A Two-Thirds Majority Alone Cannot Change the Constitution's Basic Structure, Speakers Say at 54th Anniversary Discussion

A two-thirds majority alone is not enough to change the basic structure of the constitution, speakers said at a discussion marking the 54th anniversary of the Constitution of Bangladesh. They said parliament does have the power to amend the constitution, but that power has limits, and how far citizens can actually enjoy the rights recognised in the constitution is equally important.

The discussion was held on Wednesday (4 November) at the Supreme Court Bar Association auditorium. The constitution of Bangladesh was adopted in the then Constituent Assembly on this day in 1972; the Banglar Pathshala Foundation organised the discussion to mark the day.

At the discussion, lawyers, retired justices and rights activists spoke about the limits of constitutional amendment and the obstacles to realising citizens' rights. Delays in getting remedies from the courts, the rights and representation of different communities, and the state's responsibility for protecting the environment also came up.

The discussion was moderated by senior Supreme Court lawyer and BLAST executive director Sara Hossain. She raised the question of ensuring the participation of different communities in constitution-making and amendment. She also raised how much importance is being given to reforming colonial-era and military-era laws that remain in force after independence.

Sara Hossain said the questions of participation and of rights in discussions on the constitution must be looked at separately. How the participation of different communities in the process of making and amending the constitution will be ensured must be considered. Alongside that, it must be seen how their rights will be properly reflected in the constitution.

Noting that many colonial-era laws are still in force even though a constitution was adopted in the country after independence, Sara Hossain said many laws enacted during military rule also remain in force. People's lives and civil rights are controlled every day through these laws. So it is necessary to see how much importance the reform of these laws is getting.

A visually impaired development worker at the discussion said that although the constitution speaks of equality, there is a lack of specific protection for persons with disabilities. They face various problems in education, jobs and competitive examinations.

Discussant Nurunnahar Urmi said the participation of representatives of women and indigenous communities in the Constituent Assembly debates was limited.

Senior lawyer Prabir Neogi said that to amend the constitution, the procedure laid down in Article 142 must be followed. This requires the support of two-thirds of the total number of members of parliament. However, parliament has not been given the power to establish a new state system by destroying the basic structure through amendment. In this regard, the constitutional provisions and the judgments of the Supreme Court must be followed.

Prabir Neogi said the foundation of the constitution of Bangladesh was built through the Language Movement, the United Front election, the 1970 election and the Liberation War. The experience of making Pakistan's 1962 constitution was different; that constitution was made by then President Mohammad Ayub Khan himself.

Retired Appellate Division justice Borhan Uddin said Article 26 of the constitution provides for voiding laws inconsistent with fundamental rights. If rights are violated, there is an opportunity to approach the High Court under Articles 44 and 102. However, it often takes a long time to get a remedy after going to court.

Although Article 33 of the constitution requires a detained person to be produced before a magistrate within 24 hours, in practice it is often not done, retired justice Borhan Uddin alleged. He said in some cases detained persons disappear. As investigations into torture allegations are prolonged, both complainants and the accused suffer.

Environment activist Barish Hasan Chowdhury said the constitution gives the state the responsibility of preserving the environment. However, there are bureaucratic complications and institutional weaknesses in implementing the law. He urged making the state's responsibility clearer for protecting communities at risk from climate change. He also spoke of recognising the right to environmental protection as a fundamental right.

In his welcome speech, City University associate professor and Banglar Pathshala Foundation founder Ahmed Javed said the opportunity to exercise rights is not equal for everyone. Many cannot exercise their constitutional rights because of poverty, discrimination and institutional barriers. It is important to review how far these rights are reflected in the lives of workers, women, persons with disabilities and marginalised communities.

Supreme Court lawyer M M Khalekuzzaman and Barrister Priya Ahsan Chowdhury also spoke at the programme.