“The significance of the preamble of Bangladesh constitution”
Introduction:
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.
The method for conducting a state as well as the life style of the whole nation is reflected in a constitution. The constitution of Bangladesh was written and finally accepted on the 4th November, 1972 for conducting the state. It took effect from the 16lh December 1972. At a later stage at different times many amendments to the constitution were made. According to this amended constitution the state administration of Bangladesh is going on.
Characteristics of constitution:
The main characteristics of Bangladesh constitution are as follows:-
1. The constitution is a written document.
2. “Bismillahir Rahmanir Rahim” is written in its preamble.
3. Some fundamental principles have been included for conducting the state.
4. There is a long list of Fundamental Rights in the constitution. These rights are indispensable for the development of personality and personal freedom. For the protection of these rights there is also guarantee in the constitution.
5. Universal Adult Franchise has been introduced.
6. Bangladesh has been declared a Republic.
7. Parliamentary democratic system has been introduced.
8. There will be Unitary Form of Government in the state.
9. The legislature will be unicameral. The name of the legislature is National Assembly.
10. The constitution is rigid (which cannot be changed easily)
11. The constitution is the Supreme Law of the country.
These are the main characteristics of the constitution. From these characteristics it is understood that the constitution of Bangladesh is a clear and excellent one.
Significance of the preamble of Bangladesh constitution:
The Constitution of Bangladesh or Bangladesh Shongbidhan is the supreme law of Bangladesh. It declares Bangladesh as a secular democratic republic where sovereignty belong the people and lays down the framework defining fundamental political principles of the state 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[1] Republic, founded on a struggle for national liberation, which will be known as the People’s Republic of Bangladesh.
The significance of the very first line of the constitution of Bangladesh does not often receive our full attention. It runs like this: “We, the people of Bangladesh, having proclaimed our independence, on the 26th day of March 1971 and through [a historic war for national independence], established the independent, sovereign People’s Republic of Bangladesh”. The expressions put in the bracket ‘historic war for national independence’ was placed instead of original constitution’s expressions ‘historical struggle for national liberation’ by martial law 2nd proclamation in 1978.
Bangladesh constitution has undergone massive changes since its adoption. But perhaps the greatest charade to the sagacity of the framers of the constitution is done by altering the very first line of the constitution and that is also under the dictum of a martial law administrator. After the alteration, by another martial law proclamation the amendment to the preamble along with some other complementary provisions of the constitution was made unamendable except by a referendum.
Upon this distorted preamble it has been forcefully settled in Anwar Hossain Chowdhury v. Bangladesh 1989 BLD (AD), preamble is the pole star of the constitution and forms the basic structure of it, and hence it cannot be amended at all. Nonetheless, mention of ‘progressive aspirations and hopes of people’ are there. Because martial law[2] does not become satisfied by dispersing the letter of the law, it dries away the spirit of the liberty itself. The people’s desire behind establishing the Bangladesh state is sacredly embodied in the preamble. Hence it is unalterable either from historical perspective or from legal point of view. The hopes and aspirations of the people seeking emancipation narrated in the preamble can be altered is a notion based on nullity and illusion.
Justice Rabbani sees, and indeed the framers of the constitution did see, the journey of Bangalee population towards ‘liberation’ through prisms of historical movements from 1757 up to 1971.. The armed resistance and war of 1971 for independence was the final outcome of those struggles, revolutions and movements which got recognition in the first line of the constitution as ‘historical struggle for national liberation’.
The change by 1978 martial law proclamation has negated the historical continuation of struggle for emancipation.
There are a few points of concern , firstly; application of the word ‘struggle’ and ‘liberation’ in the original constitution also significantly includes the war of independence, secondly; liberation and independence though often used interchangeably they carry subtly different connotations, in particular liberation signifies vision for economic democracy, independence doesn’t, and thirdly; to borrow the words from Justice Rabbani (pardon my translation from Bangla commentary); mere mentioning of ‘war’ in the expressions disunites the two hundred years’ thirst for emancipation and a historic continuation of the revolutions becomes oblivious.
The issue came up before the Appellate Division in Registrar, University of Dhaka v. Dr. Syed Sajjad Hussain 34 DLR (AD) (1982) 12 at 18. Justice Chowdhury considered the expression ‘historic struggle for national liberation’[3]. Justice Chowdhury seems to have not questioned the validity of the impugned change in the preamble. He considered cumulatively the effect of ‘liberation’ and ‘independence’. He observed, the ‘historic struggle for national liberation’ is not only eulogized but in optative manner it was raised to the level of ‘historic war for national independence.
Nineteen seventy one was one phase but the struggle continues because the state is to realize a society in which the rule of law, fundamental human rights and freedom, equality and justice shall be ensured for all. Per Justice B. H. Chowdhury, “Revolutions are locomotives of history and the national liberation struggle is a phase in democratic revolution for achieving an egalitarian society where class contractions are eliminated and socialist means of productions and distribution is achieved.
