The term Constitution means the rules and regulations of any organization. Constitutions concern different levels of organizations, from sovereign states to companies and unincorporated associations. These rules will also provide the technique in which the organization should relate to outside bodies. In other words it can be said that a constitution governs both internal and external activities of an organization. Constitution has in two forms: written constitution and unwritten constitution.
The term written constitution is used to describe a constitution that is entirely written, which by definition includes every codified constitution; but not all constitutions based entirely on written documents are codified. Written constitutions are set out in an actual document (e.g. United States, France).
Unwritten constitutions are a collection of traditions that may or may not be written out in a single, coherent document–often they are amalgamations of numerous documents over long periods of time combined with rules that courts have developed over time (e.g. United Kingdom).
Some constitutions are largely, but not wholly, codified. For example, in the Constitution of Australia, most of its fundamental political principles and regulations concerning the relationship between branches of government, and concerning the government and the individual are codified in a single document, the Constitution of the Commonwealth of Australia. However, the presence of statutes with constitutional significance, namely the Statute of Westminster, as adopted by the Commonwealth in the Statute of Westminster Adoption Act 1942, and the Australia Act 1986 means that Australia’s constitution is not contained in a single constitutional document. The Constitution of Canada, which evolved from the British North America Acts until severed from nominal British control by the Canada Act 1982 (analogous to the Australia Act 1986), is a similar example. Canada’s constitution consists of almost 30 different statutes.
The terms written constitution and codified constitution are often used interchangeably, as are unwritten constitution and uncodified constitution, although this usage is technically inaccurate. Strictly speaking, unwritten constitution is never an accurate synonym for uncodified constitution, because all modern democratic constitutions mainly comprise written sources, even if they have no different legal status than ordinary statutes. Another, correct, term used is formal (or formal written) constitution, for example in the following context: “The United Kingdom has no formal [written] constitution” (which does not preclude a constitution based on documents but not codified)
Definition of Constitution Law
Constitutional Law is a system of rules that a society uses to maintain order and to protect persons, properties and liberties. Constitutional laws are written by legislators. Laws must support the constitution of a country and not contradict the most basic rules of the country. History shows that if there is no law in a country the society will automatically breakdown because anyone will have the freedom of doing anything they want and there is no right and wrong, there is no border line, which can lead to a paralyzed society. Law is enforced by a sovereign authority that is by the Court or by the House of Parliament and it is accompanied by sanctions.
Some of the very famous authors defined and described law from their own point of view. Some of them are listed below:
Salmond defined law as “Law is the body of Principles recognized and applied by the state in administration of justice”
John Austin described the law as “Consists of commands set as general rules of conduct by a sovereign to a member or members of the independent political society wherein the author of the law is supreme.”
Curzon observed law as that “Laws are the written and unwritten body of rules, largely derived from custom and formal enactment which are recognized as binding among those persons who constitute a community or state, so that they will be imposed upon and enforced among those persons by appropriate sanctions.”
The Constitution of Bangladesh
Constitution of Bangladesh is the supreme law of Bangladesh. It declares Bangladesh as a secular democratic republic where sovereignty belongs to the people; and lays down the framework defining fundamental political principles of the state and spells out the fundamental rights of citizens. Passed by the Constituent Assembly of Bangladesh on November 4, 1972, it came into effect from December 16, 1972, the day commemorated as Victory Day in the country, marking the defeat of the Pakistan Army in the Bangladesh Liberation War. The constitution proclaims nationalism, democracy, socialism and secularity as the fundamental principles of the Bangladeshi republic. When adopted in 1972, it was one of the most liberal constitutions of the time.
Supremacy of the Constitution
(1) All powers in the Republic belong to the people, and their exercise on behalf of the people shall be affected only under, and by the authority of, this Constitution.
(2) This Constitution is, as the solemn expression of the will of the people, the supreme law of the Republic, and if any other law is inconsistent with this Constitution and other law shall, to the extent of the inconsistency, be void.
Fundamental Constitutional concept
Rule of Law: The Rule of Law is the ultimate justification for the existence of a legitimate political system. It is a necessary ingredient to provide a government system with a moral justification of its laws. When the government can show that their action is legal, in nature it justifies that the action no matter how it might seem. At the same time, laws have to be created, advocated and exercised in a fair and reasonable way. Moreover, the law should be obeyed by the people and should be ruled by it. The rule of law is a kind of protecting citizens by the government and it is equal for both the government and the people.
The concept of Rule of Law has been interpreted in different ways by the different philosophy.
- Aristotle stated rule of law in his book ‘The Politics’ as “the rule of law is preferable to that of any individual”.
- Cicero defined rule of law as “true law is right reason in agreement with nature; it is of universal application, unchanging and everlasting: it summons to duty by its commands, and adverts from wrongdoing by its prohibitions. Cicero also stated that “there will be one master and one ruler, that is, God, over us all, for He is the author of this law, its promulgator, and its enforcing judge”.
- Karl Marx described “law represents the interests of the powerful within society”, he also stated that “the rule of law represents no more than a false idealization of law designed to reinforce the political structure and economic status quo in society”.
- Professor Joseph Raz said “the rule of law is apolitical idea which a legal system may lack or may possess to a greater or lesser degree. Joseph also stated that “rule of law is just one of the virtues which a legal system may possess and by which it is to be judge.it is not to be confused with democracy, justice, equality, human rights of any kind or respect for persons or for the dignity of man”.
Right and Duty of work
(1) Work is a right, a duty and a matter of honor for every citizen who is capable of working, and everyone shall be paid for his work on the basis of the principle “from each according to his abilities to each according to his work”.
