The High Court made 22-point observations in its historical verdict that declared the fifth amendment to the constitution illegal. The Daily Star was provided with the observations by A Hossain and Associates, the counsel firm of the petitioners.
1. Constitution of Bangladesh is the embodiment of the will of the people of the Republic of Bangladesh.
2. Constitution is the supreme law and all other laws and actions must confirm to it.
3. Any law or action made in violation of the constitution is void.
4. All functionaries of the republic owe its existence to the Constitution.
5. The legislature, the executive and the judiciary are the three pillars of the republic, created by the constitution, as such, are bound by its provisions.
6. Likewise, the defence services, the civil services and all other services of the republic owe its existence to the constitution and must obey its commands.
7. Proclamation of emergency can only be made by the president of the republic on the advice of the prime minister, in case of imminent danger to the security of the republic.
8. No person can declare martial law; if any body does, he will be liable for high treason against the republic.
9. Constitution stipulates a democratic republic, run by the elected representatives of the people of Bangladesh but any attempt by any person or group of persons, how high so ever, to usurp an elected government, shall render them liable for high treason.
10. The taking over of powers of the Government of People's Republic of Bangladesh with effect from the morning of August 15, 1975 by Khandaker Mustaque Ahmed, an usurper, placing Bangladesh under martial law and his assumption of the office of the president of Bangladesh on August 20, 1975, were in clear violation of the constitution, as such, illegal, without lawful authority and without jurisdiction, consequently all his subsequent actions as the president of Bangladesh were illegitimate and void.
11. The making over of the office of president of Bangladesh, in favour of Justice Abu Sadaat Mohammad Sayem, on November 6, 1975, was beyond the ambit of the constitution.
12. The taking over of the office of president of Bangladesh and his such entering in the said office on November 6, 1975, by Justice Abu Sadaat Mohammad Sayem and his assumption of the chief martial law administrator and appointment of the deputy chief martial law administrators and the proclamation of November 8, 1975, were all in violation of the constitution, as such, all his subsequent functions and actions as such president and or the chief martial law administrator were illegitimate.
13. The handing over of the office of martial law administrator to Major General Ziaur Rahman BU, PSC, by the aforesaid Abu Sadaat Mohammad Sayem by the Third Proclamation on November 29, 1976, enabling the said Major General Ziaur Rahman to exercise all the powers of the chief martial law administrator being beyond the ambit of the constitution, was illegal, without lawful authority and without jurisdiction. Consequently, all his subsequent functions and actions as such (chief martial law administrator were illegitimate.
14. The nomination of Major General Ziaur Rahman, BU, to become the president of Bangladesh by Abu Sadaat Mohammad Sayem, the nominated president of Bangladesh, on April 21, 1977, and also the handing over of the office of president to him, being beyond the ambit of the constitution, was illegal, without lawful authority and without jurisdiction.
15. The assumption of office of the president of Bangladesh by Major General Ziaur Rahman, BU, on April 21, 1977, on nomination being beyond the ambit of the constitution was illegal, without any lawful authority. Consequently, all his subsequent functions and actions as such president of Bangladesh, without lawful authority and without Jurisdiction.
16. Since addition of Paragraph 3A to the fourth schedule to the constitution by the Proclamations (Amendment) Order 1977 (Proclamations Order No. 1 of 1977) dated April 23, 1977, and as amended by the Second Proclamation Order No. IV of 1978, was made by a usurper and a nominated president, the Paragraph 3A to the fourth schedule is illegal, void…in the eye of law.
17. The Referendum Order, 1977 (Martial Law Order No 1 of 1977) published on May 1, 1977, unknown to the constitution, being made only to ascertain the confidence of the people of Bangladesh in one person, namely, Major General Ziaur Rahman, BU.
18. Since Paragraph 18 to the fourth schedule (Transitional Provisions) of the constitution precluded judicial review defying and undermining the supremacy of the constitution, this provision is unconstitutional being beyond the power of parliament under Article 142 of the constitution.
19. MLRs including the MLR VII of 1977 are also illegal.
20. Violation of the constitution is a grave legal wrong and remains so for all time to come. It cannot be legitimised and shall remain illegitimate forever, however, on the necessity of the state only, such a legal wrong can be condoned in certain circumstances, invoking the doctrine of Salus Populiest suprema lex.
