It was Sheikh Hasina’s first term as prime minister in 1998 when the Appellate Division in a verdict explained the limitation of legislative power of a parliament to control the same power of its successor.
“A legislature cannot by legislation bind its successor and thus parliament can not pass any unamendable or irrepealable law,” the apex court had said in the Shariar Rashid Khan versus Bangladesh case verdict which was also published in BLD – Bangladesh Legal Decisions.
But Hasina in her second term in 2011 conveniently forgot what the apex court said 13 years ago and brought massive changes in the constitution.
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Making the Constitution unamendable
It sounds absurd, but her government in 2011, through the constitution 15th amendment act, had introduced a provision making more than 50 articles of the constitution unamendable by future parliaments. It means, about one-third of the country’s constitution was made unamendable for future changes, an act of brutal insensitiveness to the people’s inalienable rights.
Thus the ninth parliament, dominated by her party’s brute majority, blocked and curtailed the power of its successors to bring change in any of those articles for an indefinite period which is unprecedented in a democracy.
The amendment which had also abolished the non-partisan caretaker government system that ensured free and fair general elections triggered widespread criticism.
Subverting fundamental rights
Most of the articles which were made unamendable by the parliament in exercise of its power granted by the Constitution to amend the Constitution deal with the fundamental principles of the state policy and fundamental rights of the citizens of Bangladesh.
Making them unamendable means there is no way for further improvement of people’s fundamental rights as all the articles in the chapter of the fundamental rights have been made unamendable.
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For example, education is not a fundamental right of the people of Bangladesh. If any future government wants to make it a fundamental right as India did, it cannot do that as the 15th amendment has shut the door forever.
The Indian parliament amended the constitution in 2002 to make education a fundamental right for citizens of India. The provision included in the constitution says the state shall provide free and compulsory education to all children of the age of six to fourteen years in such manner as the state may by law determine.
Similarly, if any future parliament wants to lift the provision for imposing restrictions by any other law on freedom of speech and expression and freedom of the press, it needs to amend article 37. But article 37 has also been made unamendable.
The Constitution’s 15th amendment act also introduced a new provision in part I of the constitution regarding preservation and displaying the portrait of Bangabandhu.
The Article 4A says “The Portrait of the Father of the Nation, Bangabandhu Sheikh Mujibur Rahman shall be preserved and displayed at the offices of the President, the Prime Minister, the Speaker and the Chief Justice and in head and branch offices of all government and semi-government offices, autonomous bodies, statutory public authorities, government and non-government educational institutions, embassies and missions of Bangladesh abroad.”
This provision has also been unamendable by any parliament as it was included in the part I of the Constitution and the whole part has been made unamendable.
The power of legislation includes the power of repeal, modification or alteration of the existing laws without contravening the provisions of the constitution. The Constitution’s 15th amendment act is also a piece of legislation the parliament enacted through its power under article 142 of the Constitution.
Section of the Constitution walled in
The constitution is also known as a living document/instrument which keeps evolving keeping conformity with changing situations and needs. But the Hasina government made one-third of the constitution apparently dead by shutting the door for changes to grow in a changing situation.
Former attorney general Mahmudul Islam in his book “Constitutional Law of Bangladesh” writes that the constitution is an organic instrument; it grows with the passage of time.
“A constitution is meant to be permanent; but as all changing situations can not be envisaged and amendment of the constitution may be necessary to adapt to the future developments, provision is made in the constitution itself to effect changes required by the changing situations,” he writes.
“When a legislature, which is a creature of the constitution, is given the power of amendment, it is a power given not to subvert the constitution, but to make it suitable to the changing situation” writes the former attorney general.
But the amendment shut the door for bringing changes in any of the articles dealing with fundamental principles of the state policy and people’s fundamental rights to adapt the future developments and to bring any changes required by changing situations.
The controversial amendment raised the question: Did the 9th parliament dominated by Hasina’s party subvert the Constitution in the name of amendment?