After Fifteen Amendment, The Nature and Features of the Constitution of Bangladesh.
Definition of Constitution:
Constitution is a body of rules written or unwritten which determine the organization of the state, the distribution of powers within the principle organs of the government and the relation between government and governed.
According to C.F Strong- A constitution may be said to be a collection of principles according to which the powers of the government, the rights of the governed and the relation between the two are adjusted.
Austin say’s that- The way of life the state has chosen for itself.
According to Lord Bryce- Constitution is the aggregate of laws and customs under which the life of the state goes on.
Classification of Constitution
Constitutions are widely classified into two categories, firstly written and unwritten, and secondly, rigid and flexible.
Written Constitution
A Written constitution is one in which the fundamental principles concerning state administration are embodied and which has, as a specific document been passed by a specific boy. So a written constitution can be produced and shown as a single document the us constitution. Indian constitution, Bangladesh constitution provide examples of written constitution.
Unwritten constitution:
The constitution has not been passed formally as a specific document by a Specific body and the fundamental principles concerning state administration exist in political customs. Judicial decisions and in some scattered document the constitution is an unwritten one. The British constitution Provides the glaring example of unwritten constitution.
Rigid:
The constitution which cannot be amended by ordinary law making procedure but a special procedure like two thirds or three fourths majority is needed, it is called a right constitution. For example Bangladesh constitution.
Flexible Constitution:
The constitution which can be amended by ordinary law making procedure is called a flexible constitution. For example. British constitution is a flexible.
Nature of the Bangladesh Constitution
Bangladesh constitution is the written constitution. It is the adopt by constituted committee. The commute chairmen was Dr. Kamal hosen and there hast 34 member of that committee. There have one preamble. Pour schedule and 153 Articles. There are 15amesdment of the constitution. If any law is contradictory with constitution that time constitution is acceptable and law is voidable. Constitutional supremacy is possible only where the constitution is written and rigid. This constitutional supremacy is also called judiciary the height court of the land is supreme over the legislature
Article 7 states “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 constitution is, as the solemn expression of the will of the people, 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.”
Article 26 states that “All existing law inconsistent with the provisions of this part (i.e. fundamental rights) shall, to the extent of such inconsistency, become void on the commencement with the provisions of this part, and any law so made shall to the extent of such inconsistency be void.
Article 65 states that the legislative powers of the Republic shall, subject to the provisions of this Constitution, be vested to the parliament.
Salient Features of the Constitution of Bangladesh
1. Written Constitution: The Constitution of the Peoples’ Republic of Bangladesh is a written document. It was formally adopted by a Constituent Assembly on a specific day (4th Nov. 1972). It contains 153 articles, 1 preamble and 4 Schedules. Members in course of their deliberations. (See page 1 of the Report). I asked Dr. Kamal Hossain if any of them were accepted. He told it was impossible for him to recollect after 26 years if any of them were accepted. He advised me to examine those 98 memorandas. I left no stone unturned to find those memorandas but nobody could give me the trace of those. Though a trace was found in the Record Book of the Constituent Assembly, those memorandas could not found, for parliament building was transferred to the present one and a huge number of documents of the erstwhile East Pakistan Assembly and of the Constituent Assembly of Bangladesh particularly those documents which were not tabled in the Assembly or House have been all heaped up in a store room of parliament and these are yet to be ordered and arranged.
2. Rigid Constitution: 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 members of parliament.
3. Preamble: The Constitution of Bangladesh starts with a preamble which is described as the guiding star of the Constitution. This very preamble contains the legal as well as the moral basis of the Constitution; it also identifies the objectives and aims of the state.1
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.
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.
6. 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.
7. 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) Seculatrism. All other principles derived from these four shall also constituted the fundamental principles of state policy.
8. Fundamental Rights: Part-III of the Constitution provides for 18 fundamental rights. The enjoyment and enforcement of these rights have been guaranteed in the Constitution. The Supreme Court has been invested with the task to protect these rights. No authority can make any law which is inconsistent with the provisions of fundamental rights and any law so made shall, to the extent of such inconsistency, be void.
9. Parliamentary form of Government: The Constitution of Bangladesh provides for a Westminster type of parliamentary system. This form of government, in other words, cabinet form of government is run by a cabinet of Ministers headed by the prime Minister and the cabinet as a whole has to be responsible to the parliament and can remain in power so long it enjoys the confidence of the majority members of the parliament. President becomes a titular head: the real executive power is exercised by the cabinet. The 1972’s Constitution of Bangladesh provided, more or less, all the trappings of parliamentary form of government.
10. 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.
Thus the entire judiciary except some aspects of magistrate’s courts was made independent.