21. Condonation of certain acts and provisions has been made as stated above but such condonations are made not because those are legal but only in the interest of the republic, those shall remain illegitimate forever.
22. Condonations of provisions were made, among others, in respect of provisions, deleting the different provisions of Fourth Amendment. Condonation of provisions were also made in respect of the words "Bismillah-hir-Rahmanir Rahim" but the provision deleting the original four fundamental principles of the republic as enshrined in the original constitution was not condoned.
The Daily Star
Thu. September 01, 2005
Showing posts with label constitution. Show all posts
Showing posts with label constitution. Show all posts
Friday, 8 May 2009
Monday, 4 May 2009
The drama of Moon Cinema continues - The HC verdict of 2005
The High Court on August 29, 2005 declared the fifth amendment to the constitution illegal, meaning the rules of Khandker Mushtaque Ahmed, Abu Sadaat Mohammad Sayem and Maj Gen Ziaur Rahman from August 15, 1975 to April 9, 1979 were unlawful.
The verdict came upon a decades-old writ petition that challenged the Martial Law Regulation (MLR) 7 of 1977, issued to legalise all illegal acts of the martial law government prior to that time.
The HC observed that martial law as a whole is illegal and unconstitutional and all the actions, laws, and rules made under martial law are illegal. The changes of governments between August 15, 1975 and the national elections of 1991 were not carried out constitutionally.
The HC bench of Justice ABM Khairul Haque and Justice ATM Fazle Kabir also said the constitution does not permit anyone to assume power by any means other than the ones mentioned in it. If anyone does so, it will amount to sedition.
The court, however, noted that although all government activities between August 15, 1975 and April 9, 1979 have been declared illegal, the history cannot be altered. Many of these illegal acts were done in the public interest. From this perspective, the court condones some of these actions that could have been done in line with the constitution.
The bench said Khandker Mushtaque Ahmed's assuming power with effect from the morning of 15th August, 1975 placing Bangladesh under martial law and his taking of office of the president of the country by the Proclamation of August 20, 1975 were in clear violation of the constitution and done without lawful authority.
"All his subsequent actions as the president were illegitimate and void," it observed.
Justice Abu Sadaat Mohammad Sayem's taking over office of the president on November 6, 1975 and his assumption of the powers of chief martial law administrator (CMLA) and appointing deputy CMLA (Ziaur Rahman) and the Proclamation of November 8, 1975 were all in violation of the constitution, which means all his functions and actions as the president or CMLA were illegitimate, the court observed in the verdict.
"Being beyond the ambit of the constitution, the handing over of the martial law authority's office to Maj Gen Ziaur Rahman by Abu Sadaat Mohammad Sayem by Third Proclamation on November 29, 1976, enabling the latter to exercise the powers of CMLA, was illegal and done without lawful authority. And it means subsequent functions and actions as CMLA were illegal and illegitimate," the bench announced.
Ziaur Rahman's becoming president on April 21, 1977 was also illegal, it added.
After passing of the court order petitioner's counsel ABM Siddiqur Rahman Khan said, "Some of the areas that the court condones are closed-transactions. For instance, incorporation of Bismillahir Rahmanir Rahim or resting trust on the Almighty Allah in the fifth amendment do not fall under the purview of illegality since the court feels that these could also have been done constitutionally."
With the pronouncement of the verdict, paragraph 3(a)1 of the fourth schedule of the constitution became illegal. The paragraph says, "The Proclamations of the 20th August, 1975, and 8th November, 1975, and Third Proclamation of the 29th November, 1976, and all other Proclamations and Orders amending or supplementing them, hereinafter in this paragraph collectively referred to as the said Proclamations and all Martial Law Regulations, Martial Law Orders and all other laws made during the period between the 15th day of August, 1975 and the date of revocation of the said Proclamations and withdrawal of Martial Law (both days inclusive), hereinafter in this paragraph referred to as the said period, shall be deemed to have been validly made and shall not be called in question in or before any Court or Tribunal on any ground whatsoever."
