Bangladesh Studies

Constitution of Bangladesh

Constitution of Bangladesh

1. Theoretical Framework of Constitution:

In the modern world, constitution is the sine-qua-non for any country to operate its all sort of functions
properly. Constitution means- the collection of principles according to which the power of the
government, the rights of the governed and the relation between the two adjusted. Professor Lord
Bryce says- “Constitution is a set of established rules embodying and enacting the practice of
government”. Finally, constitution is a set of rules or laws, written or unwritten which determined the
organization of government, the distribution of powers of various organs of government and the general
principles on which these power are exercised.

2. Essentials of a good constitution:

1. Definiteness (Articles 8,27,29)

2. Flexibility (Article 142)
3. Declaration of rights (Article 26-47)
4. Comprehensiveness
5. Independence of judiciary (Article 22)
6. Directive of state policy (Article 25)

3. Historical Background of the Constitution of Bangladesh:

The beginning of the constitution- making process was made when the president issued the
Constitution Assembly of Bangladesh Order, 1972 on 23 March 1972 the Order defined the Constituent
Assembly and its functions in great detail. Though the total number of members who were elected to
the National Assembly and Provincial Assembly was 469, a few of them had died and some were
disqualified. Only 404 took part in the proceedings of the Constituent Assembly. The Assembly held its
first meeting on 10 April 1972. On the second day of the sitting a Constitution Drafting Committee of 34
members was formed with Dr. Kamal Hossain as its chairman. The Constitution Bill was introduced in
the Assembly on 12 October for consideration. Its first reading began on 19 October and continued till
30 October. The second reading took place from 31 October to 3 November. The third reading began on
4 November and it was approved with 65 amendments and came into force on 16 December of the
same year, marking the Victory Day. The Constitution has 153 Articles arranged under eleven parts and 4

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schedules entitled the Republic, Fundamental Principles of State Policy, Fundamental Rights, The
Executive , Prime Minister and the Cabinet, The legislature, Legislative and financial Procedure,
Ordinance Making Power, Judiciary, Elections, Comptroller and Auditor General, Services of Bangladesh,
Public Service Commission, Emergency Provisions, Amendment of the Constitution, and Miscellaneous.

4. Main Contents of the Constitution:

The Constitution as adopted in 1972 contained a Preamble, 153 Articles divided into 11 parts, and four
schedules. The main contents of the Constitution are:

I. The Preamble:
The Preamble, which embodied the collective memories and national aspirations, affirmed that
the “high ideals of nationalism, socialism, democracy and secularism that inspired our heroic
people to dedicate themselves to, and sacrifice their lives in the national liberation struggle”,
would be the fundamental principles of the Constitution.

II. New Nationhood:

Part I of the Constitution was the definitive and formal manifestation of a new nationhood. It
has declared Bangladesh as a sovereign unitary People’s Republic. It has defined the state
territory, the state language, the national anthem, the national flag, the national emblem, the
national flower and the national identity.

III. Fundamental Principles of State Policy:

Part II of the Constitution has contained a declaration of social and economic goals of the nation
in the form of ‘Fundamental Principles of State Policy’. It has defined the four basic principles
as mentioned in the Preamble. It has affirmed that “Bangali” nationalism is rooted in the unity
of the people from its identity of language and culture and attainment of independence through
the determined struggle in the War of Independence (Article 9). Socialism has been defined as a
‘social economic system’ aiming at ensuring the attainment of a just and egalitarian society, free
from the exploitation of man by man (Article 10). Democracy has been envisaged as a system in
which fundamental human rights, freedom and dignity of persons would be guaranteed and
effected participation of the people would be ensured through their elected representatives at
all levels of administration (Article II). Secularism has been defined as the elimination of all

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forms of communalism, abuse of religion for political purposes and discrimination on the basis
of religion (Article 12). Moreover, emancipation of peasants and workers from all forms of
exploitations; provision of such basic necessaries of life as food, clothing, shelter, education and
medical care to all citizens; the right to employment with recreation and leisure and such other
facilities to the citizens have been made the national goal. The Fundamental Principles of State
Policy are mere pledges without any legal backing. It has been stated that the principles
enunciated in Part II, though not enforceable in the court, should be applied by the state in the
making of laws and should be a guide to the interpretation of the Constitution and other laws of
Bangladesh.

