An Elemental Structure and

Relative Comprehension of
the Constitution of the
People’s Republic of
Abstract Bangladesh
A constitution is the basic fundamental law of a
State. It lays down the objectives of the State which
it has to achieve. It also provides for the
constitutional framework that is, various structures
and organs of the governments at different levels. In
addition, it describes the rights and duties of the
citizens. It is, therefore, considered to be the basic
for the governance of the country both in terms of
goals and objectives as also their structures and
functions. As such a constitution is concerned with
two main aspects the relation between the different
levels of government and between the government
and the citizens. This research analyzes elemental structure and relative comprehension
of the Constitution of the People‟s Republic of Bangladesh. Without underestimating the
difficulties, the paper outlines a strategic agenda for the future.

1. Introduction
State is a political organization which is administered by a group of persons knows as the
government. When we say the government of a state it means basically the executive, the
legislative and the judiciary. But this government cannot run the state according to their
whim and caprice. There has to be certain rules and principles on the basis and under the
authority of which the government can run the state. This set of priniciples is called the
Constitution. A Constitution is called the governing wheel of the state. Now I will discuss
about An Elemental Structure and Relative Comprehension of the Constitution of the
People‟s Republic of Bangladesh.

2. Objectives of Research:
1) Aim is to gain knowledge about the constitution of Bangladesh.
2) To know the extent of applicability of constitutional Law.
3) To specify the pillars of state.
4) To clarify the position of constitutional Law as a Supreme Law of state.
5) To relate the concept of rule of law under the constitution of Bangladesh.
6) To clarify silent features of the constitution of Bangladesh.
7) To know about constitutionalism and its recommendation.

3. Methodology:
Data utilized in this research paper, have been collected from the secondary sources and
constant constructive analogical appliance of research method by balancing antithetic
applicable rules.

4. Definition of constitution
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. A
constitution is a set of fundamental principles or established precedents according to
which a state or other organization is governed.[1]Jellinek states that, 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. Gilchrist state that, Constitution of a state is that
body of rules or laws, written or unwritten which determine the organisation of
government, the distribution of powers to the various organs of government and the
general principles on which these powers are to be exercised.
The term constitution comes through French from the Latin word constitutio, used for
regulations and orders, such as the imperial enactments (constitutiones principis: edicta,
mandata, decreta, rescripta). Later, the term was widely used in canon law for an
important determination, especially a decree issued by the Pope, now referred to as an
apostolic constitution. These rules together make up, i.e. constitute, what the entity is.
When constitution are written down into a single document or set of legal documents,
those documents may be said to embody a written constitution; if they are written down
in a single comprehensive document, it is said to embody a codified constitution. Some
constitutions (such as the constitution of the United Kingdom) are uncodified, but written
in numerous fundamental Acts of a legislature court cases or treaties. [2]

On the basis of these definitions it can be said that the Constitution is the sum total of the
constitutional laws of the state. It lies down:
1) Organisation and powers of the government;
2) Principles and rules governing the political process;
3) Relations between the people and their government; and
4) Rights and duties of the people. The government of state gets organised and
works in accordance with the provisions of the Constitution. People get their rights
protected from the constitution. No one, not even the government, can violate the
Constitution.
5. Types of Constitution

Constitutions are widely classied into two categories, firstly written and unwritten;
secondly rigid and flexible.

5.1 Written and Unwritten Constitution

A written constitution is a consciously planned constitution, formulated and adopted by

deliberate actions of a constituent assembly or a convention. It provides for a definite
design of government institutions, their organisations, powers, functions and inter-
relationships. 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 Bangladesh, India, the USA, Germany,
Japan, Canada, France, Switzerland and several other states are written constitution.

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. The
government is organised and it functions in accordance with several well settled, but not
wholly written rules and conventions. The people know their Constitution. They accept
and obey it, but do not possess it in a written form. However, 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." For example, The Constitution of the
United Kingdom is an unwritten constitution.

5.2 Flexible and Rigid Constitution

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.

6. Historical basis of Bangladesh constitution and present perspective

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.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”. 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.

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.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.[1] 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.
7. Preamble identifies the legal basis of the Constitution

Sovereignty
Sovereignty is one of the foremost elements of any independent State. It means absolute
independence, i.e., a government which is not controlled by any other power : internal or
external. A country cannot have its own constitution without being sovereign.
Bangladesh is a sovereign country. It is free from external control. It can frame its
policies. Bangladesh is free to formulate its own foreign policy.