Paragraph 18 of the fourth schedule too became illegal. It says, "All Proclamations, Proclamation Orders, Marital Law Regulations, Martial Law Orders and other laws made during the period between the 15th August, 1975, and the 9th April, 1979 (both days inclusive), all amendments, additions, modifications, substitutions and omissions made in this Constitution during the said period by any such Proclamation, all orders made, acts and things done, and actions and proceedings taken, or purported to have been made, done or taken, by any person or authority during the said period in exercise of the powers derived or purported to have been derived from any such Proclamation, Martial Law Regulation, Marital Law Order or any other law, or in execution of or in compliance with any order made or sentence passed by any court, tribunal or authority in the exercise or purported exercise of such powers, are hereby ratified and confirmed and are declared to have been validly made, done or taken and shall not be called in question in or before any court, tribunal or authority on any ground whatsoever."
The verdict came in response to the writ petition filed by Masudul Alam on behalf of Bangladesh Italian Marble Works Company (BIMWC) to reclaim a cinema hall at Waizghat in Dhaka that the company lost during the military rule.
The BIMWC owned the Moon Cinema Hall at Waizghat. But after the independence, the cinema hall was declared abandoned and the government handed it over to the Muktijoddha Kalyan Trust. The marble company filed a writ petition in 1976, staking its claim on the theatre. In 1977, the HC asked the government to hand over the hall to the company. However, the MLR 7 negated the HC order, making the cinema hall continue to be an abandoned property.
In 1994, the BIMWC again filed a writ petition. But the HC and later the Appellate Division said that since the fifth amendment has validated the MLR 7, the company cannot claim ownership of the property.
In 2000, the BIMWC moved against the validity of MLR 7. The implications of the petition have turned out to be far-reaching as it hits a wide area of unconstitutional and undemocratic power transfers during the volatile mid-'70s.
While passing the judgment, the HC made a number of observations. It said actions, such as military law and military proclamation by anyone who has come to power unconstitutionally, would be considered illegal as unconstitutional actions can never be validated.
The constitution must take precedence over everything under any circumstances as it reflects the will of the people. Parliament, judiciary, administration, defence and everything else must remain accountable to the constitution.
In another observation, the HC bench said if the state declares a state of emergency, it must follow the constitution. Only the president can declare emergency in accordance with the constitutional provisions.
Monday, May 4, 2009
The Daily Star
The verdict came upon a decades-old writ petition that challenged the Martial Law Regulation (MLR) 7 of 1977, issued to legalise all illegal acts of the martial law government prior to that time.
The HC observed that martial law as a whole is illegal and unconstitutional and all the actions, laws, and rules made under martial law are illegal. The changes of governments between August 15, 1975 and the national elections of 1991 were not carried out constitutionally.
The HC bench of Justice ABM Khairul Haque and Justice ATM Fazle Kabir also said the constitution does not permit anyone to assume power by any means other than the ones mentioned in it. If anyone does so, it will amount to sedition.
The court, however, noted that although all government activities between August 15, 1975 and April 9, 1979 have been declared illegal, the history cannot be altered. Many of these illegal acts were done in the public interest. From this perspective, the court condones some of these actions that could have been done in line with the constitution.
The bench said Khandker Mushtaque Ahmed's assuming power with effect from the morning of 15th August, 1975 placing Bangladesh under martial law and his taking of office of the president of the country by the Proclamation of August 20, 1975 were in clear violation of the constitution and done without lawful authority.
"All his subsequent actions as the president were illegitimate and void," it observed.
Justice Abu Sadaat Mohammad Sayem's taking over office of the president on November 6, 1975 and his assumption of the powers of chief martial law administrator (CMLA) and appointing deputy CMLA (Ziaur Rahman) and the Proclamation of November 8, 1975 were all in violation of the constitution, which means all his functions and actions as the president or CMLA were illegitimate, the court observed in the verdict.
"Being beyond the ambit of the constitution, the handing over of the martial law authority's office to Maj Gen Ziaur Rahman by Abu Sadaat Mohammad Sayem by Third Proclamation on November 29, 1976, enabling the latter to exercise the powers of CMLA, was illegal and done without lawful authority. And it means subsequent functions and actions as CMLA were illegal and illegitimate," the bench announced.
Ziaur Rahman's becoming president on April 21, 1977 was also illegal, it added.
