INTRODUCTION

SYNOPSIS:
 Introduction
 Definition of Constitution and constitutional law
 Classification of constitution
 Qualities of a good constitution
 History of enactment of the Bangladesh Constitution
 Salient features of our constitution

Introduction: The Constitution of Bangladesh is the supreme law of

Bangladesh. It declares Bangladesh as a secular democratic republic where
sovereignty belongs to the people; and lays down the framework defining
fundamental political principles of the state and spells out the fundamental
rights of citizens. It was approved by the National Assembly of Bangladesh
on 4 November, 1972 and it came into execute from 16 December, 1972. The
constitution proclaims nationalism, democracy, socialism and secularism
as the fundamental principles of the Bangladesh. (Article: 8).

Definition of Constitution and constitutional law: A constitution

is an aggregate of fundamental principles or established precedents that
constitute the legal basis of a polity, organization or other type of entity
and commonly determine how that entity is to be governed. The
constitution of a country or organization is the system of laws which
formally states people's rights and duties.

Aristotle defined; ‘Constitution is the way of life the state has chosen for
itself’.

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H Finer says, ‘Constitution is a system of fundamental political
institutions’.

According to Leacock, ‘Constitution is the form of Government’.

According to Gilchrist, ‘Constitution is, ‘that body of rules or laws, written

or unwritten which determine the organization of Government, the
distribution of powers of various organs of Government and the general
principles on which these power are exercised.’

Constitution been define in the Universal Standard "Encyclopedia, Volume

6 as, "In politics, a system of law established by a sovereign State for its
own guidance. It fixes the limits and defines the relations of the legislative,
the judicial, and the executive powers of the State, both among themselves
and with the citizens of the State, thus setting up the basis for
Government."

“Constitution is the collection of principles according to which the powers

of the government, the rights of the governed and the relations between the
two are adjusted. -Woolsey

“Constitution is a body of judicial rules which determine the supreme

organs of state, prescribes their modes of creation, their mutual relations,
their spheres of action and the fundamental place of each of them in
relation to state.” –Jellinek

On the other hand, constitutional law means a body of fundamental

principles or established precedents according to which a state or other
organization is acknowledged to be governed. The term constitutional law
has been defined Hibbert as, “the body of rules governing the relation

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between the sovereign and his subjects and the different parts of the
sovereign body”.

According to Dicey, “Constitutional law includes all rules which directly or

indirectly affect the distribution or exercise the sovereign power of the
State. Hence it includes all rules which define the member of the sovereign
power, all rules which regulate the relation of such members to each other
or which determine the mode in which the sovereign power or the
members thereof exercise their authority”.

From above discussion, it can be said that, constitutional law-

i. The body of law that evolves from a constitution, setting out
the fundamental principles according to which a state is
governed and defining the relationship between the various
branches of government within the state.

ii. A body of law which defines the role, powers, and structure of
different entities within a state, namely, the executive, the
parliament or legislature, and the judiciary; as well as the basic
rights of citizens and, in federal countries such as the United
States and Canada, the relationship between the central
government and state, provincial, or territorial governments.

iii. The area of law which deals with the interpretation and
application of a constitution, particularly that of a national
government.

iv. The body or branch of law concerned with the study,

interpretation, and application of a country or state’s
constitution, including the issues of governance, the powers of
the branches and levels of government, civil liberties, and civil
rights.

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Classification of constitution: Generally the following are the
classifications of the constitutions:
a) Evolved and Enacted;
b) Written and Unwritten;
c) Flexible and Rigid.
a) Evolved and Enacted: An evolved constitution is the result of the
historical development. It is not framed at a particular time. For
example, the British Constitution has neither been enacted by any
special Constituent Assembly at a particular time nor has the
Monarch given it to the people. It is the result of slow and gradual
process of evolution. Its rules and principles draw binding force from
the fact of their being recognised as ancient, historical, tib)me-tested
and respected customs and conventions.

Some of these conventions get recognised by law and hence become

enforceable while others are followed because these are supported by
public opinion, their practical utility and moral commitment in their
favour. Evolved Constitutions is the product of historical evolution
and of political needs and practical wisdom of the people.

An Enacted Constitution is a man-made constitution. It is made,

enacted and adopted by an assembly or council called a Constituent
Assembly or Constitutional Council. It is duly passed after a
thorough discussion over its objectives, principles and provisions. It
is written in the form of a book or as a series of documents and in a
systematic and formal manner. The Constitutions of India the USA,
Japan, China and most of other states are enacted constitutions.

b) Written and Unwritten: A written constitution means a constitution

written in the form of a book or a series of documents combined in
the form of a book. It is a consciously framed and enacted
constitution. It is formulated and adopted by a constituent assembly
or a council or a legislature.

