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Constitution of Bangladesh: Features and Amendments

The Constitution of Bangladesh is the supreme law of Bangladesh. It declares Bangladesh as a secular democratic republic where sovereignty belongs to the people; and lays down the framework defining fundamental political principles of the state and spells out the fundamental rights of citizens. It was approved by the National Assembly of Bangladesh on 4 November, 1972 and it came into execute from 16 December, 1972. The constitution proclaims nationalism, democracy, socialism and secularism as the fundamental principles of the Bangladesh. (Article: 8)


Constitution: Definition

  1. Aristotle defined; Constitution is the way of life the state has chosen for itself.
  2. H Finer says, Constitution is a system of fundamental political institutions.

iii. According to Leacock, Constitution is the form of Government.

  1. According to Gilchrist, Constitution is, ‘that body of rules or laws, written or unwritten which determine the organization of Government, the distribution of powers of various organs of Government and the general principles on which these power are exercised.’

 

Classification of the Constitutions

Generally the following are the classifications of the constitutions:

  • Evolved and Enacted
  • Legal and Real
  • Written and Unwritten
  • Flexible and Rigid

 

Bangladesh Constitution: At a Glance

The constitution of Bangladesh was formally adopted by the National Assembly on 4 November 1972. It contains 11 part, 153 articles, one preamble and seven schedules.

Part i: The Republic

Article 1: The Republic, Article 2: The Territory of the Republic, Article 2A: The State Religion, Article 6: Citizenship

Part ii: Fundamental Principles of State policy

Article 8: Fundamental Principles, Article 9: Nationalism, Article 10: Socialism and freedom from exploitation, Article 11: Democracy and human rights, Article 12: Secularism and freedom of religion, Article 19: Equality of opportunity

Part iii: Fundamental Rights

Article 27: Equality before law, Article 28: Discrimination on grounds of religion, sex, caste etc, Article 39: Freedom of thought and conscience, and of speech.

Part x: Amendment of the Constitution

 

Features of Bangladesh Constitution

Written Constitution: The Constitution of the People’s Republic of Bangladesh is a written document. It was formally adopted by the National Assembly on 4th November 1972. It contains 153 articles, one preamble and seven schedules.

Rigid Constitution: The Constitution of Bangladesh is a rigid. Amendment only possible by the approval of the two-thirds members of the parliament.

Preamble: The constitution of Bangladesh starts with a preamble which is described as the guiding star of the Constitution. This Preamble contains the legal as well as moral basis of the Constitution. It also identifies the objectives and aims of the state.

Supremacy of the Constitution: The Constitution Supremacy has been ensured in the Constitution of Bangladesh. Article 7 provides that, 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 inconsistence with this Constitution that other law shall, to the extent of the inconsistency, be canceled.

Unitary Government System: Article 1 of the Constitution provides that Bangladesh is a unitary people’s republic. Unitary government means all power centralized under the constitution.

Unicameral Legislature: Article 65 of the Constitution provides Unicameral Legislature for Bangladesh. It has only one house, which known as “House of the Nation”.

Fundamental Principle of State Policy: Article 8 of the Constitution provides four major fundamental principle of state policy. a. Nationalism b. Democracy c. Socialism d. Secularism

Fundamental Rights: Part three of the Constitution provides for 18 fundamental rights. The enjoyment and enforcement of those rights have been guaranteed in the constitution. No authority can make any law which is inconsistent with the provisions of fundamental rights and if any law made shell be void to the extent of inconsistency.

Parliamentary form of Government: The Constitution of Bangladesh provides the Westminster type of parliamentary system. This form of government means that the government is run by cabinet of ministers headed by prime minister. President becomes a titular head but real executive power is exercised by the cabinet.

Independence of Judiciary: Article 22 states that, The state shall ensure the separation of the judiciary from the executive organs of the state.

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 ensure the responsibility of the government in more specific way the role of an Ombudsman like a citizen defender.

Responsible Govt. not ensured: The Constitution of Bangladesh provides for a Westminster type of parliamentary government but it could not ensure the conditions of responsible government. The constitution of Bangladesh has no provision for ensuring the individual responsibility of minister. 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 the Article 70 of the Constitution.

Universal Franchise: Article 122 (1) states that the elections to parliament shall be on the basis of adult franchise.

Amendments

A total of 16 amendments were brought to the constitution of Bangladesh since it was passed in the national in November 1972.

The following is a brief account of these acts and orders.