After passing of the court order petitioner's counsel ABM Siddiqur Rahman Khan said, "Some of the areas that the court condones are closed-transactions. For instance, incorporation of Bismillahir Rahmanir Rahim or resting trust on the Almighty Allah in the fifth amendment do not fall under the purview of illegality since the court feels that these could also have been done constitutionally."
With the pronouncement of the verdict, paragraph 3(a)1 of the fourth schedule of the constitution became illegal. The paragraph says, "The Proclamations of the 20th August, 1975, and 8th November, 1975, and Third Proclamation of the 29th November, 1976, and all other Proclamations and Orders amending or supplementing them, hereinafter in this paragraph collectively referred to as the said Proclamations and all Martial Law Regulations, Martial Law Orders and all other laws made during the period between the 15th day of August, 1975 and the date of revocation of the said Proclamations and withdrawal of Martial Law (both days inclusive), hereinafter in this paragraph referred to as the said period, shall be deemed to have been validly made and shall not be called in question in or before any Court or Tribunal on any ground whatsoever."
Paragraph 18 of the fourth schedule too became illegal. It says, "All Proclamations, Proclamation Orders, Marital Law Regulations, Martial Law Orders and other laws made during the period between the 15th August, 1975, and the 9th April, 1979 (both days inclusive), all amendments, additions, modifications, substitutions and omissions made in this Constitution during the said period by any such Proclamation, all orders made, acts and things done, and actions and proceedings taken, or purported to have been made, done or taken, by any person or authority during the said period in exercise of the powers derived or purported to have been derived from any such Proclamation, Martial Law Regulation, Marital Law Order or any other law, or in execution of or in compliance with any order made or sentence passed by any court, tribunal or authority in the exercise or purported exercise of such powers, are hereby ratified and confirmed and are declared to have been validly made, done or taken and shall not be called in question in or before any court, tribunal or authority on any ground whatsoever."
The verdict came in response to the writ petition filed by Masudul Alam on behalf of Bangladesh Italian Marble Works Company (BIMWC) to reclaim a cinema hall at Waizghat in Dhaka that the company lost during the military rule.
The BIMWC owned the Moon Cinema Hall at Waizghat. But after the independence, the cinema hall was declared abandoned and the government handed it over to the Muktijoddha Kalyan Trust. The marble company filed a writ petition in 1976, staking its claim on the theatre. In 1977, the HC asked the government to hand over the hall to the company. However, the MLR 7 negated the HC order, making the cinema hall continue to be an abandoned property.
In 1994, the BIMWC again filed a writ petition. But the HC and later the Appellate Division said that since the fifth amendment has validated the MLR 7, the company cannot claim ownership of the property.
In 2000, the BIMWC moved against the validity of MLR 7. The implications of the petition have turned out to be far-reaching as it hits a wide area of unconstitutional and undemocratic power transfers during the volatile mid-'70s.
While passing the judgment, the HC made a number of observations. It said actions, such as military law and military proclamation by anyone who has come to power unconstitutionally, would be considered illegal as unconstitutional actions can never be validated.
The constitution must take precedence over everything under any circumstances as it reflects the will of the people. Parliament, judiciary, administration, defence and everything else must remain accountable to the constitution.
In another observation, the HC bench said if the state declares a state of emergency, it must follow the constitution. Only the president can declare emergency in accordance with the constitutional provisions.
Monday, May 4, 2009
The Daily Star
Sunday, 3 May 2009
Secularism--one of the four principles of the state to be restored in the constitution
5th Amendment Illegal
_____________________
Govt seeks withdrawal of appeal against HC verdict
___________________________________________________
The attorney general's office yesterday prayed to the Supreme Court for withdrawing the pending leave-to-appeal petitions against the High Court judgment that had declared illegal the fifth amendment to the constitution which endorses late president Ziaur Rahman's takeover and all acts since August 15, 1975.
Attorney General Mahbubey Alam made the prayer on behalf of the government while Additional Attorney General M Enayetur Rahim moved a similar prayer on behalf of Bangladesh Muktijoddha Kalyan Trust.
The BNP-Jamaat coalition government and Bangladesh Muktijoddha Kalyan Trust had filed two separate leave-to-appeal petitions with the SC against the HC verdict, which came on August 29, 2005 following a writ petition filed by Bangladesh Italian Marble Works Company (BIMWC).
