The Constitution is the fundamental written law that establishes the character of a government by defining the basic principles to which a society must conform. It describes the organisation of the government and regulation, distribution, and limitations on the functions of different government departments by prescribing the extent and manner of the exercise of its sovereign powers. Accordingly the Constitution is the most important written document of the People's Republic of Bangladesh. Our Constitution itself declared its supremacy by saying "this Constitution is, as the solemn expression of the will of the people, the supreme law of Bangladesh, and if any other law is inconsistent with this Constitution that other law shall, to the extent of the inconsistency, be void" [Article 7(2) of the Constitution]. All citizens regardless of their position are supposed to obey and follow the Constitution.
Especially those who are in power must follow the Constitution in letter and spirit. What will happen if the government itself, more specifically the Prime Minister herself, violates the Constitution in several ways? What will the general public do? We aim to show in this article how the Prime Minister, the head of the current government, who herself came to power by the force of the Constitution, has violated the very Constitution in at least seven ways.
Foreign treaties
Foreign treaties
Firstly, under the Article 145A of the Constitution, all treaties with foreign countries shall be submitted to the President who shall cause them to be laid before Parliament. The said Article also says, provided that any such treaty connected with national security shall be laid in a secret session of Parliament.
After the incumbent government came into power following the General Election on 29 December 2008, the Prime Minister visited India and signed some important treaties and bilateral agreements with India. None of the agreements and treaties has yet been placed in Parliament. The Treasury Bench MPs have not even seen those agreements and treaties in Parliament, let alone the opposition MPs or other stake holders. Even if those agreements or treaties contained any component of national security at all, they could have been laid in a secret session of Parliament, as provided by the above Article. But the government did not do that.
This is clear violation of the Constitution and democratic norms (indeed against the norms and practices of the parliamentary democracy).
Office of Ombudsman
Secondly, Article 77 of the Constitution provides a provision for the establishment of the office of Ombudsman. It says: "(1) Parliament may, by law, provide for the establishment of the office of Ombudsman, (2) The Ombudsman shall exercise such powers and perform such functions as Parliament may, by law, determine including the power to investigate any action taken by a Minister, a public officer or a statutory public authority, (3) The Ombudsman shall prepare an annual report concerning the discharge of his functions, and such report shall be laid before Parliament." Parliament passed the 'Ombudsman Act 1980' in 1980 and empowered the government to bring it into force by notification in the official Gazette. The Act has not been brought into force and the office of Ombudsman has not been established yet. If all the governments, both past and present, have been reluctant to establish the office of Ombudsman, what is the point of keeping such provision in the Constitution?
Although the respective Prime Ministers or Presidents since 1972 have been liable for violating this clear constitutional provision, the current Prime Minister cannot escape her liability for her terms.
Granting pardons
Thirdly, under the Article 49 of the Constitution, the President shall have power to grant pardons, reprieves and respites and to remit, suspend or commute any sentence passed by any court, tribunal or other authority. This provision has clearly given power to the President to pardon a person or remit or suspend his sentence only after trial and conviction.
How can the President pardon a prime murder accused or suspect whose trial has not been commenced or finished yet? The culpability and criminality of the accused/suspect has not been determined yet. Neither this provision has given such power to the President nor did framers of the Constitution contemplate such scenario.
Furthermore, can the President pardon convicted murderers on political consideration who received death penalty unless all appeal avenues have not been exhausted? It is contrary to the rule of law, justice and fairness. If it is allowed, then the confidence and trust on the judiciary will be lost. The President normally acts on the advice of the Prime Minister. Therefore, the Prime Minister cannot escape her liability in violating or misusing this constitutional provision.
Freedom of movement
Fourthly, Article 36 of the Constitution provides the provision for freedom of movement. It says, "Subject to any reasonable restrictions imposed by law in the public interest, every citizen shall have the right to move freely throughout Bangladesh, to reside and settle in any place therein and to leave and re-enter Bangladesh."
Since the current government came into power, dozens of important persons (who have, in fact, been holding very important positions of the cabinet or government in the past including the Law Minister, the Foreign Minister, the Communications Minister, the Speaker, the Vice President and so on) have been stopped at airport for no apparent reasons or on flimsy grounds (mostly they were said to have been stopped for superior authority's order - and no written order or reasons were even shown!). Those who have the financial ability have challenged to the High Court by way of Writs and the High Court, after issuing show causes and hearing the matters, ordered the government to let them leave and re-enter. Not a single High Court order in such cases went in government's favour. Still the government has been harassing important personalities - mainly of their politically rival organisations.
This is clear violation of Article 36 of the Constitution. The Prime Minister cannot escape liability, as head of the government, of growing such alarming bad precedents of stopping important personalities at the airport in the name of superior authority's order.