IV. Fundamental Rights:

Part III of the Constitution has dealt with the fundamental rights of the citizens. Article 26 of the
Constitution has asserted that the state shall not make any law inconsistent with this part, and
any law so made shall to the extent of such inconsistency be void. These include such rights
equality before law, equal opportunity in public employment or office, equal protection of law,
right to life and liberty, safeguard against arbitrary arrest and detention, freedom of movement,
freedom of assembly, freedom of association, freedom of speech and expression and of the
press, freedom of religion and right to property. The right to move the Supreme Court for the
enforcement of these rights has also been guaranteed (Article 102). Most of the fundamental
rights have been subject to ‘reasonable restrictions imposed by law’ in the interest of ‘the
security of the state’, or ‘decency’ or ‘morality’.

V. Form of Government:
Parts IV, V and VI of the constitution has mainly described the structure of Bangladesh
Government. The form of government as provided for in the Constitution has been
parliamentary democracy modeled on the British system. The head of the state is the President
who would be elected by the members of the JATIYA SANGSAD for a term of 5 years and
removed only through impeachment by at least two-thirds majority of the members of the
Jatiya Sangsad. Like the British King or Queen, he is the constitutional head. He would appoint as
prime minister a member of the Jatiya Sangsad who appeared to him to command and the
confidence of members of the Sangsad. In the exercise of his functions, the President is required
to act on the advice of the Prime Minister who, in fact, is the chief executive. The Prime

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Minister is the head of the cabinet, “central to its formation, central to its life and central to its
death”. The cabinet is the executive arm of the government. A major theme of the Constitution
is the supremacy of the unicameral Jatiya Sangsad. It consists of 300 members, to be elected
from 300 single-member constituencies on the basis of universal adult franchise. In addition to
this, there are another 50 seats reserved for woman to be elected by the members of the
Sangsad. The Jatiya Sangsad is the supreme law-making body. The President has no veto power,
although a bill passed by it requires the assent of the President to be an act. The Jatiya Sangsad
is also the guardian of national finance, and no tax can be imposed without its sanction.

Judicial power has been vested in a judiciary with the Supreme Court at its head. The Court
consists of two divisions, appellate and high court divisions. The Chief Justice of the Supreme
Court is appointed by the President and holds office up to the age of 67 years. Other judges are
appointed by the President and holds office up to the age of 67 years. Other judges are
appointed by the President in consultation with the Chief Justice. The control and discipline of
the employees in the judicial service are vested in the Supreme Court. Administrative tribunals
can also be established by law to deal with matters relating to the terms and conditions of
persons in the service of the Republic.

VI. Elections, Services and Audit:

Parts VII, VIII and IX of the constitution deal with elections, audit and civil services. The Chief
Election Commissioner, Comptroller and auditor-general and chairman and members of the
Bangladesh Public Service Commission are independent in the exercise of their functions and
can be removed ‘in the like manner and on the like grounds as a judge of the Supreme Court’
(Article 118,129 and 130).

VII. Amendment of the Constitution:

Part X of the Constitution is concerned with the amendment process. It has been provided that
any provision of the constitution can be amended or repealed by an Act of the Jatio Sangsad by
not less than two-thirds of its members.

VIII. Miscellaneous Provisions:

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Part X of the Constitution there are some miscellaneous provisions. The first schedule contains a
list of the laws that have been kept beyond judicial review; the second prescribes rules
regarding the election of the President; in the third the proforma of oaths to be taken by
persons of certain elevated positions has been inserted. The fourth one contains provisions for
transition to constitutional government.

5. Main Features of Constitution of Bangladesh:

1. Written Constitution:
The constitution of the People Republic of Bangladesh is a written document. It was formally
adopted by the Constitution Assembly on specific day 4 th Nov. 1972. It contains 153 articles, 1
preamble and 4 schedules.

2. Rigid Constitution:
The constitution of Bangladesh is a rigid .An amendment passed only by votes of two-thirds
members in the total members of parliament.