Meanwhile, BNP Secretary General Khandaker Delwar Hossain yesterday filed an application with the apex court to make him an intervener of this case so that he can run an appeal with the court against the HC verdict.
The seven-member full bench of the Appellate Division, headed by Chief Justice MM Ruhul Amin, held hearing on the question whether Khandaker Delwar can be made an intervener of this case after withdrawal prayers have been filed. The SC will hold further hearing on the issue today.
Attorney General Mahbubey Alam told the court that the present government has decided not to proceed with the leave-to-appeal petitions against the HC verdict as it believes that the HC judgment, which was delivered on facts, documents and correct information, was correct, legal and justified.
He told reporters at his office that if the HC verdict is upheld following their withdrawal prayers, secularism--one of the four principles of the state--will automatically be restored in the constitution.
He, however, said incorporation of Bismillahir Rahmanir Rahim or resting trust on the Almighty Allah in the preamble of the constitution will remain upheld since the HC in its judgment had not objected to incorporation of these in the fifth amendment to the constitution.
If the HC verdict is kept valid, nobody will dare to illegally occupy state power in the future, he said.
The top law officer of the state said a certain quarter has been trying to mislead the people by saying that Bismillahir Rahmanir Rahim will not remain in the constitution if the HC verdict is upheld.
A few BNP lawyers have moved an application with the SC aimed at allowing BNP Secretary General Khandaker Delwar Hossain to serve this purpose, he said, urging all to remain cautious about their moves.
Earlier yesterday, barrister Ajmalul Hossain, counsel for the writ petitioner, argued before the SC that the nation has been hijacked every time military has ruled the country.
He said after the prayer for withdrawing the leave-to-appeal petitions, none can pray to the court to be an intervener of the case.
Advocate TH Khan and barrister Moudud Ahmed, counsels for Delwar, told the court yesterday that if the HC verdict is upheld, the continuation of governments and their actions from August 15, 1975 to April 9, 1979 will be hampered and a serious constitutional vacuum will be created.
TH Khan said the SC has already settled all the disputes regarding the rules from August 15, 1975 to April 9, 1979 in its historic judgement of the eighth amendment case. After the Appellate Division's verdict, the HC had no authority to declare and cancel the fifth amendment to the constitution, he said.
He also said the fifth amendment to the constitution should be upheld for the continuation of the rules and actions of the then governments.
On August 29, 2005, the HC declared the fifth amendment to the constitution illegal, which meant the rules of Khandker Mushtaque Ahmed, Abu Sadaat Mohammad Sayem and Maj Gen Ziaur Rahman from August 15, 1975 to April 9, 1979 were unlawful.
The court passed the verdict in response to a writ petition filed by Masudul Alam on behalf of the BIMWC to reclaim a cinema hall at Waizghat in Dhaka it had lost during the martial law rule.
The BIMWC once owned the Moon Cinema Hall at Waizghat. After the independence, the cinema hall was announced abandoned and the government handed it over to the Muktijoddha Kalyan Trust.
Following a prayer from the then BNP-led government the Appellate Division stayed the HC verdict on September 1, 2005.
Monday, May 4, 2009
The Daily Star
_____________________
Govt seeks withdrawal of appeal against HC verdict
___________________________________________________
The attorney general's office yesterday prayed to the Supreme Court for withdrawing the pending leave-to-appeal petitions against the High Court judgment that had declared illegal the fifth amendment to the constitution which endorses late president Ziaur Rahman's takeover and all acts since August 15, 1975.
Attorney General Mahbubey Alam made the prayer on behalf of the government while Additional Attorney General M Enayetur Rahim moved a similar prayer on behalf of Bangladesh Muktijoddha Kalyan Trust.
The BNP-Jamaat coalition government and Bangladesh Muktijoddha Kalyan Trust had filed two separate leave-to-appeal petitions with the SC against the HC verdict, which came on August 29, 2005 following a writ petition filed by Bangladesh Italian Marble Works Company (BIMWC).
Meanwhile, BNP Secretary General Khandaker Delwar Hossain yesterday filed an application with the apex court to make him an intervener of this case so that he can run an appeal with the court against the HC verdict.
