The constitution declares that the sovereignty lies with the people and the Constitution is the embodiment and solemn expression of the will of the people- Explain & Illustrate

The constitution declares that the sovereignty lies with the people and the Constitution is the embodiment and solemn expression of the will of the people- Explain & Illustrate

Constitution is the fundamental document of a nation to govern. It is designated as the mother of all law enforceable in the country. Most of the constitutions are written except that of the Great Britain. Constitutions can be different shapes and formats. They can be formal and informal, long or short, absolute or merely advisory. One very important topic comes when we discuss about constitution, it is either written or unwritten.[1] Our Constitution is written and has been in force since 16 December 1972. So far Constitution of the People’s Republic of Bangladesh has gone under 14 amendments. Written Constitutions are rather codified frameworks: Single manuscripts summarizing the rights, values, and responsibilities attached to membership of the states to which they relate. If we focus history then we could understand, why some states have adopted the written Constitutions while rest didn’t. But this is not the universal case. Written Constitutions have tended to emerge in countries where there has been a sudden change in the entire system of government caused by a political upheaval such as war, invasion or revolution[2]. If we observe the history of two very developed countries like France and USA, then we can understand why written Constitution is very powerful to adopt.

“This was certainly the case for two of the nations with whom the term is perhaps most closely associated: France and the USA. France’s Constitution derives from the Declaration of the Citizen, adopted on 26th August 1789AD by the National Constituent Assembly convened in the aftermath of the French Revolution, and later amended to enshrine the three abiding principles of ‘liberty, equality, and fraternity’. The USA adopted its equivalent a decade after declaring independence from Britain, on 17 September 1787AD, a landmark Constitutional convention in Philadelphia, Pennsylvania, addressed by the Enlightenment philosopher Benjamin Franklin.”[3]

Constitution is always adopted to uphold people’s rights and wellbeing. Our Constitution also adopted to ensure the sovereignty of our people. In the preamble of our Constitution we pledge that—

“The high ideals of absolute trust and faith in Almighty Allah, nationalism, democracy, and socialism meaning economic and social justice, which inspired our heroic people to dedicate themselves to, and our brave martyrs to sacrifice their lives in the war for national independence, shall be fundamentals principles of the Constitution; Further pledging that is shall be fundamental aim of the State to realize through the democratic process to 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; Affirming that is our sacred duty to safeguard, protect and defend this Constitution and to maintain its supremacy as the embodiment of the will of the people of Bangladesh so that we may prosper in freedom and may make our full contribution towards international peace and co-operation in keeping with the progressive aspirations of mankind; In our Constituent Assembly, this eighteenth day of Kartick, 1379 B.S. corresponding to the fourth day of November, 1972 A.D., do hereby adopt, enact and give to ourselves this Constitution.”[4]

The constitution of People’s Republic of Bangladesh is in force since 16 December 1972. There are 153 Articles in the Constitution of People’s Republic of Bangladesh. These 153 Articles are divided into eleven parts. The parts are[5],

  • Part-I: The Republic, Articles 1 to 7,
  • Part-II: Fundamental Principles of State Policy, Articles 8 to 25,
  • Part-III: Fundamental Rights, Articles are 26 to 47A,
  • Part-IV: The Executive,
    • Chapter-I: The President, Articles 48 to 54,
    • Chapter-II: The Prime Minister and Cabinet, Articles 55 to 58A,
    • Chapter-IIA: Non-Party Care-Taker Government, Articles 58B, 58C,58D, 58E,
    • Chapter-III: Local Government, Articles 59 to 60
    • Chapter-IV: The Defense Services, Articles 61 to 63
    • Chapter-V: The Attorney-General, Article 64
  • Part-V: The Legislature
    • Chapter-I: Parliament, Articles 65 to 79
    • Chapter-II: Legislative and Financial Procedures, Articles 80 to 92A
    • Chapter-III: Ordinance making Power, Article 93
      • Part-VI: The Judiciary
    • Chapter-I: The Supreme Court, Articles 94 to 113
    • Chapter-II: Subordinate Courts, Articles 114 to 116A
    • Chapter-III: Administrative Tribunals, Article 117
    • Part-IXA: Emergency Provisions, Articles 141A, 141B, and 141C
    • Part-X: Amendment of the Constitution, Article, 142
    • Part-XI: Miscellaneous, Articles 143 to 153 and
  • Part-VIA: The National Party (Omitted)
  • Part-VII: Elections, Articles 118 to 126
  • Part-VIII: The Comptroller and Auditor General, Articles 127 to 132
  • Part-IX: The Services of Bangladesh
    • Chapter-I: Services, Articles 133 to 136
    • Chapter-II: Public Service Commission, Articles 137 to 141

Four Schedules

The sovereignty aspect has been included in Part-II and Part-III of the Constitution.

