The Constitution of Bangladesh

 Credit - Kazi Md. Rezwan Nabil


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Definition of Constitution

Constitution defines 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.

Constitution has been variously defined by different writers and scholars according to the varying conceptions which they hold as to what a constitution should be. Some of them are provided below-

1. “Constitution is the way of life the state has chosen for itself.”- Aristotle.

2. “A Constitution may be said to be a collection of principles according to which the powers of the government, the rights of the government and relation between the two are adjusted.”- C F Strong.

3. “Constitution is the aggregate of laws and customs under which the life of the state goes on.”- Lord Bruce.

4. “The term constitution is used to denote all written and unwritten principles regulating the administration of the state.”- K.C Wheare and Hood Phillips.


Necessity of Constitution

A Constitution is necessary because of the following reasons:

1. It is an important law of the land. It determines the relationship of the citizens with the governments.

2. It lays down principles and guidelines which are required for people belonging to different ethnic and religious groups to live in harmony.

3. It specifies on how the Government would be elected and who will have the power and the responsibility to take important decisions.

4. It outlines the limits on the power of the Government and tells us about the rights of the citizens.

5. It expresses the aspirations of the people about creating a good society.

6. One of the things that make the Constitution a really important document for a country is the fact that it controls the transfer of power at the time of national emergencies etc.


Oldest Constitutions

There are some oldest constitutions given below:

Constitution of United States – June 21, 1788

Constitution of Norway – May 17, 1814

Constitution of Netherlands – March 29, 1815

Constitution of Belgium – February 7, 1831

Constitution of Denmark – June 5, 1849

Constitution of Argentina – May 1, 1853

Constitution of Canada – June 1, 1867

Constitution of Luxembourg – October 17, 1868

Constitution of Tonga – November 4, 1875

The Constitution of Australia – January 1, 1901

 

History of “Constitution of Bangladesh”

11th March, 1972: Sheikh Mujibur Rahman issued the Provisional Constitution of Bangladesh Order 1972, as the President of newly independent Peoples’ Republic of Bangladesh.

23rd March, 1972: The Constituent Assembly of Bangladesh Order was promulgated as envisaged in the Provisional Constitution of Bangladesh Order 1972.

This Order provided for parliamentary form of government [Preamble of the Order] and constituted the Constituent Assembly [Clause 7 of the Order] with the Members of National Assembly (MNA’s) and East Pakistan Provincial Assembly (MPA’s) who were elected, under the Legal Framework of President Yahiya Khan’s martial law, by the people of East Pakistan in December 1970 and January 1971 for giving the newly independent country a secular democratic Constitution.

The total Members elected as MNAs and MPAs in December 1970 and January 1971 elections were 469 (169 MNAs and 300 MPAs). Among them 12 died in the meantime before the Constituent Assembly was formed, two became Pakistani citizens, five were arrested under the Collaborator’s Order, 46 were declared disqualified under the Constituent Assembly Order and one went to Foreign Service.

The remaining 403 Members formed the Constituent Assembly. Out of them, 400 Members belonged to the Awami League, one (Surenjit Sen Gupta) belonged to the National Awami Party (NAP) and two [Manbendra Narayan Larma commonly known as Santu Larma was one of them] were Independents.

10th April, 1972: The Constituent Assembly had its first meeting. In this session a Constitution Drafting Committee consisting of 34 members (including Syed Nazrul Islam, Tajuddin Ahmed and AHM Kamruzzaman) was formed under the Chairmanship of Dr Kamal Hossain (the then Law Minister). The only woman member of the Constitution Drafting Committee was Razia Banu, whereas the only opposition member was Mr Surenjit Sen Gupta.

It should be noted that the first written document, Proclamation of Independence, which is considered as the first interim Constitution, was declared and adopted on 10th  April 1971 giving retrospective effect from 26th  March 1971.

17th April, 1972:  The Drafting Committee had its first meeting. In that meeting a resolution was adopted inviting proposals and suggestions from all sections of the people. In response to this invitation, 98 memoranda were received.

10th June, 1972: The Draft Constitution was approved, after the Drafting Committee had 74 meetings to draft the Constitution.

11th October, 1972: The last meeting of the committee was held where the full Draft Constitution was finally approved.

12th October, 1972: The Draft Constitution of 72 pages, containing 103 Articles was presented to the Constitution Assembly, in its second session. On this day, Dr. Kamal Hossain introduced the Draft Constitution as a Bill.

19th October, 1972 – 3rd November, 1972: The Constituent Assembly had general discussion for seven days in between these dates. At the first phase of general discussion Cabinet members Syed Nazrul Islam, Tajuddin Ahmed, Khodker Mushtaq Ahmed, Monsur Ali, Professor Yousuf Ali, AHM Kamruzzaman, Abdul Malik Ukil, Mizanur Rahman Choudhury took part. The only opposition Member Surenjit Sen Gupta and independent Member Manbendra Narayan Larma also took part in the discussion.

