Constitution of Bangladesh

The Constitution of the People's Republic of Bangladesh is the constitutional document of Bangladesh. It was adopted on 4 November, 1972 and effective from 16 December, 1972. 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, Islam, secular democracy and the Bengali language. It commits Bangladesh to “contribute to international peace and co-operation in keeping with the progressive aspirations of mankind”. The constitution has several controversial elements like Article 70.

Constitution of the People's Republic of Bangladesh
বাংলাদেশের সংবিধান
Page one of the original copy of the Bangladeshi Constitution
Ratified4 November 1972
Date effective16 December 1972 (1972-12-16)
Author(s)Constitution Drafting Committee
Signatories404[1] members of the Constituent Assembly
PurposeTo replace the Proclamation of Bangladeshi Independence
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Judicial precedent is enshrined in Bangladesh's constitution under Article 111, which makes Bangladesh an integral part of the common law world. Judicial review is also supported by the constitution.

Modern constitutional history

British India

The advent of British rule in the 18th century displaced the centuries of governance developed by South Asian empires. The Regulating Act of 1773 passed by the Parliament of the United Kingdom was the first basic law in the Bengal Presidency. The British Empire did not grant universal suffrage and democratic institutions to its colonies. The British slowly granted concessions for home rule. The Government of India Act 1858, Indian Councils Act 1861, Indian Councils Act 1892 and Indian Councils Act 1909 were later important laws of government. The legislatures of British India included the Bengal Legislative Council and the Eastern Bengal and Assam Legislative Council in the early 20th century. The Nehru Report recommended for universal suffrage, a bi-cameral legislature, a senate and a house of representatives. The Fourteen Points of Jinnah demanded provincial autonomy and quotas for Muslims in government. The Government of India Act 1935 established provincial parliaments based on separate electorates.[2]

The 1940 Lahore Resolution, supported by the first Prime Minister of Bengal, asked the British government that "the North Western and Eastern Zones of (British) India should be grouped to constitute ‘independent states’". It further proclaimed "that adequate, effective and mandatory safeguards should be specifically provided in the constitution for minorities in these units and in the regions for the protection of their religious, cultural, economic, political, administrative and other rights". The resolution's status is akin to the magna carta in Bangladesh and Pakistan, in terms of the concept of independence.[3][4][5] On 20 June 1947, the Bengal Legislative Assembly voted on the partition of Bengal. It was decided by 120 votes to 90 that, if Bengal remained united, it should join the Constituent Assembly of Pakistan. At a separate meeting of legislators from West Bengal, it was decided by 58 votes to 21 that the province should be partitioned and that West Bengal should join the Constituent Assembly of India. At another separate meeting of legislators from East Bengal, it was decided by 106 votes to 35 that Bengal should not be partitioned and 107 votes to 34 that East Bengal should join the Constituent Assembly of Pakistan if Bengal was partitioned.[6] On 6 July 1947, the Sylhet referendum voted to partition Sylhet Division from Assam Province and merge it into East Bengal. On 11 August 1947, Muhammad Ali Jinnah, the president of the Constituent Assembly of Pakistan, declared that religious minorities would enjoy full freedom of religion in the emergent new state.[7]

Union with Pakistan

Section 8 of the Indian Independence Act 1947 provided that the Government of India Act, 1935 with certain amendments and adaptations would be the working constitution of the Dominion of Pakistan during the transitional period. The Constituent Assembly of Pakistan included 79 members, of whom 44 were from East Bengal, 22 from West Punjab, 5 from Sind, 3 from the North West Frontier Province, 1 from Baluchistan and 4 from the acceding princely states. The Bengali Language Movement and demands for replacing separate electorates with joint universal suffrage were key issues in East Bengal. The first constituent assembly was arbitrarily dissolved by the Governor General in 1954. This led to the court challenge of Federation of Pakistan v. Maulvi Tamizuddin Khan, in which the federal court supported the Governor General's decision, although Justice A. R. Cornelius expressed dissent. The dissolution of the assembly was one of the first major blows to democracy in Pakistan.[2]

