Report on Constitutional Law
PRIMARY IDEAS OF CONSTITUTIONAL LAW:
Constitutional law actually forms the backbone of public law. It is that branch of public law which determines the nature of the state, nature and structure of the government and its power, function, division of power among different constitutional organs, their relationship to each other and above all the relationship between the state and the individuals. <href=”#_ftn1″ name=”_ftnref1″ title=””>According to Maitland” while constitutional law deals with structure and the broader rules which regulate the function, the details of the functions are left to administrative law”.
According to Gettel<href=”#_ftn2″ name=”_ftnref2″ title=””>”constitutional law locates sovereignty within the state and thus indicates the source of law”. According to C.F Strong <href=”#_ftn3″ name=”_ftnref3″ title=””>”a constitution may be said to be a collection of principles according to which the power of the government, the right of the governed and the relation between the two are adjusted” Again, some have defined constitution in narrower sence. According to Thomas paine and De Tocqueville-constitution means the aggregate of only those written principles which regulate the administration of the state. According to them<href=”#_ftn4″ name=”_ftnref4″ title=””>”if the constitution cannot be produced in a visible document, it cannot be said to be a constitution at all.
Classification of Constitutional:
Constitutions are widely classified into two categoris such as:
1.written and unwritten constitution: A written constitution is one in which the fundamental principles concering state administration are embodied and which has, as a specific document been passed by a specific body. So a written constitution can be produced and shown as a single document. The US constitution, Indian constitution, Bangladesh constitution provides example of written document. on the other hand, where the constitution has not been passed formally as a specific document by a specific body and the fundamental principles concering state administration exist in political customs, judicial decision and in some scattered documents, the constitution is an unwritten one. The British constitution provides the glaring example of unwritten constitution. An unwritten constitution must have some written elements.
2.Rigid and Flexible constitution: The distinction between a flexible and rigid constitution rests upon the method by which the constitution may be changed. the constitution which can be amended by ordinary law making procedure is called a flexible constitution. For example British constitution is flexible.
This is because there is no distinction between ordinary and constitutional law in Britain. On the other hand, the constitution which procedure (like two-third or three-fourth majority) is needed, it is called a right constitution. According to C.F Stong<href=”#_ftn5″ name=”_ftnref5″ title=””>” there are four method of constitution amendment in use among states with rigid constitution; Fristly, that by the legislature under special restrictions; secondly, that by the people through a referendum; Thirdly, that method peculiar to federal states where all or a proportion of the federating units must agree to the change and fourthly, that by a special convention for the purpose.
Likewise the constitution of Bangladesh is a rigid one. Under the provision of the constitution of Bangladesh normally two-thirds majority in the parliament is essential for making an amendment effective. Again, if the proposed amendment contains any provision of articles 8,48,56 or 142,then referendum is essential even after such an amendment bill has been passed in the parliament by two-thirds majority.
It has, of course, to be taken into account that an unwritten constitution is in practice flexible but a written constitution is not necessarily rigid; it may sometimes be flexible in practice though its nature tells it to be rigid. the constitution of New Zeland is written but it is entirely flexible.<href=”#_ftn6″ name=”_ftnref6″ title=””>
Method of establishing constitution: History shows four methods by which modern states have acquired their constitution. Such as: By grant, By deliberate creation, By revolution and by gradual evolution.<href=”#_ftn7″ name=”_ftnref7″ title=””>
A Brief History of constitution of Bangladesh
British Period :
During the British rule there was a demand for separation of judiciary from the executive. The British administration did not make this separation thinking that separation might go against their colonial interest. In 1919 the matter of separation of judiciary was raised in the House of Commons but it was not discussed on the contention that it was a matter within the jurisdiction of provincial government. In 1921 a resolution regarding separation of judiciary was passed in the Bengal Legislative Assembly which was followed by formation of a committee. The committee reported that there was no practical, problem in separation. However, nothing more was done.
Pakistan Period :
After separation and independence in 1947 no step was taken in East Pakistan. The United Front included the idea of separation in its 21 points formula in 1954. The first Constitution in independent Pakistan was adopted in 1956. Unlike the Government of India Act 1935 (Ss 253, 254, 255 and 256) and the Constitution of India (Art. 233 to 237 in Chapter VI) this Pakistan Constitution of 1956 did not provide for any provision regarding ‘subordinate courts’ or ‘magistracy’; these were to be regulated by the Code of Civil Procedure and the Code of Criminal Procedure. In 1957 the East Pakistan Provincial Assembly passed the Code of Criminal Procedure (East Pakistan Amendment) Act 1957 (No. 36) which dealt with separation. However, this Act was never given effective. In 1958 the Pakistan Law Commission recommended to bring the judicial magistrates under the control of the High Court. In 1967 the Law Commission again recommended to give effect to the Cr. P. C Act 1957 (No. 36) though nothing was done until 1972. In the Code of Criminal Procedure (East Pakistan Amendment) Act 1957 (Act No. 36 of 1957) an overhauling amendment was made in the Criminal Procedure Code with a view to separating the judicial and executive functions of the magistrates. A full discussion of that amendment is beyond the scope of this work.
