Introduction:

The constitution is the fundamental and principle law of the state which is accepted and
recognized by the people . It is the identity of a nation. A constitution of a definite territory
define the fundamental rights and relationship among the people, structure of the state, forms of
government and electoral system, process of policy formulation and implementation, source of
income and Expense sector of the state, relationship status with other countries and judicial
system etc. All the organs and functions of the state are governed and regulated by the
constitution. The Constitution of Bangladesh is not exception from these characters. It is,
stained by blood of countless people, achieved by a glorious struggle .
In all countries where constitutionalism prevails, General people are more or less knowledgeable
about their countrys constitution and are vigilant and vocal to a man to assert and preserve the
constitution and their constitutional rights. They do not consign their constitution in the hands of
constitutional lawyers, judge and academicians. Every citizen of the country is a defender of the
constitution. People elect their representative to ensure their rights . Khan and Khan (1985) state
that Constitution is the best way to establish a new political system which will truly reflect the
aspiration, hopes, needs and demands of different classes, professions, occupation and interest
group as well as those of the general citizenry . But people cannot enjoy their legal power and
rights which is defined by constitution.
There is no doubt about evolution of the constitution through judicial judgments, but judicial
decisions on the constitution are the outcome of dedicated lawyering backed by intensive
academic studies. by dint of liberation war in 1971, we have obtained a free flag and exclusive
constitution. After the bloody civil war in 4th November 1972 a constitution is made in order to
establish democracy and ensure people participation. During the history of 43 years, It has
experienced different forms of government i.e. Bakshal, Military dictator, civilian government
(khan, 2002). It was not a smooth journey of the constitutionalism due to frequent military
intervention. Even after the beginning of parliamentary democratic era in 1990. Yet We could
not see the real and true scenario of democracy. It is a matter of sorrow that constitution has
become a security for the ruling parties to strengthen and lengthy their ruling power . people,
who are the real sovereign of the country, cannot enjoy the real spirit and sense of the
constitution. Both the politically elected and military usurpers government ignored the

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supremacy of the Constitution and undermined the peoples sovereignty in the name of
amendments.
The Constitution of Bangladesh has been so for amended sixteenth times: most of the
Amendments were made for the personal [for example Sixth, Ninth and Eleventh Amendment
etc.] and party political interests [Fourth, Eighth, thirteenth, fourteenth, Fifteenth Amendment
and sixteenth Amendment etc.] as contrary to national interests. On the other hand there are
some controversial and contradictory article existing in the present constitution such as article
8(1) fundamental principles of the state policy and recently replaced 96(2) and article-96(3)
provision to removal of justice of supreme court. Some articles remain silent like 77 provision of
ombudsman. In this paper I will highlight on the important and controversial amendments of
the constitution as well as articles which were highly criticized in the political sphere.

Conceptual Framework:
Constitution:
State is a political institution which is administered by a group of person known as the
government. when it is said the government of a state, it refers to the three basic organs of
the government i.e. the executive, the judiciary and the legislative. The government cannot go
without any principles. There has to be certain rules and regulation on the basis and under
which the government can run the state. This set of regulation is called constitution. A
constitution is called governing head of state, without it autocracy and anarchy would result in
the administration of the state. A constitution is not the act of a government, but of a people
constituting a government; and government without a constitution is power without a right.
(Paine, 1792). A modern state without a constitution will be a fabulous story. It may written
or unwritten. But how have the political thinkers define the term constitution?
The word constitution comes through French from the Latin word constitutio, used for
regulations and orders. thereafter, the term was broadly used in canon law for an important
determination, particularly a decree adjudication issued by the Pope, now it denotes to as an
apostolic constitution.
Like many other term of political science, the term constitution has been defined by several
writers according to the varying notion which they hold as to what a constitution should be.