3. Preamble:
The constitution of Bangladesh starts with a preamble which is as the guiding star of the
Constitution. This preamble contains the legal as moral basis of the Constitution. It also
identifies the objectives of the state.

4. Supremacy of the Constitution:

The Constitution supremacy has been ensured in Constitution of Bangladesh .Article (7) provides
that, this constitution is as the solemn expression will of the people, the supreme law of the
Republic, and if any other law inconsistence with this Constitution that other law shell, to the
extent inconsistency be void.

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5. Unicameral Legislature:
Article (65) of the Constitution provides unicameral legislature for Bangladesh. It is the only one
house, which known as “House of the Nation”.

6. Unitary Government System:

Article (1) of the Constitution provides the Bangladesh is a unitary People’s Republic Unitary
government means all power centralized under the constitution.

7. Fundamental Principle of the State:

Article (8) of the Constitution provides the four major fundamental principles of the state policy.
a. Nationalism.
b. Democracy
c. Socialism
d. Secularism

8. Fundamental Rights:
Part 3 of the Constitution provides for 18 fundamental. The enjoyment and enforcement of
those rights have been guaranteed in the Constitution. No authority can make any law which is
inconsistent with provisions of the fundamental right and if any law made shell be void to the
inconsistency.

9. Parliamentary form of Government:

The constitution of Bangladesh provides Westminster type of parliamentary system. This form
of government means government is run by Cabinet of Ministers headed by the Prime Minister.

10. Independence of judiciary:

The constitution of Bangladesh (article: 22) ensured the independent judiciary. According to
article 22, independence of judiciary means separation of judiciary from executive organ.

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11. Ombudsman:
Provisions for the establishment of an ombudsman were inserting in Article (77). To provide
machinery to overview the activities of civil bureaucracy, to eradicate corruption in the
administration and ensure the responsibility of the government.

12. Responsible Government was not ensured:

The constitution of Bangladesh ensured a Westminster type of parliamentary government; it
could not ensure the conditions of responsible government. It has no any provision for ensuring
the individual responsibility of Minister. But, article 55(3) provides that the Cabinet shall be
collectively responsible to Parliament.

6. Amendments of the Constitution of Bangladesh:

The constitution of the People’s Republic of Bangladesh has been amended several times. As a result,
the nature of the Bangladesh Constitution today is considerably different from the original version. The
following is a brief account of these acts and orders.

First Amendment:

The Constitution (First Amendment) Act 1973 was passed on 15 July 1973. It amended Article 47 of the
constitution by inserting an additional clause which allowed prosecution and punishment of any
person accused of ‘genocide, crimes against humanity or war crimes and other crimes under
international law’. After Article 47 it inserted a new Article 47A specifying inapplicability of certain
fundamental rights in those cases.

Second Amendment:

The Constitution (Second Amendment) Act 1973 was passed on 22 September 1973. This act resulted
in the (i) amendment of Articles 26, 63, 72 and 142 of the constitution; (ii) substitution of Article 33
and (iii) the insertion of a new part i.e. IXA in the constitution. Provisions were made through this
amendment for the suspension of some fundamental rights of citizens in an emergency.

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Third Amendment:

The Constitution (Third Amendment) Act 1974 was enacted on 28 November 1974 by bringing in
changes in Article 2 of the constitution with a view to giving effect to an agreement between
Bangladesh and India in respect of exchange of certain enclaves and fixation of boundary lines
between India and Bangladesh.

Fourth Amendment:

The Constitution (Fourth Amendment) Act 1975 was passed on 25 January 1975. Major changes were
brought into the constitution by this amendment. Mooting points of this amendment were-

 The presidential form of government was introduced in place of the parliamentary system

 One-party system in place of a multi-party system was introduced

 The powers of the Jatiya Sangsad were curtailed

 The Judiciary lost much of its independence

 The Supreme Court was deprived of its jurisdiction over the protection and enforcement of
fundamental rights.

 This Act- (i) amended articles 11, 66, 67, 72, 74, 76, 80, 88, 95, 98, 109, 116, 117, 119, 122, 123,
141A, 142 and 148 of the constitution (ii) substituted Articles 44,70,102,115 and 124 of the
constitution; (iii) amended part III of the constitution out of existence; (iv) altered the Third and
Fourth Schedule; (v) extended the term of the first Jatiya Sangsad; (vi) made special provisions
relating to the office of the president and its incumbent; (vii) inserted a new part, i.e. part VIA
in the constitution and (viii) inserted articles 73A and 116A in the constitution.