Bangladesh Period :
In 1972 after independence of Bangladesh the Constitution of the Peoples’ Republic of Bangladesh was adopted. Provision was made in Article 22 in the Fundamental Principles of State Policy that the state shall ensure the separation of the judiciary from the executive organs of the state.
In 1976 a Law Committee headed by Justice Kemaluddin reported to implement separation of lower judiciary in three stages which are as follows:
First Stage: The government may by notification, appoint some particular Magistrates at each station exclusively for judicial work. This can be given effect forthwith without any additional expenses or administrative difficulties.
Second Stage: This should be the nature of separation of judicial functions from executive as envisaged in the Code of Criminal Procedure (East Pakistan Amendment) Act 1957 (Act No. 36).
Final Stage: The final stage would be not only complete separation of judicial functions from executive but also constitution of a separate integrated judicial service under the control of the High Court Division for civil and criminal work right up to the level of the District and Session Judge. The Committee also recommended that for creation of an integrated judicial service, it would be necessary to enact new legislation.
In 1987 by an amendment to the Criminal Procedure Code President Ershad prepared a bill for separation of judiciary. However, the bill did not see the light of the day. In Pakistan separation was done in 1973 and in India in 1974 by an amendment to the Criminal Procedure Code. In 1990 the issue of separation of judiciary was put into the manifesto of the Three-Party Alliance movement against Ershad regime. In every election after 1990 both the BNP and AL had avowed commitment in their manifesto that going to power they would separate judiciary from the executive.
In 1991 a private member’s Bill by Mr. Salauddin Yusuf namely the Constitution (14lh Amendment) Bill 1991 was introduced for further amendment of Articles 95, 98, 115 and 116 of the Constitution. The Bill was sent to a select committee which had about 13 meetings to consider it. The Bill tried to reinstate the provisions of the 1972 original Constitution envisaged by the Constitution-makers. The revised bill was submitted in parliament in 1994. The comparison of the original bill and the revised bill reveals that ‘the BNP has come out as the champion for the 4th Amendment of the Constitution though it is the BNP which never misses any opportunity to condemn AL for the 4th Amendment of the Constitution<href=”#_ftn8″ name=”_ftnref8″ title=””>. However, nothing was done to pass the Bill. The Bill, however, did not deal with anything about the separation of subordinate judiciary. The government side did not accept any proposal for amendment of Article 115 and 116 of the Constitution. ‘By not agreeing to restore the original provisions of Articles 115 and 116 the government has unmistakably demonstrated that they are opposed to the separation of subordinate judiciary from the executive<href=”#_ftn9″ name=”_ftnref9″ title=””>. Shekh Hasina as the Prime Minister in the parliament kept echoing her commitment that she would do all for separation of judiciary. A committee was formed headed by the secretary of Law and Parliamentary Affairs. Abdul Motin Khasru, the Law Minster stated that a bill for separation of judiciary from the executive was under way but nothing more was done.
The same fate of constitutionalism as Pakistan had to experience came to be the realities in the start of constitutionalism in Bangladesh. It was a long cherished aim of the people and the leading party Awami League’s commitment on its way to movement for autonomy in the then East Pakistan to establish a parliamentary government which would be directly responsible to the elected representatives.
To that end in view, the first bold initiative taken by Sheikh Mujib in the independent Bangladesh was to change the system of government from presidential which was working during war time to parliamentary one. But this change was not more than a mere expression of sentiment of Mujib since it was a change in the form only which enabled Mujib to redesignate his position as the Prime Minister in place of the President<href=”#_ftn10″ name=”_ftnref10″ title=””>. Because as mentioned earlier<href=”#_ftn11″ name=”_ftnref11″ title=””>though the change provided for a parliamentary system, the Constituent Assembly which was to act as parliament was neither given the power to make law nor to exercise control over the cabinet<href=”#_ftn12″ name=”_ftnref12″ title=””>.The cabinet was not, therefore, accountable to anybody. Both the executive and legislative powers remained concentrated in the hand of the President. Thus at the very start of its journey constitutionalism received a setback in Bangladesh.