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Aristotle defines a constitution as the way of life that state has chosen for itself. Such a
definition is very archaic one and no clear characteristics of a constitution can be found in it.
The great political thinker C. F. Strong define the constitution in his book Modern Political
Constitutions most precisely Constitution is the collection of principles according to which
the powers of the government, the rights of the governed and the relation between the two are
adjusted (Strong, 1972,P.11).
Another political philosopher Lord Bryce define the constitution from a narrow point of view
merely focusing on customs and tradition. He says Constitution is the aggregate of laws and
customs under which the life of the state goes on. He is highly influenced by the
constitutional system of the Great Britain. But the fact is the except Great Britain and New
Zealand nowhere in the world a constitution can be found which is the only composition of
customs and traditions.
Some authors have defined in broader sense. Among them K.C Wheare , Hood phillips and
Gilchrist are mostly referred. They define the term constitution is used to denotes all written
and unwritten principles regulating the administration of the state. In true a sense constitution
is a body of rules written and unwritten which determine the organization of the state, the
distribution of the power within the organs of the government and the relationship between
the government and governed.
Process of Amendment of the Constitution:
Constitutional amendment means the modification of the Constitution of a nation or state
according to demand or need of the people or to face a certain situation. A constitution can be
modified through a formal amendment process, periodic replacement of the entire document,
judicial interpretation and legislative revision. In many jurisdictions the text of the constitution
itself is altered; in others the text is not changed, but the amendments change its effect.
Constitutional procedures and constraints may also be altered by judicial interpretation and
political adaptation, and by irregular (non legal or unconstitutional) means. Under the democratic
systems, constitutional developments are almost gradual or incremental, although replacement of
the whole document is also a possibility.
Most constitutions require that amendments cannot be enacted unless they have passed a
special procedure that is more stringent than that required of ordinary legislation. Instances of

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such particular procedures include supermajorities in the parliament, or direct approval by the
electorate in a plebiscite or even a composition of two or more different special procedures.
These are the four major types of reform in the constitutional arrangement of a country One
of them focuses on the formality (altering the text or not) of constitutional change, and the
other on its legality (legal change in a strict sense or not). As indicated, this gives us four
combinations. The first possibility is revision or replacement of the constitutional document
by means of the formal amendment procedure specified in the constitution itself. The second
possibility is (gradual) revision of the constitutional framework by means of judicial
interpretation. The third possibility is revision or replacement of the constitutional text by
irregular means. The fourth and final possibility mentioned is intended or unintended revision
of the constitutional framework by means of political adaptation by legislative and executive
bodies. Reform or amendment of a Constitution may be easier if it is a flexible one. On the
contrary it will be difficult if it is a rigid constitution.

Table 1:Main types of constitutional Amendment.

Forms of Amendment Lawful Constitutional Unlawful Constitutional

Amendments Amendments
Explicit Amendment: Formal Amendment Irregular Procedures
(Change of constitutional procedure s
text)
Implicit Amendment: Judicial Interpretation Political Adaption
(change of constitution Durable Legislation Corruption
without changing of text)

An overview of Constitution of Bangladesh:

The Constitution of the Peoples Republic of Bangladesh is the supreme law of the country and it
is the representation of the will and expectation of the people. The constitution of Bangladesh is
divided into eleven parts, which are also subdivided into 153 articles. In addition, it contains one
Preamble and 7 schedules. Each part of the constitution uphold one motion.

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Table 2:Constitution of Bangladesh at a glance.

Provision and Procedure to Amend Constitution of Bangladesh :

National Parliament of Bangladesh was given the power to amend the constitution. Article
142 of the constitution provided for a special process and procedure for such amendment and
prescribed that no bill for amendment should be presented to the President unless it was
approved by the votes of not less than two-thirds of the total number of members of
Parliament. According to the article 142 Notwithstanding anything contained in this

Part Subject Articles

I The Republic 1-7
II Fundamental Principles of State Policy 8-25
III Fundamental Rights 26-47
IV The Executive 48-64
V The Legislature 65-93
VI The Judiciary 94-117
VII Elections 118-126
VIII The Comptroller and Auditor General 127-132
IX The Services of Bangladesh 133-141
X Amendment of The Constitution 142
XI Miscellaneous 143-153
constitution : a) Any provision thereof may be amended by way of addition, alteration,
substitution or repeal by Act of parliament. So, to adopt with a changing situation or to make
contemporary the provision of amendment is inserted. The law makers of the constitution do
not know or assume what will happen in future. So, the provision is inserted to improve
existing law/arrangement according to the demand and needs of the situation.
Procedure of Amendment:

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1) According to our main constitution article 142. If we want to amend any provision we
have to bring a bill writing what articles are changed.
2) In accordance with the constitution support of 2/3 parliamentarian is mandatory to amend
any article.