During this discussion, 163 amendments were proposed. Among those, 84 amendments were adopted of which 83 were moved by Awami League Members and one was by Surenjit Sen Gupta. Interestingly, most of the amendments were relating to linguistic and grammatical errors of the Bill.

4th November, 1972: The third reading of the Bill was held and on the same day, the committee adopted it with 65 amendments as the Constitution of Bangladesh.

14th November, 1972: The hand-written Constitution, both Bengali original one and its corresponding English translated one, was signed by the Members of the Constituent Assembly. The only opposition member at that time didn’t sign the original hand-written Constitution. At the time of the Constitution being adopted, the President and Prime Minister were Justice Abu Sayed Chowdhury and Sheikh Mujibur Rahman respectively. The original hand written Constitution was of 93 pages.

16th December, 1972: The Constitution was given effect from the first anniversary of the ‘Victory day’ of Bangladesh.

Decorating Team Members of Bangladesh Constitution 

The decorating team members behind this Constitution copy are:

Handwriting: A K M Abdur Rauf

Design: A group of artists including Hashem Khan

and others.

Supervisor: Shilpacharja Zainul Abedin.

Parchment work: Shah Syed Abu Shafi.

Constitution of Bangladesh 

Constitution of Bangladesh is divided into 1 Preamble, 11 parts, 7 Tafsils and 153 articles.

The 11 parts are:

                                Part I: The Republic

                                Part II: Fundamental principles of state policy

                                Part III: Fundamental rights

                                Part IV: The Executive

                                Part V: The Legislature

                                Part VI: The Judiciary

                                Part VII: Elections

                                Part VIII: The Comptroller and Auditor General

                                Part IX: The Services of Bangladesh

                                Part X: Amendment of the Constitution

                                Part XI: Miscellaneous

Part no. IV, V, VI and IX are divided into various chapters. They are provided below:

Part

 Chapter

Part IV: The Executive

I: The President

II: The Prime Minister and The Cabinet

IIA: Non Party Care Taker Government

III: Local Government

IV: The Defence Services

V: The Attorney General

Part V: The Legislature

I: Parliament

II: Legislative and Financial Procedures

III: Ordinance Making Power

Part VI: The Judiciary

I: The Supreme Court

II: Subordinate Courts

III: Administrative Tribunals

Part IX: The Services of Bangladesh

I: Services

II: Public Service Commissions

 Top Insights of Bangladesh Constitutions are - 

q  Bangladesh is a unitary, independent, sovereign Republic to be known as the People's Republic of Bangladesh.

q  The territory of the Republic shall comprise –

(a) The territories which immediately before the Proclamation of Independence on the 26th day of March, 1971 constituted East Pakistan [The territories referred to as included territories in the Constitution (Third Amendment) Act, 1974, but excluding the territories referred to as excluded territories in that Act]

(b) Such other territories as may become included in Bangladesh.

q  The state religion of the Republic is Islam, but the State shall ensure equal status and equal right in the practice of the Hindu, Buddhist, Christian and other religions.

q  The national anthem of the Republic is the first ten lines of “Amar Sonar Bangla”.

q  The national flag of the Republic shall consist of a circle, coloured red throughout its area, resting on a green background.

q  The national emblem of the Republic is the national flower Shapla (Nymphaea Nouchali) resting on water, having on each side an ear of paddy and being surmounted by three connected leaves of jute with two stars on each side of the leaves.

q  The state language of the Republic is Bangla.

q  The capital of the Republic is Dhaka and the boundaries of the capital shall be determined by law.

q  The four fundamental principles are:       

 a) Nationalism

 b) Socialism  

 c) Democracy

d) Secularism

q All citizens are equal before law and are entitled to equal protection of law.

q  The President shall, as Head of State, take precedence over all other persons in the State, and shall exercise the powers and perform the duties conferred and imposed on him by this Constitution and by any other law.


Amendments of Bangladeshi Constitution

There has been 17 amendments till now. The summery of all amendments are provided below:

Amendments

Approved by President

Summery of amendment content

1st Amendment

15th July, 1973

Ensure the trial of war criminals and other crimes against humanity.

2nd Amendment

22th  September, 1973

Amended article no- 26,63,72 & 142. Also introduced “State of Emergency” in case the social and economical life of the country gets hampered. 

3rd Amendment

27th November, 1974

Approval of Bangladesh-India Border Agreement and provision of exchange of enclaves and sub-occupied lands as per agreement.

4th Amendment

25th January, 1975

Introduced a presidential system of government instead of a parliamentary system of government and instead of multi-party politics, it introduced one-party politics.

