LEGAL HISTORY OF CONSTITUTION OF BANGLADESH, PART 1

 Introductory:

Chapter – 1.

1.1      Aims and objectives:

By instinct man is gregarious and lives in company of his fellow beings. This led to the emergence of society and the rules to regulate the conduct of the members of the society. The association was not, however, for mere companionship, but to achieve various objectives and purposes. The modern formation of man and society is the formation of State. State is run by following a supreme law of the land. The Supreme law of our laws is called the constitution of the people’s Republic of Bangladesh, which was had in 1972. The aims and objectives of the amendment of Bangladesh Constitution 1972 and their impact in Legal History are stated below:

  • To understand and realize the amendment of Bangladesh Constitution 1972.
  • To assess the impact of the amendment in the legal History.
  • To assess the impact of the amendment in the practical activities of the whole citizens.
  • To recommend in avoiding the lacuna of the amended constitutional provisions.

 Importance of the study:

The emergence of State speaks the administrative system for protecting the interest of its citizens. It is the fundamental duties of the state to protect the inalienable or fundamental rights of the citizens. The importance of the amendment of Bangladesh constitution 1972 is undeniable in terms of the inalienable rights of Bangladeshi citizens. They are as follows:

  • to identify whether the amendment of the constitution has contracted the fundamental rights.
  • to recommend in avoiding the lacuna for safeguarding and upgrading the fundamental rights.

1.3      Scope and limitations

Scope of the study:

Every law contains a periphery or a scope, At the same time, it keeps some limitations. Nothing has absolute scope except the absolute being or entity.

The scope of the study is determined within the boundary of the amended constitutional provisions of 1972 constitution. Hence it is indispensable to project the amended constitutional provision based legal area.

1.4)     Limitation of the study:

The given research monograph does not permit to criticize or discuss about the constitutional lacuna of Bangladesh constitution, 1972. There are many lacunas of Bangladesh constitution, 1972 for which the entire good governance and the fundamental human rights of the citizens are destroyed. Here is no scope to discuss or criticize about the basis /foundation. It is necessary to discuss about the severe lacuna based Law. The constitution of Bangladesh, 1972 itself contains some severe lacunas which are not pertinent of the given research monograph. The limitations like the following example.

Mr. Aziz is an engineer. He is empowered to examine and report from the first to 13th floor except the ground floor and the foundation of a building.

1.5      Research Methodology:

Data have been generated from both the primary and secondary sources:

In order to understand the deepness of the given research monograph, I have first of all, collected all amendments, the original constitution of Bangladesh, 1972 and other related documents. Then I have discussed about the amendments of the constitution and finally have thought very deeply again and again. By this methodology, I have completed the research monograph.

A combination of methods have been. applied to obtain data which included:

  • Observation with a checklist.
  • Study of Bangladesh (Original) constitution of 1972.
  • Study of Bangladesh Constitution (amended up to 1998)
  • Discussion with experts and others.

1.6      Research Policy:

Although there is no enlightened policy in our country in the domain of research. I have tried to follow the ‘Research Action Policy1 It has been applies to the best of my ability.

2.1      Commonly it is known to us that constitution the supreme or basic law of a country. The administrators according to constitution run the entire administrative system of any state. So a constitution is, there fore, the basic design of the structure and powers of the government and the rights and duties of its citizens. There can be no state without a constitution. Sometimes the constitution of a state is definitely formulated in a document or documents; sometimes it is found in an established body of rules, maxims, traditions and practices in accordance with which its government is organized and its powers are exercised”1

2.2Meaning of amendment:

The word amendment denotes “the removal of faults or errors, reformation. 1 In the constitutional law amendment means the removal or the reformation of the constitutional provision for the purpose of equipping with the present and future needs of the citizens. Again, the word amend may have Different nuances of meaning in different contexts, like ‘amend one’s conduct; “amend a letter or a document” “amend a pleading” “amend a law” “amend a Constitution”. We are concerned with the last one, namely, what an amendment means in the context of a Constitution that contains an amending clause. In the Oxford English Dictionary, Vol. 1 the word ‘amend’ is stated to mean “to make professed improvements in (a measure before Parliament); formally, to alter in detail, though practically it may be to alter its principle so as to thwart it.”1

