The 15 th Amendment: Where party and judicial politics converge

11.4.1 Abolition of the caretaker government

As noted above, Bangladesh transitioned to democracy from military rule in 1991, and the 12th Amendment to the Constitution reintroduced parliamentary democracy.^[787] It was the BNP that assumed power through a credible general election in 1991.

Not too long after the 13 th Amendment introduced the NPCTG, some practising lawyers challenged the Amendment as unconstitutional and undemo­cratic. In M Saleem Ullah v Bangladesh,^[790] the HCD in August 2004 held that the NPCTG was not unconstitutional. An appeal against this decision remained pending in the SCAD from 2004. In a dramatic development, the Appellate Division by a preliminary ruling (“short order”) on 10 May 2011 declared the NPCTG system undemocratic and unlawful.^[791] Interestingly, however, it observed that the next two general elections could be held under an NPCTG. The Court also advised for the reform of the NPCTG, saying that parliament was “at liberty to bring necessary amendments excluding the provisions of making the former Chief Justices of Bangladesh or the Judges of the Appellate Division as the head of the [NPCTG].” Thereafter, the Awami League government, which had an absolute majority in parliament, got the 15 th Amendment enacted to abolish in haste the NPCTG system without the participation of the main opposition par­ties and with an ulterior political motive of taking incumbency advantage.^[792] Seen in light of the SCAD's short order nullifying the NPCTG, the Awami League's choice not to follow the Court's advice to allow the NPCTG system for another two general elections does not seem wrong.

The abolition of the NPCTG system, thus, occurred within two months of the Court's short order and in disregard of strong objections from the opposition parties and civil society members. In 1996, the adoption of NPCTG system was a constitutional necessity based on the need for a context-specific constitutional mechanism to ensure free and fair elections.^[793] It was in fact the Awami League, then in the opposition, that spearheaded a strong movement for the installa­tion of a neutral government system. The then-ruling party BNP amended the Constitution to establish the NPCTG system. The abolition by the current ruling party Awami League of the system by the 15th Amendment, despite the opposi­tion of major political parties, therefore, begs the question of legitimacy if not constitutionality. Moreover, the full 13 th Amendment judgment was issued many months after the 15th Amendment abolishing the NPCTG. As noted below, shy­ing away from its own promise, the ruling party did not wait for the full judgment before enacting the amendment. Justice Ali in the 13th Amendment Case com­mented in dissent that in the political context of the 1996 constitutional crisis, the people chose the NPCTG as a solution, and, therefore, any solution to that crisis must have come from the representatives of the people.^[794] It seems that the ruling party made an abusive use of its constitutional amendment power, by excluding the opposition parties from a major structural constitutional decision-making.

The 15 th Amendment is a consequential amendment. The next general elec­tions of January 2014 were non-participatory and boycotted by all major opposi­tion parties because the ruling party shunned the NPCTG system.

The 15th Amendment, which is said to be necessitated by the SCAD's annul­ment of the 5th Amendment to the Constitution,^[795] sought to restore certain founding constitutional values such as secularism. Ironically, however, the 15th Amendment ultimately contained certain changes that arguably have elements of unconstitutionality. One such change was the abolition of the NPCTG sys­tem, the legitimacy of which is seriously doubtful. The second change of both doubtful legitimacy and legality brought forth by the 15 th Amendment was the incorporation of an unwieldy eternity clause, which I will analyse later in this part.

First, the legitimacy question of the abolition of NPCTG system can be taken up. On 21 July 2010, the ruling party constituted a 15-member Special Committee to consider a proposal for the Fifteenth Amendment Bill, but the question of NPCTG was not specifically on its agenda. The Committee consisted of politicians mostly from the ruling party, excluding the opposition BNP and its allies.^[796] The Committee, however, invited the BNP to its “hearing,” but the party refused to attend citing that the whole process was a “farce.”^[797] As the his­tory of the Committee proceedings shows, the political motivation behind the proposed constitutional change was to give the ruling party a strong incumbency advantage.

Although the Special Committee was established a year before the enactment of the 15 th Amendment, the committee in fact took a very short time to deliber­ate on the issue of NPCTG.^[798] It took up the NPCTG issue only in late March 2011.

On 27 April 2011, Prime Minister Sheikh Hasina appeared before the Special Committee and said that the people do not want unelected and undemocratic caretaker government anymore. In the end, she recommended the reform of NPCTG and not its abolition.^[801] Two weeks later, on 10 May 2011, the SCAD handed down the short order in the 13 th Amendment Case declaring the system unconstitutional, as noted above. Shortly thereafter, the Committee in its 24th meeting of 16 May 2011 decided “to reopen the issue” after “receiving the final judgment of the Appellate Division of the Supreme Court.”^[802] Without waiting for the final judgment of the Court, however, the Committee on 29 May made

Unconstitutional amendments in Bangladesh 223 some recommendations for the reform, and not abolition, of the NPCTG sys­tem.^[803] According to reports, the Committee arbitrarily changed its mind after it met with the Prime Minister the next day, on 30 May 2011, just a few days before they submitted the final report on 5 June 2011. The Committee added to its final report a long list of 51 recommendations for reform, but did not say anything about the NPCTG system.^[804] This dramatic tampering with the Committee’s decision suggests “an inappropriate degree of influence by the executive.”^[805]

The 15th Amendment, therefore, abolished the NPCTG system rather undemocratically. The above-described process was arguably a sham deliberative exercise as reflected in the Committee’s drastic change of mind from a decision to suggest reforms of the system to a complete abolition thereof.^[806] That the 15th Amendment abolishing the NPCTG was exclusionary and suffered a problem of legitimacy is evident in the fact that the Bill passed the House amidst an opposi­tion boycott by a 291-1 vote and quite easily.^[807] The lone dissent was by the one and only independent member. The Bill was introduced in parliament on 25 June 2011 and passed the House the same day, and it was signed into law on 3 July 2011.