Politics:
The term Politics derives from the Greek word politikos which means affairs of the
cities or relating to citizens ", a dissertation on governing and governments. More narrowly, it
means to take control and exercise positions of governance over a human society or
community, specially a state. Moreover, politics is the practice or study of the arrangement or
distribution of power within a certain community as well as the interrelationship among the
communities. The great philosopher and father of political science Aristotle asserted in his
well-known books The politics: Man is by nature a political animal and he, who by nature
not by mere accident is without state, is either above humanity or below it. There is no
chance to be confused about it that man is social as well as political animal because he cannot
go without society or state. Man directly or indirectly involve with the political activities. It is
indirect politics When they follow the rules and regulation of the state and pay tax to the
government. But when the people spontaneously participate in ruling process and exercise
power it is called direct politics. As a citizen of the state People can enjoy and ensure all
kinds legal rights and opportunities provided by state through participation in Politics. Jenks
(1990, p.1) said by politics we mean the business of the government, that is to say, the control
and management of people living in a society. It is also a process of attaining personal
interest. It is the collective activity of group of people who practice a common culture,
ideology, belief and membership of a certain locality.

Analysis Section:
Part-1
Constitutional Amendments and Controversy:
The constitution of the People's Republic of Bangladesh has been adopted as the highest law of
the country on 16 December, 1972 after passing it on November 4, 1972 in the Constituent
Assembly of Bangladesh. Though constitution is the fundamental laws of the state but is not
unchangeable. It is needed to amend the constitution in consistence with the Socio-economic and
political demand and need . The constitution of Bangladesh has been amended for sixteen times.

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Almost majority of the amendment has brought about to fulfill political interest rather than
public needs and expectation. While a party is getting into power, amendments are brought about
to strengthen their power and duration of regime. Public interests are suppressed under the
political interest. That is why democracy and rule of laws are going away from the governing
process day by day. People are being apart from participation in the function of the state. They
are deprived from their legal rights and individual freedom. Nowadays constitution became an
instrument of ruling party to control the citizen of the sate. So some of the legal rights become
illegal like freedom of press and freedom of expression. Only a handful amendments were taken
for the national interest. In this part I will discuss the amendments of the constitution focusing on
major and controversial amendments.

Table 3:Summery of sixteen amendments.

Amendments Date Summaryof Amendments Duration

1st Amendment 15th July 1973 To make way for

prosecution of prosecution of
genocide, crime against
humanity and war crimes
committed in the liberation Awami League
war of 1971. Regime
2nd Amendment 22nd September, Inclusion of emergency (1972-75)
1973 provision suspension of
fundamental rights and
preventive detention.
3rd Amendment 28th November To give effect to the
1974 boundary line treaty between
Bangladesh and India.
4th Amendment 25th January, One party dictatorial system
1975 was subsisted for a
responsible parliamentary
system.

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5th Amendment 6th April, 1979 Legalizing all acts done by
the first Military Authority
6th Amendment 10th July, 1981 To make way for the Vice BNP Regime
President to be a candidate in (1975-82)
president election.

7th Amendment 10th November, Legalizing all acts done by

1986 the 2nd Military Authority.
8th Amendment 9th June, 1988 Setting up six permanent
Benches of the High Court
Division and making Islam
the state religion.
9th Amendment 11th July, 1989 Direct election of the ErshadRegime
president and the Vice- (1982-90)
President simultaneously.
10th Amendment 23rd June, 1990 Period for reservation of 30
women members seats in the
parliament was extended for
10 years.
11th Amendment 10th August Legalizing the appointment
1991 of Shahabuddin Ahmed,
Chief Justice of Bangladesh
as Vice President of
Bangladesh and his all
activities as the Acting
President and then the return
to his previous position of
the Chief Justice of
Bangladesh. BNP Regime
12th Amendment 18th September, Reintroducing the (1990-04)
1991 parliamentary system.

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13th Amendment 28th March, Provision for Caretaker
1996 Government.
14th Amendment 16th May 2004 Provision regarding women
in the parliament.
15th Amendment 30th June 2011 Caretaker system abolished. Awami League
16th Amendment 17th September Restoring the parliament's Regime
2014 power to remove Supreme (2011-14)
Court judges for their
'misconduct or incapacity.

