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  • 1. Constitution & Constitutional Development in Bangladesh Political science(Fundamental Concepts) Mohammad Alauddin MSS in Government and Politics MPA in Governance and Public Policy Deputy Secretary mohammadalauddin@yahoo.co Date:07.02.2011 Outline  Introduction  What is a Constitution?  What do Constitutions Contain?  Methods of Establishing Constitution  Types of Constitution  History of Bangladesh's Constitutional Development  Salient Features of Bangladesh Constitution  Concluding Remarks Introduction A modern state cannot be thought of without a Constitution. The entire legislative, executive and judicial functions of the State are guided and regulated by the Constitution. The constitution and its development, as the supreme legal framework of a country, is a continuing process so that the hopes and aspirations of its populace can be accommodated along with socio-economic changes. Definitions Aristotle: Constitution is the way of life the state has chosen for itself. Lord Bryce: Constitution is the aggregate of laws and customs under which the life of the state goes on. C F Strong: Constitution is the collection of principles according to which the powers of the government, the rights of the governed and the relation between the two are adjusted. A constitution is a body of fundamental rules, written or unwritten, which determines the organization or structure of the government, distribute powers and determines the relationship among the organs of the government. What do Constitutions Contain? What we want to put into a constitution really depends on what we consider fundamental and sufficiently important issue. It may contain not only purely legal rules but also a statement of political faith, ideal and aspirations. Constitutions vary greatly in length. For example, the American Constitution, with 4400 words is the shortest one in the world today, while the Indian Constitution , running into 395 articles and 12 Schedules is the world’s longest. Methods of Establishing Constitution /mnt/temp/unoconv/20131115102938/politicalsciencelec-4constitution-131115042938-phpapp01.doc Page 1 of 8
  • 2. History shows four methods by which modern states have acquired their constitution: • • • I .By Grant: Louis XVII in France, Emperor of Japan granted charter. II. By Deliberate Creation: By Constituent Assembly- US Constitution, Indian Constitution, Bangladesh Constitution. By Legislative Assembly- the Government of India Act,1919 and that of 1935,The Irish Constitution of 1922. III. By Revolution: In France after French Revolution, in Russia in 1917. IV. By Gradual Evolution: The Constitution of Britain is the best and, better to say, the only example of this type. Types of Constitution Written & Unwritten i. Written: The US Constitution, Indian Constitution, Bangladesh Constitution provide examples of written Constitution. ii. Unwritten: The British Constitution provides the glaring example of unwritten Constitution. Flexible & Rigid i. Flexible :The Constitution which can be amended by ordinary law making procedure. The Constitution of UK (unwritten) and New Zealand (written) are flexible. ii. Rigid: The Constitution which cannot be amended by ordinary law making procedure but a special (like two-thirds majority) procedure is needed, it is called a rigid Constitution. For example, the US Constitution is a rigid one. History of Constitutional : Development in Bangladesh Before the Constitution came into force on the 16th December 1972, Bangladesh was governed, de jure from the 26th March, 1971, de facto from 16th December 1971, by three constitutional documents: • The Proclamation of Independence,1971 • Laws Continuance Enforcement Order,1971 • Provisional Constitution of Bangladesh Order,1972 History of Constitutional Development I. The proclamation of independence. Following the military crackdown on March 25, 1971 the Awami League leaders who could flee to India assembled in Kolkata. With their prompt initiative a formal Proclamation of Independence was drafted and adopted on 10 th April,1971. Under this Proclamation the representatives constituted themselves into a Constituent Assembly for Bangladesh and declared Bangladesh as a Sovereign People’s Republic. The proclamation of independence Bangabandhu Sheikh Mujibur Rahman was made President and Syed Nazrul Islam Acting President. They thereby confirmed the declaration already made on March 26,1971. And now it remained no longer a mere declaration; it became a formally approved /mnt/temp/unoconv/20131115102938/politicalsciencelec-4constitution-131115042938-phpapp01.doc Page 2 of 8