11. Ombudsman: Provisions for the establishment of an ombudsman were inserted in Article 77. To provide machinery to overview the activities of civil bureaucracy, to eradicate corruption in the administration and to ensure the responsibility of the government in a more specific way the role of an ombudsman like a citizen’s defender or watch dog has been successful in some countries. Though the office has not yet been implemented in Bangladesh, the incorporation in the Constitution of such an office reflected the desire of the Awami League to strengthen the functioning of democracy in the country.
12. Responsible Government was not ensured: Though the 1972’s Constitution of Bangladesh provided for the Westminster type of parliamentary form of government it could not ensure, due to some of its repressive provisions, the conditions of responsible government. A cabinet form of government is directly responsible to the parliament in the sense that the cabinet as a whole has to be accountable to the parliament and an individual minister has to be responsible in respect of his departmental administration. In the Constitution of Bangladesh, there is no provision for ensuring the individual responsibility of ministers. Though Article 55 (3) provides that ‘the cabinet shall be collectively responsible to the parliament’ this responsibility cannot be ensured in practice due to the barricade created by Article 70 of the Constitution.
Salient features of the 15th amendment of the Constitution passed by parliament.
1. Caretaker system abolished
2. Elections to be held under incumbent cabinet
3. Islam as State religion and ‘Bismillah-Ar-Rahman-Ar-Rahim’ retained
4. Revival of Article 12 to restore Secularism and freedom of religion
5. The people of Bangladesh shall be known as Bangalees as a nation and citizens of Bangladesh shall be known as Bangladeshis
6. Inserted articles 7A and 7B in the Constitution after Article 7 in a bid to end takeover of power through extra-constitutional means
7. Basic provisions of the constitution are not amendable
8. In the case of a dissolution Parliament by any reason, election should be held within 90 days of such dissolution
9. Increasing the number of women reserve seats to 50 from existing 45.
10. The Supreme Command of the defense services shall vest in the President and the exercise thereof shall be regulated by law.
11. The Chief Justice shall be appointed by the President, and the other judges shall be appointed by the President in consultation with the Chief Justice.
12. The portrait of the Father of the nation shall be preserved and display at the offices of the President, the Prime Minister, the Speaker, and the Chief Justice and in head and branch offices of all government and semi-government offices, autonomous bodies, statutory public authorities, government and non-government educational institutions, embassies and missions of Bangladesh abroad.
13. Incorporation of historic speech of the Father of the Nation on March 7, 1971, declaration of independence by after midnight of March 25, 1971 and the proclamation of Independence declared at on April 10, 1971.
Constitution is a body of rules written or unwritten which determine the organization of the state, the distribution of powers within the principle organs of the government and the relation between government and governed.
According to C.F Strong- A constitution may be said to be a collection of principles according to which the powers of the government, the rights of the governed and the relation between the two are adjusted.
Austin say’s that- The way of life the state has chosen for itself.
According to Lord Bryce- Constitution is the aggregate of laws and customs under which the life of the state goes on.
Classification of Constitution
Constitutions are widely classified into two categories, firstly written and unwritten, and secondly, rigid and flexible.
Written Constitution
A Written constitution is one in which the fundamental principles concerning state administration are embodied and which has, as a specific document been passed by a specific boy. So a written constitution can be produced and shown as a single document the us constitution. Indian constitution, Bangladesh constitution provide examples of written constitution.
Unwritten constitution:
The constitution has not been passed formally as a specific document by a Specific body and the fundamental principles concerning state administration exist in political customs. Judicial decisions and in some scattered document the constitution is an unwritten one. The British constitution Provides the glaring example of unwritten constitution.
Rigid:
The constitution which cannot be amended by ordinary law making procedure but a special procedure like two thirds or three fourths majority is needed, it is called a right constitution. For example Bangladesh constitution.
Flexible Constitution:
The constitution which can be amended by ordinary law making procedure is called a flexible constitution. For example. British constitution is a flexible.
Nature of the Bangladesh Constitution
Bangladesh constitution is the written constitution. It is the adopt by constituted committee. The commute chairmen was Dr. Kamal hosen and there hast 34 member of that committee. There have one preamble. Pour schedule and 153 Articles. There are 15amesdment of the constitution. If any law is contradictory with constitution that time constitution is acceptable and law is voidable. Constitutional supremacy is possible only where the constitution is written and rigid. This constitutional supremacy is also called judiciary the height court of the land is supreme over the legislature
Article 7 states “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 constitution is, as the solemn expression of the will of the people, 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.”
Article 26 states that “All existing law inconsistent with the provisions of this part (i.e. fundamental rights) shall, to the extent of such inconsistency, become void on the commencement with the provisions of this part, and any law so made shall to the extent of such inconsistency be void.
Article 65 states that the legislative powers of the Republic shall, subject to the provisions of this Constitution, be vested to the parliament.