 

Part II: Fundamental Principals of State Policy:

This part describes the fundamental principles of State Policy. The original 1972 constitution contained 4 fundamental principles as Secularity, Nationalism, Democracy and Socialism (meaning economic and social justice for all). However, later amendments replaced Secularity with “Absolute trust and faith in the Almighty Allah shall be the basis of all actions[6].” Part II’s article 8, 9, 10, and 11 declares the rights of the people[7]. Article 8 says that the principles set out in Part II shall be fundamental to the governance of Bangladesh, shall be applied by the state in the making of laws, shall be a guide to the interpretation of the Constitution and of the other laws of Bangladesh, and shall form the basis of work of the state and of its citizens, but shall not be enforceable before a court of justice. Article 9 provides promotion of local Government institutions. Article 10 states the equal rights of women in national life. Article 11 states that Bangladesh would be a democracy, with assured human rights. Article 13 focuses on the principal of ownership, later in Article 14 deals with the emancipation of peasants and workers. Provision of basic necessities is the main topic in Article 15, and Article 16 upholds the rural development and agricultural revolution. Article 17 shapes that the basic education will be free and compulsory for all children. Article 18 (1) asks the state to take effective measures to improve the level of nutrition and public health, and 18 (2) states to prevent alcoholism, addiction to drugs, prostitution and gambling. Article 19 asks the state to take effective measures to ensure equality of opportunity for all citizens, and uniform level of economic development throughout the country[8]. Article 20 (1) says that work is a right, a duty and a matter of honor for every capable citizen, and everyone shall be paid according to his work, and 20 (2) states that the state shall Endeavour to create conditions in which human labor, whether intellectual or physical, shall become a fuller expression of creativity and of the human personality. Article 21 focuses on the duties of citizens and of public servants. Article 22 asks the separation of judiciary from the executive. Article 23 asks the state to adopt measures to conserve the cultural traditions and heritage of the people and to foster and improve the national language, literature and the arts. Article 24 tells upon the state to take measures to protect monuments of national importance. Article 25 expresses the promotion of international peace, security and solidarity.

 

Part III: Fundamental rights:

Fundamental rights declare the embodiment and solemn expression of the will of the people. Article 26 states that Laws inconsistent with fundamental rights to be void. Article 27 focuses on the Equality before law. All citizens are equal before law and are entitled to equal protection of law. Article 28 declares that- Discrimination on grounds of religion, race, caste, sex or place of birth. Equality of opportunity in public employment is the main issue of the Article no 29. Article 30 states Prohibition of foreign titles, honour, award or decoration from any foreign state.

Article 31 holds the right to protection of law. To enjoy the protection of the law, and to be treated in accordance with law, and only in accordance with law, is the inalienable right of every citizen, wherever he may be, and of every other person for the time being within Bangladesh, and in particular no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law[9].

Article 32 is the protection of right to life and personal liberty. Article 33 is the safeguards as to arrest and detention. Then Article 34 holds prohibition of forced labour. Article 35 declares protection in respect of trial and punishment. Article 36-38 are Freedom of movement, Freedom of assembly, Freedom of association. Article 39 focuses Freedom of thought and conscience, and of speech. Then Article 40 states- Freedom of profession or occupation. Fundamental rights of a citizen of Bangladesh have been included in the following Articles- Article 41-45 emphasis on the freedom of religion, rights to property, protection of home and correspondence, enforcement of fundamental rights and modification of rights in respect of disciplinary. Power to provide indemnity is the main concern of Article 46.

