Amendments to the Constitution of Bangladesh 1973-2011: Background, Politics and Impacts Thesis Submitted for M Phil Degree By Salma Akther Department of Political Science University of Dhaka Thesis Completed under the supervision of Professor Dr. Shawkat Ara Husain Department of Political Science University of Dhaka Date of Submission February 2016 ii Declaration I declare that this thesis on ‘Amendments to the Constitution of Bangladesh 1973-2011: Background, Politics and Impacts’ is my original work and I have completed it under the supervision of Professor Dr. Shawkat Ara Husain. I also declare that no part of the thesis has been published and submitted to be published anywhere. (Salma Akther) M Phil Researcher Department of Political Science University of Dhaka Dhaka University Institutional Repository Credentials It is to certify that Salma Akther has completed her thesis entitled ‘Amendments to the Constitution of Bangladesh 1973-2011: Background, Politics and Impacts’ under my supervision. This is her original work. To the best of my knowledge, no part of the thesis has been published or submitted to any person or organization for publication. I wish her success Professor Dr. Shawkat Ara Husain Department of Political Science University of Dhaka Dhaka University Institutional Repository Acknowledgement All praise is due to, almighty Allah who has given me the ability to conduct the research. It has been an honor and great privilege for me to have Professor Dr. Shawkat Ara Husain of the Department of Political Science of the University of Dhaka as my thesis supervisor. Professor Shawkat Ara Husain has given invaluable suggestions and constructive direction regarding my study. Without her supervision and monitoring the study would have been impossible. I offer my sincere appreciation for the learning opportunities provided by my supervisor. My completion of this study could not have been accomplished without the support of my friend Mahfuj Khan– thank you for allowing me time away from you to research and write. Thanks to my parents as well. I also extended my appreciation for the effort of the officers and staff of libraries including the University of Dhaka Library, Shahjalal University of Science and Technology Library, public Library, Sylhet for the assistance they offered me during research work through the relevant books, newspapers and other materials. Finally, to my caring and supportive husband, Shuyab A Khan: my deepest gratitude. Your encouragement when the times got rough are much appreciated and duly noted. My heartfelt thanks. None of the above persons, but I am alone responsible for the shortcomings of the work. (Salma Akther) February 2016 Dhaka University Institutional Repository v Title of the Thesis Amendments to the Constitution of Bangladesh 1973-2011: Background, Politics and Impacts Name of the Researcher Salma Akther Department Political Science University of Dhaka Abstract The Constitution is the guide which leads a nation to the prosperity. A modern state cannot be thought of without it. So, after nine months long blood-shedding battle in 1971, Bangladesh achieved her long awaited independence and therefore, took an instant effort to formulate a constitution rapidly, based on the ideological spirit of the war of independence. However, to accommodate the demands and will of the people and even sometimes to fulfill the narrow interests of the rulers, Bangladesh Constitution has been amended several times. Except a few cases almost every amendments has a great political impacts in the constitution. The very first amendment of the constitution about war- crimes was filled-up the hope and aspiration of the people. Indeed, the fourth, fifth, seventh and eighth amendments were enacted only achieving personal and political gain of the ruler. Moreover, reintroducing the parliament system by twelfth amendments got hail from the masses. Though the caretaker government system, is one of the finest invention by our parties for holding general election which adopted through thirteenth amendment after long chaotic process, did not last long for mistrust and distrust. The fourteenth amendment again created suspicion in the mind of the oppositions so it became worthwhile. The most aspired and comprehensive fifteenth amendment also induced a great debate among the political parties, intellectual part, constitution experts and masses. In view of all the circumstances, it is found that almost every adopted amendment in Bangladesh Constitution failed to meet the dream and the quest of the citizens for the narrow and mean interest of the rulers at different regime. Analyzing all these amendments of Bangladesh constitution it is said that for flourishing of democracy each government must undertake such rules in the constitution through amendment which are accepted by all. Dhaka University Institutional Repository Contents Declaration ii Credential iii Acknowledgement iv Abstract v Contents