The Constitution of Pakistan of 1956 was adopted by a second constituent assembly elected in 1955. It declared two provinces- East Pakistan and West Pakistan; and two federal languages- Urdu and Bengali. The first Pakistani constitution was in place for only a few years. General Ayub Khan staged a military coup and introduced the Constitution of Pakistan of 1962. The 1962 constitution introduced a presidential system in which electoral colleges would be responsible for electing the president and governors. The chief ministers' offices were abolished; and parliament and provincial assemblies were delegated to a mainly advisory role. The system was dubbed "Basic Democracy". In 1965, Fatima Jinnah's failed bid for the presidency prompted allegations of a rigged electoral system. The Six Points of Sheikh Mujibur Rahman demanded parliamentary democracy. Rahman's Six Points were part of the manifesto of the Awami League, the party which won first general election in East and West Pakistan in 1970. The Awami League ran on the platform of developing a new Pakistani constitution based on the Six Points. The League won 167 out 169 East Pakistani seats in the National Assembly of Pakistan and 288 out of 300 seats in the East Pakistan Provincial Assembly. The refusal of Pakistan's military junta to transfer power to Prime Minister-elect Sheikh Mujibur Rahman triggered the Bangladesh War of Independence.

Bangladesh

The Provisional Government of Bangladesh issued the Proclamation of Independence on 10 April 1971, which served as the interim first constitution of Bangladesh. It declared “equality, human dignity and social justice” as the fundamental principles of the republic. East Pakistani members of Pakistan's federal and provincial assemblies were transformed into members of the Constituent Assembly of Bangladesh. The constituent assembly had 404 members. After the war, the Constitution Drafting Committee was formed in 1972. The committee included 34 members with Dr. Kamal Hossain as its chairman.[2]

The Constitution Bill was introduced in the Assembly on 12 October. Its first reading began on 19 October and continued till 30 October. The second reading took place from 31 October to 3 November. Manabendra Narayan Larma made an impassioned appeal to declare the term of citizenship as “Bangladeshi” instead of “Bengali”.[8] Larma argued that labeling all citizens as Bengali discriminated against non-Bengali communities, including his own Chakma ethnic group.

The third reading began on 4 November and it approved 65 amendments to the Constitution Bill and adopted and enacted the Constitution on 4 November. The Constitution came into effect on 16 December 1972. A Westminster style political system was established. It declared nationalism, socialism, democracy and secularism as the fundamental principles of the republic. It proclaimed fundamental human rights, including freedom of speech, freedom of religion, freedom of movement, freedom of assembly, the right to education and public healthcare among others. A two thirds vote of parliament was required to amend the constitution.

After winning the 1973 general election, the Awami League government often flouted constitutional rules and principles. The government received strong criticism from the Bangladeshi press, including both Bengali and English newspapers. The Committee for Civil Liberties and Legal Aid was formed to defend the constitution. The Awami League enacted three constitutional amendments between 1973 and 1975. The most drastic amendment was in January 1975. It introduced a one party state and a presidential government, while the judiciary's independence was greatly curtailed.

Constitutional rule was suspended on 15 August 1975 with the assassination of President Sheikh Mujibur Rahman and the declaration of martial law. The Chief Martial Law Administrator issued a series of Proclamation Orders between 1975 and 1979 which amended the constitution. Lieutenant General Ziaur Rahman is credited for many of these Proclamation Orders. The most significant of these orders was defining citizenship as Bangladeshi; other orders included the insertion of religious references and the controversial Indemnity Ordinance. In 1979, martial law was lifted, multiparty politics was restored and constitutional rule was revived. The Fifth Amendment in 1979 validated all Proclamation Orders of the martial law authorities. An executive presidency continued until 1982.[2]

Martial law was again imposed in the 1982 Bangladesh coup d'état. When constitutional rule was restored in 1986, the Sixth Amendment validated previous Proclamation Orders issued by the Chief Martial Law Administrator. The Eighth Amendment in 1988 declared Islam as the state religion and initiated limited devolution of the judiciary.[2]