Socialist
The word „Socialism‟ had been used in the context of economic planning. It signifies
major role in the economy. It also means commitment to attain ideals like removal of
inequalities, provision of minimum basic necessities to all, equal pay for equal work.
When you read about the Directive Principles of the State Policy, you will see how these
ideals have been incorporated as well as partly, implemented in the Constitution.

Secularism
In the context of secularism in Bangladesh, it has two implications, a) every individual is
free to believe in, and practice, any religion he/ she belongs to, and, b) State will not
discriminate against any individual or group on the basis of religion.

Democratic Republic
The Preamble to the Constitution, that the Constitution belongs to the people of
Bangladesh. The last line of the Preamble says „…. Hereby Adopt, Enact And Give To
Ourselves This Constitution‟. In fact the Democratic principles of the country flow from
this memorable last line of the Preamble. Democracy is generally known as government
of the people, by the people and for the people. Effectively this means that the
Government is elected by the people, it is responsible and accountable to the people. The
democratic principles are highlighted with the provisions of universal adult franchise,
elections, fundamental rights, and responsible government. These you will read in
subsequent lessons.

8. Silent Features of the Constitution of People’s Republic of Bangladesh

5.8 Salient Features of The Constituti
8.1 A Written Constitution
The Bangladesh Constitution is mainly a written constitution. A written constitution is
adopted on a fixed date as a document. As you have already read that our constitution
was framed over a period of 2 years, 11 months and 18 days, it was adopted on 4th
November, 1972 and enforced on December 16, 1972. Certain conventions have
gradually evolved over a period of time which have proved useful in the working of the
constitution. The British Constitution is an example of unwritten constitution. It is to be
noted though, that a written constitution is „mainly‟ an enacted document, there could be
bodies or institutions which may not be included in the constitution but form an important
part of governance. The Constitution of Bangladesh contains 153 articles, 1 preamble and
7 schedules.

8.2 Rigid Constitution :

A constitution may be called rigid or flexible on the basis of its amending procedure. In a
rigid constitution, amendment of the constitution is not easy. The Constitutions of USA,
Switzerland and Australia are considered rigid constitutions. While, the British
Constitution is considered flexible because amendment procedure is easy and simple. The
Constitution of Bangladesh is a rigid one since on provision of it can be amended by
ordinary lawmaking procedure; an amendment can be passed only by votes of not less
than two thirds of the total number of parliament

8.3 Parliamentary Democracy

Bangladesh has a parliamentary form of democracy. This has been adopted from the
British system. In a parliamentary democracy there is a close relationship between the
legislature and the executive. The Cabinet is selected from among the members of
legislature. The cabinet is responsible to the latter. In fact the Cabinet holds office so long
as it enjoys the confidence of the legislature. In this form of democracy, the Head of the
State is nominal. In Bangladesh, the President is the Head of the State. Constitutionally
the President enjoys numerous powers but in practice the Council of Ministers headed by
the Prime Minister, which really exercises these powers. The President acts on the advice
of the Prime Minister.

8.4 Supremacy of the Constitution

Constitutional supremacy has been ensured in the Constitution of Bangladesh. Because
article 7 (2) provides that “This Constitution is the supreme law of the Republic and if
any other law is inconsistent with this Constitution that other law shall, to the extent of
the inconsistency, be void.

8.5 Unitary Governmental System

Article 1 of the Constitution provides that Bangladesh is a unitary peoples‟ republic as
opposed to federal republic. Governmental system is a unitary one since all power under
the constitution has centralized to a unitary government; no division of power has been
provided for in the Constitution unlike in federal constitutions.

8.6 Fundamental Rights and Duties

Every human being is entitled to enjoy certain rights which ensure good living. In a
democracy all citizens enjoy equal rights. The Constitution of Bangladesh guarantees
those rights in the form of Fundamental Rights.
Fundamental Rights are one of the important features of the Bangladesh Constitution.
The Constitution provides for eighteen Fundamental Rights under article 27 to 44.
Fundamental Rights are justifiable and are protected by the judiciary. In case of violation
of any of these rights one can move to the court of law for their protection.
If we analysis the constitution of Bangladesh we specifies the list of duties of the citizens
a. to follow the noble ideals which inspired our national struggle for freedom.
b. to abide by the constitution and respect its ideal and institutions.
c. to uphold and protect the sovereignty, unity and integrity of Bangladesh.
d. to promote harmony and the spirit of common brotherhood amongst all the
people of Bangladesh and renounce practices derogatory to the dignity of
women.
e. to defend the country and render national service when called upon to do so.

