REVERTING TO THE 72’s CONSTITUTIONAdvocate Jhuma Halder

Thanks to the Honorable Prime Minister and Leader of the House Shekh Hasina for her closing speech delivered on the 4 November , 2009 in the Parliament giving assurance on reverting the 72’s Constitution.

Although there was no clear meting of any agenda of reverting to the Constitution on the Election Manifesto of the 11 party grand alliance led by the Awami League (AL), now the issue of constitutional change has come to the fore. That the original constitution endorsed in 1972 has undergone a process of mutilation at the hands of military rulers in an undeniable fact and warrants reverting to the 72’s Constitution with political parties like the AL, not to mention the civil society, having made such a demand from time to time. This time, though, the AL-Led Government, bolstered by the three fourths majority seats in parliament, seems to be determined to revive the fundamental character and spirit of the Constitution that are now missing from it. Its overwhelming majority is certainly good enough for bringing about the desired change to the Constitution. Amendment to the Constitution of a country is only rarely done and only if it becomes an absolute necessary to accommodate the People’s hopes and aspiration in the light of changed realities and when such a need arises the sooner it is done the better.

On this return from confinement in Pakistan following the independence of Bangladesh, Bangabandhu Sheikh Mujibur Rahaman entrusted the national assembly comprising members of national and provincial assemblies of erstwhile Pakistan, who were elected in 1970 election, with the responsibility of getting a Constitution ready. In less than a year, a Constitution upholding the principles of Bangalee nationalism, democracy, socialism and secularism was drafted and passed in parliament. The four principles were considered four pillars of the Constitution of the newly liberated sovereign country. Constitution experts across the world greeted the Constitution providing for parliamentary system of democracy with praise. Notwithstanding all the plus points, the Constitution still left a few things to be desired only because it did not quite reflect the socioeconomic condition and diversity of its citizen’s lives. It is because of this Bangabandhu had to amend the Constitution four times in just two years.

Importantly, although the constitution was amended a few times during Bangabandhu’s time, the four principles were left untouched. After the political changeover in which Bangabandhu was killed along with the members of his family and some of his most trusted cabinet colleagues in 1975, the Constitution was radically changed through the 5 th

amendment with its four principles becoming a casualty in 1978, Bangalee nationalism, socialism, democracy and secularism were dropped from the main section of the constitution. And following this mutilation, under the second resolution of order no 30 of the 8th amendment to the constitution, Islam was declared the state religion of the country.

The 5th and 8th amendments of the constitution were unwelcome by the majority of the population. When autocrat Ershad brought about the 8th amendment, both the incumbent

Prime Minister and the former Premier and Leader of the Opposition strongly protested the move.

Prime Minister Shekh Hasina said, “People of all strata have rejected the state religion bill. A conspiracy is going on for use of religion as a nasty ploy for protection of the autocratic throne”. On the other hand, BNP Chairperson and Today’s Leader of the Opposition said, “Amendment to the Constitution in relation to state religion is motivated and an exercise in futility aimed at dividing the nation and creating disunity in the name of religion.” (The Daily Ittefaq 08.06.1988)

So, when the grand alliance government, after a long time, is pondering on dropping the 5th and 8th amendments to the Constitution, it should be viewed as a positive step. But then there is no reason to think that cancellation of the 5 th and 8th amendments and revival of the Constitution alone can guarantee protection of the rights of all strata of people and the reflection of their hopes and aspiration. That legacy of inadequacy of the Constitution may still continue.

One such area of Constitutional constraint concerns the absence of any legal provision guaranteeing the rights and privileges in relation to the special need for socio-economic development, education and politics of the ethnic, underprivileged, under developed and backward scheduled caste which constitutes 10 percent of the 15 percent of the religious minority community. Also despite the recognition of 21 tribal communities in the 1991 census, there is no provision for integrating then with mainstream society.

As the Charter of rights and privileged, the Constitution pf a people not only acts as a repository of provisions guaranteeing equal opportunities and rights but also goes a little further, if necessary, to provide the weaker, backward and minority classes or communities with special facilities and support so that they can be integrated with mainstream society. Noted constitution expert Dr. BR Ambedkar puts it thus, “The Constitution of a country is considered a most sacred document – one which is the Magna Carter of all the Citizen’s hopes and aspiration”.

Another renowned constitution expert Sir Ivor Zetkins issued a note of caution to writers of constitution, “It would have been a blunder on the part of the makers of the constitutions if they had omitted to make any special provision for the advancement of those sections of community who are socially and economically backward; for the democratic march of the nation would be impossible if those are handicapped, are not aided at the start. The principle of democratic equality indeed can work only if the nation as whole brought on the same level as that is practical”.

In the light of opinions of constitution experts, even in the 1956 Constitution of Pakistan created on the religious divided there were provisions for the socio-economic and educational development and social security of the underdeveloped, backward scheduled caste communities. That those rules and regulations could not be implemented due to non-cooperation of the ruling class in however a different matters.

Admittedly, the entire population of this land was subjected to repression, persecution and torture by the marauding Pakistani army and its local collaborations in 1971 but it was minority Hindus who were particular targets of annihilation. No surprise therefore that of the one crore (10,000,000) refugees who took shelter in camps of India, 95 percent of them were people of this minority community. On return from refugee camps full of suffer rings and losses marked by a subhuman condition of life for nine long months, they had to start all over again because their homes were either burnt to ashes or looted. Yet there were high hopes things will be better in the just independent Bangladesh. But it was not to be and after four decades, they have once again started dreaming of a brighter future with the AL-let grand alliance forming government on its strength of three fourth majority votes. The process initiated by the government for dropping the 5 th and 8th

amendments to the constitution has raised the hopes that in future they would not be discriminated against simply because of their religious belief. It would guarantee their representation at all national levels. It was time that necessary laws were framed to create a condition conducive to advancement of their socio-economic and educational levels along with political rights. If 15 percent people are deprived of fundamental rights like social security and political rights, it contravenes the spirit of the Liberation war. Sure enough in any multi-religious and multicultural country, the best guarantee for security and progress of the minority is nurturing of democratic values and human qualities. As Dr. Ambedkar succinctly puts it. “Rights are protected not by law, but by the social and moral conscience of society. If social conscience is such that it is prepared to recognize the rights which it chooses to enact, right will be safe and secure. But if the fundamental rights are opposed by the majority community , no law , no parliament or no judiciary can guarantee then in real sense of the world”.

Mention has been made about the “backward section of the People in section 28 and 29 of our constitution but without defining it. Provision is also there for gender equality and the equal rights of hill people and those of plains, but there is no guideline for implementation of those. All this merits consideration according UNESCO Declaration on Race and Prejudice of 1978 (Art – 1,2,3) and Intolerance of Discrimination based on Religion or Belief of 1981 (Art- 2) and Convention on Human Rights and Fundamental Freedoms of Commonwealth of Independent State adopted on 1995, is “Rights of the Minorities to express, preserve and develop their ethnic, linguistic, central religion identity without hindrance.” (Art -21)