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. Understanding the preamble to the Bangladesh Constitution is important because it sets out the purposes or functions of government as envisioned by the framers. In the Preamble of Bangladesh Constitution function of the government is described, and the function should be done by the citizens in order to make a “more perfect democratic and socialist country” is also describe[1].
History of Preamble
The US Constitution adopted in 1787 for the first time contained a Preamble and thenceforth most of the new countries with written constitution are adopting a preamble to their constitutions.
The Constitution of Bangladesh with a elaborate Preamble was written and finally accepted on the 4th November, 1972 for conducting the state. It took effected from the 16th December 1972. At a later stage at different times many amendments to the constitution were made .According to this amended constitution the state administration is going on.
What is Preamble?
Generally preamble is an introductory paragraph or part in a statute or other document setting forth the grounds and intentions of it. Not only a Constitution but also most of the statutes contain a preamble. The preamble to an Act contains in a nutshell its ideals and aspirations[2]; in other words, it sets out the main objectives which legislation is intended to achieve. It is a key to the intention of the maker of the Act[3]. Likewise the preamble to a Constitution is its philosophy because it contains those ideals and principals on the basis of which the whole structure of the constitution is erected. But though in case of ordinary statues much importance is not always attached to the preamble, extreme importance is always attached to a preamble in a constitutional statute. The preamble to a Constitution serves the following three main purposes:
i. It indicates the source of the Constitution i.e. the legal and moral basis of the Constitution[4].
ii. It expresses in a nutshell the ideas and aspirations of the Objectives of the Constitution. The declared objection is the secure justice, liberty, equality and fraternity to all the citizens. Thus, the preamble expresses the political, moral and religious values which the constitution is intended to promote.
iii. It works as the guiding star for the interpretation of the Constitution.
The Preamble or the Philosophy of the Bangladesh Constitution
The Preamble of the original Constitution of 1972 was amended by the Martial Law Administrator and then validated by the 5th Amendment of the Constitution. From this amended preamble we get the following features of it:
1. It identifies the legal basis of the Constitution.
“We, the people of Bangladesh, having proclaimed our Independence on the 26th day of March, 1971 and through a historic struggle for national liberation, established the independent, sovereign[5] People’s Republic[6] of Bangladesh”
These words mean that people is the source of all supreme power; People are the real makers of this Constitution. The members of the Constituent Assembly were all people’s representatives. The preamble, therefore, indicates that the legal basis of our Constitution is the people-the ultimate source of all power.
2. It identifies the moral basis of the Constitution.
As the Constitution of Bangladesh has been adopted and accepted by the people of Bangladesh and as it is the refection of the aspirations of the people of Bangladesh, it is also the duty of this very people to obey it. Again, as the supreme law of the land the constitution is the basis of law and order in the country. If it is violated, then the whole governmental order will be collapsed. It is, therefore, the moral duty of the people to obey this constitution. This moral basis of the Constitution has a clear recognition in the preamble-
“Pledging that the high ideals of nationalism, secularity, democracy and socialism, which inspired our heroic people to dedicate themselves to, and our brave martyrs to sacrifice their lives in the struggle for national liberation, shall be fundamental principles of the Constitution;”
To elucidate the legal and the moral basis of our Constitution it is pertinent to mention here two illustrations. It is said in the preamble of the Indian Constitution-“We, the people of India…. In our Constituent Assembly do hereby adopt, enact and give ourselves the Constitution.” The preamble of Indian Constitution, therefore, indicates the people of India both as the legal and moral basis of the constitution. But in fact the legal basis of the Indian constitution is the Indian Independence Act, 1947 and not the people of India .Because India achieved its independence by the operation of that Act. Again, there was no universal suffrage in the election of the constituent Assembly. The people of India, therefore, had neither direct nor indirect involvement in making of the constitution.
Likewise the US constitution was adopted in the Philadelphia Conference in 1774 which was represented by the owners of the government debentures, land lords, money-lenders, shipping business men and owners of slave trade. No labor-representative neither any representative of the cultivators was invited in that conference. But the conference adopted the constitution declaring “We the people of United State….do ordain and establish this constitution for the USA.”