Article 47 is saving for certain laws. These are[10]

“(1) No law providing for any of the following matters shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridge, any of the rights guaranteed by this Part- (a) the compulsory acquisition, nationalization or requisition of any property, or the control or management thereof whether temporarily or permanently; (b) the compulsory amalgamation of bodies carrying on commercial or other undertakings; (c) the extinction, modification, restriction or regulation of rights of directors, managers, agents and officers of any such bodies, or of the voting rights of persons owning shares or stock (in whatever form) therein (2) Notwithstanding anything contained in this Constitution the laws specified in the First Schedule (including any amendment of any such law) shall continue to have full force and effect, and no provision of any such law, nor anything done or omitted to be done under the authority of such law, shall be deemed void or unlawful on the ground of inconsistency with, or repugnance to, any provision of this Constitution; 24 Provided that nothing in this article shall prevent amendment, modification or repeal of any such law. (3) Notwithstanding anything contained in this Constitution, no law nor any provision thereof providing for detention, prosecution or punishment of any person, who is a member of any armed or defense or auxiliary forces or who is a prisoner of war, for genocide, crimes against humanity or war crimes and other crimes under international law shall be deemed void or unlawful, or ever to have become void or unlawful, on the ground that such law or provision of any such law is inconsistent with, or repugnant to any of the provisions of this Constitution.47A. In applicability of certain articles (1) The rights guaranteed under article 31. Clauses (1) and (3) of article 35 and article 44 shall not apply to any person to whom a law specified in clause (3) of article 47 applies. (2) Notwithstanding anything contained in this Constitution, no person to whom a law specified in clause (3) of article 47 applies shall have the right to move the Supreme Court for any of the remedies under this Constitution.

The three pillars of the state are the Executive headed by the Honorable President, Legislative presided by the Honorable Speaker and Judiciary heated by Honorable Chief Justice. Supreme Court runs two divisions The Appellate Division and the High Court Division. The Supreme Court is also designated as guardian of the constitution. The High Court Division excepting its original jurisdiction also enlarges protection of civil rights of Bangladesh citizen. Article 102 of the Constitution describes the Writ jurisdiction of High Court Division. Writs are of following types as Writ of Habeas Corpus, Writ of Mandamus, Writ of Certiorari and Writ of Quowarranto. Sovereignty lies with the people who elect their representatives for the Parliament who make law, Rules, or any other policy decisions on their behalf.

The Constitution of the People’s Republic of Bangladesh mandated Bangladesh citizen to elect their representatives through adult franchise to sit in parliament session to act on their behalf. The Honorable President asks the Member of the Parliament to elect the Leader of the House who would be the chief executive of the government i.e. the Prime Minister and other members of Cabinet are chosen by the Prime Minister from and among the Parliament Members. The Prime Minister may appoint one tenth of the ministers under technocrat quota for specified job. Appointment procedure for Prime Minister and other ministers has described in Part IV, chapter II, Article 55(3). The number of cabinet ministers is fixed depending on the work load and pleasure of Prime Minister. So sovereignty lies with the people who elect their representatives for Parliament and the Supreme Court act as guardian of the Constitution as well as people.
Bibliography:

  • The Constitution of the people’s Republic of Bangladesh (As modified up to 30th April,1996), Online retrieved 13 June, 2011

www.isn.ethz.ch

 

  • Banglapedia : Fundamental Principles of State Policy , Online retrieved 13 June 2011

http://www.banglapedia.org/httpdocs/HT/F_0189.HTM

  • Wikipedia : Constitution of Bangladesh, Online retrieved 13 June, 2011

http://en.wikipedia.org/wiki/Constitution_of_Bangladesh

[1] The British Constitution and Monarchy- what is a Constitution?

[2] The British Constitution and Monarchy- what is a Constitution?

[3] Introduction of The British Constitution and Monarchy.

[4] See Preamble part, of The Constitution of the People’s Republic of Bangladesh.

[5] See Contents of The Constitution of the People’s Republic of Bangladesh.

[6] The Constitution of The People’s Republic of Bangladesh (As modified up to 30th April, 1996). Contents Preamble

[7] Part II Fundamental Principles of state policy —Article (8-25), pp-16-23.

[8] Banglapedia : fundamental principles of state policy , Part II Constitution, See online link

http://www.banglapedia.org/httpdocs/HT/F_0189.HTM

[9] Wikipedia Constitution of Bangladesh, http://en.wikipedia.org/wiki/Constitution_of_Bangladesh

[10] Wikipedia Constitution of Bangladesh, http://en.wikipedia.org/wiki/Constitution_of_Bangladesh

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