Then on 16th December, 1972 the Constitution of Bangladesh came into force. Except some minor weaknesses<href=”#_ftn13″ name=”_ftnref13″ title=””> it was a healthy Constitution which provided almost all favourable conditions of a responsible government. Taking a bitter lesson from the abuse of power and destructive role of the President in the Pakistan politics the framers of the 1972’s Constitution of Bangladesh limited the powers of the President in strict terms. However, a good Constitution does not necessarily produce a constitutional government and democracy is always more than a mere form of government.
The success of a constitutional government depends necessarily upon the democratic spirit of toleration, devoted sense of respect and relentless response towards the institutionalisation of democracy. In a new country with fresh start of democracy the ruling party or the leading leader should have a genuine interest to develope constitutionalism; it should respect the public opinion and the opinion of the opposition; it should resolve all political disputes in a democratic way without resorting to any repressive measure; it should encourage and help grow and develop a strong opposition; to build up honest and devoted future leaders and above all, the leading leader should, howsoever powerful his charisma be, institutionalize his charisma rather than personalize so that this may act as an inspiring instance to be followed by the incoming leading persons.
Unfortunately for the success of constitutionalism in Bangladesh under the 1972’s Constitution what role was played by the undisputed charismatic leader of the nation Sheikh Mujib have been found to be very frustrating both as the Prime Minister and the leader of the AL.
An essential institution of a parliamentary democracy is the President or King or Queen who is a titular head of the state. Although he is a titular head, he has three rights in respect of the governance of the country— right to be informed, right to encourage and right to warn. It is a constitutional duty, of the Prime Minister to inform the President about the day to day administration and decisions I of the cabinet and to seek advice from him.
But in the first phase of Bangladesh politics (1972-75) Mujib, the Prime Minister had clear-cut and absolute supremacy over the two ceremonial heads of the state, Abu Sayeed Chowdhury and Mahmudullah. Neither of them had the courage or conviction to, stand up against any arbitrary or unconstitutional action of the Prime Minister. Neither could they demand the reverence and courtesy normally accorded to the holder of such an office<href=”#_ftn14″ name=”_ftnref14″ title=””>. This is why Justice Abu Sayeed Chowdhury was not happy being a titular head under the dominating shadow of Sheikh Mujib. He felt himself like being in a case. He wanted to be freer and do something productive for the country<href=”#_ftn15″ name=”_ftnref15″ title=””>.
The Background of the Establishment of Bangladesh Constitution :
After independence Bangladesh received its new Constitution adopted by a Constituent Assembly. The Constitution was given effective on 16th December, 1972. Before the new Constitution was made effective there was one interim Cnstitution in Bangladesh. It was initially the, Proclamation of Independence (10th April, 1971) and later, the Proclamation of Independence along with the Provisional Constitution of Bangladesh Order, 1972.
The Proclamation of Independence :
Following the Pakistan army crack-down on March 25, 1971 the declaration of independence of Bangladesh was broadcasted from the Shadhin Bangla Betar Kendra (Free- Bengal Radio Station) in Chittagong. The declaration was an-informal announcement since till then it was East Pakistan and no revolutionary government was formed to turn the. so-called East Pakistan into Bangladesh and to give the declaration a legal basis. So from the viewpoint of international law, to legalise the declaration as well as to legalise the independence war of Bangladesh it was essential to form a revolutionary government. Without such a government and a formal declaration there were some vital issues in question—:ho”w could the international community have knowledge about the forthcoming separate entity of Bangladesh? ; how could Bangladesh which was yet to achieve independence through fighting could seek assistance from India and other international community?; and how would the freedom war be administered? With this end in view the Awami League leaders i.e.. the elected representatives (MNAs and MPAs) of the earstwhile East Pakistan who could flee to India assembled in Calcutta. With their prompt initiative a formal Proclamation of Independence was drafted and adopted on 10th April, 1971 with retrospective effect from March 26, 1971. Under this Proclamation the representatives constituted themselves into a Constituent Assembly for Bangladesh and declared Bangladesh i.e. the erstwhile East Pakistan as a Sovereign Peoples’ Republic.