To compare the Bangladesh constitution with the above mentioned two constitutions it nay be said that there is no doubt as to source of the Bangladesh constitution. It is certainly the people of Bangladesh. Because the people of Bangladesh have achieved their independence through a nine-month bloody struggler and the constitution was made and adopted by the representatives who were directly elected by the people. It is, of course, sometimes argued that the members of the constituent Assembly were MNAs and MPAs of the erstwhile Pakistan; they were not elected to act as representatives in the constituent Assembly of Bangladesh and no election was held after independence.
3. It identifies the goal of the state.
“Further pledging that it shall be a fundamental aim of the State to realize through the democratic[7] process, a socialist society free from exploitation, a society in which the rule of law, fundamental human rights and freedoms, equality and justice, political, economic and social, will be secured for all citizens;
Affirming that it 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;”
When enacted in 1972, the Constitution of Bangladesh was hailed by international jurists and legal historians and as one of the most progressive and democratic constitutions in modern history and one that inspired progressive political aspirations among third world countries and populations struggling for self-determination. However, amendments during socialist one party and military rule in Bangladesh radically altered the secular and liberal democratic nature of the constitution. In August, 2005, the Bangladesh High Court passed a landmark judgment that declared constitutional amendments during military rule as illegal and unconstitutional, and hence nullified. After several legal protests, the Bangladesh Supreme Court, in January, 2010, ultimately announced that the historic verdict of the High Court will be upheld. The judgment of Bangladesh’s highest courts paved way for the return of the original nature of the constitution, which defines Bangladesh as a secular democracy
Preamble and the Operative Part of the Constitute
Sometimes it is argued that the preamble is not include in the operative part of the Constitution. It is not an integral part of the constitution in the following senses.
Firstly, if it were dropped from the constitution would, in no way, be hampered.
Secondly, it is not necessary that every statute or Constitution should being with a preamble. The Government of India Act, 1935 though it was the second Constitution of the British India, had no preamble.
Thirdly, the preamble of a Constitution is neither regarded as the source of any substantive governmental power nor does it by itself import any limitations on the exercise of powers not expressly or impliedly prohibited by the constitution[8].
It was opined by the Supreme Court of USA that a preamble is not an operative part of the Constitution. It indicates only the general purpose for which the people ordained and established the Constitution. It has never been regarded as the source of any substantive power conferred on the government of the USA or any of its department’s[9].Similarly, the Supreme Court in India has laid down in some cases that the preamble is not an operative part of the Constitution and hence it can never be a source of power. It has limited application and can be resorted to where there is any ambiguity or where the object or meaning of any enactment is not clean. Where the enabling part i.e. the operative part of the Constitution is explicit and unambiguous, the preamble cannot be restored to, to control, qualify or restrict. In other words, where the language or provisions of the operative part are clear, full effect should be given to the operative part, even though those provisions appear to contradict the terms of the preamble[10]. Also the Powell V. Kempton Park Race Course Co. Lord Halsbury L.C. said-“ Two propositions are quite clear : one that a preamble may afford useful light as to what the state intends to reach; and another, that if an enactment is itself clear and unambiguous, no preamble can qualify or cut down the enactment[11].
How far have the Objectives enshrined in the Preamble been maintained in Bangladesh
To see how far the objectives enshrined in the preamble have been maintained and ensured we have to examine the conditions of the following concepts which are components of an exploitation-free society-the ultimate goal of the state.
Rule of Law:
The provisions of the original constitution of 1972 were more or less conducive enough to ensure rule of law in Bangladesh But only after nine months of its adoption preventive detention, emergency[12] etc. Black provisions were inserted in the constitution through the second Amendment arresting all the possible way to ensuring rule of law. Then in 1975 by the 4th Amendment multi-party democratic system was buried and one party dictatorial presidential system was introduced undermining, better to say, uprooting the spirit of constitutional supremacy, judicial independence, rule of law and democracy.
In 1991 the 12th Amendment of the constitution was passed reverting the governmental system from presidential to parliamentary and the first 12 years of the second parliamentary democracy has been completed. But rule of law still remains a far cry. Because all the black provisions of the constitution like emergency, preventive detention[13], ordinance-making power of the president[14], involvement of the executive in the judiciary, Article 70[15], CAG’s dependence upon the executive etc., as they stand now, are insurmountable stumbling block against the ensuring rule of law[16].