Fifthly, Under Article 30 of the Constitution, no citizen shall, without the prior approval of the President, accept any title, honour, award or decoration from any foreign State. The Prime Minister has taken/received dozens of awards and honorary degrees from different countries of the world during her last term of government. In her current term she has already taken a few foreign awards including Indira Gandhi award from India. We do not know whether she had taken any prior approval of the President at all before receiving those degrees and awards. We have not seen any such news or report of prior approval in the newspapers. If she did not take prior approval of the President, she had clearly violated the Constitution.
Laws for certain people
Sixthly, the provision for equality before law is enshrined in Article 27 of the Constitution. Article 27 says, "All citizens are equal before law and are entitled to equal protection of law." Enacting or passing law or laws for certain people in the name of 'protecting family members of the father of the nation' is clear violation of Article 27. The State shall have to give equal protection to all its citizens. Since all citizens are equal before the law and are entitled to equal protection of law, certain people cannot be given priority or separate distinct/special protection. Any future legal action by way of Writ in the High Court before an impartial Bench would certainly find this law as ultra virus or unconstitutional, because Article 26(2) of the Constitution says, "The State shall not make any law inconsistent with any provisions of this Part [Fundamental Rights], and any law so made shall, to the extent of such inconsistency, be void."
Seventhly, Article 23 of the Constitution says, "The State shall adopt measures to conserve the cultural traditions and heritage of the people." Importing or promoting and encouraging to import indecent and alien cultures (almost obscene, three-quarters nude dances in open daylight at stadium in the capital of a country with at least 85 per cent Muslim population) from neighbouring country even in the month of the sacred Bangla Language Movement is directly contradictory to our rich, sober, decent and healthy culture. This is clear violation of Article 23 of the Constitution. As the head of government, the Prime Minister cannot escape liability.
The above examples of violation of the Constitution are unacceptable. As a matter of fact, there have widespread violation of constitutional provisions by diverse State organs and actors, especially in relation to fundamental rights [Article 26 to 47] as guaranteed in Part III of our Constitution. Some well off citizens could get relief from the higher court. But many violations go unchallenged, unnoticed and unaccounted in case of ordinary citizens who cannot afford to go to the higher court.
Finally, the irony is that although Bangladesh's Constitution is quite clear, elaborate and much bigger than most Constitutions of the world, it does not provide any sanction or punishment for violating the Constitution. A citizen can be punished, reprimanded or held liable for violation of the ordinary law of the country.
Surprisingly, there is no punishment prescribed for violating the highest law of the land! As a result, those who are in power or in authority do not often care in violating the Constitution.
We also see how gross violators and mutilators of the Constitution (such as Lt. Gen Hussain Mohammed Ershad, General Moin U Ahmed, Dr Fakhruddin Ahmed and others) can easily get away. It can often be surprisingly observed that some violation goes year after year, term after term or even decade after decade.
Water naturally flows from the top of the mountain, not the vice versa. Those who are in power should be the role models in following every provision of the Constitution. From them citizens should learn and practise to obey the Constitution. If a protector becomes violator, then the country will gradually be directed towards anarchy and chaos.
After the incumbent government came into power following the General Election on 29 December 2008, the Prime Minister visited India and signed some important treaties and bilateral agreements with India. None of the agreements and treaties has yet been placed in Parliament. The Treasury Bench MPs have not even seen those agreements and treaties in Parliament, let alone the opposition MPs or other stake holders. Even if those agreements or treaties contained any component of national security at all, they could have been laid in a secret session of Parliament, as provided by the above Article. But the government did not do that.
This is clear violation of the Constitution and democratic norms (indeed against the norms and practices of the parliamentary democracy).
Office of Ombudsman
Secondly, Article 77 of the Constitution provides a provision for the establishment of the office of Ombudsman. It says: "(1) Parliament may, by law, provide for the establishment of the office of Ombudsman, (2) The Ombudsman shall exercise such powers and perform such functions as Parliament may, by law, determine including the power to investigate any action taken by a Minister, a public officer or a statutory public authority, (3) The Ombudsman shall prepare an annual report concerning the discharge of his functions, and such report shall be laid before Parliament." Parliament passed the 'Ombudsman Act 1980' in 1980 and empowered the government to bring it into force by notification in the official Gazette. The Act has not been brought into force and the office of Ombudsman has not been established yet. If all the governments, both past and present, have been reluctant to establish the office of Ombudsman, what is the point of keeping such provision in the Constitution?
Although the respective Prime Ministers or Presidents since 1972 have been liable for violating this clear constitutional provision, the current Prime Minister cannot escape her liability for her terms.
Granting pardons
Thirdly, under the Article 49 of the Constitution, the President shall have power to grant pardons, reprieves and respites and to remit, suspend or commute any sentence passed by any court, tribunal or other authority. This provision has clearly given power to the President to pardon a person or remit or suspend his sentence only after trial and conviction.