vi Chapter 1: Introduction 1 1. Introduction 2-4 2. Statement of the Problem 5 3. Objective of the Study 6 4. Significance of the Study 6 5. Methodology 6-7 6. Hypothesis of the study 7 7. Review of Literature 7-8 8. Chapters 8 9. Limitation of the Study 8 Chapter 2: Constitution and Amendment: An Overview 9 1. Constitution 11 1.1 Origin 11 1.2 History and Development 11 1.2.1 Ancient Mesopotamia 11-12 1.2.2 Antiquity 12-13 1.2.3 Middle Ages 13-15 1.2.4 Modern constitutions 15-16 1.2.5 Democratic constitutions 16-18 2. Constitution: A Few Scholars View 18-19 3. Amendment and Its Process: World Perspective 20 3.1 United States of America 20 3.2 Great Britain 20-21 3.3 France 21 3.4 Switzerland 21 3.5 Soviet Russia 21 3.6 India 21-22 3.7 Denmark 22 3.8 Estonia 23 3.9 Bangladesh 23-24 Chapter 3: Making of the Bangladesh Constitution: History and the Spirit of the War of Liberation 25 1. Bangladesh constitution 26 2 Liberation War and Bangladesh 26 2.1 Historical Background 26-28 Dhaka University Institutional Repository 3. History of Constitution Making 28 3.1 History of Constitutional Development in Bangladesh 28-29 3.1.1 The proclamation of independence 29 3.1.2 Laws Continuance Enforcement Order, 1971 29 3.1.3 The Provisional Constitution of Bangladesh Order, 1972 29 3.2 The Constituent Assembly Order 30 3.3 The First Session of the Constituent Assembly 30 3.4 The Second Session of the Constituent Assembly 31 3.5 The Final Approval of the Draft Constitution 31-32 Chapter 4: Amendments to the Constitution: From the First to the Fifteenth 34 1. First Amendment: Background 37 1.1 Subject matter of the Amendment 37 2. Second Amendment: Background 38 2.1 Subject matter of the Amendment 38 3. Third Amendment: Background 39 3.1 Subject matter of the Amendment 39 4. Fourth Amendment: Background 39-40 4.1 Subject matter of the Amendment 40 5. Fifth Amendment: Background 41 5.1 Subject matter of the Amendment 42 6. Sixth Amendment: Background 43 7. Seventh Amendment: Background 44 7.1 Subject matter of the Amendment 44 8. Eighth Amendment: Background 44 8.1 Subject matter of the Amendment 45 9. Ninth Amendment: Background 45 9.1 Subject matter of the Amendment 46 10. Tenth Amendment: Background 46 10.1 Subject matter of the Amendment 46 11. Eleven and Twelfth Amendment: Background 47 11.1 Subject matter of the Eleventh Amendment 47 11.2 Subject matter of the Twelfth Amendment 48 12. Thirteenth Amendment: Background 49-50 12.1 Subject matter of the Amendment 50 12.2 Salient Features of Bangladesh’s Caretaker Government 50-53 13. Fourteenth Amendment: Background 53 13.1 Subject matter of the Amendment 54 14. Fifteenth Amendment: Background 54 14.1 Salient Features of the Fifteenth Amendment 55-56 Dhaka University Institutional Repository Chapter 5: Politics and Impacts of the Constitutional Amendments 57 1. First Amendment: Evaluation 58 2. Second Amendment: Evaluation 58-59 3. Third Amendment: Evaluation 60-62 4. Fourth Amendment: Evaluation 63-66 5. Fifth Amendment: Evaluation 66-69 6. Sixth Amendment: Evaluation 69 7. Seventh Amendment: Evaluation 69-70 8. Eighth Amendment: Evaluation 70-75 9. Ninth Amendment: Evaluation 75-76 10. Tenth Amendment: Evaluation 76 11. Eleventh Amendment and Twelfth Amendment: Evaluation 76-79 12. Thirteenth Amendment: Evaluation 80-88 13. Fourteenth Amendment: Evaluation 89-92 14. Fifteenth Amendment: Evaluation 93-96 Chapter 6: Conclusion: Prospects of Constitutional Politics and Democracy in Bangladesh 98-102 Appendices 104-182 Bibliography 184 Dhaka University Institutional Repository Chapter 1: Introduction 2 1. Introduction The word ‘Constitution’ is commonly used in at least two senses in any ordinary discussion of political affairs. First of it is used to describes the whole system of government of a country, the collection of rules which established and regulate or govern the government. These rules are partly legal, in the sense that courts of law will recognize and apply them, and partly non legal or extra legal, taking the form of usages, understanding, customs and conventions which courts do not recognize as law but which are not less effective in regulating the government than the rule of law strictly so called. In most countries of the world the system of government is composed of this mixture of legal and no legal rules and it is possible to speak of this collection of rules as ‘Constitution.’1 The wider meaning of the constitution is found in the Bolingbroke writing on his essay “On Parties’- “ By constitution, we mean, whenever we speak with propriety and exactness, that assemblage of laws, institutions and customs, derived from certain fixed principles of reason… that compose the general system, according to which the community hath agreed to be governed.” 2 Tom Ginsburg view is, Constitution, it has been said, “operate in time, seeking to regulate the future on behalf of the past.”3 James Madison said “If men were angels, no government would be necessary.