Fundamental Rights:
The constitution provides for 18 fundamental rights and also their better protection has been ensured in the constitution. But due to poverty and the absence of any legal aid most of the poor people cannot enjoy their rights and also preventive detention, emergency provisions etc. act as a threat towards the enjoyment of fundamental rights.
Political, Economic and Social Equality
A large number of Social and Economic rights have got their Constitutional recognition. But without a reasonable economic equity among people no social or political equality can be ensured.32 years have passed since Bangladesh achieved independence but economic inequality rather than equality is reining the majority life of the people. No government took stern measures to control the high growth rate of population and the rate of literate people is going down to compare with the growth rate. But there will be no political equality unless and until the people are educated and politically conscious.
Recent View of Preamble
Thus the earlier view was that the preamble was not any operative part of the constitution. But some recent judgments have given a quite different view. In Kesavananda Bharti’s case the Indian Supreme Court held that the preamble is a part of the constitution. Though in an ordinary statute not much importance is attached to the preamble, all importance has to be attached to the preamble of a constitution. Sikri C.J. said-‘it seems to me that the preamble of our constitution is of extreme importance and the constitution should be read and interpreted in the light of the grand and noble vision expressed in the preamble’. According to the judgment of this case the view taken in Berubari case was, therefore, wrong.
Legal Position and Utility of a Preamble
It is a well-established rule of interpretation that it is only when an Act is ambiguous (that is, not clear), that a preamble can be made use of to throw further light on the express provisions of the enactment. Thus, the Preamble cannot be made use of to control an enactment, when the enactment itself is expressed in clear and unambiguous terms. In other words, an ambiguity cannot be created or imagined just to draw a clarification from the Preamble, as that would mean frustration of the main enactment[17].
The preamble seeks to give Bangladesh a Democratic Constitution, Art.21 should be read in such a way as would invalidate any law opposed to the principals of natural justice. The Supreme Court, however, rejected this argument, observing that the word “law” in Art. 21 refers to “position or state-made law”, and not natural law or justice.
The preamble to the constitution was discussed by the Supreme Court, where the Court said that in the words of the eminent jurist, Story, the preamble was a ‘key to open the mind of makers’[18]
In the same case, the Supreme Court observed that “….never-the less, the preamble is not a part of the Constitution”. It is submitted with great respect to their Lordships of the Supreme Court that such a view is not correct, and that rightly speaking the preamble does form a part-and a very significant one-of the constitution. In fact, in one case (Dalavi V. State of Tamil Nadu, A.I. R. 1976 S.C. 1559), the Supreme Court itself relied upon the preamble when striking down a pension scheme formulated by the Government of India.
In one English case (Powell V. Kempton Park Race Course Co. (1899) A.C. 143), Lord Halsbury observed as follows:
“Two propositions are quite clear: one, that a preamble may afford useful light as to what the statute intends to reach; and another, that if and enactment is itself clear and unambiguous, no preamble can quality or cut down the enactment.”
Weather Preamble can be Amended?
The question was raised for the first time before the Indian Supreme Court in Kesavananda Bharati’s case .It was argued that since the preamble was a part of the Constitution. It could be amended like any other provisions of the constitution. The Court held that since the preamble is a part of the constitution it can be amended subject to this condition that the ‘basic features’ in the preamble cannot be amended. The court said,
“The edifice of our constitution is based upon the basic elements mentioned in the preamble. If any of these elements are removed the structure will not survive and it will not be the same constitution or it will fail to maintain its identity. The preamble declares that the people of India resolved to constitute their country into a Sovereign Democratic Republic….. An amending power cannot be interpreted so as to confer power on the parliament to take away any of these fundamental and basic Characteristics of policy”.[19]
It is pertinent to mention here that the Supreme Court of Bangladesh also held in the 8th Amendment case that preamble is a part of the constitution and it is a basic structure of our constitution.[20] It is also noteworthy that though the Supreme Court held that the parliament cannot amend any basic structure of the constitution like the preamble, this very preamble was altered by the martial law administrator and was later validated by the parliament[21].