(2) The State shall endeavor to create conditions in which, as a general principle, persons shall not be able to enjoy unearned incomes, and in which human labor in every form, intellectual and physical, shall become a fuller expression of creative endeavor and of the human personality.
Labor rights in Bangladesh
The existing labor and industrial laws are in favor of the employers while not in favor of the workers in Bangladesh. In this country, the existing laws regarding laborers are primitive in nature. Lack of a proper execution system of the laws is the main cause in the ignorance of labor rights. Though they are existing in the provision of trade unions and collective bargaining agents (CBA) to preserve the workers interests, the trade unions and CBA do not perform their respective duties properly. Politicization of labor and industrial sectors, corruption of the trade union leaders and the role of CBA are responsible in this connection.
Bangladesh offers an abundant supply of disciplined, easily trainable and low-cost work force suitable for any labor-intensive industry. Of late, there is an increasing supply of professionals, technologists and other middle and low-level skilled workers. They receive technical training from universities, colleges, technical training centers, polytechnic institutions etc. The expenditure incurred by an employer to train his employee is exempted from income tax.
Forced labor in Bangladesh
The Government generally permitted a wide variety of human rights groups to conduct their activities, but it brought a number of nongovernmental organizations (NGOs) under intense scrutiny. Societal discrimination against disabled persons, indigenous people, and religious minorities was a problem. The Government limited worker rights, especially in the Export Processing Zones (EPZs), which are exempt from the major labor laws, and was ineffective in enforcing those workers’ rights in place. Child labor and abuse of child workers remained widespread and were serious problems. Abuse of children and child prostitution were problems. Violence and discrimination against women remained serious problems, as did trafficking in women and children for the purpose of prostitution and at times for forced labor.
The Constitution prohibits torture and cruel, inhuman, or degrading punishment; however, police routinely employed physical and psychological torture as well as cruel, inhuman, and degrading treatment during arrests and interrogations. Torture may consist of threats and beatings, and the use of electric shock. According to the Bangladesh Rehabilitation Center for Trauma, there were 1,296 victims of torture and 115 deaths due to torture by security forces during the year. Victims were predominantly from the lowest end of the economic scale. The Government rarely charged, convicted or punished those responsible, and a climate of impunity allowed such police abuses to continue.
The Constitution provides that each person arrested shall be informed of the grounds for detention, provided access to a lawyer of his or her choice, brought before a magistrate within 24 hours, and freed unless the magistrate authorizes continued detention. However, the Constitution specifically allows preventive detention, with specified safeguards, outside these requirements. In practice, authorities frequently violated these constitutional provisions, even in non-preventive detention cases.
Constitution provides for an independent judiciary; however, under a longstanding “temporary” provision of the Constitution, the lower courts remained part of the executive and were subject to its influence. The higher levels of the judiciary displayed a significant degree of independence and often ruled against the Government in criminal, civil, and even politically controversial cases. However, there was corruption within the legal process, especially at lower levels.
The Constitution prohibits forced or bonded labor, including by children; however, the Government did not enforce this prohibition effectively. The Factories Act and Shops and Establishments Act established inspection mechanisms to enforce laws against forced labor, but these laws were not enforced rigorously, partly because resources for enforcement were scarce. There was no bonded or forced labor in large-scale enterprises; nevertheless, numerous domestic servants, including many children, worked in conditions that resembled servitude and many suffered physical abuse, sometimes resulting in death. There continued to be numerous reports of violence against domestic workers. In the past, the Government brought criminal charges against employers who abused domestic servants. Many impoverished families settled instead for financial compensation. Trafficking of women and children was a problem.
Prohibition of Forced Labor
(1) All forms of forced labor are prohibited and any contravention of this provision shall be an offence punishable in accordance with law.
(2) Nothing in this article shall apply to compulsory labor.
ü by persons undergoing lawful punishment for a criminal offence; or
ü required by any law for public purpose.
Labor Law of Bangladesh
In Bangladesh 47 labor laws are now in operation. These relate to (a) wages and employment, (b) trade union & industrial disputes, (c) working environment and (d) labor administration and related matters. The main labor laws are:
ü Workmen’s Compensation Act, 1923
ü Payment of Wages Act, 1936
ü Maternity Benefit Act, 1936
ü Employment of Labor (Standing Orders) Act, 1965
ü Shops & Establishments Act, 1965
ü Factories Act, 1965
ü Industrial Relations Ordinance, 1969
Existing labor rights and emerging trends of trade unions in Bangladesh call for re-thinking. Trade unions in Bangladesh contribute to a lack of solidarity and collaboration on certain issues. The union movements consider ‘reaching out to the unorganized and vulnerable’ groups as a way to ensure the future relevance of trade unions. By removing the political leadership from trade unions and other labor organizations; by reducing government intervention and at last by amending the existing labor-industrial laws, proper trade unions and labor rights can be ensured in Bangladesh. Therefore, the practice of forced labor should be stopped and let the people do whatever they want to do and wherever they find comfortable.
- Sen,A.K & Mitra,J.K (2006) Commercial Law and Industrial Law, 26th edition, India, The world press private ltd.
- Islam, M. (2010) Constitutional Law of Bangladesh, 2nd edition, Bangladesh, Mullick Brothers.
- Fenwick, H & Phillipson,G. (2004-2005), Constitutional & Administrative Law, 4th edition, London, Cavendish publishing ltd.
- Barnett, H. (2006) Constitutional & Administrative Law, 6th edition, London, Routledge-Cavendish.