They thereby confirmed the declaration of independence already made on March 26, 1971. And now it remained no longer a mere declaration; it became a formally approved document which acted as an interim Constitution. Under this very Proclamation the Bangladesh Government-in-exile was legalised though it was formed earlier with the leading initiative of Tajuddin Ahmed. The Government-in-exile i.e. the revolutionary government of Bangladesh formally took their oath on 17th April, 1971 at Meherpur in Kustia District1. The Proclamation was a Constitution because it outlined the nature of the state, structure of the government etc. The Proclamation declared Bangladesh as a sovereign Pople’s Rpublic<href=”#_ftn16″ name=”_ftnref16″ title=””>.
It provided for presidential system of government and declared that the President—
i) shall be the Supreme Commander of all the Armed forces of the Republic.
ii) shall have power to appoint’a Prime Minister and such other Ministers as he considers necessary.
iii) shall have the power to levy taxes and expend moneys.
iv) shall have the power to summon and adjourn the Constituent Assembly; &
v) shall exercise all legislative and executive powers of the Republic including the power to grant pardon.
Though the President was empowered with all uncontrolled powers like a dictator, it was nothing unusual or undemocratic since it was a war time—a special circumstances which is met by special laws to enable the government to handle the affairs of the state effectively.
The Proclamation of Independence read with the Provisional Constitution of Bangladesh Order, 1972 :
On 16th December, 1971 Bangladesh achieved its full formal independence. The Govemment-in-exile came to Bangladesh on December 22, 1971 and took the administration of the new born state. The State administration was being run according to the Proclamation of Independence. On January 8, 1972 Sheikh Mujib who was till then the President of Bangladesh under the Proclamation was released from Pakistani jail and returned to Bangladesh oh 10th January, 1972.
The same day, to keep in line with his earlier commitment,. Mujib expressed his intention not to act as the President but chose to be the Prime Minister of Bangladesh in line with a Westminster type parliamentary system. Accordingly on llth January, 1972 as the President of Bangladesh Sheikh Mujib issued the Provisional Constitution of Bangladesh Order whereby the entire character of the government was changed; The Presidential form was substituted by a form aiming at a Westminster type parliamentary system.
The reason stated for changing the system was that it was the “manifest aspiration of the people of Bangladesh to establish a parliamentary democracy” and so in order to achieve this objective the new system was introduced. It is to be mentioned here specifically for the purpose of research that someone might comment that the Provisional Constitution of Bangladesh Order, 1972 acted as the second interim Constitution of Bangladesh. But this view seems to be wrong. Because the Proclamation of Independence along with it the Provisional Constitution of Bangladesh Order, 1972 acted as the single interim Constitution of Bangladesh till 16th December, 1972. The Provisional Constitution of Bangladesh Order, 1972 did not actually supersede the Proclamation of Independence, 1971; nor was the Proclamation formally abolished; nor was the Provisional Constitution Order any formal amendment to the Proclamation.
The Provisional Constitution Order changed only the character of the government i.e. from presidential to parliamentary form. A minute perusal of both the documents arid the functioning of the then government would necessarily give the idea that both the Proclamation and the Provisional Constitution Order were acting as the Constitution of the country. Because though the Provisional Constitution Order changed the character of the government, it did not tell anything about the legislative power; nor did it give any power to the Constituent Assembly to control the cabinet; nor did it tell anything about the exercise of executive power of the state. All executive and legislative powers were being exercised by the President under the Proclamation in an uncontrolled way.
The main provisions of the Order, however, were as follows.:
There shall be a cabinet of Ministers, with the Prime Minister at the head,
The President shall in exercise of all his functions act in accordance with the advice of the Prime Minister.
There shall be a Constituent Assembly comprising of the elected representatives of the people of Bangladesh who were elected as MNAs and MPAs in the elections held in December 1970, January-. 1971 and March. 1971 not otherwise disqualified .by or under any law.
The President shall commission as Prime Minister a member of the Constituent Assembly, who commands the confidence of the majority of the members of the Constituent Assembly. All other Ministers shall be appointed by the President on the advice the Prime Minister<href=”#_ftn17″ name=”_ftnref17″ title=””>.
Under this system Justice Abu Sayeed Chowdhury became the President of Bangladesh and Sheikh Mujib became the Prime Minister.
Constitution Making Process The Constituent Assembly of Bangladesh Order, 1972 :
The first step in making the Constitution of independent Bangladesh was the promulgation of the Constituent Assembly of Bangladesh Order on March 22, 1972 as envisaged in the Provisional Constitution of Bangladesh Order, 1972. Under this Order the Constituent Assembly was given only one function to discharge and it was to make a Constitution for Bangladesh. The Constituent Assembly comprised the elected representatives and hence under parliamentary system, it should have been given the power to control the cabinet as well as to make laws for Bangladesh. But it was unfortunate that on the very outset the constitutionalism got a setback in Bangladesh.