The seven-member full bench of the Appellate Division, headed by Chief Justice MM Ruhul Amin, held hearing on the question whether Khandaker Delwar can be made an intervener of this case after withdrawal prayers have been filed. The SC will hold further hearing on the issue today.
Attorney General Mahbubey Alam told the court that the present government has decided not to proceed with the leave-to-appeal petitions against the HC verdict as it believes that the HC judgment, which was delivered on facts, documents and correct information, was correct, legal and justified.
He told reporters at his office that if the HC verdict is upheld following their withdrawal prayers, secularism--one of the four principles of the state--will automatically be restored in the constitution.
He, however, said incorporation of Bismillahir Rahmanir Rahim or resting trust on the Almighty Allah in the preamble of the constitution will remain upheld since the HC in its judgment had not objected to incorporation of these in the fifth amendment to the constitution.
If the HC verdict is kept valid, nobody will dare to illegally occupy state power in the future, he said.
The top law officer of the state said a certain quarter has been trying to mislead the people by saying that Bismillahir Rahmanir Rahim will not remain in the constitution if the HC verdict is upheld.
A few BNP lawyers have moved an application with the SC aimed at allowing BNP Secretary General Khandaker Delwar Hossain to serve this purpose, he said, urging all to remain cautious about their moves.
Earlier yesterday, barrister Ajmalul Hossain, counsel for the writ petitioner, argued before the SC that the nation has been hijacked every time military has ruled the country.
He said after the prayer for withdrawing the leave-to-appeal petitions, none can pray to the court to be an intervener of the case.
Advocate TH Khan and barrister Moudud Ahmed, counsels for Delwar, told the court yesterday that if the HC verdict is upheld, the continuation of governments and their actions from August 15, 1975 to April 9, 1979 will be hampered and a serious constitutional vacuum will be created.
TH Khan said the SC has already settled all the disputes regarding the rules from August 15, 1975 to April 9, 1979 in its historic judgement of the eighth amendment case. After the Appellate Division's verdict, the HC had no authority to declare and cancel the fifth amendment to the constitution, he said.
He also said the fifth amendment to the constitution should be upheld for the continuation of the rules and actions of the then governments.
On August 29, 2005, the HC declared the fifth amendment to the constitution illegal, which meant the rules of Khandker Mushtaque Ahmed, Abu Sadaat Mohammad Sayem and Maj Gen Ziaur Rahman from August 15, 1975 to April 9, 1979 were unlawful.
The court passed the verdict in response to a writ petition filed by Masudul Alam on behalf of the BIMWC to reclaim a cinema hall at Waizghat in Dhaka it had lost during the martial law rule.
The BIMWC once owned the Moon Cinema Hall at Waizghat. After the independence, the cinema hall was announced abandoned and the government handed it over to the Muktijoddha Kalyan Trust.
Following a prayer from the then BNP-led government the Appellate Division stayed the HC verdict on September 1, 2005.
Monday, May 4, 2009
The Daily Star
Friday, 24 April 2009
The 1972 constitution and our national unity
Even if we call the 1972 constitution a fruit of our national unity it gets better flavour, no doubt. Thanks for that. The great liberation war breaking all the class barriers in the society created great opportunity for a great national unity, but unfortunately country’s political luck was never great.
The concept I had in bringing the topic out on board was to highlight the fact that the 1972 constitution has been changed over the years in a manner that the Great National Unity and the Secular standard, we are talking about, in my view, no more exist.
We have even changed the Preamble of the constitution by which Secularism, one of the four fundamental principles of the constitution was omitted.
It was the first paragraph of the Preamble of the 1972 constitution: We, the people of Bangladesh, having proclaimed our Independence on the 26th day of March 1971 and through [a historic struggle for national liberation], established the independent, sovereign People’s Republic Bangladesh. Later the words “a historic war for national independence” were substituted.
‘Pleading that the high ideals of Nationalism, Socialism, Democracy and Secularism, which inspired our heroic people to dedicate themselves to, and our brave martyrs to sacrifice their lives in the historic struggle for national liberation, shall be the fundamental principles of our constitution’ – This was the second paragraph of the Preamble in [original] 1972 constitution.