In 1990, a pro-democracy uprising ousted President Ershad. The uprising was followed by parliamentary elections in 1991. The Twelfth Amendment passed by the fifth parliament is the most influential constitutional amendment in Bangladesh. It re-established parliamentary government. It amended Articles 48, 55, 56, 57, 58, 59, 60, 70, 72, 109, 119, 124, 141A and 142.[2] The Prime Minister became the executive head of government, and along with the cabinet, was responsible to parliament. Local government was made more democratic. However, the amendment restricted the voting freedom of MPs. According to Article 70, MPs would lose their seat if they voted against their party. This made it impossible for parliament to have a free vote, including no-confidence motions to remove a prime minister. Experts have described the amendment as instituting prime ministerial dictatorship. The Thirteen Amendment in 1996 introduced the Caretaker government of Bangladesh.

In 2010, the Supreme Court of Bangladesh ruled that the Fifth Amendment of 1979 went against the constitutional spirit of the country and hence invalidated its removal of clauses related to secularism. The Supreme Court gave the verdict in the case of Bangladesh Italian Marble Works Ltd. v. Government of Bangladesh. While implementing the supreme court's verdict in the Fifteenth Amendment in 2011, the Awami League-led parliament abolished the caretaker government system, which the party itself had advocated in 1996.

In 2017, the Supreme Court declared the Sixteenth Amendment Act of 2014 illegal and void. The amendment had introduced the provision of impeaching judges in parliament. The Supreme Court held that parliament cannot have conscience votes due to Article 70.[9]

Text of the constitution

Preamble[10]

We, the people of Bangladesh, having proclaimed our independence on the 26th day of March, 1971 and through a historic struggle for national liberation, established the independent, sovereign People's Republic of Bangladesh;

Pledging that the high ideals of nationalism, socialism, democracy and secularism, which inspired our heroic people to dedicate themselves to, and our brave martyrs to sacrifice their lives in, the national liberation struggle, shall be the fundamental principles of the Constitution;

Further pledging that it shall be a fundamental aim of the State to realise through the democratic process a socialist society, free from exploitation a society in which the rule of law, fundamental human rights and freedom, equality and justice, political, economic and social, will be secured for all citizens;

Affirming that it is our sacred duty to safeguard, protect and defend this Constitution and to maintain its supremacy as the embodiment of the will of the people of Bangladesh so that we may prosper in freedom and may make our full contribution towards international peace and co operation in keeping with the progressive aspirations of mankind;

In our Constituent Assembly, this eighteenth day of Kartick, 1379 B.S., corresponding to the fourth day of November, 1972 A.D., do hereby adopt, enact and give to ourselves this Constitution.}}

Parts[10]

Islam and the constitution

There are two references to Islam to in the introduction and Part I of the constitution. The document begins with the Islamic phrase بِسْمِ اللهِ الرَّحْمٰنِ الرَّحِيْمِ which is translated as “In the name of Allah, the Beneficent, the Merciful”. Article 2A declares that Islam is the state religion of the republic.

Prime Minister Sheikh Hasina has stated that Bangladesh will be governed in line with the spirit of the Constitution of Medina.[11]

Freedom of religion

Freedom of religion is one of the cornerstones of Bangladesh's constitution.[12] Article 12 calls for secularity, the elimination of interfaith tensions and prohibits the abuse of religion for political purposes and any discrimination against, or persecution of, persons practicing a particular religion.[13] Article 41 subjects religious freedom to public order, law and morality; it gives every citizen the right to profess, practice or propagate any religion; every religious community or denomination the right to establish, maintain and manage its religious institutions; and states that no person attending any educational institution shall be required to receive religious instruction, or to take part in or to attend any religious ceremony or worship, if that instruction, ceremony or worship relates to a religion other than his own.[14] Governments have generally supported and respected religious freedom.[15]

International agreements

As of 2017, Bangladesh is a state party to the following international treaties concerning human rights.[16] Bangladesh can in theory be held liable for its performance in the fields of these treaties.