5th Amendment

6th April, 1979

“Bismillahir Rahmanir Rahim” was added to the constitution and legitimacy was given to all the activities of the military government from 15th August 1975 to 5th April 1979.

6th Amendment

10th July, 1981

This amendment confirms the provision for the election of the President from the post of Vice-President.

7th Amendment

10th November, 1986

This amendment approved all decrees, orders, directives and ordinances of the Chief Martial Law Administrator enacted during the period of martial law from March 24, 1982 to November 9, 1986.

8th Amendment

9th June, 1988

It amended paragraphs no-2, 3, 5, 30 & 100. Provision was made to recognize “Islam” as the state religion and to establish permanent benches of the High Court in six districts outside Dhaka. The name of ‘Dacca’ was changed to ‘Dhaka’ and the name of ‘Bangali’ was changed to ‘Bangladeshi’ through this amendment.

9th Amendment

11th July, 1989

Conducting elections for the post of Vice-President at the same time as the election of the President is restricted to two consecutive terms for a person holding the office of President.

10th Amendment

12th June, 1990

It amended the Bengali interpretation of Article 123 (2) of the Constitution regarding the election of the President within 180 days before the expiration of the term of the President and to reserve 30 seats for women in Parliament for another 10 years.

11th Amendment

10th August, 1991

The appointment of Chief Justice Sahabuddin Ahmed as the Vice President was declared valid. The amendment passed a provision requiring interim President Justice Sahabuddin Ahmed to return to the post of Chief Justice.

12th Amendment

18th  September, 1991

Re-established the parliamentary government in the country after 17 years and abolished the post of Vice President.

13th Amendment

28th March, 1996

Provision for Caretaker Government to ensure free and fair elections.

14th Amendment

17th May, 2004

The reserved women's seats were increased from 30 to 45. The retirement age of Supreme Court judge was raised from 65 to 67 years. Besides, provision was made to display portraits of the President and the Prime Minister in the offices of the President and the Prime Minister and portraits of the Prime Minister in government and semi-government, autonomous organizations and Bangladesh missions abroad.

15th Amendment

3rd July, 2011

Restored secularism and religious freedom to the constitution and added the principles of nationalism, socialism, democracy and secularism as state principles. The hero of the country's war of independence Sheikh Mujibur Rahman was also recognized as the father of the nation. It abolished the caretaker government system and increased the number of reserved seats for women in the National Assembly from 45 to 50. Article 7 (a) and 6 (b) were added to the constitution after Article 7 to prevent the seizure of state power in an unconstitutional manner.

16th Amendment

17th September, 2014

This amendment was passed to restore the power to remove judges to Parliament by reinstating Article 96 of the Constitution of 1972.

17th Amendment

8th July, 2018

It carried the proposal to uphold the rule of electing women MPs for another 25 years

Among all these 17 amendments, four amendments (5th, 7th, 13th and 16th) were dismissed by the Supreme Court after they got approved by the President.

Controversial Issues

Some controversial issues occurred due to the amendments. They are:

q   The constitution's declaration of socialism is at odds with Bangladesh's free market economy. It conflicts with a large section of the Bangladeshi society and electorate. Two political parties which governed the country- the Bangladesh Nationalist Party and Jatiyo Party- are staunchly opposed to socialism and advocate pro-capitalist policies.

q  The constitution has a paradox of including both secularism and a state religion.

q  The constitution declares "the people of Bangladesh shall be known as Bangalees as a nation", which discriminates against the country's significant non-Bengali communities.

q  According to Article 70, Members of Parliament do not have a free vote in the Jatiyo Sangsad. MPs will lose their seats if they vote against their party. This bars the Jatiyo Sangsad from removing a prime minister from office through no confidence motions.

q  The High Court cannot have branches other than in the capital. This has caused burdens for litigants and the judiciary across the country.

q  The 90-day deadline for MPs’ absence has been exploited by opposition parties to enforce opposition boycotts. MPs lose their seats if they are absent for more than 90 days. Opposition MPs often attend sessions only as the deadline nears. Proposals have called for the deadline to be reduced to 30 days or less.

q  In Westminster systems, the dissolution of parliament takes place when a general election is called. The fifteenth amendment in 2011 allowed parliament to continue during an election period. Critics have questioned whether a free and fair election can be held with sitting MPs etc.

Conclusion 

    The constitution forms the basic structure of any government and serves as the backbone of the country.  It provides the framework of the Bangladeshi republic with a parliamentary government, fundamental human rights and freedoms, an independent judiciary, democratic local government and a national bureaucracy. The constitution includes references to socialism, secular democracy and the Bengali nationalism. It commits Bangladesh to “contribute to international peace and co-operation in keeping with the progressive aspirations of mankind”.


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