The substituted second paragraph which is the present paragraph doesn’t have ‘secularism’, and instead ‘absolute trust and faith in the Almighty Allah’ was later incorporated.
Part II of the constitution which states the fundamental principles of state policy was changed as well. A new clause 1A in Article 8 was inserted which reads – ‘absolute trust and faith in the Almighty Allah shall be the basis of all actions’.
Articles 9 and 10 were substituted for the former articles 9 and 10.
Article 12 – ‘Secularism and freedom of religion’ as fundamental principles of state policy, in the 1972 constitution, was also omitted from the constitution. But was not replaced by a new article.Now we don’t have any Article 12 in our constitution. We have 11 and 13.
Article 12 of the constitution of 1972 contained provisions which strictly prohibited political party based on religion and banned the use of religion for materisalising any political interest. Unfortunately, these provisions were omitted from the constitution during the post 1975 period and the religion based politics started in the country.
Article 12 of the constitution stated that the principle of secularism shall be realized by the elimination of: Communalism in all forms; the granting by the state of political status in favour of any religion; the abuse of religion for political purposes; and any discrimination against, or persecution of persons practicing a particular religion.
Article 38, paragraph 2 of the 1972 constitution was also deleted, which stated: No person shall have the right to form or be a member or otherwise take part in the activities of, any communal or other association or union, which in the name or on the basis of any religion has for its object, or pursues a political purpose.
Further, we have inserted a new Article 2A, which reads – ‘the state religion of the Republic is Islam, but other religions may be practised in peace and harmony in the Republic’.
From language movement to the great liberation war, even in earlier movements against British colonial rule, Bengali people struggled as one nation, irrespective of their race, cast, sex and religion. Many of our people sacrificed their lives for the mother land and mother tongue. There were Muslims, Hindus, Buddhists and others.
The word secularism is more or less confusing to most of the people of Bangladesh. In fact, is there any universal notion of secularism? Now the question is whether the western notion of secularism is applicable to our country or not.
No doubt Bangladesh was born out of the fundamental principles of democracy, socialism, Bengali nationalism and secularism.
In defining secularism we must consider Bangladesh as a pluralist society in both religious and cultural aspects. So, implementing secularism in Bangladesh is relatively an easier task compared with other Muslim countries. Most of Bangladeshi, we keep liberal outlook and traditionally believe in the principle of peaceful coexistence with other religious communities.
While defining secularism in 1972 constitution, Bangabandhu had crystal clear conception of secularism of the land. To him secularism was not to discard religion. Rather he was eager to promote all religions and bring religious harmony in the country.
There have been extensive militant networks operating world wide for years, and they kept growing under the government’s nose. Not surprisingly Bangladesh is no exception.
It is now also clear that there are some foreign investments that patronise militant activities round the globe. Testimonies of some arrested militants suggest that they are well-equipped and well-funded to carry out so-called ‘revolution’ in Bangladesh.
I pray to all that you keep your eyes open.
It is important to note here that one of our sector commanders in our great liberation war 1971 was Mr. C.R. Dutta. He said: ‘We didn’t fight for liberation in 1971 for making Islam state religion. The spirit of war of liberation was to establish a nation free from communalism.’
Now, my question - under the pesent constitution what class of Citizen Mr. Dutta is? It is really matter of sadness. Is it not the repeat of pre-liberation treatment to us by Pakistani junta, when we could not have our mother-tongue as of our right, when we were not allowed to take higher posts and positions in the then administration and so on? Are we not treating our own people differently? Are we secular liberal Bangladeshi? Are we not discriminating? If our constitution fails to guarantee the true equal Rights of our people, that constitution can not be called a fruit of our national UNITY. That fruit is bound to be a rotten fruit, not a ripen fruit.
The concept I had in bringing the topic out on board was to highlight the fact that the 1972 constitution has been changed over the years in a manner that the Great National Unity and the Secular standard, we are talking about, in my view, no more exist.
We have even changed the Preamble of the constitution by which Secularism, one of the four fundamental principles of the constitution was omitted.
It was the first paragraph of the Preamble of the 1972 constitution: We, the people of Bangladesh, having proclaimed our Independence on the 26th day of March 1971 and through [a historic struggle for national liberation], established the independent, sovereign People’s Republic Bangladesh. Later the words “a historic war for national independence” were substituted.