The judicial decision that was relied upon as a justification by the ruling party for the abolition of the NPCTG system was not released in its full version before the enactment of the 15th Amendment. The issue of the legality of NPCTG was a pending matter before the SCAD from 2004, but it was only after Justice Haque took office as Chief Justice on 30 September 2010 that the appeal was heard. Such an important case of a structural issue was heard only for ten days beginning on 1 March 2011, a time that followed the formation of the Special Committee on the 15th Amendment in July 2010. The Court’s “short order” of 10 May 2011, written by Chief Justice Haque, was delivered only eight days before his retirement on 18 May 2011 and in disregard of the opinions of all but two of the eight amici curiae. All the three judges who concurred with Chief Justice in the 13th Amendment Case eventually became Chief Justices of Bangladesh,^[808]

while one of the dissenting judges, Mr Mia,^[809] was superseded by the current Chief Justice who was in the majority. Notably, after his retirement, Chief Justice Haque assumed the role of the Chairman of Bangladesh Law Commission. These events probably show that the ruling party had a plan to unilaterally do away with the NPCTG system much earlier than the (deliberative) political process for the 15th Amendment actually began. These facts also probably show that there was some communication between the then-Chief Justice and the incumbent govern­ment in regard to the government’s desire.

The abolition of the NPCTG led to a protracted constitutional crisis over the question of multi-party, competitive, and free and fair general elections that now seem to be completely ousted from the scene of Bangladeshi constitutionalism since the tenth general election in 2014.^[810] As the above analysis shows, in strip­ping the Constitution of the NPCTG system, party and judicial politics coincided quite ingeniously.

11.4.2 Making the constitution unamendable6²

The second 15 th Amendment change of questionable legitimacy and legality that this chapter analyses is the incorporation of an extraordinarily wide eternity clause, article 7B. The eternity clause does not specify any fundamental cores that would be impervious to amendment rules. Instead, it catalogues a lengthy list of “provisions” as unalterable. Article 7B makes unamendable the follow­ing: the preamble (that contains four “high ideals” of the state), all fundamental principles of state policy, all fundamental rights provisions, and “the provisions of articles relating to the basic structures.”^[813] [814]

Eternity clauses are pretty common in constitutions across the world. An eternity clause prohibiting the amendment of certain constitutional features can indeed be seen as a legislative version of the basic structure doctrine. Bangladesh’s eternity clause, however, is not a legitimate form of legislative entrenchment of constitutional unamendability in that it has bound tightly the hands of future gen­erations vis-a-vis the amendment of a long list of provisions. In a 1998 decision, the SCAD held that the legislature cannot bind its successor.^[815] Instead of entrenching certain basic principles, something like the German Constitution of 1949, the Bangladeshi eternity clause has indeed retarded democracy itself by prohibiting, for example, even an improvement of fundamental rights. Article 7B says, inter alia, that “all articles of Part III” (of fundamental rights) “shall not be amendable by way of insertion, modification, substitution, repeal or by any other means” (emphasis added). An ideal eternity clause would rather have protected the fundamental rights from a wholesale deletion or suspension as was the case during the military regimes in Bangladesh. For being unwieldly broad and for incapacitating the future parliament in amending a large part of the Constitution, I have elsewhere argued that this eternity clause is unconstitutional.^[816] Here, I focus on the politics that prompted the insertion of the eternity clause, that is, the fact that it was a selfish political motive of the ruling party that influenced the design of article 7B.

While the 15th Amendment generally sets a classic example of abusive consti­tutional amendment for party interests, article 7B in particular is probably a result of micro-politics that quite often keeps the two major parties - the BNP and the Awami League - engaged in conflict and political mudslinging over certain fundamental constitutional principles and facts. As regards the question of who declared Bangladesh’s independence in 1971, for example, there is a longstanding rivalry and denials between the two parties. The 15th Amendment amended article 150 to insert 5th, 6th, and 7th Schedules to the Constitution, incorpo­rating therein certain constituent instruments and historical speeches including the Declaration of Independence by Bangabandhu Sheikh Mujibur Rahman, the founding leader of the country. The BNP does not recognise the founding leader as the declarant of Bangladesh Independence,^[817] but rather claims that its founder, General Ziaur Rahman, was the declarant of Bangladesh Independence. The author-party of the 15 th Amendment, the Awami League, was probably wary of probable deletion of the recognition of Bangabandhu’s declaration of independence. Similarly, the founder of BNP had taken “secularism” out of the Constitution and inserted into it the principle of “absolute faith in the Almighty Allah.” The BNP also replaced “Bengali nationalism” by “Bangladeshi national­ism” as a fundamental constitutional principle. The 15th Amendment restored “secularism” and “Bengali nationalism,” although it made them co-exist with, respectively, the state religion of Islam and Bangladeshi nationalism. Article 7B sought to ensure that these restored principles cannot be amended in the future at all. This is not an unusual political move, and this type of constitutional tinker­ing is part of politics. However, the very design of the eternity clause, which, as already noted, is extraordinarily broad, is incompatible with the basic structural feature of popular sovereignty. Its constitutionality is therefore open to a serious question. Bangladesh’s eternity clause has strong potential of leading to dead­hand constitutionalism regarding the reform of a large number of provisions. Moreover, the way this unusual eternity clause was enacted was undemocratic and politically exclusionary. There was not participation of major opposition par­ties, nor was there any public deliberation at all on this matter.

11.5