It is pertinent to note here that when on August 14, 1947 India and Pakistan achieved their independence under the Indian Independence Act, 1947, provisions for the creation of two Constituent Assemblies—one for Pakistan and one for India, were made in the Act. The Act also provided that until new Constitutions were framed, the Constituent Assemblies of both the Dominions would act as central legislatures for both the Dominions. Thus the Constituent Assembly of Pakistan had dual functions—to frame a constitution for Pakistan and to act as the legislature for Pakistan and as a legislature for Pakistan it would make all national laws for Pakistan; it had control over the cabinet; the cabinet was collectively responsible to it; government could not expend any money without the approval of the Assembly.
Likewise the Second Constituent Assembly in Pakistan had this dual function which is a must for the development of constitutional government. But in the constitutional history of Bangladesh the Constituent Assembly was not given any legislative power;<href=”#_ftn18″ name=”_ftnref18″ title=””> nor had it any power to control the cabinet; law making power was vested with the President who was to do everything with the advice of the Prime Minister. Thus the Constituent Assembly virtually remained subordinate to the President (in other words, to the Prime Minister), and the government remained unanswerable to any body or forum<href=”#_ftn19″ name=”_ftnref19″ title=””> .
It may, therefore, be said that though Sheikh Mujib by changing the form of government instantly showed his and his party’s long-cherished intention to establish a responsible government with a Westminster type parliamentary system, he showed only the shadow, the substance keeping in the other side of the wall. It was not more than a mere expression of his sentiment.
Now we should proceed to see the functioning of the Constituent Assembly on its way to the Constitution making for Bangladesh.
Members of the Assembly :
The Constituent Assembly comprised the elected representatives of the people of Bangladesh who were elected as MM As and MPAs in the elections held in December, 1970, January, 1971 and March,
1971. The total members elected as MNA & MPA were 469 (169 MNAs & 300 MPAs). Among them 12 died in the meantime, 2 became Pakistani citizens, 5 Were arrested under the Collaborator’s Order, 46 were declared disqualified under the Constituent Assembly (Disqualification of Membership) Order and 1 went to a foreign service. The remaining 403 members manned the Constituent Assembly to the last of its life. Out of them 400 members belonged to the Awami League, one belonged to National Awami Party (NAP) (Suranjit Sen Gupta) and two were independents.
First Session of the Assembly :
The Constituent Assembly had its first session on 10th April,
1972. In this session a Constitution Drafting Committee of 34 members was formed under the chairmanship of Dr. Kamal Hossain, the then Law Minister. All but one member (Suranjit Sen Gupta) of this Committee were from Awami League. The Committee was asked to submit its report to the Constituent Assembly with a Bill of the Draft Constitution. The committee had its first meeting on 17th April, 1972. In this meeting a resolution was adopted which invited proposals and suggestions from all sections of the people. In response to this invitation, 98 memoranda were received<href=”#_ftn20″ name=”_ftnref20″ title=””>. The Drafting Committee had 74 meetings to draft the constitution and on 10th June it approved the draft Constitution. Then with a view to observing the practical working of the parliamentary constitutional system Dr. Kamal Hossain went to Britain and India. Lastly on llth October the last meeting of the Committee was held and the full draft Constitution was finally approved.
Second Session of the Constituent Assembly :
The Second session of the Assembly commenced on 12th October, 1972. On this day Dr. Kamal Hossain introduced the draft Constitution as a Bill. After seven days general discussion over the Bill commenced on October 19 and continued till November 3. During this long discussion 163 amendments were proposed. Among these 84 amendments were adopted 83 of which were moved by Awami League members and one was by Suranjit Sen Gupta. But most of the amendments were relating to the linguistic errors of the Bill. The Third reading on the Bill was held on November 4 and on this very day the Assembly adopted the Constitution for Bangladesh. It was given effect from the 16th December, 1972 the first anniversary of the Victory day.
Salient Features of the Constitution of Bangladesh, 1972 :
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.
2. Rigid Constitution: The Constitution of Bangladesh is a rigid one since no provision of it can be amended by ordinary law-making 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<href=”#_ftn21″ name=”_ftnref21″ title=””> .
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<href=”#_ftn22″ name=”_ftnref22″ title=””>.
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 been centralised 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) Secularism. All other principles derived from these four shall also constitute the fundamental principles of state policy<href=”#_ftn23″ name=”_ftnref23″ title=””>.
8. Fundamental Rights: Part-Ill 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<href=”#_ftn24″ name=”_ftnref24″ title=””>.