Fourth Amendment of the Constitution:

Among the all amendments the 4th Amendment is the most controversial one. The
amendment was passed on 25 January 1975 during the Mujib regime. This amendment was
passed within a short time and without any debate. It is criticized that the basic and essential
features of the Constitution were destroyed by this amendment.
Background of the Fourth Amendment:
With the independence, Bangladesh were immediately gained a well-written and developed
constitution which was appreciated in the sub-continent. But at the age of three years it was
attacked by the government . the Amendment was beyond any conformity with the original
constitution. It was become a worst constitution in the world. Before the bringing about the
fourth amend Bill, there was turmoil situation in the countrywide. the so called leftist parties
involved with violence and subversive activities and the bad impact of 1974 famine were a
change in front of government. To combat with the anarchic situation Government declared
emergency in January 1974.
Al government provided following argument in favor of this amendment:
1. The first logic was that people has no confidence over the existing parliamentary
democracy.
2. A group of extremist, connected with the Pakistan, could not accept the independence
and Emergence of Bangladesh as an independent state and plotted against the

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 country. They are involved in many subversive-activities with the support of
opposition fell to the ground to attain power through constitutional way.
3. It is also said that some of the marked collaborators were creating chaos across the
country that hampered the law and order situation, political stability and Successive
economic development.
4. Existing political system was failed to bring about welfare of the people. People were
hunger-bit inadequacy of food but some people were enjoying aroyalLife by dint of
corruption.

Amended Articles by Fourth Amendment:

Major changes were brought into the constitution by this amendment:
The Articles 11, 66, 67, 72, 74, 76, 80, 88, 95, 98, 109, 116, 117, 119, 122, 123, 141A, 147 and
148 of the constitution had been amended.
1. It substituted Articles 44, 70, 102, 115 and 124 of the constitution.
2. It amended part III of the constitution out of existence.
3. It altered the Third and Fourth Schedule.
4. It extended the term of the first parliament.
5. The fourth Amendment made the special provisions relating to the office of the president
and its incumbent.
6. It inserted a new part, i.e. part VIA in the constitution.
7. It inserted articles 73A and 116A in the constitution.

Criticism of Fourth Amendment:

This amendment is criticized that above mentioned causes were not the real purpose of the
amendment. Its main intention was to create a smooth and congenial environment, by
introduce the party dictatorial system in the Constitution, to sustain in ruling power.
pursuant to that motive, on 25th January, 1975 only 27 days after the proclamation of
emergency the country went through the most radical and rascal change in the Constitution.
This infamous Amendment Bill was raised in the legislature and the parliament passed the
Bill as an Act . It was at a speed unprecedented incident in the history of law making. Such
a crucial Bill was passed within half-an hour without any discussion and debate.

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Some major debatable amendments were following:
1. one-party system was introduced in place of a multi-party system.
2. the parliamentary system was replaced by The presidential form of government
3. The powers of the legislature were detract.
4. The Judiciary lost much of its independence; the Supreme Court was deprived of its
jurisdiction over the protection and enforcement of fundamental rights.
5. For the impeachment and removal of the President on the ground of physical or mental
disorder the number of required votes were introduced into three fourth majority in place
of two thirds (Art. 53 & 54).

Fifth Amendment Act:

Another controversial amendment the fourth Amendment Bill was passed by parliament on 6
April 1979.
Background :
On 15th August, 1975. Father of the nation Sheikh MujiburRahman was brutally killedalong
with his family by a military coup led by a group of army officers. By the killing of president his
one party system (BAKSAL) had gone away. After the assassination Sheikh MujiburRahman
The first military regime started in governance which continued till 6th April, 1979. On 15th
August, 1975 In spite of martial law was proclaimed by KhandakerMostak Ahmed, the
Constitution was notrepealed. Though the constitution allowed no means of martial law. it was
kept only as a tittle. After a long walk, In 1979 The second parliamentary election was held and
military officer major Zias party won by two-third majority votes. On 1st April 1979 The first
session of the parliament was convened and on 6th April the 5th amendment Bill was passed by
parliament, by this amendment all activities of the military government were legalized made and
done form 15th August, 1975 to 9th April, 1979.

Changes brought by the 5th Amendment:

The following important and radical changes were brought about in 5th Amendment:
1. one party system was excluded as introduced by the 4th Amendment in Part VIA of
the Constitution.

