Constitution of Bangladesh

The Constitution of Bangladesh (Bangla: , Bangladesh Shongbidhan) is the supreme law of Bangladesh. It declares Bangladesh as a sovereign popular republic and lays down the framework defining fundamental political principles, establishing the structure, procedures, powers and duties, of the government and spells out the fundamental rights of citizens. Passed by the Constituent Assembly of Bangladesh on November 4, 1972, it came into effect from December 16, 1972, the day commemorated as Victory Day in the country, marking the defeat of the Pakistan Army in the Bangladesh Liberation War. The constitution declares Bangladesh to be a unitary, independent and sovereign Republic, founded on a popular struggle for national liberation, which will be known as the People's Republic of Bangladesh. It pledges nationalism, secularity, democracy and socialism as the fundamental principles defining the Republic and declares the pursuit of a society that ensures its citizens- the rule of law, fundamental human rights and freedoms as well as equality and justice, political, economic and social.

When enacted in 1972, the Constitution of Bangladesh was hailed by international jurists and legal historians and as one of the most progressive and democratic constitutions in modern history and one that inspired progressive political aspirations among third world countries and populations struggling for self-determination. However, amendments during socialist one party and military rule in Bangladesh, radically altered the secular and liberal democratic nature of the constitution. In August, 2005, the Bangladesh High Court passed a landmark judgement that declared constitutional amendments during military rule as illegal and unconstitutional, and hence nullified. After several legal protests, the Bangladesh Supreme Court, in January, 2010, ultimately announced that the historic verdict of the High Court will be upheld. The judgement of Bangladesh's highest courts paved way for the return of the original nature of the constitution, that defines Bangladesh as a secular, democratic state.

Background and Spirit

See Also: Six point movement, Bengali Language Movement, Bangladesh Liberation War

The ideals of the Bangladesh liberation movement inspired the formulation of the Constitution of Bangladesh

Bangladesh was established after East Pakistan broke away from Pakistan in 1971 after a twenty five year union that saw widespread economic and political discrimination against the ethnic Bengali majority; suppression of the secular Bengali culture and linguistic heritage; and military rule. In the early years of Pakistan's independence, Bengalis protested against attempts by West Pakistan to impose Urdu, a language remote to the eastern Indian subcontinent, as the sole state language of Pakistan. The subsequent Bengali Language Movement in 1952 gave rise to Bengali linguistic and cultural nationalism in the province of East Bengal, as opposed to Islamic nationalism in the rest of Pakistan. Bengali resentment aggravated over the years as the democratically elected provincial governments in East Bengal were dismissed, the name of the province was changed to East Pakistan, greater discrimination prevailed in recruitment and promotions in the civil services and armed forces, harsher restrictions were imposed on secular Bengali culture, economic disparity between East and West Pakistan widened and the increased suppression on Bengali political parties and leaders by the Pakistani military and its Islamic fundamentalist allies.

In the late 1960s, the main Bengali political party, the Awami League, proposed the Six Point demands as the basis for a new constitution in Pakistan. Drafted by leading Bengali intellectuals and nationalists Rehman Sobhan, Govinda Chandra Dev, Mohammad Shamsuzzoha, Kamal Hossain and Tajuddin Ahmad, the six points envisioned Pakistan as a parliamentary democracy where supremacy lies with a legislature directly elected on the basis of universal suffrage. The Six Points were also based on the Two Economies Theory coined by economist Rehman Sobhan. The theory argued that West and East Pakistan have essentially two different economies lying in different regions and with different characteristics, and therefore power cannot be vested with the central government. It argued that the survival of the union between East and West Pakistan depended on establishing a federation that guaranteed considerable economic and political autonomy for each province. But the Two-Economies Theory also evoked, among Bengalis, a nationalistic reminiscence similar to that of the Two-Nation Theory, that drove the founding of Pakistan. It served as the economic justification for Bengali nationalism and independence from the feudal and military establishment of West Pakistan. The Six point movement would be spearheaded by the charismatic Awami League leader Sheikh Mujibur Rahman in a popular movement that engulfed the entire province of East Pakistan. Afterwards, Sheikh Mujib along with senior leadership of the Awami League, would be arrested and tried for treason in the Agartala Conspiracy Case. Sheikh Mujib also placed the proposals at a meeting in 1966, between President Ayub Khan and all other opposition parties. The proposals were rejected by Ayub Khan and all major West Pakistan based political parties.