142. Power to amend any provision of the Constitution (1) Notwithstanding anything contained in this Constitution- (a) any provision thereof may by 92 amended by way of addition, alteration, substitution or repeal by Act of Parliament: Provided that- (i) no Bill for such amendment 91* * shall be allowed to proceed unless the long title thereof expressly states that it will amend 91* * a provision of the Constitution; (ii) no such Bill shall be presented to the President for assent unless it is passed by the votes of not less than two-thirds of the total number of members of Parliament; (b) when a Bill passed as aforesaid is presented to the President for his assent he shall, within the period of seven days after the Bill is presented to him assent to the Bill, and if he fails so to do he shall be deemed to have assented to it on the expiration of that period[22].
(2) Nothing in article 26 shall apply to any amendment made under this article.
Conclusion
The preamble is a part of the Constitution but it is not necessarily the part of the enacting or operative part of the Constitution, and the court cannot enforce it directly. The preamble, therefore, bears no legal significance. But it has other important significance which is sometimes more than legal importance.
First, it is the preamble which identifies the legal source or base of the Constitution. Legal base of the Constitution means wherefrom the validity and power of the Constitution is derived,
Second, it indicates the moral basis or the philosophy of the whole nation. The logic which works behind obeying a Constitution as the supreme law is its moral philosophy.
Third, the preamble works as a guiding star for the whole nation .Because it is pledged in the preamble that all government al works would be administered in conformity with preamble and taking it as a pole star.
Fourth, the preamble has a great interpretative significance. Where any operative part of the Constitution is ambiguous the preamble can be resorted to clarify that part or wordings.
BIBLIOGRAPHY
1.’Constitution, Constitutional Law and Politics: Bangladesh Perspective’ by MD. Abdul Halim. Advocate, Supreme Court of Bangladesh.
2.’Bangladesh Constitution: Trends & Issues: (2001, AD)’ by Justice Mustafa Kamal, University of Dhaka, 1994
3. ‘Select Constitutions’ By Anup Chand Kapur and K.K. Misra. 15th Revised Edition.2002, Ramnagar, New Delhi.
4.’ Constitutional History of Bangladesh’ by D. Belal Husain Joy, University of Dhaka.
5.’Constitutional Law of Bangladesh’ by Mahmudul Islam (Dhaka: Bangladesh Institute of Law, 1995)
6.’Constitutional and Administrative Law’ by Jhon Alder (London: Macmillan, 1989)
7.’Constitutional development in Bangladesh’ by Dilara Chudury (Dhaka: UPL, 1995)
8.’Amader Shogbidhan’ by MD. Istiak Ahmed, Kazi Tiuni Binte Zannat, Muhusina Farhat Chowdery and Tanzila Haq. Barc Law faculty. Brac University publishes.
9.’The Constitution of India (1990)’ by Noshirh. Jhabvalal. C. Jamnadas & Co. Education and Law Publishers.
10. ‘Modern Constitutions’ by K.C. Where, (London: Oxford University Press, 1966)
11. ‘Bangladesh: Constitutional Quest for Autonomy’ by Moudud Ahmed (Dhaka: UPL 1978)
12. A More Perfect Union, Copyright @2004, Constitutional Rights Foundation Chicago.
13. ‘The Constitution of Bangladesh’ from wikipedia, the free encyclopedia.
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[1] The main Characteristics of the preamble of the Bangladesh constitution are:
-It is a written document.
-“Bismillahir Rahmanir Rahim” is written in its preamble.
-Some fundamental principals have been included in most squeeze form for conducting the state.
[2] Per Subba Rao C.J in Golaknath V. State of Punjab AIR 1967 SC 1643
[3] Sikri, C.J. in Kesavananda Bharati Case AIR (1973) 4 SCC 225
[4] It indicates the sources from which the Constitution springs into existence- namely, the people of the country. The political power in the Bangladesh Republic, therefore, vests ultimately with the people of Bangladesh. Our Constitution is Broad-based on the consent and acquiescence of the people. It is not imposed by any external authority, as was the case with the Government of India Act, 1935. It is true that the Constituent Assembly (which framed the constitution) was not directly elected by the people; nor was the draft of the Constitution subjected to the vote of the people. Yet, the Constitution Assembly was fairly representative of the all sections of the people. See, C. Jamnadas & CO. ”The Constitution of India”P-1
[5] Sovereign- “A state is sovereign when there resides within itself a supreme and absolute power acknowledging no superior” (Cooley, Constitutional Law, P-18).