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 2. The separation of judiciary partially restituted (Articles 96 and 116) which was
completely curtailed by the 4th Amendment.
3. The jurisdiction of the High Court to enforce fundamental rights was reinstalled to its
original position as was in the original constitution partially restituted (Articles 96
and 116).
4. Provision of Supreme Judicial Council in respect of security of tenure of the justices
was inserted (Article 96).
5. The absolute veto power of the President introduced by the 4th Amendment was
abolished (Article 80).
6. Provisions of plebiscite in respect of amendment of any provisions of the Constitution
was inserted and to that end a new clause IA was created in Article 142.
7. In the beginning of the Constitution BismiliahirRahmanir Rahim was inserted i.e.
above the preamble.
8. Among the four fundamental principles of state policy one new the principle of absolute
trust and faith in the Almighty Allah was inserted instead of secularism (Article 8).

Criticism of 5th Amendment:

A new Article 145A relating to international treaties was inserted by this amendment. It said
that all kinds of international treaties with other countries should be submitted to the
President laid before parliament. By This provision the power of parliament was virtually
curtailed in relation to international treaties. Under a true presidential form of government as
it exists in the USA the President cannot sign any treaty without the approval of the senate
and congress. Another new Article 92A was inserted by this amendment and this Article
reduced the power of parliament on the financial matter and the power was given to the hand
president to get money from the Consolidated Fund and to spend it without approval of the
parliament.
By this amendment BismillahirRahmanir Rahim was inserted above the preamble of the
Constitution. It was done in a political purpose. It was a tricks president ZiaurRahman
specially to pick up the blind support from muslim people who are religious but politically
unconscious. Another major fundamental principles of state policy secularism was
replaced by principles of absolute trust and faith in the Almighty Allah . there was also a
political interest behind this.

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Thirteenth Amendment Act:
This Amendment was passed on the first Session 6th parliament with 268-0 votes on
26th March, 1996 and it became law on 28th March according to consent of the president. The
Amendment inserted a new Chapter in part IV of the Constitution (Chapter IIA : Non-Party
Caretaker Government) with 5 new Articles (58A, 58B, 58C, 58D and 58E). It also
amendment Articles 61, 99, 123, 147, 152 and the Third Schedule of the Constitution.
Background of this Amendment:
One of the most controversial amendment the Constitution is Thirteenth Amendment. Which
was passed on 26 March 1996 in the so called Parliament. The 5th national parliament election
held in 1991 under the Acting President Shahabuddin Ahmed that was widely appreciated by
opposition party. In 1993 main opposition party Awami league noticed to hold election under the
caretaker government. But the 6th parliament election was not held under caretaker government.
This parliament was formed by BNP-Government based on a controversial election of February
1996. But it is the lowest durable in the history of parliament .The opposition party Awami
league could not accept this election. Due to Intense movement for the demand of non-party
caretaker government from the opposition side the government compelled to bring thirteenth
amendment Bill in the parliament. This amendment introduced non-party caretaker government
system for a free, fair, peaceful and credible election. The interim government was constituted
leaded by the Chief Adviser and maximum 10 other advisers who would be collectively
responsible and answerable to the president and step down from these post on the date on which
the prime minister entered upon his office after the formation of the new parliament .
Fate of the Thirteenth Amendment:
The Supreme Court of Bangladesh repealed the 13th amendment on May 10, 2011 by declaring
the Non-party caretaker government void and ultra vires to the constitution. However, Supreme
Court allowed in the short verdict holding the next two parliamentary elections under the
caretaker government and repealed the provision of appointing the former Chief Justices and
Appellate Division Judges as the Chief Adviser. Finally, 13th amendment was abolished by
fifteenth amendment.