The tensions provoked by the Six point movement would contribute to the fall of the Ayub Khan regime and lead to the 1970 elections, which were overwhelmingly won by the Awami League. The subsequent refusals by the Pakistani military to hand over power to the Awami League eventually culminated in the Bangladesh Liberation War. During the war the Pakistani military again imposed martial law and committed wide spread atrocities against the Bengali population. They were aided by Islamic fundamentalist parties and militias. The war ended in December, 1971 with the victory of Bengali nationalists and emergence of Bangladesh. In 1972, the 300 members elected to the East Pakistan Legislative Assembly in the 1970 elections, were made members of the Constituent Assembly of Bangladesh. An all-party committee (except Islamic fundamentalist parties) headed by Dr. Kamal Hossain, the Minister of Law in the new government, was tasked to draft the constitution of the new country. The constitution drafting committee consisted of members of all parties in the constituent assembly, including the Awami League, National Awami Party, Jatiya Samajtantrik Dal and the seven independent lawmakers.

File:Banglaconstitution.jpg

Members of the Constitution Drafting Committee and national cabinet

The constitution drafting committee would take inspiration from the intellectual thought that drove the Six point movement and the liberation war; the heritage of democratic struggle by Bengalis in the Indian Subcontinent, during both the British Raj and the Pakistan era; and the secular Bengali culture in formulating the constitution. The drafters of the constitution also identified the features of the Pakistani state that created widespread discontent in its population, particularly the Bengalis. One such feature was the religion based polity that gave opportunity to the military to influence politics. They also felt that religious nationalism failed to establish a sustainable state in Pakistan. Keeping in mind the lack of democracy and powerful influence of the military in Pakistan, the drafters of the constitution envisioned Bangladesh as a secular democracy, in order to establish a progressive and sustainable state.The secular nature of Bengali culture also served as an important motivation in inspiring a secular state for Bangladesh.

The drafters would also base the constitution on the objectives of the Two-Economies Theory. The theory argued economic autonomy for East Pakistan in order to attain greater equity in the distribution of income, as the Pakistan's economy was dominated by the West Pakistani feudal elite. Bengali nationalists felt the idealism of a "socialist" or "social democratic" society while waging movements against the feudal elite of Pakistan. Influenced by this idealism, the leadership of Bangladesh felt that greater equity in the distribution of income in the economy of the new country would be possible either through social democracy or democratic socialism. They also felt that the war ravaged country needed a strong public sector to drive initial economic development.

The drafters of the constitution hence decided upon nationalism, secularity, democracy and socialism as the fundamental principles of the new state. The constitution also pays great attention to rural development, education rights and scientific temper, reflecting its commitment to rural Bengal as well as to modernization and progressivism. On November 4, 1971, the Constituent Aseembly of Bangladesh adopted by the constitution and on December 16, 1972, the first anniversary of victory of the Bengali nationalist forces over the Pakistani Army, the constitution was signed into law.

Evolution

Main Artcile: Constitutional History of Bangladesh

Preamble

The preamble to the Constitution of Bangladesh is the introductory statement that sets out the guiding purpose and principles of the document. The preamble is not an integral part of the constitution in the sense that it is enforceable in a court of law.

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Prime Minister Sheikh Mujibur Rahman signing the constitution into law on Victory Day, 1972

Full Text

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, secularity, democracy and socialism, which inspired our heroic people to dedicate themselves to, and our brave martyrs to sacrifice their lives in the struggle for national liberation, shall be 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 freedoms, 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.

Amendments

In 1977, when Bangladesh was under martial law, President and Chief Martial Law Administrator Lieutenant General Ziaur Rahman passed a presedential decree that removed the principle of secularity from the permeable of the constitution and instead of it, placed "absolute trust and faith in the Almighty Allah". The decree was later legitamized by parliament during the quasi-military rule of Zia.