[6] Republic- In political science, the term “Republic” has two connotations. In a narrow sense, it is used in opposition to ‘monarchy’. A republic Government, in this sense, means,” a Government, not by a single person, but by a collegial organization, more or less numerous”
In a wider sense, the word ‘Republic’ denotes “Government where no one holds the public power as a proprietary right, but all power is exercised for the common good-where the inhabitants are subjects and free citizens at the same time”: Bluntschli,- Theory of the state.
It appears that our Constitution uses the term ‘Republic’ in both these senses, with the result that every countries citizen will be subjects and frees citizens at the same time.
[7] Democratic- Democracy denotes a Government in which the mass of the adult population has or indirect share. Now, democracy can be of two kinds-direct and indirect. Direct democracy is one in which the whole body of people directly exercises political power, as was the case in ancient Rome. In an Indirect or representative democracy, the great mass of the people, namely, the electorate, choose their representatives, who form the government. The legal sovereignty in such a State rest, not in the electorate, but in their representatives. The electorate must exercise its will through the representatives chosen by it. The fundamental principle of democracy is that Government is carried on for the benefit of the governed. The form of democracy adopted in Bangladesh is direct democracy.
[8] In Berubari’s case AIR 1960 SC 845
[9] Jacobson V. Massachusetts (1905) 197 US 11
[10] Berubari’s case. AIR 1960 SC 845
Golaknath V. State of Panjab. AIR 1967
[11] Re Kerala Education Bill case AIR 1958 SC 956
1899 AC 143
[12] Emergency- Normally emergency means an unexpected occurrence requiring immediate action. In
Bhagat Singh V. King-Emperor Load Dunedin said “a state of emergency is something that does not
permit of any exact definition It connotes a state of matters calling for drastic action”
[13] Term ‘preventive detention’ is used in contradistinction to the term “punitive detention”. Brohi, A. K,
ibid,P-424
[14] Art. 123 for ordinance making by the President and Art.213 for Governors.
[15] As to political factionalism in Bangladesh there is a frequently quoted statement-‘ That one Bangali is
One party; two Bangles, two political parties; and three Bengalis, two political parties with dissident fact
In one of them’. Baxter, Craig, Government and Politics in South Asia, Second ed, (Oxford: West View
Press,1991), P. 248
[16] The Rule of Law- the term ‘rule of law’ is used as opposed to the concept of ‘rule of man’. The primary
Meaning of rule of law is that ruler and the ruled must be bound by the same law. No separate law or
System can be provided for the ruler. See, Constitution, Constitutional Law and Politics, P-407
[17] Gopalan V. State of Madras, (1950 S.C.R. 88)
[18] In Re Berubari Union and Exchange of Enclaves,-A.I.R. 1960 S.C. 845
[19] AIR (1973) SCC 225
[20] The case of Anwar Hussain Chowdhury V. Bangladesh [1989 BLD(SPL)] popularly known as 8th
[21] See, Ahmed, Moudud, Democracy and the Challenge of Development, Ibid, P-276
[22]Elaborating the rules (1A) Notwithstanding anything contained in clause (1), when a Bill, passed as a aforesaid,, which provides for the amendment of the Preamble or any provisions of articles 8, 48, 56 or this article, is presented to the President for assent, the President, shall within the period of seven days, after the Bill is presented to him, cause to be referred to a referendum the question whether the Bill should or should not be assented to.
(1B) A referendum under this article shall be conducted by the Election Commission, within such period and in such manner as may be provided by law, amongst the person enrolled on the electoral roll prepared for the purpose of election to Parliament.
(1C) On the day on which the result of the referendum conducted in relation to a Bill under this article is declared, the President shall be deemed to have- (a) assented to the Bill, if the majority of the total votes cast are in favor of the Bill being assented to; or (b) Withheld assent there from, if the majority of the total votes cast are not in favor of the Bill being assented to.
1D) Nothing in clause (1C) shall be deemed to be an expression of confidence or no- confidence in the Cabinet or Parliament