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Fifteenth Amendment Act:
The another highly criticized amendment is fifteenth amendment. On 30 June 2011 The
amendment passed in the 9th Parliament. This amendment has been brought about on the basis of
the Supreme Court verdicts on 5th, 7th and 13th Amendments of the Constitution.
This Bill contained 15 proposals was passed by the division vote with a majority of 291-1. It
abolish the provision of the caretaker government system for holding national election which
was installed by 13th amendment. This Amendment had wounded the whole Constitution and
put the whole nation into long term political uncertainty.
Salient Features of Fifteenth Amendment of Constitution:
1) abolition of Caretaker system
2) National parliament elections to be held under incumbent government
3) Bismillah-Ar-Rahman-Ar-Rahim was retained above the preamble and Islam as State
religion
4) 'Absolute Faith and Trust in Allah' was removed from the constitution.
5) Restoration of Article 12 to restore Secularism and freedom of religion.
6) Maintains the provision allowing religion-based politics.
7) Denies recognizing the indigenous people, will be termed as tribal and ethnic minorities
8) The citizens of Bangladesh shall be known as Bangladeshis and people of Bangladesh shall
be known as Bangalees as a nation.
9) Articles 7A and 7B in inserted the Constitution after Article 7 in a bid to end takeover of
power through extra-constitutional means.
10) Basic provisions of the constitution (more than 50 Articles) were made unamendable.
11) In the case of a dissolution Parliament by any reason, election will be held within 90 days of
dissolution.
12) The number of women reserve seats Increased to 50 from existing 45.
13) The Supreme Command of the defense services shall be vested to the President and the
exercise thereof shall be regulated by law.
14) The Chief Justice of the supreme court shall be appointed by the President, and the other
judges shall be appointed by the President in consultation with the Chief Justice.

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15) The portrait of the Sheikh MujiburRahman shall be preserved and display at the offices of
the President, the Prime Minister, the Speaker, and the Chief Justice and in head and branch
offices of all government and semi-government offices, autonomous bodies, statutory public
authorities, government and non-government educational institutions, embassies and missions of
Bangladesh abroad.
16) Incorporation of speech of Sheikh MujiburRahman on March 7, 1971, declaration of
independence by MujiburRahman after midnight of March 25, 1971 and the proclamation of
Independence declared at Mujibnagar on April 10, 1971.
Criticism of the Fifteenth Amendment:
The Fifteenth Amendment brought fundamental changes in the Constitution and made many
Articles unamendable. But the government did not take any mandate from the people of
Bangladesh. The will of the people is the most important aspect in a democracy. Our
Constitution clearly says that all power belong to the people, Article 7. Unfortunately, the
government did not bother about the will of the people of Bangladesh when they brought in the
Fifteenth Amendment. Article 7B, amended by the Fifteenth Amendment, makes about a third
of our Constitution (more than 50 Articles) unamendable. This means even if a future
Parliament, for example, wants to ratify the Constitution and strengthen people's fundamental
rights, it cannot do so as the Fifteenth Amendment made unamendable all the provisions stated in
the fundamental rights and fundamental State principles. according to the Preamble Constitution
is the embodiment of the will of the people of Bangladesh. Unfortunately we cannot see the
same thing in the Fifteenth Amendment. That is why, the legitimacy of the Fifteenth Amendment
is highly questionable.

Sixteenth Amendment of The Constitution :

The main purpose of this amendment restoring the parliament's power to remove Supreme Court
judges for their 'misconduct or incapacity. The 16th Amendment Bill-2014 was passed on 17th
September 2014 by both voice and division votes amid objection from senior lawyers and the
main opposition party BNP, which is now out of Parliament. It was the provision of the 1972
Constitution. Results of division votes announced by the speaker showed that 327 votes,
including those from the ruling Awami League and its allies and opposition Jatiya Party, were in
favor of passing the bill and there were no vote against it. After the presidents approval, the

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amendment come into force. Now, Parliament will be able to remove judges if allegations of
incapability or misconduct against them are proved, a power lawmakers had enjoyed only for
four years after independence.
In accordance with the Amendment, a new law will be introduced to guide the investigation and
gathering of evidence over the allegations against a judge.
Subject Matter of Sixteenth Amendment:
Several significant changes brought to the preamble of the proposed law and suggested
replacement of the sections 2, 3,4 of the Article 96 of the constitution with the new sections 2, 3
and 4 mentioned below:
The new section (2) says a judge shall not be removed from his office except by an order
of the President passed pursuant to a resolution of parliament supported by a majority of
not less than two-thirds of the total members of the parliament on the ground of proved
misconduct or incapacity.
The section 3 of the Article 96 says parliament shall by law regulate the procedure in
relation to a resolution under clause (2) and for investigation and proof of the misconduct
or incapacity of a judge.
The section 4 says a judge may resign his office by sending a signed letter addressed to
the President.
According to the aforesaid provision, no judge can be removed before giving him or her
the scope of replying show cause notices mentioning actions against them on the ground
of misconduct and incompetence.
Background of this Amendment:
There was a provision in the Article 96 of the 1972 constitution regarding impeachment of
Supreme Court judges through the Presidential order by having two-thirds majority in parliament
for proved misconduct and incapacity.