  • 3. document which acted as interim Constitution. It provided for a Presidential system of Government giving the President the absolute power in views of the war situation. II. Laws Continuance Enforcement Order,1971. On 10th April1971, along with the Proclamation of Independence, Law’s Continuance Enforcement Order was issued. This Order provided that all laws that were in force in Bangladesh on March 25, 1971 and were subject to the Proclamation of Independence, continued to be in force with such consequential changes as were necessary. III. The Provisional Constitution of Bangladesh Order,1972. On December 16, 1971 Bangladesh achieved its full formal independence. The State administration was being run according to the Proclamation of Independence. On January 10,1972 Bangabandhu Sheikh Mujibur Rahman returned to Bangladesh and took up the post of President. On 11th January 1972, the President promulgated the Provisional Constitution of Bangladesh Order,1972. By virtue of this Order the entire character of the government was changed. The Presidential form was substituted by a form aiming at a Westminster type Parliamentary system. The first step in making the Constitution of independent Bangladesh was the promulgation of the Constituent Assembly of Bangladesh Order on March 22, 1972 as envisaged in the Provisional Constitution of Bangladesh Order,1972. This Order defined the Constituent Assembly and its functions in details. The Constituent Assembly comprised the elected representatives of the people of Bangladesh who were elected as MNAs and MPAs in the elections held during December 7,1970 to March 1,1971. History of Constitutional Development The total members elected as MNA and MPA were 469 (169 MNAs & 300 MPAs). Among them 12 died, 2 became Pakistani citizens, 5 were arrested under the Collaborator’s Order, 46 were disqualified under the Constituent Assembly (Disqualification of Membership) Order and 1 went to a foreign service. The remaining 403 members manned the Constituent Assembly. Constitution Drafting Committee Constitution Drafting Committee. The Constituent Assembly held its first session on 10 th April 1972. A thirty-four member Draft Committee headed by the then Law Minister Dr. Kamal Hossain, was set up on the very day the Constituent Assembly convened. The committee was dominated by Awami League members, excepting a lone opposition member from Ganatantri Party. The Committee was asked to submit its report to the Constituent Assembly with a Bill of the Draft Constitution. Constitution Drafting Committee The committee had its first meeting on April 17, 1972. In this meeting a resolution was adopted which invited proposals and suggestions from all sections of the people. In response to this invitation, 98 memoranda were received. The Drafting Committee had 74 meetings to draft the constitution and on June 10,1972 it approved the draft. Lastly on 11 th October the full draft of the Constitution was finally approved. Second Session of the Constituent Assembly The second session of the Assembly commenced on October12, 1972. On this day Dr. Kamal Hossain introduced the draft Constitution as a Bill. After seven days general discussion /mnt/temp/unoconv/20131115102938/politicalsciencelec-4constitution-131115042938-phpapp01.doc Page 3 of 8
  • 4. over the Bill commenced on October 19 and continued till November 3. During this long discussion 163 amendments were proposed. Among these 84 amendments were adopted 83 of which were moved by Awami League Members and one was by Suranjit Sen Gupta. But most of the amendments were linguistic errors of the Bill. The third reading on the Bill was held on November 4 and on that very day Assembly adopted the Constitution for Bangladesh. Constitutional Journey The Constitution of Bangladesh embarked on its eventful journey from 16 th December 1972. Since then 14 amendments have been made to Constitution. And, indeed , they have basically changed many of the important characteristics of the Constitution. Of late the verdict of the Appellate Division on the Fifth Amendment to the Constitution again modified the characteristics of the Constitution. Constitutional Journey Amendments Date Summary of Substance 1st 15th July 1973 Amendment To make the way for prosecution of genocide, crime against humanity and war crimes committed in the liberation war of 1971. 2nd 22nd Amendment Sepember1973 Inclusion of emergency provision, suspension of fundamental rights and preventive detention. 3rd 28th NovemberTo give effect to the boundary-line between Bangladesh Amendment 1974 and India. 4th 25th January 1975 One party dictatorial system was substituted for a Amendment responsible parliamentary system. Amendments Date Summary of Substance 5th 6th April 1979 Amendment Legalizing all the actions taken by the first Military Authority. 6th 10th July 1981 Amendment To make way for the Vice-President to be candidate in presidential election. 7th 10th Legalizing all acts done by the second Military Authority Amendment Novemember1986 /mnt/temp/unoconv/20131115102938/politicalsciencelec-4constitution-131115042938-phpapp01.doc Page 4 of 8