8.7 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. Laws made by the parliament are equally
applicable to the whole territory of Bangladesh.

8.8 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.

8.9 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, a judge could not be removed from his office except by an order of the
President passed pursuant of a resolution of parliament supported by a majority of not
less than two thirds of the total number of members of parliament. Again, the security of
tenure of the subordinate judges was vested in the Supreme Court.
Thirdly, 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.

8.10 Universal Adult Franchise

Bangladesh democracy functions on the basis of „one person one vote‟. Every citizen of
Bangladesh who is 18 years of age or above is entitled to vote in the elections irrespective
of caste, sex, race, religion or status. The Bangladesh Constitution establishes political
equality in India through the method of universal adult franchise.

8.11 Emergency Provisions

The Constitution makers also foresaw that there could be situations when the government
could not be run as in ordinary times. To cope with such situations, the Constitution
elaborates on emergency provisions. There are three types of emergency; a) emergency
caused by war, external aggression or armed rebellion; b) emergency arising out of the
failure of constitutional machinery in states; and c) financial emergency. About
emergency provisions we will read in detail in part 9A. The part contains three articles
141A, 141B and 141C.

8.12 Judicial review

The doctrine of judicial review is a settled and firmly established principle in the
American constitutional jurisprudence. It is the most awesome and potentially the most
effective weapon in the hands of the Supreme court by which it plays the role of a
guardian of the constitutions. Judicial review has been ensured in Articles 7, 26 and 102
of the constitution of Bangladesh. Article 7 gives an umbrella-coverage of constitutional
supremacy to the whole constitution Article 26 gives a double sanctity on the provision of
fundamental rights. Article 102 of the constitution the supreme court can examine the
validity of actions performed by any public officials or bodies.

8.13 Rule of Law

The term „rule of law‟ is used as opposed to the concept of „rule of man‟. The primary
meaning of rule of law is that the ruler and the ruled must be bound by the same law. No
separate law or system can be provided for the ruler. The general conception of the rule
of law or rule of law as a principle of constitutional government has become identified
and crystallized with professor Dicey‟s usage of that phrase in his work „the Law of the
Constitution‟ first published in 1885. (A.V. Dicey, Introduction to the Study of the Law
of the Constitution, 10th Ed, London: ELBS and Macmillan, 1973, Pg-202) He gave three
meanings of the concept of rule of law – (i) the supremacy of regular law as opposed to
the influence of arbitrary power and the persons in authority do not enjoy wide, arbitrary
or discretionary powers, (ii) equality before law, that is, every man, whatever his rank or
position, is subject to ordinary laws and the jurisdiction of ordinary courts, and (iii)
individual liberties legally protected not through any bill of rights but through the
development of common law. His thesis has been criticized from many angles, but his
emphasis on the subjection of every person to the ordinary laws of the land, the absence
of arbitrary power and legal protection for certain basic human rights remains the
undisputed theme of the doctrine of rule of law. ( Mahmudul Islam, Constitutional Law
of Bangladesh, 3rd Ed, Mullik Brothers, Pg-79) The preamble of the Constitution of
Bangladesh states „rule of law‟ as one of the objectives to be attained. Article 27
guarantees that all citizens are equal before law and are entitled to equal protection of
law. Article 31 guarantees that to enjoy protection of law, and to be treated in accordance
with law, is the inalienable right of every citizen, wherever he may be, and of every other
person for the time being within Bangladesh, and in particular no action detrimental to
the life, liberty, body, reputation or property of any person shall be taken except in
accordance with law. 18 fundamental rights have been guaranteed in the Constitution and
Constitutional arrangement for their effective enforcement has been ensured in Articles
44 and 102. Articles 7 and 26 imposed limitation on the legislature that no law which is
inconsistent with any provision of the Constitution can be passed. In accordance with
Articles 7, 26 and 102 (2) of the Constitution the Supreme Court exercises the power of
judicial review whereby it can examine the extent and legality of the actions of both the
executive and legislative and can declare any of their actions void if they do anything
beyond their constitutional limits. Right to be governed by a representative body
answerable to the people has been ensured under Articles 7(1), 11, 55, 56, 57 and 65 (2)
of the Constitution.