How can the President pardon a prime murder accused or suspect whose trial has not been commenced or finished yet? The culpability and criminality of the accused/suspect has not been determined yet. Neither this provision has given such power to the President nor did framers of the Constitution contemplate such scenario.
Furthermore, can the President pardon convicted murderers on political consideration who received death penalty unless all appeal avenues have not been exhausted? It is contrary to the rule of law, justice and fairness. If it is allowed, then the confidence and trust on the judiciary will be lost. The President normally acts on the advice of the Prime Minister. Therefore, the Prime Minister cannot escape her liability in violating or misusing this constitutional provision.
Freedom of movement
Fourthly, Article 36 of the Constitution provides the provision for freedom of movement. It says, "Subject to any reasonable restrictions imposed by law in the public interest, every citizen shall have the right to move freely throughout Bangladesh, to reside and settle in any place therein and to leave and re-enter Bangladesh."
Since the current government came into power, dozens of important persons (who have, in fact, been holding very important positions of the cabinet or government in the past including the Law Minister, the Foreign Minister, the Communications Minister, the Speaker, the Vice President and so on) have been stopped at airport for no apparent reasons or on flimsy grounds (mostly they were said to have been stopped for superior authority's order - and no written order or reasons were even shown!). Those who have the financial ability have challenged to the High Court by way of Writs and the High Court, after issuing show causes and hearing the matters, ordered the government to let them leave and re-enter. Not a single High Court order in such cases went in government's favour. Still the government has been harassing important personalities - mainly of their politically rival organisations.
This is clear violation of Article 36 of the Constitution. The Prime Minister cannot escape liability, as head of the government, of growing such alarming bad precedents of stopping important personalities at the airport in the name of superior authority's order.
Fifthly, Under Article 30 of the Constitution, no citizen shall, without the prior approval of the President, accept any title, honour, award or decoration from any foreign State. The Prime Minister has taken/received dozens of awards and honorary degrees from different countries of the world during her last term of government. In her current term she has already taken a few foreign awards including Indira Gandhi award from India. We do not know whether she had taken any prior approval of the President at all before receiving those degrees and awards. We have not seen any such news or report of prior approval in the newspapers. If she did not take prior approval of the President, she had clearly violated the Constitution.
Laws for certain people
Sixthly, the provision for equality before law is enshrined in Article 27 of the Constitution. Article 27 says, "All citizens are equal before law and are entitled to equal protection of law." Enacting or passing law or laws for certain people in the name of 'protecting family members of the father of the nation' is clear violation of Article 27. The State shall have to give equal protection to all its citizens. Since all citizens are equal before the law and are entitled to equal protection of law, certain people cannot be given priority or separate distinct/special protection. Any future legal action by way of Writ in the High Court before an impartial Bench would certainly find this law as ultra virus or unconstitutional, because Article 26(2) of the Constitution says, "The State shall not make any law inconsistent with any provisions of this Part [Fundamental Rights], and any law so made shall, to the extent of such inconsistency, be void."
Seventhly, Article 23 of the Constitution says, "The State shall adopt measures to conserve the cultural traditions and heritage of the people." Importing or promoting and encouraging to import indecent and alien cultures (almost obscene, three-quarters nude dances in open daylight at stadium in the capital of a country with at least 85 per cent Muslim population) from neighbouring country even in the month of the sacred Bangla Language Movement is directly contradictory to our rich, sober, decent and healthy culture. This is clear violation of Article 23 of the Constitution. As the head of government, the Prime Minister cannot escape liability.
The above examples of violation of the Constitution are unacceptable. As a matter of fact, there have widespread violation of constitutional provisions by diverse State organs and actors, especially in relation to fundamental rights [Article 26 to 47] as guaranteed in Part III of our Constitution. Some well off citizens could get relief from the higher court. But many violations go unchallenged, unnoticed and unaccounted in case of ordinary citizens who cannot afford to go to the higher court.
Finally, the irony is that although Bangladesh's Constitution is quite clear, elaborate and much bigger than most Constitutions of the world, it does not provide any sanction or punishment for violating the Constitution. A citizen can be punished, reprimanded or held liable for violation of the ordinary law of the country.
Surprisingly, there is no punishment prescribed for violating the highest law of the land! As a result, those who are in power or in authority do not often care in violating the Constitution.
We also see how gross violators and mutilators of the Constitution (such as Lt. Gen Hussain Mohammed Ershad, General Moin U Ahmed, Dr Fakhruddin Ahmed and others) can easily get away. It can often be surprisingly observed that some violation goes year after year, term after term or even decade after decade.
Water naturally flows from the top of the mountain, not the vice versa. Those who are in power should be the role models in following every provision of the Constitution. From them citizens should learn and practise to obey the Constitution. If a protector becomes violator, then the country will gradually be directed towards anarchy and chaos.