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 means that the 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 to 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<href=”#_ftn25″ name=”_ftnref25″ title=””>.
Thus the entire judiciary except some aspects of magistrate’s courts was made independent<href=”#_ftn26″ name=”_ftnref26″ title=””>.
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 are office reflected the desire of the Awami League to strengthen the functioning of democracy in the country<href=”#_ftn27″ name=”_ftnref27″ title=””>.
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<href=”#_ftn28″ name=”_ftnref28″ title=””>.
In fine, it can be said that except some weaknesses and drawbacks like the provisions of Article 70, ordinance making power of the President, magistrate’s courts, administrative tribunal etc. the Constitution of 1972, to a large extent, reflected the aspirations of the people. It was undoubtedly an improved Constitution to compare with all contemporary Constitutions of the sub-continent since there was no provision in the Constitution for preventive detention, neither was there any provision for emergency and suspension of fundamental rights—two brutal weapons to crush the opposition and perpetuate the rule and thereby creating a stumbling block to the way of developing constitutionalism. The Constitution, therefore, reflected the avowed purpose of its makers to establish constitutionalism in Bangladesh. But the fruits of the healthy Constitution could not be enjoyed by the people of Bangladesh for long. Bangladesh was probably not the right place to have the luxury of such a good constitution. Only after nine months of its life amendments one after another began to inject in it all the undemocratic provisions.
Political parties are backbone of democracy. Without democracy within the party-unit it is quite impossible to expect democracy at the governmental level. However, in Bangladesh as mentioned earlier<href=”#_ftn29″ name=”_ftnref29″ title=””>political parties are mostly fragile and fragmented. The problems of political parties are as follows:
(i) There are more than 100 political parties in Bangladesh but very few of them has definite ideology or programmers to be followed by supporters and future generation. Though one or two parties have ideologies and programmers, the leaders often defy them for their selfish end.
(ii) Almost all political parties are based around individuals and most of them do not have any grassroots organization or sufficient support to claim public representation. Mostly political parties are characterized by the politics of conspiracy, self-interest, greed and power-expectation. They are personality-oriented with followers clustering around a party-leaders who in turns becomes dictatorial.
(iii) The nature and composition of major parties reveal a disappointing state of affairs. Each major party is headed by person who is omnipotent in the management of the party-including the formation of central and executive committees. The constitution of the most of the parties are absolutely monolithic in nature.
The party chairman can make and dissolve any committee from ‘the highest to the lowest level. The party structure and committees are filled by nomination not by election. Party is managed in such a dictatorial way that members’ free-will does not bear any credit in party-meetings; often members are not given even right to express their opinion in party-meetings; what the party leader says or does becomes the ideology of the party.
(iv) Political parties in Bangladesh are considered as safe abode for criminals, terrorists and extortionists, for these type of people are always given shelter in parties. Moneyd people devoid of any leadership quality or connection with the people are given position in the party. In election time people who amassed wealth through whatever means are given preference to be candidates to these who may not be so wealthy but otherwise dedicated and committed having checkered political career. People having long sacrifices, dedication and commandment with integrity are overtaken by new rich readers. And this is being done by the party head who have little knowledge about democratic institutions and who have not reached that position through democratic process rather than through back door.
(v) Another great impediment to the growth of democracy is the hereditary or dynastic element in the party leadership. Khaleda Zia became leader because she is the wife of late President Zia who founded the BNP and Sheikh Hasina because of her father who founded Bangladesh. The leaders of these two political parties are permanently settled in their respective positions cancelling all the possibilities of emergence of any new leadership in their respective parties.
This anti-democratic dynastic feature in the party leadership has been the greatest impediment to the development of constitutionalism in Bangladesh. Because both Khaleda Zia and Sheikh Hasina have created a permanent block to the democratic growth of leadership in the party leaving no scope for the emergenc of a promising and dedicated leadership to lead the party and nation; both having no sufficient institutional educational background or proper knowledge over the working of various institutions of democracy are doing the worst to destroy democracy; they are greeting moneyed people, extortionists and criminals to their parties; they are expressly instigating and provoking the destructive politics of students and other organisations like QBA, trade union, civil servants etc.; they are encouraging retired as ‘Well as acting bureaucrats both civil and military to come into politics; they are blatantly using government servants for their narrow political goal.