First Amendment Act: The Constitution (First Amendment) Act 1973 was passed on 15 July 1973. It amended Article 47 of the constitution by inserting an additional clause which allowed prosecution and punishment of any person accused of ‘genocide, crimes against humanity or war crimes and other crimes under international law’. After Article 47 it inserted a new Article 47A specifying inapplicability of certain fundamental rights in those cases.

Second Amendment Act: The Second Amendment Act 1973 was passed on 22 September 1973. This act resulted in the (i)  amendment of Articles 26, 63, 72 and 142 of the constitution; (ii) substitution of Article 33 and (iii) the insertion of a new part i.e. IXA in the constitution. Provisions were made through this amendment for the suspension of some fundamental rights of citizens in an emergency.

Third Amendment Act: The Constitution (Third Amendment) Act 1974 was enacted on 28 November 1974 by bringing in changes in Article 2 of the constitution with a view to giving effect to an agreement between Bangladesh and India in respect of exchange of certain enclaves and fixation of boundary lines between India and Bangladesh.

Fourth Amendment Act: The Constitution (Fourth Amendment) Act 1975 was passed on 25 January 1975. Major changes were brought into the constitution by this amendment. The presidential form of government was introduced in place of the parliamentary system; a one-party system in place of a multi-party system was introduced; the powers of the Jatiya Sangsad were curtailed; the Judiciary lost much of its independence; the Supreme Court was deprived of its jurisdiction over the protection and enforcement of fundamental rights.

This Act (i) amended articles 11, 66, 67, 72, 74, 76, 80, 88, 95, 98, 109, 116, 117, 119, 122, 123, 141A, 147 and 148 of the constitution; (ii) substituted Articles 44, 70, 102, 115 and 124 of the constitution; (iii) amended part III of the constitution out of existence; (iv) altered the Third and Fourth Schedule; (v) extended the term of the first Jatiya Sangsad; (vi) made special provisions relating to the office of the president and its incumbent; (vii) inserted a new part, ie part VIA in the constitution and (viii) inserted articles 73A and 116A in the constitution.

Fifth Amendment Act: This Amendment Act was passed by the Jatiya Sangsad on 6 April 1979. This Act amended the Fourth Schedule to the constitution by adding a new paragraph 18 thereto, which provided that all amendments, additions, modifications, substitutions and omissions made in the constitution during the period between 15 August 1975 and 9 April 1979 (both days inclusive) by any Proclamation or Proclamation Order of the Martial Law Authorities had been validly made and would not be called in question in or before any court or tribunal or authority on any ground whatsoever.

Sixth Amendment Act: The Sixth Amendment Act was enacted by the Jatiya Sangsad with a view to amending Articles 51 and 66 of the 1981 constitution.

Seventh Amendment Act: This Act was passed on 11 November 1986. It amended Article 96 of the constitution; it also amended the Fourth Schedule to the constitution by inserting a new paragraph 19 thereto, providing among others that all proclamations, proclamation orders, Chief Martial Law Administrator’s Orders, Martial Law Regulations, Martial Law Orders, Martial Law Instructions, ordinances and other laws made during the period between 24 March 1982 and 11 November 1986 (both days inclusive) had been validly made and would not be    called in question in or before any court or tribunal or authority on any ground whatsoever.

Eighth Amendment Act: This Amendment Act was passed on 7 June 1988. It amended Articles 2, 3, 5, 30 and 100 of the constitution. This Amendment Act (i) declared Islam as the state religion; (ii) decentralized the judiciary by setting up six permanent benches of the High Court Division outside Dhaka; (iii) amended the word ‘Bengali’ into ‘Bangla’ and ‘Dacca’ into ‘Dhaka’ in Article 5 of the constitution; (iv) amended Article 30 of the constitution by prohibiting acceptance of any title, honors, award or decoration from any foreign state by any citizen of Bangladesh without the prior approval of the president. It may be noted here that the Supreme Court subsequently declared the amendment of Article 100 unconstitutional since it had altered the basic structure of the constitution.

Ninth Amendment Act: The Constitution (Ninth Amendment) Act 1989 was passed in July 1989. This amendment provided for the direct election of the vice-president; it restricted a person in holding the office of the ‘President’ for two consecutive terms of five years each; it also provided that a vice-president might be appointed in case of a vacancy, but the appointment must be approved by the Jatiya Sangsad.

