Sixth and Ninth Amendments: Examples of how the Constitution of Bangladesh was amended for a perso

nazir
Barrister Nazir Ahmed
Introduction
The Constitution expresses the will of the people of a country.  It should ideally reflect the wishes and desires of the people of the country in question.  As it is considered the supreme [and higher than the ordinary law] law in a country with a written Constitution, the procedure for amending a country’s Constitution is normally made strict and inflexible so that the Constitution is not amended as easily as the ordinary laws are normally amended.  There is a strong logic for this.  However, the Constitution is – unlike the Bible or the Quran – not something that cannot be changed at all.  It can certainly be changed, but that change must be well thought out and, above all, it must be for the national interest as opposed to being in the interests of a single individual or a narrow political reason.  Unfortunately, the Constitution of Bangladesh was amended more than once merely in the interests of a single individual.  This is very unfortunate.  In this article, I shall try to flash out how the Sixth and Ninth Amendments were made purely in the interests of a specific person or persons.
Sixth Amendment
On the sudden and tragic death of President Ziaur Rahman on 30th May 1981, the then Vice President Justice Abdus Sattar assumed the role of Acting President.  Under Article 123, a vacancy of the President which has been caused by death was to be filled by an election within 180 days of the vacancy occurring.  The then Acting President Justice Abdus Sattar was nominated by the Bangladesh Nationalist Party (BNP) as a presidential candidate in the election.  The other prominent candidates were (ranked according to the numbers of votes they received): Bangladesh Awwami League (BAL) nominated candidate Dr Kamal Hossain (5,636,113 votes), Independent candidates Moulana Mohammedullah (widely known as Hafizzi Hujur – 388,741 votes) and General (Rtd) M A G Usmani (293,637), Jatiya Somajtantrik Dal (JSD) nominated candidate M A Jalil (248,769 votes) and National Awami Party [NAP – (M)] and Communist Party of Bangladesh (CPB) nominated candidate Professor Muzaffar Ahmed (224,188 votes).  Justice Sattar received 14,203,958 votes.  There were 33 minor candidates who received insignificant votes.  The question arose whether Justice Sattar could contest in the election without resigning from the office of Vice President.
The reasons why the question arose are as follows: Under Article 50 the President could appoint as Vice President any person qualified for election as a Member of Parliament (MP).  However, under Article 66 (dd), a person would be disqualified for election as an MP if he was holding an office of profit in the service of the Republic other than an office which is declared by law not to disqualify such holders.  There was no provision stating that the office of Vice President was not an office of profit.  On the other hand, under Article 66 (2A) some persons were exempted from holding an office of profit – such as the Prime Minster, the Deputy Prime Minister, the Minister, the Minister of State and the Deputy Minister.  The office of the Vice President was not included there.  Therefore, it was clear that the office of the Vice President continued to be an office of profit and this debarred Justice Sattar from contesting in the election.
To overcome the above problem, a Bill called the Sixth (Constitution Amendment) Bill was introduced in Parliament on 1st July 1981.  On 8th July 1981, the Bill was passed which enabled Justice Sattar to contest the election without resigning from his office.  This amended Articles 51 and 60 excluding, inter alia, the office of President, Vice President, and Acting President free from being office of profit.  It also provided that if a Vice President was elected as President he would be deemed to have vacated his office on the day on which he entered upon the office of President.
Ninth Amendment
The Ninth Amendment was passed on 10th July 1989 and it became a law on 11th July 1989 – but it came into force on 1st March 1991.  This Amendment amended Articles 49, 50, 51, 53, 54, 72, 119, 122, 123, 124, 148, 152 and Fourth Schedule to the Constitution, introducing some important changes in the Constitution.  It also inserted a new Article 53A in the Constitution.  The Fourth Amendment included, among others, a provision for a Vice President but to be appointed by the President.  In the absence of the President, the Vice President was to act as the President.  The Constitution (Ninth Amendment) Act 1989 was passed providing for election of the office of the President and Vice President.
The most significant features of the Ninth Amendment were: First: The provision for direct election for the Vice President.  Second: The provision for the election of the President and Vice President simultaneously.  Third: Both the President and Vice President were to hold office for a term of five years.  Fourth: No person was to hold the office as the President or Vice President for more than two terms, whether or not the terms were consecutive.
One of the main reasons for passing the Ninth Amendment was to make Barrister Moudud Ahmed the Vice President.  This was done with the intention of paving the way to make him the next President, as the then President HM Ershad would have by then served two terms as the President and would not be qualified to stand in the subsequent election of the President.  This impression can be gained from Barrister Moudud Ahmed’s two books: “Democracy and the Challenge of Development” and “South Asia: Crisis for Democracy – The Case of Bangladesh.”  Referring Barrister Moudud Ahmed only by implication, former President Ershad also said publicly in the media, and with regret more than once “I have changed the Constitution for him [one person].”
Before the Ninth Amendment was passed, intense political movement was going on for the formation of a non-party caretaker government for holding a free and fair election.  All opposition parties agreed a formula for a neutral person to be appointed Vice President and for the President to resign so that the newly appointed Vice President could become the Acting President and hold the election.  Under the Ninth Amendment in line with the opposition parties’ formula, the then Vice President Barrister Moudud Ahmed resigned from the post of Vice President and the then Chief Justice of Bangladesh Justice Shahabuddin Ahmed took his oath as the Vice President of Bangladesh.  The then President Ershad resigned to the Vice President Justice Shahabuddin Ahmed, who then became the Acting President and conducted an election which was considered to be the first free, fair and credible election in the history of Bangladesh.
The Ninth Amendment was claimed by Ershad regime to have sought to democratise the Executive.  They also claimed that this Amendment was consistent, and in line with the American system – the Vice President was a running mate with the President in the election.  Whatever their claim was, in theory and in practice, the Ninth Amendment (and the Sixth Amendment too) carries no importance in Bangladesh at all, for the Twelfth Amendment reverted from the presidential system to the parliamentary system making all its provisions ineffective.
Conclusion
The Sixth and Ninth Amendments were practical examples of how the Constitution of Bangladesh was amended in the interests of specific persons, at different times.  There are other Amendments which were made for a mixture of personal and political reasons, but the analysis of our article today was the Amendments that were made for purely personal reasons.  One may argue that another example is the Eleventh Amendment, which could be said to have brought in for a specific person.  It should be noted that the Constitution (Eleventh Amendment) Act was passed in 1991 with a view to removing the Constitutional hurdles in the way of the Acting President Justice Shahabuddin Ahmed’s return to his previous position of the Chief Justice in the Supreme Court.  The matter of Eleventh Amendment was an exception.  Justice Shahabuddin Ahmed played a historical role in saving the nation.  In fact, the whole nation, both the position and opposition, was united in passing the Eleventh Amendment.  By comparison, the Sixth and Ninth Amendments were passed unilaterally by the respective party in power and there was no national consensus on those Amendments.
Barrister Nazir Ahmed: UK based legal expert, analyst, writer and columnist.  He can be contacted via e-mail: ahmedlaw2002@yaho.co.uk

Share this post:

Recent Posts

Leave a Comment

Print This Post