Dr. Badiul Alam Majumdar
In 1996, the Bangladesh Nationalist Party (BNP) government passed the 13th Amendment to Bangladesh’s Constitution, providing for the formation of an election-time Neutral Caretaker Government (NCG). This represented a “political settlement” after an Awami League (AL)-led coalition demanded such a system and the BNP, after much resistance, agreed. This provided an equal opportunity to all parties to contest elections and ultimately enabled a peaceful transfer of power.
The unilateral passage of the 15th Amendment in 2011 by the AL-led Alliance in a “majoritarian” manner weaponized the Constitution, destroying that political settlement, causing instability and resulting in serious violence during 2013-14, which claimed over 500 lives. The road to the 15th Amendment started with the passage of the 14th Amendment in 2004 by the BNP-led government. This Amendment increased the retirement age of Justices to ensure a particular former Chief Justice would become the next Chief Adviser of the NCG. A subsequent blow to the political settlement was given by the divided “short order” of the Appellate Division on May 10, authored by Chief Justice ABM Khairul Haque, declaring the 13th Amendment “prospectively” void after the 10th and 11th Parliament elections, even though previously two High Court benches found it constitutional.
Justice Khairul Haque, who was appointed the Chief Justice superseding a senior, revived the appeal against the High Court judgment six years after its filing and authored the short order only eight days before his retirement. The hearings only took ten days and Justice Haque ignored the pleas of the Amicus Curies prior to the decision. The other three assenting Justices were subsequently made Chief Justices, at least in one case superseding a senior, raising the concern of “some communication” between the Chief Justice and the government (Ridwanul Haque, “The Politics of Unconstitutional Amendments in Bangladesh,” DOI: 10) Self-interest might have also played a role in Justice Haque’s authoring the short order as he would have become the Chief Adviser, if the 10th Parliament elections had been held under the NCG.
On July 21, 2010, the 9th Parliament formed a 15-member Special Parliamentary Committee to amend the Constitution. On May 29, 2011, the Committee, which included 12 senior members of the AL, unanimously recommended, after consultation with 104 distinguished citizens, including a former President, the incumbent PM, three former Chief Justices, politicians, editors and civil society members, to amend the Constitution by retaining the NCG with a three-month tenure. The following day, the Committee met with the Prime Minister, who changed the Committee’s recommendation to amend the Constitution abolishing the NCG. On May 31, 2011, the PM held a press conference, in which she falsely claimed that the Court had abolished the NCG with an observation that for holding the next two elections under the NCG, Parliament’s approval would be required (Prothom Alo, 1 June 2011). Thereafter, the 15th Amendment was passed not only defying the unanimous recommendation of the Parliamentary Committee but based on a serious misrepresentation of the Appellate Division’s short order and before the full judgment was published 14 months later. It was a self-interested decision, which led to holding the next elections under a political government headed by the same PM, replacing the highly popular NCG. As researcher Adiba Aziz Khan observer, “Despite dissent from the opposition, civil society and voters, the AL-led supermajority in Parliament disregarded the direction given by the Court that the NCG should remain in place for two more national elections” (“The Politics of Constitutional Amendment,” International Review of Law, 2015).
Experts have raised serious questions of legitimacy and constitutionality of the 15th Amendment. They argue that the Constitution represents the will of the people of Bangladesh, but point out the people had no say in enacting the 15th Amendment. The 5th Amendment of the Constitution, which was declared unconstitutional by the Court, incorporated the referendum provision in the Constitution. But the 12th Amendment, which was passed in 1992, based on a compromise between AL and BNP and affirmed by a referendum, included the referendum provision in the Constitution. Since the 12th Amendment was not found unconstitutional by the Court, the 15th Amendment was not legitimate as no referendum was held before its passage.
No serious deliberations in Parliament took place on the 15th Amendment before its passage. Even though the BNP was asked to propose a name for the Special Parliamentary Committee, it refused to do so, and was also absent during the passage of the Amendment. Thus, the 15th Amendment did not have the support of the main opposition BNP, nor even, in the truest sense, the 15 members of the Parliamentary Committee, who unanimously recommended its retention earlier.
The 15th Amendment clearly violated Article 142 of the Constitution as no referendum was held before its enactment. The head of the executive branch changing the unanimous recommendation of a Special Parliamentary Committee is a blatant violation of the principle of separation of powers.
In addition, the 15th Amendment made about a third of the Constitution unamendable by designating them as “basic provision,” equating them with the “basic structure,” which cannot be amended. This clearly violated the constitutional doctrine of basic structure. The constitutional expert, Mahmudul Islam, in Constitutional Law of Bangladesh, claimed, “No Parliament can bind the successor Parliament,” which also makes the 15th Amendment unconstitutional.
The constitutionality of the Appellate Division’s judgment is also highly questionable. As Mahmudul Islam argued, “providing the rider clause giving life to the discredited (NCG) system for the next two parliamentary elections, the Appellate Division made judicial legislation interfering with the functions of Parliament assigned by the Constitution and thereby dented the well-established jurisprudence and acted contrary to the rule of law and separation of powers.” The Appellate Division, led by Justice Khairul Huq, also intruded into political matters, which is a clear violation of “political question” – a doctrine respected by the Court in our jurisdiction. In addition, Justice Khairul Huq materially changed his final judgment by adding the condition of parliamentary approval for holding the 10th and 11th Parliament elections under the NCG, which amounts to “fraud on the court” and the violation of professional code of conduct.
To conclude, abolition of the NCG, which represented a political settlement, led to two failed election of 2014 and 2018. Attempts to hold future Parliament elections under the same system are likely to lead to once more widespread violence, putting the future of Bangladesh in an uncharted course. Thus, all our efforts must focus on forging another political settlement to ensure the neutrality of the Election Commission, bureaucracy, and law enforcement agencies, which are essential prerequisites for credible elections.