Tenth Amendment Act: The Tenth Amendment Act was enacted on 12 June 1990. It amended, among others, Article 65 of the constitution, providing for reservation of thirty seats for the next 10 years in the Jatiya Sangsad exclusively for women members, to be elected by the members of the Sangsad.

Eleventh Amendment Act: This Act was passed on 6 August 1991. It amended the Fourth Schedule to the constitution by adding a new paragraph 21 thereto which legalized the appointment and oath of Shahabuddin Ahmed, Chief Justice of Bangladesh, as the vice-president of the Republic and the resignation tendered to him on 6 December 1990 by the then President HM Ershad. This Act ratified, confirmed and validated all powers exercised, all laws and ordinances promulgated, all orders made and acts and things done, and actions and proceedings taken by the vice-president as acting president during the period between 6 December 1990 and the day (9 October 1991) of taking over the office of the president by the new President Abdur Rahman Biswas, duly elected under the amended provisions of the constitution. The Act also confirmed and made possible the return of Vice-president Shahabuddin Ahmed to his previous position of the Chief Justice of Bangladesh.

Twelfth Amendment Act: This Amendment Act, known as the most important landmark in the history of constitutional development in Bangladesh, was passed on 6 August 1991. It amended Articles 48, 55, 56, 57, 58, 59, 60, 70, 72, 109, 119, 124, 141A and 142. Through this amendment the parliamentary form of government was re-introduced in Bangladesh; the president became the constitutional head of the state; the Prime Minister became the executive head; the cabinet headed by the prime minister became responsible to the Jatiya Sangsad; the post of the vice-president was abolished; the president was required to be elected by the members of the Jatiya Sangsad. Moreover, through Article 59 of the constitution this act ensured the participation of the people’s representatives in local government bodies, thus stabilizing the base of democracy in the country.

Thirteenth Amendment Act: The Constitution (Thirteenth Amendment) Act 1996 was passed on 26 March 1996. It provided for a non-party Caretaker Government which, acting as an interim government, would give all possible aid and assistance to the Election Commission for holding the general election of members of the Jatiya Sangsad peacefully, fairly and impartially. The non-party caretaker government, comprising the Chief Adviser and not more than 10 other advisers, would be collectively responsible to the president and would stand dissolved on the date on which the prime minister entered upon his office after the constitution of the new Sangsad.

Fourteenth Amendment Act: was passed on May 16, 2004, by which the number of reserved women seats in the Jatiya Sangsad was increased from 30 to 45, the age of the Supreme Court judges was increased from 65 to 67 years and provisions for putting portraits of the President and the Prime Minister at the offices of the President and the Prime minister and the Prime Minister’s portrait in government, semi-government and autonomous offices and Bangladesh missions abroad were made mandatory.

Fifteenth Amendment Act: It was passed on June 30, 2011. The 15th Amendment to the Constitution brought 55 changes, some of them reversions to the 1972 constitution, following the judgment of the apex court on the illegality of the fifth, eighth and thirteenth amendments.

Basic features of the 15th amendment

  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
  6. Basic provisions of the constitution are not amendable
  7. In the case of a dissolution Parliament by any reason, election should be held within 90 days of such dissolution
  8. Increasing the number of women reserve seats to 50 from existing 45
  9. 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
  10. The portrait of the Father of the Nation Bangbandhu Sheikh Mujibur Rahman 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.
  11. Incorporation of historic speech of the Father of the Nation Bangabandhu Sheikh Mujibur Rahman on March 7, 1971, declaration of independence by Bangabandhu after midnight of March 25, 1971 and the proclamation of Independence declared at Mujibnagar on April 10, 1971.

Sixteenth Amendment Act: It amended the Constitution of Bangladesh, empowering Parliament to impeach Supreme Court judges. In article 96, of the Bangladesh Constitution, this includes provisions on the tenure of office of the Supreme Court judges, now states:

  1. Subject to the other provisions of this article, a Judge shall hold office until he attains the age of sixty-seven years.
  2. A Judge shall not be removed from his office except by an order of the President passed pursuant to a resolution of Parliament supported by a majority of not less than two-thirds of the total number of members of Parliament, on the ground of proved misbehavior or incapacity.
  3. A Judge may resign his office by writing under his hand addressed to the President.

Before the adoption of the Sixteenth Amendment, articles 96 (2) and (3) of the Bangladesh Constitution under Part VI included a provision on impeachment carried out by the Supreme Judicial Council instead of the Parliament

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