In January, 2010, the Bangladesh Supreme Court observed that parliament does not possess any authority to suspend the constitution and proclaim martial law and hence, it cannot legitamize actions of martial law regimes. The judgement paved way for restoring the original four fundamental principles declared in the permeable of the constitution, including secularity.

Organs of the State

As per the constitution of the republic it comprises three basic organs:

1. Legislative Branch
2. Executive Branch
3. Judicial Branch

Articles

The constitution of Bangladesh is divided into 11 parts, which are further subdivided into 153 articles. In addition, there are 4 schedules.

Part I: The Republic

This section defines the nature of the country, its state religion and other national issues. According to it, Peoples Republic of Bangladesh is a unitary republic consisting of the territories of the former East Pakistan and also included territories (some enclaves exchanged with India). The state religion is Islam, but all other religions can be practised in peace and harmony. The state language is Bangla and the national anthem is the first ten line of the song Amar Sonar Bangla written by Rabindranath Tagore. The national flag is a red circle on a green background. The national emblem is the national flower Shapla (nympoea-nouchali) resting on water, having on each side and ear of paddy and being surmounted by three connected leaves of jute with two stars on each side of the leaves. This section also mandates that the portrait of prime minister must be displayed in all government, semi-government and autonomous offices. The capital of the country is Dhaka. The citizens are to be known as Bangladeshis.

Finally Part I asserts that all power belong to the people and the constitution, being the supreme law of the country, will supersede any other laws and regulations.

Part II: Fundamental principles of state policy

This part describes the fundamental principles. The original 1972 constitution had 4 basic principles: Secularity, Nationalism, Democracy and Socialism (meaning economic and social justice for all). However, later amendments replaced Secularity with "Absolute trust and faith in the Almighty Allah shall be the basis of all actions."

Part II's article 9, 10, and 11 declares the rights of the people. Article 9 provides guidelines for quotas for the underrepresented communities, women, and peasants. Article 10 states the equal rights of women. Article 11 states that Bangladesh would be a democracy, with guaranteed human rights. Article 13, 14, 15, and 16 deal with principal of ownership, emancipation of workers and peasants, provision of basic necessities, and rural development. Article 17 states that the basic education will be free and compulsory for all children. The remaining articles (18-25) provide various guarantees for public health and morality, equality of opportunity, work as a right and duty, duties of citizens and of public servants, separation of Judiciary from the executive, national culture, national monuments, and promotion of international peace, security and solidarity, respectively.