It is indispensable to keep a provision of amending the provision of the constitution. So, “Article–142 of the constitution confers power on parliament to amend the  Constitution For such amendment there are some procedural requirements. A bill for amendment of the constitution must contain a long title expressly stating that it will amend a provision of the constitution. It was contended that the long title must specifically mention which provision is sought to be amended, otherwise the amendment passed will be void. The Majority decision of the Appellate Division is that the  specific provision need not be mentioned in the Bill and the requirement will be fulfilled if the long title states that certain provision or provisions is or are sought to be amended.2

This bill paned by the votes of not less than two-thirds of the total number of members of Parliament shall be presented to the President for his assent. The president shall assent to the Bill within sever days of the presentation of the Bill if that Bill is pared by the required majority assent. If he fails to assent within that time he shall be deemed to have assented to the Bill. But in case of amending the preamble, or any of the provisions of arts. 8,48,56, and 142, the President shall within seven days of Presentation of the Bill for his assent cause it to be refereed to a referendum. It is seen that the majority votes in the referendum are in favour of the amendment the president shall be deemed to have assented to the Bill. Otherwise the president shall be deemed to have withheld his assent from the Bill, the procedural requirements are mandatory. and if these are not followed the amendment will be void.

2.2.     Important features of Bangladesh constitution, 1972.

  • Preamble: The constitution of the People’s Republic of Bangladesh has a clear Preamble in which it has been stated that.

Further pledging that it shall be a fundamental aim of the State to realize through the democratic process a socialist society, free from exploitation a society in which the rule of law fundamental human rights and freedom, equality and justice, political, economic and social, will be secured for all citizens”

2)       Supremacy of the constitution:

Bangladesh constitution, 1972 has the supremacy which is ensured in article 7 (2) of it. It 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.

3)       Unitary Governmental system:

According to article 1 of Bangladesh constitution. 1972, there is a system of Unitary government. All powers is centralized in the hand of a unitary government.

  • Fundamental principles of state policy: Article 8 of Bangladesh constitution 1972 provides for major fundamental principles of state policy. They are-
  • Nationalism,
  • Democracy,
  • Socialism,
  • Secularism, All other principles derived from these four shall also constitute the fundamental principles of State policy.

5)       Fundamental Rights:

Eighteen fundamental rights are guaranteed in chap (iii) Bangladesh constitution, 1972. The enjoyment and enforcement of these rights have been guaranteed in the constitution.

6)       Parliamentary form of Government:

The constitution of Bangladesh 1972, provides for a west minister type of parliamentary system.

  • Independence of Judiciary:

The constitution of Bangladesh 1972 ensured the Independence of Judiciary.

  • Ombudsman:

Article 77 of Bangladesh constitution, 1972 has spoken about the establishment of the office of the Ombudsman.

2.3)     Amendments of Bangladesh constitution 1972:

From the commencement of Bangladesh constitution, 1972, there has been 13 amendments, a summery of all the amendments is given,

Summery of 13 Amendments:

Amendments Date Summery of substance
1st Amendment 15th July, 1973 To make way for prosecution of genocide, crime against humanity and war crimes committed in the liberation war of 1971.
2nd Amendment 22nd September, 1973 Inclusion of emergency provision, suspension of fundamental rights and preventive detention.
3rd Amendment 28th November 1974 To give effect to the boundary line treaty between Bangladesh and India.
4th Amendment 25th January 1975 One party dictatorial system was substituted for a responsible parliamentary system.
5th Amendment 6th April, 1979 Legalizing all acts done by the first Military Authority.
6th Amendment 10th July 1981 To make way for the Vice president to be a candidate in president election.
7th Amendment 10th November 1986 Legalizing all acts done by the 2nd Military Authority.
8th Amendment 9th June, 1988 Setting up six permanent Benches of the High cornet Division and making Islam the state religion.
9th Amendment 11th July 1989 Direct election of the president and the Vice president simultaneously.
10th Amendment 23rd June 1990 Period for reservation of 30 Women members seats in the parliament wad extended for 10 years.
11th Amendment 10th August 1991 Legalizing the appointment of Shahabuddin Ahmed. Chief Justice of Bangladesh, as Vice President of Bangladesh and his all activities as the Aching president and then the return to his previous position of the chief Justice of Bangladesh.
12th Amendment 18th September 1991 Reintroducing the Parliamentary System
13th Amendment 28th March 1996 Provision for caretaker Government 1

 

 

 

 

 

 

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