Among the notable agreements Bangladesh is not a state party to include the following.

Judicial precedent

Article 111 of the constitution proclaims the doctrine of binding judicial precedent. According to the article, the law declared by the Supreme Court of Bangladesh, including its Appellate Division and the High Court Division, are binding in all subordinate courts.[17]

Judicial review
Main article: Judicial review in Bangladesh

The constitution does not specifically mention the term judicial review, but Article 102 allows writ petitions to be filed at the High Court Division for reviewing laws, the actions and policies of authories and lower court proceedings. Articles 7(2), 26, 44(1) & 102 are considered to indirectly support the system of judicial review.[18]

Controversial issues in the constitution
  • 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.
  • The constitution has a paradox of including both secularism and a state religion.[19]
  • 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.
  • The constitution describes non-Bengali communities as "tribes, minor races, ethnic sects and communities" instead of recognizing them as indigenous people as demanded by civil society groups
  • According to Article 70, Members of Parliament do not have a free vote in the Jatiyo Sangshad. MPs will lose their seats if they vote against their party. This bars the Jatiyo Sangshad from removing a prime minister from office through no confidence motions. Critics argue that Bangladesh's parliament is a rubber stamp and a lame duck.
  • The High Court cannot have branches other than in the capital. This has caused burdens for litigants and the judiciary across the country
  • The 90-day deadline for MPs’ absence has been exploited by opposition parties to enforce opposition boycotts.[20] 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.
  • 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.[21] Critics have questioned whether a free and fair election can be held with sitting MPs.[22]

Human rights and the constitution

Despite constitutional guarantees of fundamental human rights, Bangladesh's government and security forces are accused of many human rights abuses.

Free speech

According to Amnesty International, the government of Bangladesh has sought to trample its citizens' right to free speech on the internet through the Information and Communications Technology Act.[23] The law can be argued to be in violation of Article 39 of the constitution. The Foreign Donations (Voluntary Activities) Regulation Act which imposed the government's restrictions over the work of non governmental organizations.[23] The law has also been argued to be against the spirit of the constitution.

Torture and enforced disappearances

In 2017, Radio Sweden ran an investigative report which alleged torture and secret killings by the Rapid Action Battalion (RAB). RAB has been described by Human Rights Watch as a "death squad". Torture and other ill-treatment in custody was widespread; however, complaints were rarely investigated. The 2013 Torture and Custodial Death (Prevention) Act was poorly enforced due to a lack of political will and awareness among law enforcement agencies. Human rights groups accused several security force branches – including police and the Rapid Action Battalion – of torture and other ill-treatment. Torture was carried out to extract “confessions”, for extortion or to punish political opponents of the government.[24]

These activities of Bangladeshi security forces contravenes Article 32 of the constitution which concerns the right to life and personal liberty.

Chittagong Hill Tracts

The government is yet to fully implement the Chittagong Hill Tracts Peace Accord. There have been legal challenges which question the accord's place in the unitary structure of the Bangladeshi state. Regional political parties have demanded constitutional recognition for the indigenous people of the region.

Constitutional Reform

Dr. Kamal Hossain, who is described as the “father of the Bangladeshi constitution”, has been an ardent supporter of reforming the document to reflect the values of the 21st century.[25] Hossain has blamed amendments during military rule for eroding the constitution's principles.[25] Justice Muhammad Habibur Rahman, a former Chief Justice and interim prime minister, proposed that a Constitution Commission be formed to explore the prospects for constitutional reform.[26]

A. T. M. Shamsul Huda, a former Chief Election Commissioner, has called for a constitutional amendment to ensure "checks and balances" and the separation of powers.[27]

Professor Anwar Hossain, a leading Bangladeshi historian, has called for the term “People’s Republic of Bangladesh” to be changed to the “Republic of Bangladesh”.