‘Pleading that the high ideals of Nationalism, Socialism, Democracy and Secularism, which inspired our heroic people to dedicate themselves to, and our brave martyrs to sacrifice their lives in the historic struggle for national liberation, shall be the fundamental principles of our constitution’ – This was the second paragraph of the Preamble in [original] 1972 constitution.
The substituted second paragraph which is the present paragraph doesn’t have ‘secularism’, and instead ‘absolute trust and faith in the Almighty Allah’ was later incorporated.
Part II of the constitution which states the fundamental principles of state policy was changed as well. A new clause 1A in Article 8 was inserted which reads – ‘absolute trust and faith in the Almighty Allah shall be the basis of all actions’.
Articles 9 and 10 were substituted for the former articles 9 and 10.
Article 12 – ‘Secularism and freedom of religion’ as fundamental principles of state policy, in the 1972 constitution, was also omitted from the constitution. But was not replaced by a new article.Now we don’t have any Article 12 in our constitution. We have 11 and 13.
Article 12 of the constitution of 1972 contained provisions which strictly prohibited political party based on religion and banned the use of religion for materisalising any political interest. Unfortunately, these provisions were omitted from the constitution during the post 1975 period and the religion based politics started in the country.
Article 12 of the constitution stated that the principle of secularism shall be realized by the elimination of: Communalism in all forms; the granting by the state of political status in favour of any religion; the abuse of religion for political purposes; and any discrimination against, or persecution of persons practicing a particular religion.
Article 38, paragraph 2 of the 1972 constitution was also deleted, which stated: No person shall have the right to form or be a member or otherwise take part in the activities of, any communal or other association or union, which in the name or on the basis of any religion has for its object, or pursues a political purpose.
Further, we have inserted a new Article 2A, which reads – ‘the state religion of the Republic is Islam, but other religions may be practised in peace and harmony in the Republic’.
From language movement to the great liberation war, even in earlier movements against British colonial rule, Bengali people struggled as one nation, irrespective of their race, cast, sex and religion. Many of our people sacrificed their lives for the mother land and mother tongue. There were Muslims, Hindus, Buddhists and others.
The word secularism is more or less confusing to most of the people of Bangladesh. In fact, is there any universal notion of secularism? Now the question is whether the western notion of secularism is applicable to our country or not.
No doubt Bangladesh was born out of the fundamental principles of democracy, socialism, Bengali nationalism and secularism.
In defining secularism we must consider Bangladesh as a pluralist society in both religious and cultural aspects. So, implementing secularism in Bangladesh is relatively an easier task compared with other Muslim countries. Most of Bangladeshi, we keep liberal outlook and traditionally believe in the principle of peaceful coexistence with other religious communities.
While defining secularism in 1972 constitution, Bangabandhu had crystal clear conception of secularism of the land. To him secularism was not to discard religion. Rather he was eager to promote all religions and bring religious harmony in the country.
There have been extensive militant networks operating world wide for years, and they kept growing under the government’s nose. Not surprisingly Bangladesh is no exception.
It is now also clear that there are some foreign investments that patronise militant activities round the globe. Testimonies of some arrested militants suggest that they are well-equipped and well-funded to carry out so-called ‘revolution’ in Bangladesh.
I pray to all that you keep your eyes open.
It is important to note here that one of our sector commanders in our great liberation war 1971 was Mr. C.R. Dutta. He said: ‘We didn’t fight for liberation in 1971 for making Islam state religion. The spirit of war of liberation was to establish a nation free from communalism.’
Now, my question - under the pesent constitution what class of Citizen Mr. Dutta is? It is really matter of sadness. Is it not the repeat of pre-liberation treatment to us by Pakistani junta, when we could not have our mother-tongue as of our right, when we were not allowed to take higher posts and positions in the then administration and so on? Are we not treating our own people differently? Are we secular liberal Bangladeshi? Are we not discriminating? If our constitution fails to guarantee the true equal Rights of our people, that constitution can not be called a fruit of our national UNITY. That fruit is bound to be a rotten fruit, not a ripen fruit.
Subscribe to:
Posts (Atom)
