A hilarious proposal to amend Constitution through ordinance

It sounds like a great innovation: making amendments to the Constitution of Bangladesh through an ordinance possible!

None, but Prof Ali Riaz, who is now vice-chairman of Prof Muhammad Yunus-led National Consensus Commission, is credited with this innovative idea.

Speaking at a press conference at the LD Hall of the National Parliament Building on Monday (10 March), he claimed, "Amending the Constitution through an ordinance is possible. The Constitution has been amended through an ordinance in Bangladesh before, which was later approved by the elected parliament."

The first part of his claim that the Constitution can be amended through an ordinance runs counter to the country's Constitution which is still in force.

The Constitution in Article 142, without any ambiguity, describes the procedure to amend the Constitution empowering only parliament to modify any provision of the country's charter by way of addition, alteration, substitution or repeal.

Prof Ali Riaz, who was flown into Bangladesh from the US last October, two months after the fall of Sheikh Hasina's authoritarian regime to lead the Constitutional Reform Commission, has misread the ordinance making power of the government.

Article 93 of the Constitution provides the president with the legislative power to meet any urgency in times when parliament is not in session or is dissolved. On the advice of the government, the president uses the legislative power to make a new law or amend an existing one by issuing an ordinance.

For instance, the Cyber Security Act was scrapped through an ordinance.

Similarly, when Law, Justice, and Parliamentary Affairs Adviser Asif Nazrul proposed to amend the Women and Children Repression Prevention Act to quicken rape case investigation and trial, this would also go through an ordinance.

But Article 93 (1) (ii) clearly says NO to any attempt to bring any changes to the Constitution through any ordinance.

Amending the Constitution is an extraordinary power of parliament and it follows the special procedure stipulated in Article 142, which is very different from making laws on any subject.

So, what Prof Riaz said holds no legal grounds if we accept that the Constitution is the supreme law of Bangladesh.

Earlier on 13 February, Riaz said several issues of the Constitution could be amended before the elections.

"For a free and fair election, several issues of the Constitution can definitely be amended before the elections, but it depends on the decision of the government and political parties," he told a press briefing at the Constitutional Reform Commission office at the parliament, reported BSS, a state-run news agency.

The Constitution itself only empowers the parliament to amend the Constitution. But the parliament does not exist now.

The 12th parliament formed through the controversial 7 January election of 2024 was dissolved by the president on 6 August, the day after Hasina hastily resigned and fled to India in the face of the mass uprising. 

The new parliament will be formed through the next election, which is likely to be held between December this year and March next year.

In view of this, perhaps Ali Riaz thinks parliament is not required to amend the Constitution.

Interestingly, 34 political parties were asked to give their opinion on six response options available for amending the Constitution. Amending the Constitution before the election through an ordinance was the first option among them. The parties were given three options to reply – agree, disagree, and partially agree.

The other part of Riaz's latest claim that "the Constitution has been amended through an ordinance in Bangladesh before, which was later approved by the elected parliament" is factually incorrect.

He has misread the historical facts.

During the entire first martial law regime from 15 August to 6 April of 1979, the Constitution lost its supremacy as it was made subservient to the martial law proclamations.

Various provisions of the Constitution were amended through martial law proclamations to unsettle many things in the fourth amendment that introduced the one-party state in Bangladesh killing multi-party democracy.

The first parliament formed through the 1973 election was dissolved after the bloody political changeover on 15 August 1975 and the country was placed under martial law.

The then martial law regime was, however, aware of the legal consequences of their actions as the Constitution had endorsed none of the actions, including the revisions of the Constitution.

Therefore, the first major work of the second parliament formed through the election in 1979 was to amend the Constitution to give a blanket indemnity for all actions of the martial law regime, including the amendments of the constitutional provisions.

That amendment is known as the Fifth Amendment to the Constitution.

During the second martial law regime from 24 March to May 1986, no amendment was brought to the Constitution through martial law proclamation.

But the entire Constitution was kept suspended for years. Certain provisions, particularly those related to holding elections, were restored before the 1986 parliamentary election as that regime looked for legitimacy.

The third parliament formed through the election in 1986 brought a seventh amendment to the Constitution, validating and ratifying all actions of the second martial law regime, including keeping the Constitution suspended.

After the passage of the constitutional amendment bill, martial law was withdrawn on 10 November 1986.

Bangladesh is now neither under a martial law regime nor has the Constitution been suspended. Therefore, the innovative method of amending the Constitution through an ordinance is nothing short of hilarious.

The universal philosophy of law is simple: the law derives its authority from the obedience of people. This philosophy is reflected in Article 21 of the Constitution, which says: "It is the duty of every citizen to observe the Constitution, the laws and to maintain discipline."

But the reality is full of unpleasant things. Bangladesh's constitutional history shows how mighty people exercising state power disobeyed and disregarded the Constitution, the country's supreme law, only for their own political purpose.

The blatant abuses of the Constitution by Shiekh Hasina made her a tyrant.

Now, let's examine two articles of the Constitution which deal with ordinance-making power and the Constitution amendment procedure.  

What's ordinance making power

93. (1) At any time when Parliament stands dissolved or is not in session], if the President is satisfied that circumstances exist which render immediate action necessary, he may make and promulgate such Ordinances as the circumstances appear to him to require, and any Ordinance so made shall, as from its promulgation have the like force of law as an Act of Parliament:

Provided that no Ordinance under this clause shall make any provision –

(i) which could not lawfully be made under this Constitution by Act of Parliament;

(ii) for altering or repealing any provision of this Constitution; or

(iii) continuing in force any provision of an Ordinance previously made.

(2) An Ordinance made under clause (1) shall be laid before Parliament at its first meeting following the promulgation of the Ordinance and shall, unless it is earlier repealed, cease to have effect at the expiration of thirty days after it is so laid or, if a resolution disapproving of the Ordinance is passed by Parliament before such expiration, upon the passing of the resolution.

(3) At any time when Parliament stands dissolved, the President may, if he is satisfied that circumstances exist which render such action necessary, make and promulgate an Ordinance authorising expenditure from the Consolidated Fund, whether the expenditure is charged by the Constitution upon that fund or not, and any Ordinance so made shall, as from its promulgation, have the like force of law as an Act of Parliament.

(4) Every Ordinance promulgated under clause (3) shall be laid before Parliament as soon as may be, and the provisions of articles 87, 89 and 90 shall, with necessary adaptations, be complied with in respect thereof within thirty days of the reconstitution of Parliament.

Power to amend any provision of the Constitution

142. Notwithstanding anything contained in this Constitution-

(a) any provision thereof may be amended by way of addition, alteration, substitution or repeal by Act of Parliament:

Provided that-

(i) no Bill for such amendment shall be allowed to proceed unless the long title thereof expressly states that it will amend a provision of the Constitution;

(ii) no such Bill shall be presented to the President for assent unless it is passed by the votes of not less than two-thirds of the total number of members of Parliament;

(b) when a Bill passed as aforesaid is presented to the President for his assent he shall, within the period of seven days after the Bill is presented to him assent to the Bill, and if he fails so to do he shall be deemed to have assented to it on the expiration of that period.