Barrister Nazmul Huda, a politician and former cabinet minister, has proposed that a new constitution be drafted after the election of a new constituent assembly. One criticism of the document stems from the fact that it was drafted by a constituent assembly dominated by the left-wing Awami League and lacked representation from most other political groups. The League has governed Bangladesh for 18 years in its 45-year history as of 2017.

Amendments
Main article: Amendments to the Constitution of Bangladesh

As of 2018, the Constitution of the People's Republic of Bangladesh has been amended 17 times.

Comparisons with other constitutions

Bangladesh has a single codified document as its constitution, as in the United States, India, Brazil, Pakistan, Germany and France. It is not an unwritten constitution or a set of constitutional statutes, as in Britain, Israel, Canada, New Zealand, Saudi Arabia and Sweden.

See also

References
  1. Ahmed, Syed Giasuddin (1990). "Bangladesh Public Service Commission".
  2. "Constitutional Development - Banglapedia". En.banglapedia.org. Retrieved 11 July 2017.
  3. Mahendra Prasad Singh; Veena Kukreja (7 August 2014). Federalism in South Asia. Routledge. p. 92. ISBN 978-1-317-55973-3.
  4. Ayesha Jalal (6 April 1995). Democracy and Authoritarianism in South Asia: A Comparative and Historical Perspective. Cambridge University Press. p. 184. ISBN 978-0-521-47862-5.
  5. Mark Tushnet; Madhav Khosla (17 September 2015). Unstable Constitutionalism. Cambridge University Press. p. 142. ISBN 978-1-107-06895-7.
  6. Soumyendra Nath Mukherjee (1987). Sir William Jones: A Study in Eighteenth-century British Attitudes to India. Cambridge University Press. p. 230. ISBN 978-0-86131-581-9.
  7. "Mr. Jinnah's address to the Constituent Assembly of Pakistan". www.columbia.edu. Retrieved 15 August 2019.
  8. Hana Shams Ahmed. "Our constitution". The Daily Star. Retrieved 11 July 2017.
  9. "16th Amendment scrapped". The Daily Star. 4 July 2017. Retrieved 11 July 2017.
  10. "Constitution of the People’s Republic of Bangladesh". Bdlaws.minlaw.gov.bd. Retrieved 11 July 2017.
  11. Unb, Dhaka. "Country to be run as per Madinah Charter: PM". The Daily Star. Retrieved 11 July 2017.
  12. "Freedom of Religion: religious minority in Bangladesh - The Daily Star, Bangladesh". Thepersecution.org. Retrieved 11 July 2017.
  13. "12. Secularism and freedom of religion". Bdlaws.minlaw.gov.bd. Retrieved 11 July 2017.
  14. "41. Freedom of religion". Bdlaws.minlaw.gov.bd. Retrieved 11 July 2017.
  15. United States Department of State
  16. https://www.unicef.org/bangladesh/Child_Rights_Convention.pdf
  17. "111. Binding effect of Supreme Court judgments". Bdlaws.minlaw.gov.bd. Retrieved 11 July 2017.
  18. "Constitutional Basis for Judicial Review in Bangladesh". Bangladesh Journal of Legal Studies. 10 August 2016. Retrieved 15 August 2019.
  19. "Bangladesh: a secular State with a State religion?". OHCHR. Retrieved 11 July 2017.
  20. "Opposition returns to Sangsad at last". The Daily Star. Retrieved 11 July 2017.
  21. "I won't budge". The Daily Star. Retrieved 11 July 2017.
  22. Shakhawat Liton. "Politics of Mistrust". The Daily Star. Retrieved 11 July 2017.
  23. "Bangladesh | Amnesty International". Amnesty.org. Retrieved 11 July 2017.
  24. Probir Kumar Sarker. "Radio Sweden: RAB official admits to secret killings". Dhaka Tribune. Retrieved 11 July 2017.
  25. "Forum". Archive.thedailystar.net. Retrieved 11 July 2017.
  26. "Military dictating no good for country, armed forces". The Daily Star. Retrieved 11 July 2017.
  27. Star Online Report. "Constitutional reform for healthy politics". The Daily Star. Retrieved 11 July 2017.
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