Part III: Fundamental rights

26. Laws inconsistent with fundamental rights to be void. (1) All existing law inconsistent with the provisions of this Part shall, to the extent of such inconsistency, become void on the commencement of this Constitution. (2) The State shall not make any law inconsistent with any provisions of this Part, and any law so made shall, to the extent of such inconsistency, be void. (3) Nothing in this article shall apply to any amendment of this Constitution made under article 142 . 27. Equality before law. All citizens are equal before law and are entitled to equal protection of law. 28. Discrimination on grounds of religion, etc. (1) The State shall not discriminate against any citizen on grounds only of religion, race caste, sex or place of birth. (2) Women shall have equal rights with men in all spheres of the State and of public life. (3) No citizen shall, on grounds only of religion, race, caste, sex or place of birth be subjected to any disability, liability, restriction or condition with regard to access to any place of public entertainment or resort, or admission to any educational institution. (4) Nothing in this article shall prevent the State from making special provision in favour of women or children or for the advancement of any backward section of citizens. 29. Equality of opportunity in public employment. (1) There shall be equality of opportunity for all citizens in respect of employment or office in the service of the Republic. (2) No citizen shall, on grounds only of religion, race, caste, sex or place of birth, be ineligible for, or discriminated against in respect of, any employment or office in the service of the Republic. (3) Nothing in this article shall prevent the State from - (a) making special provision in favour of any backward section of citizens for the purpose of securing their adequate representation in the service of the Republic; (b) giving effect to any law which makes provision for reserving appointments relating to any religious or denominational institution to persons of that religion or denomination; reserving for members of one sex any class of employment or office on the ground that it is considered by its nature to be unsuited to members of the opposite sex. 30. Prohibition of foreign titles, etc. No citizen shall, without the prior approval of the President, accept any title, honour, award or decoration from any foreign state. 31. Right to protection of law. To enjoy the protection of the law, and to be treated in accordance with law, and only 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. 32. Protection of right to life and personal liberty. No person shall be deprived of life or personal liberty save in accordance with law. 33. Safeguards as to arrest and detention. (1) No person who is arrested shall be detained in custody without being informed, as soon as may be of the grounds for such arrest, nor shall he be denied the right to consult and be defended by a legal practitioner of his choice. (2) Every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of twenty four hours of such arrest, excluding the time necessary for the journey from the place of arrest to the court of the magistrate, and no such person shall be detained in custody beyond the said period without the authority of a magistrate. (3) Nothing in clauses (1) and (2) shall apply to any person- (a) who for the time being is an enemy alien; or (b) who is arrested or detained under any law providing for preventive detention. (4) No law providing for preventive detention shall authorise the detention of a person for a period exceeding six months unless an Advisory Board consisting of three persons, of whom two shall be persons who are, or have been, or are qualified to be appointed as, Judges of the Supreme Court and the other shall be a person who is a senior officer in the service of the Republic, has, after affording him an opportunity of being heard in person, reported before the expiration of the said period of six months that there is, in its opinion, sufficient cause for such detention. (5) When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made, and shall afford him the earliest opportunity of making a representation against the order. (6) Parliament may be law prescribe the procedure to be followed by an Advisory Board in an inquiry under clause (4) . 34. Prohibition of forced labour. (1) All forms of forced labour are prohibited and any contravention of this provision shall be an offence punishable in accordance with law. (2) Nothing in this article shall apply to compulsory labour. (a) by persons undergoing lawful punishment for a criminal offence; or required by any law for public purpose. 35. Protection in respect of trial and punishment. (1) No person shall be convicted to any offence except for violation of al law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than, or different from that which might have been inflicted under the law in force at the time of the commission of the offence. (2) No person shall be prosecuted and punished for the same offence more than once. (3) Every person accused of a criminal offence shall have the right to a speedy and public trial by an independent and impartial court or tribunal established by law. (4) No person accused of any offence shall be compelled to be a witness against himself. (5) No person shall be subjected to torture or to cruel, inhuman, or degrading punishment or treatment. (6) Nothing in clause (3) or clause (5) shall affect the operation of any existing law which prescribes any punishment or procedure for trial. 36. Freedom of movement. Subject to any reasonable restrictions imposed by law in the public interest, every citizen shall have the right to move freely throughout Bangladesh, to reside and settle in any place therein and to leave and re-enter Bangladesh. 37. Freedom of assembly. Every citizen shall have the right to assemble and to participate in public meetings and processions peacefully and without arms, subject to any reasonable restrictions imposed by law in the interests of public order health. 38. Freedom of association. Every citizen shall have the right to form associations or unions, subject to any reasonable restrictions imposed by law in the interests of morality or public order; 39. Freedom of thought and conscience, and of speech. (1) Freedom or thought and conscience is guaranteed. (2) Subject to any reasonable restrictions imposed by law in the interests of the security of the State, friendly relations with foreign states, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence- (a) the right of every citizen of freedom of speech and expression; and freedom of the press, are guaranteed. 