Fifth Amendment:

This Amendment Act was passed by the Jatiya Sangsad on 6 April 1979. This Act amended the Fourth
Schedule to the constitution by adding a new paragraph 18 thereto, which provided that all
amendments, additions, modifications, substitutions and omissions made in the constitution during the
period between 15 August 1975 and 9 April 1979 (both days inclusive) by any Proclamation or

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Proclamation Order of the Martial Law Authorities had been validly made and would not be called in
question in or before any court or tribunal or authority on any ground whatsoever.

Sixth Amendment Act:

The sixth Amendment Act was enacted by the Jatiya Sangsad with a view to amending Articles 51 and
66 of the 1981 constitution and declared the post of Vice-President unproductive and unprofitable.

Seventh Amendment:

This Act was passed on 11 November 1986. It amended Article 96 of the constitution; it also amended
the Fourth Schedule to the constitution by inserting a new paragraph 19 thereto, providing among
others that all proclamations, proclamation orders, Chief martial law Administrator’s Orders, Martial
Law regulations, Material Law Orders, Material Law Instructions, ordinances and other laws made
during the period between 24 March 1982 and 11 November 1986 ( both days inclusive) had been
validly made and would not be called in question in or before any court or tribunal or authority on any
ground whatsoever.

Eighth Amendment:

This Amendment Act was passed on 7 June 1988. It amended Articles 2, 3, 5, 30 and 100 of the
constitution. This Amendment Act-

i. declared ISLAM as the state religion;

ii. decentralized the judiciary by setting up six permanent benches of the High Court
Division outside Dhaka;
iii. amended the word ‘Bengali” into ‘Bangla’ and ‘Dacca’ into ‘Dhaka’ in Article 5 of the
constitution;
iv. Amended Article 30 of the constitution by prohibiting acceptance of any title, honors,
award or decoration from any foreign state by any citizen of Bangladesh without the
prior approval of the president.

It may be noted here that the Supreme Court subsequently declared the amendment of Article 100
unconstitutional since it had altered the basic structure of the constitution.

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Ninth Amendment:

The Constitution (Ninth Amendment) Act 1989 was passed in July 1989. This amendment provided for
the direct election of the vice-president; it restricted a person in holding the office of the President for
two consecutive terms of five years each; it also provided that a vice-president might be appointed in
case of a vacancy, but the appointment must be approved by the Jatiya Sangsad.

Tenth Amendment:

The Tenth Amendment Act was enacted on 12 June 1990. It amended, among others, Article 65 of the
constitution, providing for reservation of thirty seats for the next 10 years in the Jatiya Sangsad
exclusively for women members, to be elected by the members of the Sangsad.

Eleventh Amendment:

This act was passed on 6 August 1991. It amended the Fourth Schedule to the constitution by adding a
new paragraph 21 thereto which legalized the appointment and oath of Shahabuddin Ahmed, Chief
Justice of Bangladesh, as the vice-president of the Republic and the resignation tendered to him on 6
December 1990 by the then President Hussain M Ershad. This act ratified, confirmed and validated all
powers exercised, all laws and ordinances promulgated, all orders made and acts and things done, and
actions and proceedings taken by the vice-president as acting president during the period between 6
December 1990 and the day (9 October 1991) of taking over the office of the President by the new
President Abdur Rahman Biswas, duly elected under the amended provisions of the constitution. The
Act also confirmed and made possible the return of vice- president Shahabuddin Ahmed to his previous
position of the chief Justice of Bangladesh.

Twelfth Amendment:

This Amendment Act, known as the most important landmark in the history of constitutional
development in Bangladesh, was passed on 6 August 1991. It amended Articles 48, 55, 56, 57, 58, 59,
60, 70, 72, 109, 119, 124, 141A and 142. Through this amendment-

 The parliamentary form of government was reintroduced in Bangladesh

 The president became the constitutional head of the state

 The Prime minister became the executive head

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 The cabinet headed by the prime minister became responsible to the Jatiya Sangad

 The post of the vice-president was abolished

 The president was required to be elected by the members of the Jatiya Sangsad

 Moreover, through Article 59 of the constitution this act ensured the participation of the
people’s representatives in local government bodies, thus establishing the base of democracy in
the country.

