How ex-president Zillur violated oath and signed the caretaker govt abolition bill

In 2011, the then president Zillur Rahman defied a constitutional requirement by signing the 15th amendment to the Constitution bill passed by the Parliament proposing cancellation of the election time caretaker government system along with at least 55 changes in the country's charter.

The bill which was sent to Bangabhaban on 2 July seeking his assent to it, also proposed changes in the preamble and article 8 of the Constitution which put president Zillur under the obligation to act on people's advice through a referendum. Article 8 deals with four fundamental principles of the state.

Before it was changed to its current version by the 15th amendment act, the article 142 (1A) of the Constitution said a constitution amendment bill "which provides for the amendment of the Preamble or any provision of articles 8, 48 or 56 or this article, is presented to the President for assent, the President, shall, within the period of seven days after the Bill is presented to him, cause to be referred to a referendum the question whether the Bill should or should not be assented to."

But then president Zillur did not follow the legal requirement stipulated in the article 142(1A) of the constitution. The moment he was signing the controversial bill into law on 3 July at his office in Bangabhaban, he was legally required to order the Election Commission to conduct a referendum seeking their advice whether he should or should not assent to the bill.

Swearing in as the president to "preserve, protect and defend the constitution," he denied the people's right to franchise to decide the president's next course of action.

He signed the bill into law which also abolished the referendum system as a whole along with abolishing the caretaker government system.

Justice Shahabuddin Ahmed, while leading the makeshift government formed after the ouster of autocratic Gen Ershad in December 1990 as the acting president, however acted upon the advice of the people to give assent to the constitutional 12th amendment in 1991.

When the 12th amendment bill was passed by parliament on August 6 1991 proposing changes in articles 48 and 56 which was required for reintroduction of the parliamentary form of the government discarding the presidential form, Justice Shahabuddin ordered the then EC to conduct a referendum.

Bangladesh held the referendum on 15 September 1991 in which voters were asked "should or should not the president assent to the constitutional twelfth amendment bill?"

More than 84% of the people cast a "yes" vote. Then acting president Shahabuddin Ahmed assented to the bill turning it into law.

The changes in articles 48 and 56 reorganised the powers of the president and the prime minister as the country switched to parliamentary democracy. In this system the president becomes the titular head of the state while the prime minister becomes the executive head.

The provision on referendum was first introduced in the constitution in 1978 through a martial law proclamation which was validated through the 5th amendment in April 1979.

The 15th amendment that abolished referendum too also set a deadline of seven days for the president to sign any constitutional amendment bill into law. If he fails to do so, he shall be deemed to have assented to it on the expiration of that period.

 The Hasina government in 2011 did not want to let people decide the fate of the 15th amendment bill that scrapped the provisions for the nonpartisan election time caretaker government that ensured free and fair elections.

 Without reforming the referendum system to ensure seeking people's opinion on major issues as many democracies such as the UK and USA follow, the cancellation of the system as a whole drew criticism which later died down under the political crisis over the caretaker government system.

Now in many democracies, through a referendum, voters are asked to vote on a 'yes' or 'no' question by a direct vote on a proposal, law, or issue. Thus it has become an effective tool that empowered people to have a say on major national issues.

The 15th amendment also made unamendable one-third part of the Constitution ignoring observation of the Supreme Court made in a verdict in 1998. Along with 50 other articles, the preamble and the article 8 dealing with fundamental principles of the state were also made unamendable.

In so doing, the 9th parliament that passed the 15th amendment bill overstepped its authority to limit the legislative powers of future parliaments, according to a verdict of the Supreme Court.

"A legislature cannot by legislation bind its successor and thus parliament can not pass any unamendable or irrepealable law," the apex court had said in the Shariar Rashid Khan versus Bangladesh case verdict which was also published in BLD – Bangladesh Legal Decisions.

The apex court came up with the verdict rejecting a writ petition filed by Shariar Rashid Khan, one of the accused killers of Sheikh Mujibur Rahman, who challenged repeal of the indemnity ordinance by the Sheikh Hasina government in 1996 to open the door for holding the trial of the August 15 killings. 

But nothing could prevent Zillur Rahman from giving his assent to the 15th amendment bill, which is popularly known as the non-partisan election time government abolishing bill. During his period at the Bangabhaban, he did whatever Hasina wanted him to do, regardless of his oath to ''preserve, protect and defend the constitution".