Sixteenth Amendment of Bangladesh Constitution

Sixteenth Amendment

Take people's view

Dr. Md. Abdul Alim

THE government is moving ahead to pass the "The Constitution (Sixteenth Amendment) Bill, 2014. The bill has been placed in the Parliament and it assigned the parliamentary standing committee on the Ministry of Law and Parliamentary Affairs to examine the bill. The committee scrutinised the Bill in just two days. The Law Minister, who is also a member of the committee, during its meeting, informed the parliamentary watchdog about the government's unwillingness to hold any discussion on the bill at this moment. Emerging from the meeting he also told that stakeholders will not be invited in the committee to discuss on the bill.

A constitution is a set of fundamental principles or established precedents according to which a country is governed. Most commonly, the term constitution refers to a set of rules and principles that define the nature and extent of government. Most constitutions seek to regulate the relationship among the various institutions of the state, in a basic sense the relationship between the executive, legislature and the judiciary.  

Amending constitution is not new. In order to support the new laws and policies as well as to meet the demanding issues or changing priorities, it has been a practice to amend the constitution, both in established and developing democracies. But, it has been observed that sometimes constitutions are amended for the requirements of the party in power instead of the benefit of the people. Hence, the constitutional experts suggest making it more difficult to amend the constitution compared to ordinary laws. Even in some countries, it is nearly impossible to amend the constitution.

The Constitution of Denmark provides an example of multiple special procedures that must be followed to amend the constitution. After an amendment has been approved by parliament, a general election must be held; the new parliament must then approve the amendment again before it is finally submitted to a referendum. There is also a requirement that at least 40% of eligible voters must vote at the referendum in order for an amendment to be validly passed.

Similar to Denmark, in Norway, it is sufficient to submit the constitutional amendment to parliament one year before the next election, and it is the task of the next parliament to decide on the proposal after the election. Thus, Denmark, Norway, Sweden, Finland, and Iceland require consent from two different parliaments, that is, those assembled before and after an election.

The United States' Constitution is unusually difficult to amend.  Article V of the US constitution offers two routes to constitutional amendments. The first implies that an amendment proposal must be supported by two-thirds of both Houses of Congress and then ratified by three-fourths of the state legislatures.  The second route is initiated if Congress is requested by two-thirds of the state legislatures to call a constitutional convention for proposing amendments. Thereafter, the suggested amendments must be enacted by three-fourths of the state legislatures or conventions, depending on the mode of ratification proposed by the Congress. Due to such difficulty, in 224 years of its existence, the US has amended the Constitution 27 times, which may be evidence that the framers established a high threshold for change.

In some countries, a referendum is a must for amending the constitution. Armenia, Azerbaijan, Iran, Iraq, Japan, South Korea are some of those countries. Maldives and Myanmar are the two countries of this region where there are legal provisions for mandatory referendum for amendment of constitution. In order to ensure citizens' participation in the state affairs, some countries have provisions of citizens' initiatives, agenda initiatives, recall, signature collection etc. In Taiwan, citizens can initiate a proposal for the creation of a legislative principle or for the initiation of major policy. In Turkmenistan national and local referendums can be carried out for decision of major questions of state and public life. Decisions adopted by referendums may be repealed or amended only through referendum. In Japan, one-third or more of the total electorate may, under joint signature and through their representative, present a petition, in accordance with cabinet order, to the election administration commission, demanding dissolution of the assembly of the ordinary local public body.

Unfortunately in Bangladesh, we do not have the provisions of referendum, citizens initiatives, agenda initiatives, recall or signature collection although the constitution of Bangladesh guarantees “to maintain its supremacy as the embodiment of the will of the people and “all powers in the Republic belong to the people, and their exercise on behalf of the people shall be effected only under, and by the authority of this Constitution”. The amendment of the constitution is passed by the votes of two-thirds of the MP and then sent to the President for his assent, and if the President fails to provide his assent in seven days, it shall be deemed to have been assented by the President.

Democracy is a form of government in which all eligible citizens are meant to participate equally – either directly or, through elected representatives. In some forms, democracy can be exercised directly by the people; in large societies, it is by the people through their elected agents. Or, in the memorable phrase of President Abraham Lincoln, “democracy is government of the people, by the people, and for the people.”

Bangladesh is a constitutional republic, and in a constitutional republic the will of the people must be ensured through genuine democratic election, referendum or convention, rather than any other form. People in this country have the supreme authority to accept or reject any policy or decision. Hence, before amending of the constitution, the supreme law of the land, a mandatory provision should be made to take peoples' view.

The writer is the director, Election Working Group;
E-mail: aalim@ewgbg.org;