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It embodies the constitutional law of the state. It enjoys the place of
supremacy. The government is fully bound by its provisions and
works strictly in accordance with its provisions. A written
constitution can be amended only in accordance with a settled
process of amendment written in the constitution itself. It is a duly
passed and enacted Constitution. The Constitutions of India, the
USA, Germany, Japan, Canada, France, Switzerland and several other
states, are written constitutions.

An unwritten constitution is one which is neither drafted nor enacted

by a Constituent Assembly and nor even written in the form of a
book. It is found in several historical charters, laws and conventions.
It is a product of slow and gradual evolution. An unwritten
constitution cannot be produced in the form of a book.

An unwritten constitution is not totally unwritten. Some of its parts

are available in written forms but these do not stand codified in the
form of a legal document or a code or a book. According to Garner,
“an unwritten constitution is one in which most and not all, rules are
unwritten and these are not found in any one charter or document.”
The Constitution of the United Kingdom is an unwritten constitution.

Difference between Written and Unwritten Constitutions:

(1) A written constitution is written in the form of a book or
document, whereas an unwritten constitution is not written in such a form.
(2) A written constitution is a made and enacted by a constituent
assembly of the people. An unwritten constitution is the result of a gradual
process of constitutional evolution. It is never written by any assembly.
(3) A written constitution is usually less flexible than an unwritten
constitution. An unwritten constitution depends mostly on unwritten rules
or conventions which do not require any formal amendment.

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(4) A written constitution is definite. Its provisions can be quoted in
support or against any power exercised by the government. An unwritten
constitution cannot be produced in evidence. It has to be proved by
quoting its sources and practices.
c) Flexible and Rigid: A Flexible Constitution is one which can be
easily amended. Several political scientists advocate the view that a
flexible constitution is one in which the constitutional law can be
amended in the same way as an ordinary law. Constitutional
amendments are passed in the same manner by which an ordinary
law is passed.

British Constitution presents a classic example of a most flexible

constitution. The British Parliament is a sovereign parliament which
can make or amend any law or constitutional law by a simple
majority. Laws aiming to affect changes in a constitutional law or in
any ordinary law are passed through the same legislative procedure
i.e., by a simple majority of votes in the legislature. Similarly, a
Constitution is flexible when the procedure of amending it is simple
and the changes can be made easily.

The Rigid Constitution is one which cannot be easily amended. Its

method of amendment is difficult. For amending it, the legislature
has to pass an amendment bill by a specific, usually big, majority of
2/3rd or 3/4th. For passing or amending an ordinary law, the
legislature usually passes the law by a simple majority of its
members.

A rigid constitution is considered to be the most fundamental law of

the land. It is regarded as the basic will of the sovereign people. That
is why it can be amended only by a special procedure requiring the
passing of the amendment proposal by a big majority of votes which
is often followed by ratification by the people in a referendum. The
Constitution of United States of America is a very rigid constitution.

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Qualities of a Good Constitution:
i. Constitution must be systematically written.
ii. It should incorporate the constitutional law of the state and enjoy
supremacy.
iii. It should have the ability to develop and change in accordance with
the changes in the environment and needs of the people.
iv. It should be neither unduly rigid nor unduly flexible.
v. It must provide for Fundamental Rights and Freedoms of the people.
vi. It should clearly define the organisation, powers, functions inter-
relations of the government of the state and its three organs.
vii. It must provide for the organisation of a representative, responsible,
limited and accountable government.
viii. It must provide for:
 Rule of Law
 De-centralisation of powers
 Independent and powerful Judiciary
 A system of Local self-government
 A Sound Method of Amendment of the Constitution
 Process and Machinery for the conduct of free and elections
ix. The Constitution must clearly reflect the sovereignty of the people.
x. The language of the constitution should be simple, clear and
unambiguous.

The Constitution must empower the judiciary with the power to interpret,
protect and defend the Constitution and the fundamental rights and
freedoms of the people against the possible legislative and executive
excesses. These are the basic features which must be present in every good
Constitution.

History of enactment of the Bangladesh Constitution:

 Partition of India: India was being governed by the Government of

India Act, 1935 when it was partitioned in 1947. While partitioning

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the country, the British Parliament amended this Act and passed the
Indian Independence Act, 1947 creating two Dominions - India and
Pakistan - and two Constituent Assemblies for the two dominion.