9. Constitutional interpretation and our Supreme Court: a critical

appreciation
The supreme court of Bangladesh is charged with duty to protect and uphold the
Constitution of Bangladesh, and thereby it also functions as the guardian and interpreter
of our constitution. In other words, it is one of the major functions of the honourable
Supreme Court to interpret and construct the constitution in order to meet the needs of
changing conditions of our society, as to make it a living constitution.

The power to interpret the constitution is not explicitly provided in any provision of our
constitution. This authority to interpret the constitution is actually derived from the power
of judicial review, which is conferred upon the court by our constitution under article
102. Moreover, according to article 7(2) of the Constitution, if any law is made
inconsistent with any provision of constitution, that law shall to the extent of such
inconsistency be void. In true sense, that law shall be declared void by the Supreme
Court, if it considers the Law as inconsistent with any provision of the constitution. This
power gives the court an implied authority to interpret the constitution.

The supreme court of Bangladesh has been playing a very active role in the interpretation
of our constitution since the emergence of Bangladesh. Lots of unique and noble
interpretations of the constitution were given by our Supreme Court the through
pronouncement of many leading judgments in many cases. There are some settled rules
and theories for interpretation of the constitution, followed by the judges and jurists
throughout the world. The judges of the supreme court of Bangladesh also kept those
rules and theories in their minds while interpreting the constitution. But in no cases the
judges did clearly mention the particular theory to which they belong. This work is an
attempt to concentrate on the forms, shapes and the basis of some of those remarkable
interpretations, evaluating the merits of their theorization by the Supreme Court.
9.1 Some principal rules for constitutional interpretations

Now here before going to the crux of this work, I would like to define some established
rules for constitutional interpretations.

Originalist: An originalist is a person who believes that the meaning of the constitution
does not change or evolve over time, but rather that the meaning of the text is both fixed
and knowable. An originalist believes that the fixed meaning of the text should be the
sole guide for a judge when applying or interpreting a constitutional provision.

Textualist: A textualist is an originalist who gives primary weight to the text and
structure of the Constitution. The text means what it would have been understood to
mean by an ordinary person at the time it was written. Textualists often are skeptical of
the ability of judges to determine collective “intent.”

Intentionalist: An intentionalist is an originalist who gives primary weight to the

intentions of framers, members of proposing bodies, and ratifiers.

Pragmatist: A non-originalist who gives substantial weight to judicial precedent or the

consequences of alternative interpretations, so as to sometimes favor a decision “wrong”
on originalist terms because it promotes stability or in some other way promotes the
public good.

Natural Law Theorist: A person who believes that higher moral law ought to trump
inconsistent positive law.

Equitable interpretation: It means decisions taken on the basis of an innate sense of

justice, balancing the interests of the parties, and what is right and wrong, regardless of
what the written law might provide. It is often resorted to in cases in which the facts were
not adequately anticipated or provided for by the lawgivers.
9.2 Constitutional interpretation in some leading cases

Dr. Mohiuddin farooqi v. Bangladesh, 1997. 49 DLR

In the famous case of Dr. Mohiuddin Farooqi v. Bangladesh, which is known as locus
standi case, the court added a wider meaning of the term „person aggrieved‟ while
interpreting the article 102 the constitution.
It was held in the said case, „if a fundamental right is involved, the impugned matter need
not affect a purely personal right of the applicant touching him alone. It is enough if he
shares that right in common with others‟

After this milestone judgment, in case of public wrong, any person of the society on
behalf of Public at large, rather than only the person aggrieved personally could move the
court for enforcement of Fundamental rights.So, in this case the court did not take the
narrow literal meaning of the Term „aggrieved‟, rather the court showed a non-originalist
approach to constitutional interpretation, coming out from its old narrow meaning to meet
the needs of society and for public good. Because, if the court took the old narrow
meaning of the term „aggrieved‟, many of those who do not have the access to court and
whose rights have been violated, would remain outside the shadow of justice and they
could not seek remedy for their losses. Taking into consideration the consequences of the
old restricted interpretation, the court went for wider meaning of the term „aggrieved‟. As
a result, now the people having no Locus standi could go for enforcement of fundamental
rights standing on behalf of common people. This type of interpretation is also called
pragmatism, which is actually a branch of non-originalism. But interestingly in terms of
this judgment the court mentioned that they are belonging to that particular theory of
interpretation and the judges did not specify the particular theory by which they are abide
by.

