Constitutional Amendment: Points To Ponder
The Constitution of Bangladesh framed by the members of the first Parliament has been subsequently amended to bring it closer to the life and expectation of the majority of the people of Bangladesh. President Ziaur Rahman, who formally declared the independence of Bangladesh on 26th March 1971, made the first positive and meaningful change in the Constitution. This he did by incorporating in the top of the preamble of the Constitution the words: bismillahir rahmanir rahim, In the name of Allah, the Beneficent, the Merciful. In the preamble also added are the words: “Pledging that the high ideals of absolute trust and faith in the Almighty Allah… shall be the fundamental principles of the Constitution”. Also added in the Fundamental Principles of State Policy are the words: “Absolute trust and faith in the Almighty Allah shall be the basis of all actions” [Article 8(1A) of Part-111 of the Constitution]. President Zia introduced these changes in the Constitution in fulfillment of the hopes and aspirations of the vast majority of the people of Bangladesh and to bring politics closer to the real life expectation of the people of Bangladesh. President H.M. Ershad made yet another meaningful and far-reaching change in the Constitution by incorporating the words: “The state religion of the Republic is Islam” (Article 2 A of Part-1 of the Constitution).
Prior to the parliamentary election held on 1 October 2001 both the two major political parties of the country have made commitment to the people that they shall not frame any law contrary to precept and teachings of Islam. Bangladesh Nationalist Party (BNP) in its election manifesto reiterated that no law contrary to Islam shall be passed (Article 3.4 of Chapter-III of the Election Manifesto-2001 of BNP). Bangladesh Awami League has however gone a step forward and made specific pledge to the people through its election manifesto that: “No law would be enacted contrary to the Holy Quran and sunnah”. (Article 7 of the Bangladesh Awami League Election Manifesto-2001).
The Parliament shall soon start functioning fully in which hopefully both the treasury bench and opposition members shall play positive and meaningful role to materialize the dream of the people of Bangladesh. The intention of the writer of this article is to shed light and propose to the lawmakers, nay the members of the Parliament, some specific ideas for suitable amendment of the Constitution to ensure that henceforth there remains no loophole or scope for the Parliament to legislate any law repugnant to the Quran and the sunnah and there should be such mechanism in the Constitution that even if a law is passed by the Parliament inadvertently which is opposed to the Quran and the sunnah, such a law can be declared void by the Supreme Court.
Now the question is how to ensure and guarantee that no law repugnant to the Quran and the sunnah is enacted by the Parliament. What should be the modus operandi to stop the passage of such legislation? What constitutional arrangement should be incorporated in the Constitution to stop the promulgation of law repugnant to the Quran and the sunnah? What amendments are required in the relevant provisions of the Constitution to ensure and materialize this dream of the people? Mere incorporation of a declaration in the preamble of the Constitution that no law against the Quran and the sunnah shall be made is not enough, though it shall be a positive development, for no citizen can challenge in the court such declaration in the preamble of the Constitution that no law shall be framed that goes against the principles of Islam. In the preamble of the Constitution of the Islamic Republic of Pakistan, both 1956 and 1962, a pious wish was made to the effect that no law shall be made which is repugnant to the Holy Quran and the sunnah but it was not very effective.
The government (meaning BNP led Four Party Alliance) and the opposition (meaning Bangladesh Awami League) may consider either of the following options to ensure that no law repugnant to the Holy Quran and the sunnah is promulgated.
The Constitution of Bangladesh, in its substantive part, may be suitably amended to create Islamic Advisory Council consisting of eminent Islamic scholars, ulama, jurists and fuqaha. The Council shall, inter alia, examine and review all draft acts to be passed by the Parliament (also all Presidential Ordinances) and give their views on such act(s) to the Government. Taking opinion of the Islamic Advisory Council shall be binding while framing laws. The Government however may or may not accept the opinion of the Council; the people shall however reserve the right to challenge such law(s) in the court.
The Constitution of Bangladesh may be suitably amended to form a fourteen- member Council of Guardians to be elected by the Parliament, in the light of the Islamic Republic of Iran1, composed of seven competent Islamic theologians and canonists having the essential ability for expounding Islamic theological and canon law and being the authority thereon, just, virtuous, abreast of the times having political and social insight, judicious and who command and enjoy the trust and confidence of the people; and seven eminent jurists versed in different branches of law from among the Muslims jurists with a view to ensuring that the parliamentary enactments are not contrary to the tenets and precepts of Islam. If the majority members of the Council of Guardians find the enactments contrary to the Islamic tenets, it shall return the same to the Parliament for consideration. The members of the Council of Guardians shall have the right to attend the Parliament while the Parliament is debating a legal bill or draft and express their views thereon. The Parliament shall not have the right to make laws contrary to the tenets and precepts of the state religion, which is Islam. Courts shall refrain from administering the government decrees and regulations contrary to Islamic laws and every citizen shall have the right to request the justice courts for annulment of such decrees and regulations. Nothing shall however prelude the judges from interpreting the laws as to their function of distinguishing between the right (maruf) and wrong (munkar) might demand. The government while preparing the panel of the seven-member jurists shall have to consult the Supreme Judicial Council.
The Constitution of Bangladesh may be suitably amended to create six-member Council of Elders, one from each Division, to be directly elected by the people. The Council of Elders shall have the right to veto any law passed by the Parliament if such law, in the opinion of its majority members, contradicts the teaching of the Holy Quran and the sunnah and its decision shall be binding. In this case the Parliament shall have to enumerate in the Constitution the qualification of the members of the Council of Elders.
