theory of Malthus) and because of huge
expansion of governmental activities, certain matters of policy and administration concerning
national and international interests are vested for central government and the rest of the
governmental functions are vested in local governments. Keeping this in mind, provisions
were made in the original Constitution to devolve the responsibility for both development
activities and administration into the hands of elected representatives of local government
bodies.

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.

12th Amendment
12 Amendment made 18th September 1991; this amendment introduced some fundamental
changes in constitution.

Description of the Fourth Amendment and the changes brought


by this
A. Position of the President
The President is now titular head of the state while the Prime Minister id the Chief executive
by the provisions of Art 48 & 55 of the amended Constitution. The posts of the VicePresident have been abolished.
In the original Construction the President was to be elected by members of the parliament in
poll by secret ballot as provide by second schedule of the constitution. But 12 amendments
did not restore that second schedule.
Under the provisions introduced by the 4th amendment the President could remain in office
for unlimited numbers terms. These undemocratic provisions have been abolished and after
12 amendment, president shall hold office for more than two terms, weather o tot teams are
consecutive Art 50(2).
Under original constitution President can exercise only one function independently, after 12
amendment President can exercise two (2) functions indecently. Appoint Prime Minister and
appoint the Chief Justice.
Compared to the original Constitution the 12 amendment has imposed double check on the
Presidents power to summon, prorogue & dissolve parliament by inserting a new proviso to
Art 72.
Declaration of emergency Art 141A has been amended to the effect that before declaration of
emergency counter signature is need for its validity.
The impeachment and removal of the President the provision of the original constitution have
been revived.

B. The Prime Minister & the Cabinet


It has been categorically provide in Art 55 that the executive power of the Republic shall be
exercised by or on the authority of the Prime Minister and cabinet shall be collectively
responsible to the Parliament.
The President shall appoint the Prime Minister, who the most trustworthy or supported person
form the members, other Minister shall be appointed by him Art 56.
Introduced by the 12 amendment as regards the Cabinet
In the original constitution under Art 56 ministers could be appointed form outside the
parliament but such minister would have to be elected as a Member of Parliament within six
(6) month. But after 12 amendment one-tenths of the total number of minister can be
appointed form outside form parliament and need not be elected as members but they must be
qualified for election as members of parliament.
In question of tenure of the office of Prime Minster the original provision was that if the
Prime Minister ceases to retain the support of a majority of the members of parliament, he
shall either resign his office or advise the President to dissolve the parliament. But after 12
amendment if the President satisfied that no other member have support only then President
can dissolve the Parliament

C. The Issue of Floor Crossing & Ministerial Responsibility


12 amendment has introduced more tough procedures. Two sub-section have been added to
Art 70. Section 70(2) prevents forming any rebel group within the party.
Section 70(3) provides that if any independent members join any political party he will come
under the preview of anti-defection provisions.
D. The provision as to the intervening period between two sessions of parliament as provided
for in Art 72 were reverted to that of the original Constitution.
E. Chapter 3 dealing with the provisions of local government of Part 4 of the Constitution
which was omitted by the 4th amendment has been revived by the 12 amendment.

References
1. Constitution, Constitutional Law and Politics: Bangladesh Perspective.
By Md. Abdul Halim.
2. Constitutional Law of Bangladesh.
By Mahmudul Islam.
3. en.wikipedia.org/wiki/Constitution_of_Bangladesh
4. www.clcbd.org
5. www.ebanglapedia.com