Anawar Hossain Chowdhury v. Bangladesh, 1989. 41 DLR

This is one of the land mark decisions ever pronounced by our Supreme Court, which is
known as the 8th amendment case. In this case, the judges have given a totally new
interpretation of article 142 of our constitution. Before insertion of article 7B by the 15th
amendment Act in 2011, neither there was any specific provision regarding the basic
structure of the constitution nor any provision regarding unamendability of those basic
structures. The concept of basic structure was first introduced by the court in this 8th
amendment case by giving an exclusive interpretation of term „Amendment‟ in article
142.As Justice Shahbuddin Ahmed said, “Amendment is a change or alteration, for the
purpose of bringing an improvement in the statute to make it more effective and
meaningful, but it does not mean its abrogation or destruction or a change resulting in the
loss of its original identity and character”.So, in this case the court followed the
originalist theory while interpreting the article 142. As the court tried to find the original
meaning of the term „amendment‟ from the text of the statute and the structure of the
constitution. Keeping similarity with the earlier mentioned case the court did not specify
the particular theory which they are belonging to.

Ain o Shalish kendro v. Bangladesh

In this landmark case, the court has given a comprehensive meaning of right to life while
interpreting article 31 and 32 of the constitution. The court held that right to life means
something more than mere animal existence. It includes right to live consistently with
human dignity. The court said, “when rootless people have taken shelter in slums and
somehow making a livelihood, their wholesale eviction without any scheme of their
rehabilitation has been found to offend the mandate of article 31 and 32.”

However, in this case the court did not go through fixed literal meaning of the term „right
to life‟, rather the court widened the scope of this right by giving a broader meaning of
the Term.

These are some examples of constitutional interpretation from many leading cases of the
Supreme Court. A critical appreciation of these cases makes the point clear that the
supreme court of Bangladesh has been very active in the field of constitutional
interpretations and of judicial activism as well. The judges also proved themselves as
very smart and efficient in discharging the significant task of constitutional interpretation
along with maintaining the international standard in this regard. But the main problem
has been with them the lack of theorization of those interpretations given in their
judgments, which has created a hazy situation as it becomes very difficult for a law
student to understand the judgment. On the other hand, if we look at the supreme court of
USA or any other developed state, we can see that whenever their judges interpret the
constitution, they specify the theory which they are belonging to. Unlike the US Supreme
Court, our Supreme Court always have been silent in this regard.

10. The Basic structure of the constitution of Bangladesh:

The constitution shall be the supreme law of the land for all times. Nothing can be done
which is brings about a violation of the constitution and its basic features. That means the
constitution of Bangladesh beings the embodiment of the will of the republic Of
Bangladesh which mentioned In Article 7 Of the Bangladesh constitution. In the case of
ANWAR HOSSAIN Vs. Bangladesh this case is also known as the eighth amendment
case. Here Article 7 was prevailed. This is the first case whereby the Supreme Court of
Bangladesh as striking down an amendment to the constitution made by the parliament.
By two writ petition the amended article 100 and the notification of the chief justice were
challenged Ultra vires. A division bench Of the High Court Division(HCD) dismissed the
petition summarily. Leave was granted by the Appellate Division(AD) by a majority of 3
To 1 striking down the 8th amendment. The principle argument of the judgment is that-
the constitution stands on certain fundamental principles which are the structural pillars.
These basic feature are

1 ). Supremacy of the constitution which states in article 7 of the constitution

2). Democracy which states in the preamble.
3) Republican government which states in the article 1 of the constitution.
4) Independence of judiciary which states in article 22 of the constitution.
5) Unitary state which is mentioned in article 9 of the constitution.
6). Separation of powers which is mentioned in article 22 of the constitution.
7) Fundamental rights which is mentioned in from article 26 to 47A of the constitution.
These structural pillars of the constitution stand beyond any change by amendatory
process. If these principles are curtailed more than one permanent seat of the Supreme
court.