40. Freedom of profession or occupation. Subject to any restrictions imposed by law, every citizen possessing such qualifications, if any, as may be prescribed by law in relation to his profession, occupation, trade or business shall have the right to enter upon any lawful profession or occupation, and to conduct any lawful trade or business. 41. Freedom of religion. (1) Subject to law, public order and morality- (a) every citizen has the right to profess, practice or propagate any religion; (b) every religious community or denomination has the right to establish, maintain and manage its religious institutions. (2) 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. 42. Rights to property. (1) Subject to any restrictions imposed by law, every citizen shall have the right to acquire, hold, transfer or otherwise dispose of property, and no property shall be compulsorily acquired, nationalised or requisitioned save by authority of law. (2) A law made under clause (1) shall provide for the acquisition, nationalisation or requisition with compensation and shall either fix the amount of compensation or specify the principles on which, and the manner in which, the compensation is to be assessed and paid; but no such law shall be called in question in any court on the ground that any provision in respect of such compensation is not adequate. (3) Nothing in this article shall affect the operation of any law made before the commencement of the Proclamations (Amendment) Order, 1977 (Proclamations Order No. I of 1977), in so far as it relates to the acquisition, nationalisation or acquisition of any property without compensation. 43. Protection of home and correspondence. Every citizen shall have the right, subject to any reasonable restrictions imposed by law in the interests of the security of the State, public order, public morality or public health- (a) to be secured in his home against entry, search and seizure; and to the privacy of his correspondence and other means of communication. 44. Enforcement of fundamental rights. (1) The right to move the High Court Division in accordance with clause (I) of article 102 for the enforcement of the rights conferred by this Part of guaranteed. (2) Without prejudice to the powers of the High Court Division under article 102, Parliament may be law empower any other court, within the local limits of its jurisdiction, to exercise all or any of those powers. 45. Modification of rights in respect of disciplinary. Nothing in this Part shall apply to any provision of a disciplinary law relating to members of a disciplined force, being a provision limited to the purpose of ensuring the proper discharge of their duties or the maintenance of discipline in that force. 46. Power to provide indemnity. Notwithstanding anything in the foregoing provisions of this Part, Parliament may be law make provision for indemnifying any person in the service of the Republic or any other person in respect of any act done by him in connection with the national liberation struggle or the maintenance or restoration of other in any area in Bangladesh or validate any sentence passed, punishment inflicted, forfeiture ordered, or other act done in any such area. 47. Saving for certain laws. (1) No law providing for any of the following matters shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridge, any of the rights guaranteed by this Part- (a) the compulsory acquisition, nationalisation or requisition of any property, or the control or management thereof whether temporarily or permanently; (b) the compulsory amalgamation of bodies carrying on commercial or other undertakings; (c) the extinction, modification, restriction or regulation of rights of directors, managers, agents and officers of any such bodies, or of the voting rights of persons owning shares or stock (in whatever form) therein; (d) the extinction, modification, restriction or regulation of rights of search for or win minerals or mineral oil; (e) the carrying on by the Government or by a corporation owned, controlled or managed by the Government, of any trade, business, industry or service to the exclusion, complete or partial, or other persons; or (f) the extinction, modification, restriction or regulation of any right to property, any right in respect of a profession, occupation, trade or business or the rights of employers or employees in any statutory public authority or in any commercial or industrial undertaking; if Parliament in such law (including, in the case of existing law, by amendment) expressly declares that such provision is made to give effect to any of the fundamental principles of state policy set out in Part II of this Constitution. (2) Notwithstanding anything contained in this Constitution the laws specified in the First Schedule (including any amendment of any such law) shall continue to have full force and effect, and no provision of any such law, nor anything done or omitted to be done under the authority of such law, shall be deemed void or unlawful on the ground of inconsistency with, or repugnance to, any provision of this Constitution; 24 Provided that nothing in this article shall prevent amendment, modification or repeal of any such law. (3) Notwithstanding anything contained in this Constitution, no law nor any provision thereof providing for detention, prosecution or punishment of any person, who is a member of any armed or defence or auxiliary forces or who is a prisoner of war, for genocide, crimes against humanity or war crimes and other crimes under international law shall be deemed void or unlawful, or ever to have become void or unlawful, on the ground that such law or provision of any such law is inconsistent with, or repugnant to any of the provisions of this Constitution. 47A. In applicability of certain articles. (1) The rights guaranteed under article 31. clauses (1) and (3) of article 35 and article 44 shall not apply to any person to whom a law specified in clause (3) of article 47 applies. (2) Notwithstanding anything contained in this Constitution, no person to whom a law specified in clause (3) of article 47 applies shall have the right to move the Supreme Court for any of the remedies under this Constitution.

See also

• Bangladesh

External links

• To see the Full text of the constitution