The basic reason behind almost all the above mentioned problems in political parties is the illiterate and politically unconscious people behind the scene who are supplying the real force into the body polity of Bangladesh. They do not have any knowledge over democracy; neither have they any knowledge how to manage a party; they only see a person considering his/her past dynastic history disregarding other criteria’s. Khaleda Zia, whatever be her educational or other qualification, is getting support and sympathy from the people only for the reason that she is the widow of an assassinated President, a former military charismatic leader and on the belief that being the widow of Zia she would certainly keep alive Zia’s (her husband’s) glory and aspirations. Same is the case of Sheikh Hasina.
Both Mujib and Zia were charismatic able to create a large and strong support-base in the country and on the basis of this support base people are giving their blind support to these ladies whatever be their experience, education or sincerity in politics. Same has been the case of the Congress party in India which was led by the Nehru-Gandhi family for most of India’s 50 years since independence in 1947. But being detached from Gandhi family and for corruption scandal the Congress recently has faced decay.
Lastly to stop decay and desertion and particularly to win in the incoming election of 1998 Sonia, the widow of Rajib Gandhi inspite of her repeated refusal to come into politics, was strongly urged to lead the Congress or to at least campaign for them. When Sonia gave up her fiercely guarded privacy to active campaign for the Congress, it was seen that the Congress got vigorated; workers were particularly rejuvenated because they felt that she may ignite the embers.of the dynasty glory once again; huge supporters gathered to greet Sonia at her campaign.
But these large numbers of people who are greeting this anti-democratic dynastic element into politics keep hardly any knowledge of its possible dangers. The reason behind such a trend arnon’g people is psycho-historical. But illiterate people should not be blamed for this. It is their illiteracy and political unconsciousness which are responsible in this regard. To get rid of this problem what we need is to make our people educated and politically conscious. And to do that here again comes the question of dedicated leadership, for only a far-sighted leader can, with proper guidelines and policy-implementation, make the people gradually educated and politically conscious. But this is not possible overnight; it is a matter of considerable time and progress. But what is urgently needed is to introduce democratic culture in various institutions of democracy in furtherance of political stability which will gradually lead to economic development. It is not true in every sense that if Khaleda Zia or Sheikh Hasina resigns from party leadership while she is in power, the party will face quick decay; it is largely a matter of consensus among party leaders and particularly the sincerity of Hasina or Khaleda and it is also a matter of political tradition; if a tradition is once made by giving people, workers and supporters of the party information and knowledge over both negative and positive aspect of dynastic element in the party through mass-media people will realize and the tradition will gradually develop into a firm institution and democracy will get environment to flourish. And in this respect South African President Nelson Mandela has made the best instance for the sake of democracy by resigning from his party leadership.
To institutionalize politcal parties for the sake of democracy in the country some stapes should be taken. Which is given bellow :
Hereditary nature of leadership should be abolished and the party constitution should be amended to allow change in the leadership after each specified term. The party structure and committees should be filled only by election and this will encourage as well as develop leadership from grass-roots level. The party leader should not take any decision without the process of consultaion or discussion. The post of the party president and the leader of the parliamentary party should not be held by the same person.
Ministers must be barred from holding any party office. This will ensure the separate entity of the party as an institution of democracy on the one hand, and on the other hand, the party will be in a position to exercise a sort of control over the government or the parliamentary party so that they do not deviate from their party mandate or manifesto. Regular elections should be held both at national and local levels. This will, on the one hand, ensure a legal and political process of elimination and recognition of leaders and parties in nation-building activities ; and on the other hand, it will help diminish the unnecessary number of political parties which were created during the long time of political vacuum.
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<href=”#_ftnref1″ name=”_ftn1″ title=””> Constitutional history,1955,quoted by Takwani,C.K. 2nd edition. P-13
<href=”#_ftnref2″ name=”_ftn2″ title=””> Gettel,R,G.political science,Revised edition.p-184
<href=”#_ftnref3″ name=”_ftn3″ title=””> Strong,C.F.Modern political constitution,p-11
<href=”#_ftnref4″ name=”_ftn4″ title=””> Zink.Harold,Modern Government,2nd edition.p-18
<href=”#_ftnref5″ name=”_ftn5″ title=””> Strong,C.F.Modern political constitution.(London:ELBS,1970)p-140
<href=”#_ftnref6″ name=”_ftn6″ title=””> K.C. Modern Constitutions(London oxford university press,1975)p-31
<href=”#_ftnref7″ name=”_ftn7″ title=””> Gettel,R.G,political science.p-249
<href=”#_ftnref8″ name=”_ftn8″ title=””> Challenge to the Independence of Judiciary. Md. Abdur Rashid 46 DLR
<href=”#_ftnref9″ name=”_ftn9″ title=””> Barrister Syed Istiaq Ahmed, Workshop of ‘Independence of the Judiciary’, CAC 1994
<href=”#_ftnref10″ name=”_ftn10″ title=””> Ahmed, Moudud, Bangladesh: Era of Sheikh Mujibw Rahman, Ibids P. 9