11. Constitution in Jurisprudence

Jurisprudence is the philosophy of law. In other words it seeks to explain what law is all
about in the most general way. when we talk of constitutional jurisprudence we will have
to ask for example: What is a constitution? What is its purpose? What is its position in
the legal system
of the country?A constitution is the social contract by which the people in a country are
governed. It is a politico-legal document,unlike ordinary statutes, which are purely legal
documents.A constitution is the fundamental law of the land, and therefore it prevails
over all the other laws in the legal hierarchy, including statutes made by the legislature.
.
The basic purpose of a constitution, whether written or unwritten, is to set up the organic
law of the land. In other words, the first purpose of the constitution is to set up the organs
of government in a country and mention their functions and inter -se relation. The
demand for a written constitution really meant that these functionaries should be
accountable to a legislative body elected by the people, and not to the king.

THEORIES OF HOBBES, LOCKE AND

ROUSSEAU

The theories of Hobbes, Locke and Rousseau were all social contract theories. Social
contract theories were all secular theories. The theory of the British thinker Thomas
Hobbes was the theory of the absolute sovereignty of the king; that of John Locke was of
limited sovereignty of the king; that of Rousseau of no sovereignty (not even limited
sovereignty) of the king.Hobbes was of the view that people are basically evil bynature.
They require some higher authority to check their evil impulses, otherwise they will be in
a state of perpetual war with each other, and will steal, kill, rape, etc. Thus peaceful life
will be impossible.
.
The theory of the British thinker John Locke (as set out in 1690 in his Second Treatise on
Civil Government) is that though the king is sovereign, his sovereignty is limited and not
absolute (as Hobbes had proclaimed). Limited by what? The answer is: limited by the
natural rights which every human being has by the very fact of being a human being. The
king cannot encroach on, or interfere with, these natural rights which include freedom of
speech, freedom to practice one‟s religion, freedom to own or acquire property, and
liberty. The theory of the French thinker Rousseau is that all sovereignty belongs to the
people, who exercise it through an agent, whether he is called a king, or Parliament, or
minister or whatever. All these agents, according to Rousseau, are nothing but the
servants of the people and therefore can be removed by them. The will of the people is
called the general will, and it is supreme. Thus, accordingto Rousseau, it is the people,
not the king, who are supreme (see Rousseau‟s The Social Contract).

12 Concept of sovereignty

The word sovereignty is derived from the Latin word „Superanus‟ which means the
supremacy of one over the other. According to Islam, sovereignty over the entire universe
belongs to Allah and Allah alone. The Quran explicitly describes God as Al-
Malik meaning sovereign and Al-Malik-ul-Mulk the eternal possessor of sovereignty.
However in western thought, sovereignty belongs to a person or a group of people but for
that existence of a state is mandatory. This concept of sovereignty is not validated in an
Islamic society. Whatever is between land and sky belongs to and under the authority of
Allah alone. Human beings are sent as khalifa to earth and among them there is a leader
who acts as the custodian of rights of powers offered by Allah on him. Therefore he
cannot do anything according to his will and go beyond the limits imposed by Allah.
Quran says:

“To Allah belongs the sovereignty of the heavens and the earth.” (42: 48)
“It is He who gives life and death and he has power over all things.” (42: 48)
“He is the first and the last the Evident and the Immanent” (47: 3)

From the above ayas it is clear that the concept of sovereignty is universal, absolute,
indivisible and inalienable. Allah the sovereign is the primary law-giver. He delegates his
authority for administering justice and peace to His agents such as the Islamic state and
the khalifa. They only enjoy marginal autonomy necessary to implement and enforce the
laws of their sovereign. The attributes of Allah‟s sovereignty are also visible in his names
for e.g. Al-Wahab (The granter), Al-Ahad (Only One), Al-Qadian (The Eternal) and so
on.

But our constitution ensure popular sovereignty. Article 8 of the constitution of

Bangladesh provides,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. This kind of sovereignty is not acceptable in islam.

