Political science lec 4(constitution)

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

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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

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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

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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


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

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8th
9th June 1988
Amendment

Setting up six permanent Benches of the High Court Division
and making Islam the state religion.

Amendments Date


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

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.

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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

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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

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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.

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Political science lec 4(constitution)

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