Constitutional Law of Bangladesh ARNAB KUMAR DAS Port City International University, Chittagong, Bangladesh. SID: LLB 00305037

2. CLB 250 - The Constitution Law of Bangladesh
Topic to be discussed: “Preamble to the Constitution, Fundamental Principles of State
Policy, Fundamental Rights and Article 7 and 8”
Preamble to the Constitution
Generally Preamble is an introductory paragraph or part in a statute or other document settings
forth the ground and intention of it. Not only Constitution, but also most of the statutes
contains a Preamble. In other words, it sets out the main objective, which legislation is
intended to archive it. It is a key to the intention of the maker of the Act. The Preamble to a
Constitution is its philosophy, because it contains those ideals and principles on the basis of
which the whole structure of the Constitution is created. The Preamble to a Constitution
serves the following three main purposes:
(i) It indicates the source of the Constitution;
Example: the legal and moral basis of the Constitution
(ii) It express in a shortly the ideas and aspiration of the objectives to the Constitution;
(iii) It works as the guiding star for the interpretation of the Constitution;
Significance of the Preamble
The Preamble bears no legal significance, but it has other important significance which is
sometimes more than the legal importance.
1. It is the Preamble which identifies the legal source or base of the Constitution. Legal
base of the Constitution means wherefrom the validity and power of the Constitution
Is derived;
2. It indicates the moral basis or the philosophy of the Constitution;
3. The Preamble works as a guiding star for the whole nation and for the interpretation of
the Constitution;
4. The Preamble has a great interpretative significance.
Fundamental Principles of State Policy
Modern states are welfare states and the principle purpose of such a state is public welfare.
The idea of directive principles in the Constitution was first introduced in the Irish
Constitution of 1937. Article 45 of the Irish Constitution provides for some principles under
the heading of Directive Principles of Social Policy.” Following this Irish example the idea
has got in the Constitution of Burma (Mayanmar) in 1949, of India in 1950, of Pakistan
in 1956 and 1962, and finally has been in the Constitution of Bangladesh in 1972. The
principles has been adopted under the heading of “Directive Principles of State Policy” in
the Indian Constitution, “Principles of State Policy” in the Pakistan Constitution of 1962
and “Fundamental Principles of State Policy” in the Bangladesh Constitution. From - -
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the view point of Bangladesh Constitution it may be said that Fundamental Principles of
State Policy are those principles which act as fundamental guide to the policy making, be it
social, economic, administrative or international, governance of the country, making laws and
interpreting the Constitution and laws.
Distinction between Fundamental Rights and Directive Principles
There are some fundamental distinctions between Fundamental Rights and Directive
Principles, which are follows:
1. When certain human rights are written down in the Constitution, a supreme law, and
are protected by constitutional guarantees they are called Fundamental Rights. On the
other hand Directive Principles are relating to social, economic and culture rights which
are to be followed in governance of the country.
2. Fundamental Rights are enforceable in a court of law and they create justifiable rights
in favor of individuals. On the other hand Directive Principles are not enforceable in a
court of law and they do not create justifiable rights in favor of individuals.
3. Fundamental Rights are mandatory in nature whereas directives are declaratory, but
Directive Principles are not mandatory in nature whereas Fundamental Rights are
declaratory.
4. Fundamental Rights create negative obligation on the state. On the other hand Directive
Principles impose positive obligation on the state.
5. If there is any conflict between Fundamental Rights and Directive Principles rights,
Fundamental Rights will prevail over the directives.
Fundamental Principles- where to be applied?
According to Article 8 (2) of the Constitution of Bangladesh, the Fundamental Principles
shall be applied in the following spheres:
(i) They shall be fundamental in governance of the country;
(ii) The shall be applied in making laws;
(iii) They shall be a guide to the interpretation of the Constitution and other laws of
Bangladesh;
(iv) They shall from the basis of all works of the state and of its citizens.
But they shall not be enforceable in a court of law.
Fundamental Rights
The term “Fundamental Right” is a technical one, when certain human rights are written down
in a Constitution and are protected by constitutional guarantees they are called Fundamental-
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Rights. They are called Fundamental Rights in the sense that they are placed in the supreme
or fundamental law of the land which has a supreme sanctity over all other law of the land.
Following the footsteps, for the first time French Declaration of “Rights of Man and Citizen
in 1789 and the American Declaration of Independence in 1776 and then the incorporation of
a Bill of Right in the US Constitution in 1791.
Fundamental Rights in Bangladesh
Bangladeshi people have 23 Fundamental Rights under the Constitution of Bangladesh
Part 3, Articles 26 to 47A. The Fundamental Rights in Bangladesh under below:
1. Article-26: Laws inconsistent with fundamental rights to be void
2. Article-27: Equality before law
3. Article-28: Discrimination on grounds of religion, etc.
4. Article-29: Equality of opportunity in public employment
5. Article-30: Prohibition of foreign titles, etc.
6. Article-31: Right to protection of law
7. Article-32: Protection of right to life and personal liberty
8. Article-33: Safeguards as to arrest and detention
9. Article-34: Prohibition of forced labour
10. Article-35: Protection in respect of trial and punishment
11. Article-36: Freedom of movement
12. Article-37: Freedom of assembly
13. Article-38: Freedom of association
14. Article-39: Freedom of thought and conscience, and of speech
15. Article-40: Freedom of profession or occupation
16. Article-41: Freedom of religion
17. Article-42: Rights of property
18. Article-43: Protection of home and correspondence
19. Article-44: Enforcement of fundamental rights
20. Article-45: Modification of rights in respect of disciplinary law
21. Article-46: Power to provide indemnity
22. Article-47: Saving for certain laws
23. Article-47A: Inapplicability of certain articles
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Article 7: Supremacy of the Constitution
(1) All powers in the Republic belong to the people, and their exercise on behalf of the
people shall be effected only under, and by the authority of, this Constitution.
(2) This Constitution is, as the solemn expression of the will of the people, the supreme
law of the Republic, and if any other law is inconsistent with this Constitution and
other law shall, to the extent of the inconsistency, be void.
Article 8: Fundamental Principles of State Policy
(1) The principles of Nationalism, Socialism, Democracy and Secularism, together with
the principles derived from those as set out in this Part, shall constitute the
fundamental principles of state policy.
(2) The principles set out in this Part shall be fundamental to the governance of
Bangladesh, shall be applied by the State in the making of laws, shall be a guide to
the interpretation of the Constitution and of the other laws of Bangladesh, and shall
form the basis of the work of the State and of its citizens, but shall not be judicially
enforceable.