13. Three organs of State

13.1 Legislature
Legislature is a law making branch of government. In all most all the
countries, legislature is available for making laws. In democracy, the importance
of legislature is still more. For law making most of the countries have two
houses of legislature, while few countries have one house. Legislature can initial and
rescind laws and is the only authority able to approve proposed law.Part 5 of the
constitution allow persons or agencies of the executive branch to propose law. In a
democracy the following are the function of legislature:
1. Law Making
2. Control over the budget
3. Control over the executive
4. Judicial
5. Electoral
6. Amendment of the constitution
7. A mirror of constitution

13.2 Executive
Part 4 of the Constitution of Bangladesh deals with the Executive which
comprises the President, the Prime Minister and the Cabinet, the local
government and lastly attorney general. It operates implements and enforces all
the law created by the legislative branch, from time to time by judiciary. According to Dr.
Garner “In a board and collective sense, the executive organs embraces the aggregate or
totally of all the functionaries the state that will has formulated and expressed in
terms of law.” The functions of the executive are not the same everywhere. The
function of the executive are depends on the government. Ordinarily, the
following are the function of executive:
1. Administrative
2. Legislative
3. Military function
4. Foreign relation
5. Financial functions

13.3 Judiciary
It is an important organ of state. Part 6 of the Constitution of Bangladesh
deals with the Judiciary. It mainly award punishment for the violation of the laws,
while the laws are made by legislature & implemented by executive. Judiciary is
considered the guardian of the freedom of the people and also of the constitution.
A society without legislature organs is conceivable and indeed,
f u l l y . According to Dr. Garner “There is no better test of excellence of a government
than the efficiency of its judicial system for nothing more nearly touches the welfare that
he can rely on the certain and prompt administration justice”. There will be
widespread injustice in the society if the judiciary is not appearing in the society.
Therefore, the judiciary is essential for maintaining peace and imparting justice and also
for the enjoyment of fundamentals rights. The following re the function of the judiciary:

1. It interprets the laws

2. Protector of civil rights
3. Decides the cases
4. Custodian of fundamental rights
5. Guardian of the constitution
6. Advisory
7. Miscellaneous function

Relationship among three organs

These three organs of the government are closely related to one another. The
legislature makes the law, the executive implements them and the judiciary
interprets them and award s punishments for the violation of the laws. I n o u r c o u n t r y
a parliamentary form of government has been established. In
a parliamentary government the executive is under the control of legislature. Similar is
the situation in our country. In our country the executive is responsible to the parliament
and the parliament can remove the executive by a non -confidence motion. It can
also ask question s and supplementary question. The executive has also sufficient
influence over the parliament because the prime minister begins the leader of the
majority party in the parliament. In modern times the most important function of
legislature law making. Ordinary bill can be introduced by the members of the parliament
and by the minister while money bills Scan be introduced only by the minister in the
lower house. The executive prepares bills and introduced them in the legislature.
The legislature can be majority vote accept or reject any bill. The members of
the legislature or the parliament enjoy full freedom of speech and also of criticism
of the politics of the government. The legislature has control over the budget of the
executive and without its approval the executive cannot spend even a single paisa. In
parliamentary government the parliament exercises full control over the executive
or council of minister. The parliament has the right to ask question or supplementary
question to the cabinet. In certain countries the legislature has to perform certain judicial
function. That‟s way the three organs are related with each other.
14. Understanding Constitutionalism: Bangladesh Perspective

„Constitutionalism‟ is the doctrine which governs the legitimacy of government action.

By constitutionalism is meant – in relation to constitutions written and unwritten –
conformity with the broad philosophical values within a state. Constitutionalism implies
something far more important than the idea of „legality‟ which requires official conduct
to be in accordance with pre-fixed legal rules. A power may be exercised on legal
authority; however, that fact is not necessarily determinative of whether or not the act
ion was „constitutional‟. In summary, constitutionalism suggests the limitation of power,
the separation of powers and the doctrine of responsible accountable government.

The period under Sheikh Mujibur Rahman

The first bold initiative taken by Sheikh Mujib in the independent Bangladesh was to
change the system of government from presidential to a parliamentary one. But this
change was not more than a mere expression of sentiment of Mujib since it was a change
in the form only which enabled Mujib to re designate his position as the Prime Minister.
Though the change provided for a parliamentary system, the Constituent Assembly which
was to act as parliament was neither given the power to make law nor to exercise control
over the cabinet. The cabinet was not, therefore, accountable to anybody. Both the
executive and legislative powers remained concentrated in the hand of the Prime
Minister. Thus at the very start of its journey constitutionalism received a setback in
Bangladesh.(Moudud Ahmed, Bangladesh: Era of Sheikh Mujibur Rahman, Pg-9)