 Delay in framing constitution in Pakistan: The Constituent

Assembly of India promptly, enacted a constitution which came into
operation in January, 1950. 'The Constituent Assembly of Pakistan
could not complete its work for quite a long time. The Constituent
Assembly of Pakistan delayed the framing of the Constitution due to
dissentions and hostilities amongst the politicians, bureaucrats and
military personnel.

 Enactment of Constitution of Pakistan: Finally, the Constitution of

Pakistan saw the light of the day in March, 1956. Soon thereafter, the
Constitution of 1956 was abrogated by Ayub Khan by imposing
Martial Law. In 1958. Again, during Ayub's regime, the Constitution
of 1962 was framed on 7 June 1962. In 1965, Ayub Khan got himself
re-elected as President for the second term.

 Six point movement: The economic disparities between East and

West Pakistan prompted Sk. Mujibur Rahman to start political
movement in East Pakistan with 6-point, which runs as follows:

1. The character of the Government shall be Federal and

Parliamentary, in which the election 10 the federal legislature
and to the legislatures of the federating units shall he direct and
on the basis of universal adult franchise. The representation in
the federal legislature shall be on the basis of population.
2. The Federal Government shall he responsible only for defence,
foreign affairs and currency, subject to the conditions provided
in (3) below,
3. Two separate but freely convertible currencies for the two
wings may be introduced, or (I) one currency for the whole
country may be maintained. In this case effective constitutional
provisions are to be made to stop flight of capital from East to

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West Pakistan. Separate Banking Reserve is to be made and
separate fiscal and monetary policy to be adopted for East
Pakistan.
4. The power of taxation and revenue collection shall vest in the
federating units and the Federal Centre will have no such
power. The Federation will have a share in the State taxes for
meeting their required expenditures. The consolidated federal
fund shall come out of a levy of certain percentage of all State
taxes.
5. (I) There shall be two separate accounts for foreign exchange
earnings of the two wings.
(II) Earnings of East Pakistan shall be under the control of East
Pakistan Government and that of West Pakistan under the
control of West Pakistan Government.
(III) Foreign exchange requirements of the Federal Government
shall be met by the two wings either equally or in a ratio to be
fixed.
(IV) Indigenous products shall move free of duty between the
two wings.
(V) The Constitution shall empower the unit Governments to
establish trade and commercial relations with, set up trade
missions in and enter into agreements with, foreign countries.
6. The setting up of a militia or a paramilitary force for East
Pakistan.

 Independence of Bangladesh: As the political movement was

gaining momentum, the Government of Pakistan started the
'Agartala Conspiracy Case' against Sk. Mujibur Rahman and others to
stop the political movement in East Pakistan by putting them behind
prison bars. Due to heavy political activities, the Government of
Pakistan was compelled to withdraw the case. In the back drop of
political agitations, Ayub Khan relinquished his Presidency and
handed over power to his Commander-in-Chief Yahaya Khan, who
under Martial Law Proclamations abrogated the Constitution of 1962

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and promulgated Legal Framework Order (LFO). Under the
provisions of LFO, elections were held between 7 December 1970 to
17 January 1971 to the National and Provincial Assemblies on the
basis of adult franchise in East Pakistan. In these elections out of 169
seats, Awami League obtained 167 seats. The National Assembly was
summoned by Yahaya Khan on 3 March 1971 at Dhaka for framing of
the Constitution. Thereafter, Yahaya Khan postponed the sessions at
Dhaka indefinitely and an unjust and treacherous war was imposed
on the innocent men and women in East Pakistan on the night of 25
March 1971. Sk. Mujibur Rahrnan was arrested and taken to West
Pakistan prison. The, war of liberation continued for about nine
months and the freedom loving people of East Pakistan got
independence on 16 December 1971. The Pakistan occupation forces
were compelled to surrender at Dhaka. This war of liberation
brought independence and Bangladesh emerged as an independent,
sovereign state in the map of the world. The world at large
recognized the birth of Bangladesh as a new country.

 Enactment of the Constitution of Bangladesh: The members elected

in the elections of 1970, proclaimed independence of Bangladesh
through the instrument of 'The Proclamation of Independence, 10
April 1971. at Mujibnagar, Bangladesh and formed the Government
with Sk. Mujibur Rahman (in custody) as President and Syed Nazrul
Islam as Acting President till release of Sk. Mujibur Rahman from the
prison of Pakistan. This proclamation of Independence was isued by
Professor Yusuf Ali by and under the authority of the Constituent
Assembly. This document is in fact the Constitutional basis for the
creation of sovereign Bangladesh as a State.