Mahmudul Islam in his Bangladesh Constitution has argued that this interpretation is not well founded on rule of interpretation. Islam’s contention is that the qualifying words ‘for national liberation’ restricted the expansion of ‘historic struggle’ which ended with ‘national independence’ and cannot be comprehended as continuing after achievement of independence. Islam submits that the constitution of Bangladesh clearly envisages a traditional democratic process and its language cannot be construed with reference to radically different political philosophy merely because of the use of the words ‘socialist society’ in the preamble. The submission of Mahmudul Islam has substantiality from two standpoints; firstly, it rejects the impression that the original constitution took a socialist dimension by using the words ‘struggle’, ‘liberation’, ‘socialist society’ and the like. Secondly; it proves the hollowness of impugned change in the opening paragraph of the constitution. The using of the words ‘through democratic processes as means of achieving ‘socialist society’ is a testimony to this.
However, my contention is not in favor of reinstating the original wording. The discussion and concern on the point is important. For, there is also an emphatic interest in reverting back to 1972 Constitution. The discussion will explore how ‘liberation’ turning into liberty, ‘independence’ turning into emancipation, perhaps more accurately to say economic emancipation, ‘social justice’ turning into pursuit of happiness of a population become a vacuum thing in absence of predominance of constitutional spirit. Then ‘liberty’ of liberation disappears from the heart of a nation. When it happens, the dead letters of the constitution hardly matter.
| The Constitution embodies the principle of ministerial responsibility, both individual and collective, to the parliament and ultimately to the people, the source of “all powers in the republic”. Bangladesh started its journey with a parliamentary form of democracy, derailed afterwards from the fundamental aspiration of democratic governance by introducing one-party political system with an ‘all powerful head of the state-the President’. The change took place in early 1975 by way of a notorious amendment to the Constitution. Through the infamous Constitution (Fourth Amendment) Act, 1975, one party dictatorial system known as ‘BAKSAL’ was substituted for a responsible parliamentary system. The 12th Amendment to the Constitution re-established the parliamentary form of government in 1991. The last amendment to the Constitution has added a unique feature. The Constitution (Thirteenth Amendment) Act, 1996 introduced the provision of ‘Non-Party Caretaker Government’ to the Constitution of Bangladesh. It will work during the period from the date of which the Chief Adviser of this government enters upon office after parliament is dissolved or stands dissolved by reason of expiration of its term till the date on which a new Prime Minister enters upon his office after the constitution of parliament The preamble of the Constitution. |
The preamble of the Constitution of Bangladesh proclaims that the high ideals of ‘absolute trust and faith in the almighty Allah’, ‘nationalism’, ‘democracy’ and ‘socialism meaning economic and social justice’ shall be the fundamental principles of the Constitution. It also states that it shall be a fundamental aim of the State to realize a socialist society in which the rule of law, fundamental human rights and freedom, equality and justice will be ensured. The preamble recognizes the fundamental aim of the state as to realize the ‘democratic process’ for establishing a socialist society, free from exploitation. The framers conceived of a democratically run welfare state to eliminate inequality of income and status and standards of life. The fundamental principles of state policy
The whole process of institutionalization[4] of democracy perhaps begins with
the process of having representatives at various levels of governance. Being under military rule for almost one-third of the period since the independence of the country, when the supreme law of the land- the Constitution was either suspended or parts of it remained in abeyance, the people of Bangladesh hardly had the opportunity to exercise democratic rights and practice freedom. The local government units have been routinely manipulated by all the previous governments.
The purpose was to create respective rural support base for the ruling party. The effective participation by the people through their elected representatives in administration at all levels, as envisaged in article 11 of the Constitution, has not yet been ensured.
Conclusion:
A Constitutional government is enshrined with a value system, which ensures societal change as well as justice. Every country has a constitution but may not have a constitutional government. A constitutional government requires primacy of rule of law. Bangladesh is abundant with constitutional provisions and statutory laws guaranteeing political freedom.
However, the existence of a number of repressive laws undermines the ‘de jure’ pledges of freedom. Sadly the ‘hard earned democracy’ has not yet obtained an institutional shape. Bangladesh’s politics remain confrontational and inimical to reform. There is no system of accountability within the existing ‘political party mechanisms’. The judiciary is still not functionally independent of the executive. The aspiration of the Constitution as reflected in Article 22 (“The state shall ensure the separation of the judiciary from executive organ of the state”) has not yet been materialized.
With the installation of a newly elected government in power, it is the earnest hope of the people that they will act to preserve, protect and defend the Constitution both in letter and in spirit.
Bibliography
1. http://www.thedailystar.net/newDesign/news-details.php?nid=124642
2. http://brishchik.blogspot.com/2009/05/sucularism-and-bangladeshs-1972.html
4. http://news.oneindia.in/2010/07/29/bangladesh-to-restore-secularism-in-constitution.html
6. http://www.albd.org/autoalbd/index.php?option=com_content&task=view&id=74&Itemid=37
7. http://www.banglapedia.org/httpdocs/HT/C_0336.HTM
9. http://www.e-bangladesh.org/2010/02/18/the-repeal-of-the-fifth-amendment-musings/
10. http://www.sonarbangladesh.com/article.php?ID=1615
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[1] 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.
[2] It is the imposition of military rules by military authorities over designated regions on an emergency basis—usually only temporary—when the civilian government or civilian authorities fail to function effectively.
[3] The purpose of the constitution and commencement of a law providing for purging the land from persons having belongingness to Pakistani atrocities or zeal before or after liberation.
[4] Crystallization of the standards, values and principles we use to guarantee social life, about the maturing of the ideas and values with which we consciously or unconsciously organize social life. These values determine what is considered good and bad, just and unjust, legal and illegal, utopian and practical in a society
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