The period under Ziaur Rahman

Mujib‟s constitutional dictatorship was overthrown by a bloody military coup in which
Mujib and his entire family (with the exception of two of his daughters who were abroad)
were assassinated. Martial Law was declared ousting Mujib‟s civil government; the army
emerged as a powerful political force; and the body polity of Bangladesh faced a new and
unexpected era of military rule. The nature of military rule is that it comes to power
ousting a civil government completely in an illegal way. The first military ruler Major
General Ziaur Rahman began to civilianize his regime gradually which came to an end in
1979 when the 5th Amendment of Constitution was passed legalizing all military
activities. Martial law was withdrawn and the Constitution was allowed to continue as the
supreme law. But the governmental system was fundamentally retained as an
authoritarian as was introduced by the 4th Amendment; of course, some undemocratic
provisions introduced by the 4th Amendment were removed and some relations among the
institutions of the government were liberalized. The governmental system was neither a
true presidential as is practiced in the USA nor a parliamentary one as is practised in the
UK. Neither was it the same presidential as is practiced in France where the Prime
Minister and his cabinet are collectively responsible to parliament. The presidency as
modified by the 5th Amendment was much more powerful than the presidency under the
French Constitution. The system lacked the principle of checks and balances. The system
was, therefore, a class apart; an all powerful executive ridden presidential system which
armed the President with all devices to administer his
dictatorial rule. This model bore more similar to that of Ayub Khan of Pakistan.

The period under H. M. Ershad

The trend of civilianization by Zia was smashed by the imposition of second time martial
law by Ershad in 1982. Parliament was dissolved; the Constitution was suspended and all
political activities were banned. Following the path of Zia, Ershad began to civilianize his
regime and martial law was withdrawn after four and half years when the 7th Amendment
of Constitution was passed legalizing all military activities. Throughout his autocratic
rule – 8 years and 9 months – the longest period in the Constitutional history of
Bangladesh, the issue which haunted Ershad was the question of his legitimacy to govern
the country. There were continuous movements against Ershad regime and on his way to
suppress this movement; he amputated almost all institutions of democracy. Through
unprecedented electoral malpractice, Ershad destroyed the electoral process in the
country. Ershad amended the Constitution as many as four times and every time he did it
for his own political end. He retained the presidential-parliamentary mixed system
introduced by Zia; he retained the parliament as a secondary rubber-stamp body; all
autocratic measures like preventive detention, emergency, ordinance-making powers
were willfully used by him; the press was repressed; radio, T.V. etc. mass-media were
used as the sole mouth piece of Ershad. There are many instances that not only
democracy but good autocracy or military dictatorship which at least believes in re
al nation-building can usher in economic development in a country. South Korea,
Indonesia, Myanmar etc. bear the testimony of such example. Unfortunately Bangladesh
did not deserve even any such type of autocracy.

Executive Reforms
1) The political will of the government must be demonstrated in a way so that the
Constitution as the fountain of laws in Bangladesh remains as the inspiration and
source of legitimacy of executive actions.
2) Standing committees on Ministries should be allowed to work independently with
full swing and support so that the functions of every ministry come under the
direct scrutiny of parliament.
3) A department of Ombudsman should immediately be created which will work as
an all-time watchdog against maladministration, red tapers and inefficiency in the
bureaucracy.

Legislative and Political Reforms

 1) The exercise of Ordinance-making power should be reduced so that the
government cannot get any ample power in law-making avoiding parliament.
2) Democracy within the party must be gradually strengthened so that leadership
from grassroots level can develop and leaders can gradually gather knowledge
over administrative accountability and that they should not depend on bureaucrats.
Judicial Reforms
1) Standards should be set by specific legislation to appoint judges of the Supreme
Court both in the High Court and the Appellate Division to ensure full
independence.
2) The judgment of the Majdar Hossain‟s case should be fully implemented.
3) The financial independence of the judiciary should be ensured.

20. Conclution

The people of Bangladesh have achieved their independence through a nine-month

booldy struggle and the constitution was made it Adopted by the representatives who
directly elected by the people. For this 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, fundaments human rights and freedom, equality and justice,
political, economic and social, will be secured for all citizens. It is the main theme of this
constitution.