  • 5. 8th 9th June 1988 Amendment Setting up six permanent Benches of the High Court Division and making Islam the state religion. Amendments Date Summary of Substance 9th 11th July 1989 Amendment Direct election simultaneously 10th 23rd June 1990 Amendment Period for reservation of 30 women members seats in the Parliament was extended for 10 years. of the President and Vice-President 11th 10th August 1991 Legalizing the appointment of Justice Shahabuddin Amendment Ahamed Chief Justice of Bangladesh, as Vice President of Bangladesh and his all activities as the Acting President and then the return to his previous position of the Chief Justice of Bangladesh. Amendments Date Summary of Substance 9th 11th July 1989 Amendment Direct election simultaneously of the President and Vice-President 10th 23rd June 1990 Amendment Period for reservation of 30 women members seats in the Parliament was extended for 10 years. 11th 10th August 1991 Legalizing the appointment of Justice Shahabuddin Amendment Ahamed Chief Justice of Bangladesh, as Vice President of Bangladesh and his all activities as the Acting President and then the return to his previous position of the Chief Justice of Bangladesh. Salient Features of Bangladesh Constitution Original Constitution of Bangladesh was adopted and enacted on November 4, 1972 and came into effect on December 16,1972. The salient features of Bangladesh Constitution as exists today are as follows: Salient Features 1.Written Constitution. The Constitution of the People’s Republic of Bangladesh is a written document. It contains Articles from 1 to 153,a Preamble and 3 schedules. /mnt/temp/unoconv/20131115102938/politicalsciencelec-4constitution-131115042938-phpapp01.doc Page 5 of 8
  • 6. 2.Rigid Constitution. No provision of it can be amended by ordinary law making procedure; amendment can be passed only by votes of not less than two-thirds of the total number of MPs. 3.Preamble: The Constitution of Bangladesh starts with a preamble which is described as the guiding star of the Constitution. This very preamble contains the legal as well as moral basis of the Constitution; it also identifies the objectives and aims of the State. The preamble is a part of our Constitution and cannot be amended without a referendum. 4. Supremacy of the Constitution. Supremacy of the Constitution means that its mandates shall prevail under all circumstances. As it is the source of legitimacy of all actions, legislative, executive or judicial, no action shall be valid unless it conforms with the Constitution both in letter and spirit. The supremacy of the Constitution articulated in Article 7(2) -- “This Constitution is, as the solemn expression of the will of the people, the supreme law of the Republic” is the cornerstone of the Constitution of Bangladesh. Salient Features 5.Unitary System of Government: Article1of the Constitution provides that Bangladesh is a unitary people's republic as opposed to federal republic. No division of power has been provided for in he Constitution unlike in federal constitutions. All the legislative, executive and judicial power are vested in a single set of authorities. 6. Unicameral Legislature: Article 65 of the Constitution provides a unitary, one-house Parliament vested with all the legislative powers of the Republic. There is no other co-ordinate or territorial law-making body. Laws made by the Parliament are equally applicable to the whole territory of Bangladesh. 7. Fundamental Principles of State Policy. Part II (Art.8-25) of the Constitution contains a list of ‘Fundamental Principles of State Policy'. Article 8 provides for 4 fundamental principles of state policy. Observance of these principles is deemed essential for the welfare of the people. 8.Fundamental Rights: Part III (Art.26-47A) of the Constitution provides for 18 fundamental rights. The enjoyment and enforcement of these rights have been guaranteed in the Constitution. 9.Parliamentary Form of Government: Constitution provides for a parliamentary form of government. The executive authority of the Republic is vested in the Prime Minister. Only that party forms the Cabinet which has a majority in the Parliament. It continues in office so long as it continues to enjoy the confidence of majority members of the Parliament. The President is only the constitutional head of the state and does not possess much power to affect the working of the Cabinet. 10.Independence of Judiciary: The Constitution devised a scheme of independence of judiciary 11.Ombudsman: Provisions for the establishment of an ombudsman were inserted in Article 77.The role of an ombudsman like a citizen’s defender or watch-dog has been successful in some countries. 12. State Religion: Article 2A says that the State religion of the Republic is Islam, but other religions may be practiced in peace and harmony in the Republic. In the Constitution of /mnt/temp/unoconv/20131115102938/politicalsciencelec-4constitution-131115042938-phpapp01.doc Page 6 of 8