Later, during the presidential form of government, a new provision was incorporated in the
constitution which stipulates that any judge of the Supreme Court may be impeached through a
Presidential order.
But, in 1977 and 1978, a provision was incorporated in the constitution giving the authority of
impeachment of Supreme Court judges on the grounds of misconduct and incapacity to the

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President following recommendations of the Supreme Judicial Council formed by the Chief
Justice and two other senior judges of the Supreme Court. The issue of reviving this authority
came into focus after the Awami League took office in the last term. The matter was also
discussed in 2011 when the 15th Amendment to the Constitution was underway, although the
article was not restored.
In 2012, some MPs called for the removal of a High Court judge after a series of events around
the remark of the then speaker and current President Md Abdul Hamid. At that time, the demand
for restoring the legislative power to remove judges got serious backing. After it was tabled in
Parliament on Sept 7, the Parliamentary Standing Committee on the Ministry of Law, Justice and
Parliament Affairs was given a week to screen the bill and submit a report.
Criticism of Sixteenth Amendment:
Sixteenth amendment has been criticized from so many walk of society:
1. It has been alleging the government was pushing through the bill to keep the judiciary
under perpetual pressure.
2. Some senior lawyers suspect that the government has another motive for making haste in
passing the bill without proper scrutiny even though they believe it is not necessary now.
3. By this amendment the supremacy and independence of judiciary was curtailed.
4. It is not s good decision back to the old system in this modern world
From this observation it could say undoubtedly that all the amended provision of this amendment
was a politically motivated.

Part-2
Contradictory and Controversial Articles of The Constitution :
There are some articles in our constitution which were highly criticized. The several debatable
articles are article 7(B), 8(1), 70, 96 and some useless articles such as article 77. Here I will try
to sketch a real scenario of the provision of constitution. This dissertation is focused on
contradictory and controversial articles of the constitution of Bangladesh.
Basic Provisions of The Constitution are not Amendable:
Recently Article 7B was inserted in the constitution by the Fifteenth Amendment. This article
makes about a third of our Constitution unamendablei.e more than 50 Articles. This article

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contains Notwithstanding anything contained in article 142 of the Constitution, the preamble,
all articles of Part I, all articles of Part II, subject to the provisions of Part IXA all articles of Part
III, and the provisions of articles relating to the basic structures of the Constitution including
article 150 of Part XI shall not be amendable by way of insertion, modification, substitution,
repeal or by any other means.] according to the article any legislature can not amend article 1-7
relating to territory, religion, language,, national anthem etc. Another unamendable portion is
part- II (Articles 8-25) that contains the fundamental principles of state policy and all articles
26-47 of part-.III which are related to fundamental rights.
That means in future if any Parliament wants to amplify the Constitution and strengthen
people's fundamental rights, it cannot do so as the Fifteenth Amendment made unamendable all
the provisions stated in the fundamental rights and fundamental State principles. It was one kind
of autocratic decision of the government that confined the future of the people in a cage of
constitution. Constitution is not a religious book that can not be changed. It is the embodiment of
need, demand, aspiration of the people state. Constitution secure the legal and fundament rights
of the citizen. But it will be politically motivated it lose the real spirit.
On the other hand Article 8 (1) of part - II contains the provision of the fundamental principles
of state policy which are:
nationalism
socialism
democracy
secularism.
These principles were adopted in the original constitution of 1972. But there are no real
application any of these sate policies. These principles also contradictory to each other.
Nationalism, Socialism and Democracy can not live within a periphery of any country. As a
Muslim majoritarian country secularism could no be compatible with our religious culture.
Mujib government chose the socialism as a state policy to establish a balance development
across the country. But real scenario is far away from this principle. After a long term political
instability, 1990 democratic era came into force. But it is the nominal democratic rule. It also
said that these principle were copied from our neighbor country India. But in the real sense it was
an illogical decision for our country. At a time all of these fundamental principles never
applicable to our country.