11 Constitution, Constititional Law and Politics : Bangladesh Perspective, Md. Abdul Halim, P. 37.
12 Why was not the Constituent Assembly given legislative power ? See, PP. 140-142
13 For weaknesses and flaws, See, PP. 43—48 of this book.
<href=”#_ftnref11″ name=”_ftn11″ title=””>
<href=”#_ftnref12″ name=”_ftn12″ title=””>
<href=”#_ftnref13″ name=”_ftn13″ title=””>
<href=”#_ftnref14″ name=”_ftn14″ title=””> Choudhury, Dilara, Ibid, P.36
<href=”#_ftnref15″ name=”_ftn15″ title=””> Ahmed, Moudud, Bnagladesh : Era of Sheikh Mujibur Rahman, Ibid, P.228 & 230 (Footnote-24)
<href=”#_ftnref16″ name=”_ftn16″ title=””> For details, See. Ahmed, Moudud, Bangladesh : The Constitutional Quest for .Autonomy, (Dhaka: UPL. 1979), PP.264-271
Chowdhury, A.K, The Independence, of East Bengal. (Dhaka : Jatiya Granthakendra, 1984), PP.270-274.
Ahmed, Moudud.Bangladesh : Era oj Sheikh Mujibtir Rahman, (Dhaka : UPL,, 1984), PP.4-7
Talukdar. Maniruzzaman, The Bangladesh Revolution and its Aftermath, (Dhaka: UPL, 1988), PP. 109-112 Hasan. Moidul, Mainstream 1971, (in Bengali) (Dhaka : UPL, 1995). PP. 16-18
<href=”#_ftnref17″ name=”_ftn17″ title=””> For details, see. chapter XXIV of this book and also Ahmed. Moudud. Bangladesh : Em of Sheikh Mujibar Rahman, (Dhaka : UI’L 1984). P.8
<href=”#_ftnref18″ name=”_ftn18″ title=””> Why was not the Constituent Assembly given law making power? See. PP. 137-139
<href=”#_ftnref19″ name=”_ftn19″ title=””> See also Ahmed, Moudud. Bangladesh : Era of Sheikh Mujibur Rahman, (Dhaka : UPL. 1984). PP. 8-9
<href=”#_ftnref20″ name=”_ftn20″ title=””> The report of the Drafting Committee does not mention if any of those memoranda was accepted; it says that the memorandas were circulated to members of the. committee and the suggestions contained in them were duly considered by the 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 be 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 theAssembly or House have been all heaped up in a store room of parliament and these are yet to be ordered and arranged.
<href=”#_ftnref21″ name=”_ftn21″ title=””> Constitution, constitutional Law and politics : Bangladesh Perspective. Md. Abdul Halim. chapter HI
<href=”#_ftnref22″ name=”_ftn22″ title=””> Constitution, constitutional Law and politics : Bangladesh Perspective. Md. Abdul Halim. chapter IV. P.57.
<href=”#_ftnref23″ name=”_ftn23″ title=””> Constitution, constitutional Law and politics : Bangladesh Perspective. Md. Abdul Halim. chapter V. P.73
<href=”#_ftnref24″ name=”_ftn24″ title=””> Constitution, constitutional Law and politics : Bangladesh Perspective. Md. Abdul Halim. chapter VI. P.88
<href=”#_ftnref25″ name=”_ftn25″ title=””> Of course, the independence of lower judiciary as far as it relates to the Magistrate’s Courts exercising judicial power was ensured in proper form. See. details. PP. 344-350
<href=”#_ftnref26″ name=”_ftn26″ title=””> Constitution, constitutional Law and politics : Bangladesh Perspective. Md. Abdul Halim. Chapter XIX. P.324
<href=”#_ftnref27″ name=”_ftn27″ title=””> Constitution, constitutional Law and politics : Bangladesh Perspective. Md. Abdul Halim. chapter XVIII. P.309
<href=”#_ftnref28″ name=”_ftn28″ title=””> Constitution, constitutional Law and politics : Bangladesh Perspective. Md. Abdul Halim. chapter VIII & IX P.175.
<href=”#_ftnref29″ name=”_ftn29″ title=””>Constitution, constitutional Law and politics : Bangladesh Perspective. Md. Abdul Halim. Chapter VIII.