The Constitution of Bangladesh may also be suitably amended to create shariah Bench both in the High Court Division and Appellate Division of the Supreme Court to enable any citizen to challenge any law passed by the Parliament for the violation of the shariah, Islamic law.<
In addition, the Government should include immediately, without waste of time and further delay, eminent Islamic scholars including ulama in the Committee of the Ministry of Law, Justice & Parliamentary Affairs which drafts laws (Ordinances and Acts) on behalf of the Government so that such people can offer their expertise, knowledge, proficiency and play positive and meaningful role at the drafting stage and give their views on the draft laws to be placed before the Cabinet for consideration and later to be placed in the Parliament for approval. People who are well-informed of latest ijtihad, research being done in various Islamic issues throughout the Muslim world in such prestigious institutions as OIC Fiqh Academy, Jeddah; Fiqh Academy of The World Muslim League (Rebatat Al Alam Al Islami), Makkah; Al Azhar University, Egypt; Medina Islamic University, Saudi Arabia; Islamic University, Pakistan; International Islamic University, Malaysia and important Islamic research organizations in the West such as The International Institute of Islamic Thought (IIIT), USA and The Islamic Foundation, UK and also conversant with the critical ills of Bangladesh and capable to put forward pragmatic Islamic solutions of the problems should be considered eligible to be the members of the Committee. The inclusion of such members in the Committee will ensure that the Government is being judiciously advised at the drafting stage so that no law repugnant to the Quran and the sunnah comes before either the Cabinet or the Parliament for consideration. The Cabinet or the Parliament may invite the Islamic scholars, who are members of the Committee, to hear their opinion, if it feels so.
What has been
discussed in this article is not the last word. The writer’s primary
intention is to create public opinion and put forward some ideas and food
for thought. The jurists and constitutional experts are in a better
position to suggest better options and alternatives and workout detailed
modalities. It is however the primary responsibility of the incumbent
Government (meaning the Four Party Alliance) to work out the details of
the constitutional arrangement, addition, amendment, modification,
alteration and change in the Constitution so that no law repugnant to the
Holy Quran and the sunnah can be passed in the Parliament in future
that shall give the Muslims of Bangladesh the opportunity to fashion their
lives in accordance with the true teachings and sprit of Islam without
jeopardizing personal and public life of other religious groups. It is
hoped that the Government shall get all the cooperation from the
opposition, the Bangladesh Awami League in the matter as AL has also
committed to the voters during the last election through its election
manifesto that if it comes to power it would not promulgate any law
repugnant to the Quran and the sunnah. Although to move a bill in
the Parliament to bring about required amendments in the Constitution to
implement the election commitment to the voters basically lies with the
Government, this however does not absolve the Bangladesh Awami League,
major opposition party in the Parliament, of its responsibility to move
such a bill that shall ensure that no law repugnant to Islam is passed by
the Parliament for AL has also committed to the voters during the election
that if voted to power it shall not legislate any law repugnant to the
Quran and the sunnah. Any member of the Parliament, no matter
whether s/he is elected from BNP or AL or Jamaat-e-Islami, can move such a
bill as private member bill to prove to the nation that members of the
Parliament are men of words and are not in the political arena to hoodwink
the people. Let us prove ourselves to be true Muslims and not hypocrites.
1. In the Islamic Republic of Iran a twelve member Council of Custodians composed of six theologians nominated by the Leader or the by the Council of Leadership and six jurists versed in different branches of law from among the Muslim jurists nominated by the Supreme Judicial Council (Article-91) composed of President of the Supreme Court of Cassation, State Prosecutor General and three righteous judges versed in Islamic theological and canon law nominated by the country’s judicial branch (Article-158) whose nomination shall be endorsed by the Majlish (meaning the Parliament) with a view to ensuring that the enactments of Majlish are not contrary to the tenets and precepts of Islam (Article-9). If majority members of the Council of Custodians find the enactments contrary to the Islamic tenets, it shall return the same to the Majlish for consideration (Article-94 and Article- 96). The members of the Council of Custodians shall have the right to attend the Majlish while the Majlish is debating a legal bill or draft and express their views thereon (Article-97). Experts elected by the people shall appoint members of the Council of Leadership whom they consider competent as to be vested with such authority and leadership. In one such authority is known to be pre-eminent above all others, he shall be appointed as the Leader of the nation; otherwise the Constituent Assembly of Experts (Article-111) shall appoint as members of the Council of Leadership whom they consider fully qualified for leadership (Article-107), competent Islamic theologian and canonist, just, virtuous, abreast of the times, brave, organizer and judicious whom the majority people accept as their Leader (Article-5). The Leader or the members of the Council of Leadership must have theological virtues essential for expounding Islamic theological and canon law and being the authority thereon, political and social insight, bravery, capability and adequate management for leadership (Article-109). The Majlish shall not have the right to make laws contrary to the tenets and precepts of the state religion of the country (which is Islam: Article-12) or constitutional law (Article-72). Courts shall refrain from administering the government decrees and regulations contrary to Islamic laws … and everyone has the right to request justice courts for annulment of such decrees and regulations (Aerticle-170). Definition and interpretation of common legislation shall be within the jurisdiction of the Majlish and this shall not prelude judges from interpreting the laws as to their function of distinguishing between the right and the wrong might demand (Article-73).
15th November 2001