Thirteenth Amendment:

The Constitution (Thirteen Amendment) Act 1996 was passed on 26 March 1996. It provided for a non-
party caretaker Government which, acting as an interim government, would give all possible aid and
assistance to the Election Commission for holding the general election of members of the Jatiya Sangsad
peacefully fairly and impartially. The non-party caretaker government, comprising the Chief Adviser and
not more than 10 other advisers, would be collectively responsible to the president and would stand
dissolved on the date on which the prime minister entered upon his office after the constitution of the
new Sangsad.

Fourteenth Amendment:

Amendment Act was passed on 16th May, 2004. It amended Articles 65, 48, 96(1), 129(1), 139(1) and
148(1) of the constitution. This Amendment Act-

 45 reserved seats for women in t he Parliament- (article: 65).

 Display of President and Prime Minister’s portrait in government offices and other institutions-
(article: 48 edited).
 Raise the retirement age of the Supreme Court judges from 65 to 67 article: 96(1), Chairman and
members of PSC from 62 to 65 years article – 139 (1), and the Comptroller and Auditor General
from 60 to 65 years article -129(1).
 Empowers the chief Election Commissioner to conduct oath to MPs in the absence of the
Speaker and Deputy Speaker – article 148(1).

Features of the 15th amendment of the Constitution of BD

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On June 30, 2011 Bangladesh Parliament passed the 15 th amendment of the constitution. The
amendment made some dramatic changes in the constitution that includes abolition of the
caretaker government, setting some unchangeable clause in the constitution, dropping of the
people’s mandate on any national issues and barring the criticism of the constitution. Salient
features of the 15th amendment of the Constitution passed by parliament on 30 th June, 2011.

 Caretaker system abolished.

 Election to be held under incumbent cabinet.
 Islam a State religion and “Bismillah- Ar- Rahman- Ar- Rahim” retained above the preamble.
 Removal of “Absolute Faith and Trust in Allah” from the constitution.
 Revival of Article 12 to restore Secularism and freedom of religion.
 Maintains the provision allowing religion-based politics.
 Denies recognizing the indigenous people, will be termed as Tribal and ethnic minorities.
 The people of Bangladesh shall be known as Bangalees as a nation and citizens of
Bangladesh shall be known as Bangladeshis.
 Inserted articles 7A and 7 B in the Constitution after Article 7 in a bid to end takeover of
power through extra-constitutional means.
 Basic provisions of the constitution are not amendable.
 In the case of a dissolution Parliament by any reason, election should be held within 90 days
of such dissolution.
 Increasing the number of women reserve seats to 50 from existing 45.
 The Supreme Command of the defense services shall vest in the President and the exercise
thereof shall be regulated by law.
 The Chief Justice shall be appointed by the President, and the other judges shall be
appointed by the President in consultation with the Chief Justice.
 The portrait of the Father of the nation Bangbandhu Sheikh Mujibur Rahman shall be
preserved and display at the offices of the President, the Prime Minister, the Speaker, and
the Chief Justice and in head and branch offices of all government and semi-government
offices, autonomous bodies, statutory public authorities, government and non-government
educational institutions, embassies and missions of Bangladesh abroad.
 Incorporation of historic speech of the Father of the Nation Bangabandhu Sheikh Mujibur
Rahman on March 7, 1971, declaration of independence by Bangabandhu after midnight of

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March 25, 1971 and the proclamation of Independence declared at Mujibnagar on April 10,
1971.

Chapter Related Questions:

1. What is constitution?
2. How can we make a good constitution?
3. Discuss the essentials of a good constitution.

4. What was historical background of the constitution of Bangladesh?

5. Shortly discuss the major contents of the constitution of Bangladesh. (Omit)
6. Discuss the main features of the constitution of Bangladesh.
7. Explain the mooting points of the following amendments-4 th, 8th, 12th, 14th and 15th.

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