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Implication and Effect of Article 70 in the Politics of Bangladesh and Great
Hindrance to rule of law:
From the broader point of view, political defection is a democratic right connected with personal
liberty and freedom of thought and of speech. Right to vote against party decision, or to be
absent in the house in protest of partys undemocratic decision, or abstain from voting, is
involved with the personal liberty of member. Article 70(1) says that, A person elected as a
member of Parliament at an election at which he was nominated as a candidate by a political
party shall vacate his seat if he resigns from that party or votes in Parliament against the party.
Article 70(1) also contradict with the article 39(1) provision to freedom of thought and
conscience is guaranteed. A member of parliament who is directly elected by the people is
always expected to act in a democratic spirit. Peoples mandate is reposed on him to act on
undemocratic party line but to raise voice against whimsical or undemocratic decision (Halim,
1998). But as the provision goes, it is quite impossible for a parliamentarian inside parliament to
revolt and form a dissident group.
Supremacy of Judiciary Curtailed by Amending Article 96:
Recently Article 96 of the constitution was amended by replacing some clause relating to restore
the parliament's power to remove Supreme Court judges for their 'misconduct or incapacity.
Some new provision were replaced in place of sections 2, 3,4 of the Article 96 of the
constitution.That was an undemocratic decision of incumbent government. These provision to
removal of judge reduced the supremacy of Judiciary. In prior, Judge were removed by the
president based on information provided by supreme judicial council about physical or mental
incapability.
Law and Constitutional provision for Ombudsman in Bangladesh:
According to Halim (1998) Ombudsman means the man or official who represent the people in
their grievance or who act as a commissioner of parliament to readdress the grievance of the
people. The Oxford Companion to Law says Ombudsman is a person appointed by parliament to
investigate citizens complaints of executive or bureaucratic incompetence or injustice but nit
illegally. The establishment of an Ombudsman in Bangladesh will undoubtedly go a long way in

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helping establish a real democratic social order and wellbeing of the people at large. Our
constitution makers inserted in a Article 77 with clause 1,2 and 3 of the constitution the
provision for an institution of Ombudsman in 1972. But for the 42 years this provision have been
existing as a beautification of the constitution. Though people feel the necessity of the
ombudsman, no positive attempt was made to introduce this institution till 1980. In 1980 late
president ZiaurRahman took the initiative to establish the office of Ombudsman in Bangladesh
and accordingly an Act was passed by the parliament. But unfortunately due to assassination of
ZiurRahman the provision of Act could not be implemented. The next military government
Ershad never thought about the establishment of Ombudsman. After a long struggle against
Ershad regime Zias party BNP again came to power through a free and fair election. In that The
BNP leader Khaleda Zia was said to be determined to fulfill the commitment of Zia. But it did
not bring into force. The present Awami league government also does not see to promising
enough to bring the law into force. If democracy is to give a fair trial in Bangladesh an office of
Ombudsman its a must (Halim, 1998).
Conclusion:
It can be concluded at the end of discussion, every constitution is the reflection and
representation of will, demands and expectation of different classes, groups, profession of the
country. In order to accommodate and for productive interaction with political, social and
economic forces there must be a constitutional framework suited to the needs of political
independence which would incorporate and there by ensure the professional and just
representation of different non-elite group in decision making process. A sound and easy
procedure of amendment of the constitution is necessary for a under developed country like
Bangladesh. But it we should be concerned that it would not make the constitution theplaying
tools to the brute majority of a party in power. Bangladesh need to make a effective and
flawless
Constitution that really represent and ensure the human and fundamental rights of mass
people. To make a healthy and sound constitutional practice all kinds peoples representative
participate must be ensured in the ruling system. But real scenario is quite different in our
country.
It`s also needed to secure sustainable democracy in the country. Participation of opposition
should be encouraged in order to maintain the good governance. Constitutional spirit should not

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be used according to partys interest by suppressing national interest. There is a malpractice of
Constitutional spirit in Bangladesh it should be removed. Constitution making isa tough and
lengthy task. Amendment to the Constitution is nearly as difficult as its framing. Unfortunately,
Bangladesh framed its first Constitution as well as made subsequent amendments to it in a
hurried mood. The present crisis is the result of such a rash and unilateral decision to amend the
Constitution in general and to abolish the provision of the caretaker government in particular.
Considering the fact Bangladesh like other third world countries has to race against time in order
to forgo ahead with its political, administrative and development plans, it must create new and
workable frameworks in which such ambitious plan can be materialize.

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