In this document, the manifest aspiration of the people of Bangladesh

was to establish parliamentary democracy in Bangladesh. As a matter of
fact, this preconstitutional document is a declaration, affirmation and
resolution for parliamentary democracy in Bangladesh. These three pre-
constitutional documents ultimately gave us the legal basis for creation

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of Bangladesh and the system of Government in accordance with which
the country will be governed. The Constituent Assembly by a resolution
constituted a Constitution Drafting Committee on 11 April 1972 with Dr.
Kamal Hossain as Chairman and 33 members of the Constituent
Assembly as members of the Commission. The Constitution of
Bangladesh was adopted and enacted on 4 November 1972 and it came
into effect on 16 December 1972, as the commencing day of the
Constitution as per Article 153 of the Constitution of Bangladesh.

Salient features of our constitution:

 Written Constitution: The Constitution of the People’s Republic of
Bangladesh is a written document. It was formally adopted by the
National Assembly on 4th November 1972. It contains 153 articles,
one preamble and seven schedules.
 Rigid Constitution: The Constitution of Bangladesh is a rigid.
Amendment only possible by the approval of the two-thirds
members of the parliament.
 Preamble: The constitution of Bangladesh starts with a preamble
which is described as the guiding star of the Constitution. This
Preamble contains the legal as well as moral basis of the Constitution.
It also identifies the objectives and aims of the state.
 Supremacy of the Constitution: The Constitution Supremacy has
been ensured in the Constitution of Bangladesh. Article 7 provides
that, 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
inconsistence with this Constitution that other law shall, to the extent
of the inconsistency, be canceled.
 Unitary Government System: Article 1 of the Constitution provides
that Bangladesh is a unitary people’s republic. Unitary government
means all power centralized under the constitution.
 Unicameral Legislature: Article 65 of the Constitution provides for a
unicameral legislature for Bangladesh It is only one House to be
known as the House of the Nation. Like Indian legislature it is not
composed of upper House and lower House.
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 Fundamental Principles of State Policy: Article 8 of the Constitution
provides for four major fundamental principles of state policy. They
are (i) Nationalism, (ii) Democracy, (iii) Socialism; and (iv)
Secularism. All other principles derived from these four shall also
constituted the fundamental principles of state policy.
 Fundamental Rights: Part-III of the Constitution provides for 18
fundamental rights. The enjoyment and enforcement of these rights
have been guaranteed in the Constitution. The Supreme Court has
been invested with the task to protect these rights. No authority can
make any law which is inconsistent with the provisions of
fundamental rights and any law so made shall, to the extent of such
inconsistency, be void.
 Parliamentary form of Government: The Constitution of Bangladesh
provides for a Westminster type of parliamentary system. This form
of government, in other words, cabinet form of government is run by
a cabinet of Ministers headed by the prime Minister and the cabinet
as a whole has to be responsible to the parliament and can remain in
power so long it enjoys the confidence of the majority members of the
parliament. President becomes a titular head: the real executive
power is exercised by the cabinet. The 1972’s Constitution of
Bangladesh provided, more or less, all the trappings of parliamentary
form of government.
 Ombudsman: Provisions for the establishment of an Ombudsman
were inserted in Article 77. To provide machinery to overview the
activities of civil bureaucracy, to eradicate corruption in the
administration and ensure the responsibility of the government in
more specific way the role of an Ombudsman like a citizen defender.
 Responsible Govt. not ensured: The Constitution of Bangladesh
provides for a Westminster type of parliamentary government but it
could not ensure the conditions of responsible government. The
constitution of Bangladesh has no provision for ensuring the
individual responsibility of minister. Article-55/3 provides that the
cabinet shall be collectively responsible to the parliament; this
responsibility cannot be ensured in practice due to the barricade
created by the Article 70 of the Constitution.

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 Universal Franchise: Article 122 (1) states that the elections to
parliament shall be on the basis of adult franchise.
 Independence of Judiciary: The Constitution of 1972 ensured the
independence of judiciary. Firstly, provision was made that the Chief
Justice would be appointed by the president and other justices of the
Supreme Court would be appointed after consultation with the Chief
Justice (Art. 95). Appointment of subordinate judges and magistrates
was also to be exercised with consultation of the Supreme Court.
Secondly, it was provided that the remuneration, privileges and other
terms and conditions of service of judges could not be varied to their
disadvantages and the salaries of the judges were charged upon the
Consolidated Fund of the Republic. Again, the control (including the
power of posting, promotion and grant of leave) and discipline of
persons employed in the judicial service and magistrates exercising
judicial functions was vested in the Supreme Court.

Jannatun Naem Mitu

39 Batch
Department of Law
Rajshahi University

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