Salient Features of the Constitution of Bangladesh
1. Written Constitution: The Constitution of the Peoples’ Republic of Bangladesh is a written document. It was formally adopted by a Constituent Assembly on a specific day (4th Nov. 1972). It contains 153 articles, 1 preamble and 4 Schedules. Members in course of their deliberations. (See page 1 of the Report). I asked Dr. Kamal Hossain if any of them were accepted. He told it was impossible for him to recollect after 26 years if any of them were accepted. He advised me to examine those 98 memorandas. I left no stone unturned to find those memorandas but nobody could give me the trace of those. Though a trace was found in the Record Book of the Constituent Assembly, those memorandas could not found, for parliament building was transferred to the present one and a huge number of documents of the erstwhile East Pakistan Assembly and of the Constituent Assembly of Bangladesh particularly those documents which were not tabled in the Assembly or House have been all heaped up in a store room of parliament and these are yet to be ordered and arranged.
2. Rigid Constitution: 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 members of parliament.
3. Preamble: The Constitution of Bangladesh starts with a preamble which is described as the guiding star of the Constitution. This very preamble contains the legal as well as the moral basis of the Constitution; it also identifies the objectives and aims of the state.1
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.
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.
6. 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.
7. 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) Seculatrism. All other principles derived from these four shall also constituted the fundamental principles of state policy.
8. Fundamental Rights: Part-III of the Constitution provides for 18 fundamental rights. The enjoyment and enforcement of these rights have been guaranteed in the Constitution. The Supreme Court has been invested with the task to protect these rights. No authority can make any law which is inconsistent with the provisions of fundamental rights and any law so made shall, to the extent of such inconsistency, be void.
9. Parliamentary form of Government: The Constitution of Bangladesh provides for a Westminster type of parliamentary system. This form of government, in other words, cabinet form of government is run by a cabinet of Ministers headed by the prime Minister and the cabinet as a whole has to be responsible to the parliament and can remain in power so long it enjoys the confidence of the majority members of the parliament. President becomes a titular head: the real executive power is exercised by the cabinet. The 1972’s Constitution of Bangladesh provided, more or less, all the trappings of parliamentary form of government.
10. 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.
Thus the entire judiciary except some aspects of magistrate’s courts was made independent.
11. Ombudsman: Provisions for the establishment of an ombudsman were inserted in Article 77. To provide machinery to overview the activities of civil bureaucracy, to eradicate corruption in the administration and to ensure the responsibility of the government in a more specific way the role of an ombudsman like a citizen’s defender or watch dog has been successful in some countries. Though the office has not yet been implemented in Bangladesh, the incorporation in the Constitution of such an office reflected the desire of the Awami League to strengthen the functioning of democracy in the country.
12. Responsible Government was not ensured: Though the 1972’s Constitution of Bangladesh provided for the Westminster type of parliamentary form of government it could not ensure, due to some of its repressive provisions, the conditions of responsible government. A cabinet form of government is directly responsible to the parliament in the sense that the cabinet as a whole has to be accountable to the parliament and an individual minister has to be responsible in respect of his departmental administration. In the Constitution of Bangladesh, there is no provision for ensuring the individual responsibility of ministers. Though Article 55 (3) provides that ‘the cabinet shall be collectively responsible to the parliament’ this responsibility cannot be ensured in practice due to the barricade created by Article 70 of the Constitution.
Salient features of the 15th amendment of the Constitution passed by parliament.
1. Caretaker system abolished
2. Elections to be held under incumbent cabinet
3. Islam as State religion and ‘Bismillah-Ar-Rahman-Ar-Rahim’ retained
4. Revival of Article 12 to restore Secularism and freedom of religion
5. The people of Bangladesh shall be known as Bangalees as a nation and citizens of Bangladesh shall be known as Bangladeshis
6. Inserted articles 7A and 7B in the Constitution after Article 7 in a bid to end takeover of power through extra-constitutional means
7. Basic provisions of the constitution are not amendable
8. In the case of a dissolution Parliament by any reason, election should be held within 90 days of such dissolution
9. Increasing the number of women reserve seats to 50 from existing 45.
10. The Supreme Command of the defense services shall vest in the President and the exercise thereof shall be regulated by law.
11. The Chief Justice shall be appointed by the President, and the other judges shall be appointed by the President in consultation with the Chief Justice.
12. The portrait of the Father of the nation shall be preserved and display at the offices of the President, the Prime Minister, the Speaker, and the Chief Justice and in head and branch offices of all government and semi-government offices, autonomous bodies, statutory public authorities, government and non-government educational institutions, embassies and missions of Bangladesh abroad.
13. Incorporation of historic speech of the Father of the Nation on March 7, 1971, declaration of independence by after midnight of March 25, 1971 and the proclamation of Independence declared at on April 10, 1971.
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