  • 7. Ireland, Sweden, Norway, Denmark, Switzerland and Brazil, we find acknowledgement of Christianity and Jesus. 13.Emergency Provisions: Emergency provisions have been provided in its Part IXA which enable the executive to meet any emergency situation. The truth is that there was no Article or provisions for emergency in the constitution as originally enacted in 1972. 14.Provision for Preventive Detention: The provision for preventive detention has been embodied in its Article 33. Exigent to mention here that preventive detention is , by nature, repugnant to democratic ideas, and no such laws exist in the USA or UK in times of peace. 15.Law-making Power of the President :Article 93 empowers the President to legislate by ordinances. Criticisms  Bangladesh Constitution was framed by the members of Constituent Assembly who were elected to the then East Pakistan Provincial Assembly and Pakistan National Assembly and never put to the vote of the people and was not approved by them.  In the context of extra-constitutional activities, critics hold the opinion that a provision prohibiting suspension of the Constitution at any situation should have in Article 7 of the Constitution.  The fundamental principles of state policy as contained in Part II of the Constitution confer no legal right and create no legal remedies. These high sounding but empty promises can have no appeal to any sensible person.  The list of ‘Fundamental Rights’ included in Part III of the Constitution is far from complete. It does not contain right to work, right to leisure, right to free education etc.  Constitution have played a trick with the citizens.What it gives with one hand, it takes away with the other. Too many restrictions and exceptions have rendered the fundamental rights sound hollow and it is difficult to understand what actually it left with the people by way of fundamental right.  If countries like USA and UK can live without Ordinance,there is no reason why it cannot be done in Bangladesh.  Article 106 of the Constitution has turned the highest Court of the country into a consultative department of the Government of the day.  Emergency provisions as contained in Part IXA of the Constitution may lead to tyranny where there is always a scope to suppress political opposition inside the country. Territorial constituents as envisaged by Article 65 as not reflecting the aspirations,hopes, needs and demands of different classes, professions, occupations and interest groups. Sirajul Alam Khan and Zillur Rahman Khan proposed for a unicameral Parliament consisting of 500 seats. Of the total seats, 300 representatives shall represent territorial constituencies and 200 shall be elected from different classes. Concluding Remarks The constitutional journey was not very smooth. Extra-constitutional forces were allowed to trample constitutional provisions.We can expect effective continuance of the Constitution if the citizens are knowledgeable about the Constitution and at the same time they are vigilant and vocal to preserve the Constitution. Concluding Remarks /mnt/temp/unoconv/20131115102938/politicalsciencelec-4constitution-131115042938-phpapp01.doc Page 7 of 8
  • 8. What Dr. B. R. Ambedkar, the chief architect of the Constitution of India(1950) said is of prime importance. However good a Constitution may be, it is sure to turn out bad because those who are called to work it happen to be a bad lot. However bad a Constitution may be, it may turn out to be good if those who are called to work it happen to be a good lot Concluding Remarks We should not leave the Constitution in the hands of lawyers, Judges and academicians. It becomes almost impossible to make an open breach the Constitution when each citizen is a defender of it. Being enlightened citizens, we cannot remain apathetic to constitutional matters. Islam, Mahmudul, 2008. Constitutional Law of Bangladesh, 2nd Edition, Dhaka: Mullic Brothers. Choudhury Dilara,1995. Constitutional Development in Bangladesh: Stresses and Strains. Dhaka: University Press Limited. /mnt/temp/unoconv/20131115102938/politicalsciencelec-4constitution-131115042938-phpapp01.doc Page 8 of 8