MIGRATION OF CONSTITUTIONAL IDEAS In The Constitution of Bangladesh

SIBBIR AHMMED
Master of Laws
JAGANNATH UNIVERSITY

Introduction
The migration of constitutional ideas across jurisdictions is rapidly emerging as one of the central
features of contemporary constitutional practice. The increasing use of comparative jurisprudence in
interpreting constitutions is one example of this. The migration of constitutional ideas has been
identified to a limited extent at a descriptive level.1 Migration of constitutional ideas is a metaphorical
phenomenon that has been considering in reference to the constitutional law of a country to compare
the different contexts between the jurisdiction of one country and another country for flourishing the
provisions of constitutional law of one country so that the constitution of one country can become a
living tree. The framers of the constitution of Bangladesh has migrated many ideas of constitutional
provisions from different countries i.e Uk, USA and India. In spite of being migrated of constitutional
ideas, the constitution of Bangladesh is a unique constitution over the world for various reasons. The
focusing point in this article is to describe the constitutional ideas that have been borrowed by the
framers of the constitution and our Supreme Court through delivering its judgement on different
constitutional issues.

Crucial ideas of constitutional law which have been migrated from time to time in the
constitution of Bangladesh:
1. Ideas in terms of Preamble
The concept of preamble in Bangladesh has been migrated from the US constitution. Preamble
was first inserted in the US constitution in 1787. However, the idea regarding whether
Preamble is an operative part of the constitution was migrated in Bangladesh constitution from

1
Sujit Choudhry, Migration as a New Metaphor in Comparative Constitutional Law, Cambridge University Press,
2006, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=943526, accessed on 25 Dec 2021
Kesavananda Bharati case on 24 April 1973.2 In this case, for the first time, it was held that
preamble is an operative part of the constitution. This idea was migrated in our Constitution in
8th amendment case.3 In the judgement of Kesavanada Bharati case, author judge C.J. Sikri
wrote in his judgement that “Parliament can amend the rights enshrined in the third chapter
but can’t amend the basic structure of the constitution.” In 8th amendment case it has been
held that the position of the preamble Bangladesh constitution is somewhat different and it
should not to be linked to the preamble of a statute. The preamble is an operative part of our
Constitution and can’t be amended without a referendum.4

2. Art. 7A
This article inserts offence of abrogation, suspention, etc. of the Constitution. This article is
called the supremacy of the Constitution. According to this Art 7(1) of the Constitution, if any
person, by show of force or use of force or by any other unconstitutional means-
(1) abrogates, repeals or suspends or attempts or conspires to abrogate, repeal, or suspend the
Constitution or any of its articles; or
(2) subverts or attempts or conspires to subvert the confidence, belief or reliance of the citizens
to the constitution or any of this article,
his such act will be sedition and such person will be guilty of sedition.
Under Art 7(2), If any person-
(a) abets or instigates any act mentioned in 7A(1); or
(b) approves, condones, supports or ratifies such act, his such act will also be the same offence
Under Art 7(3), any person alleged to have committed the offence mentioned in 7A(1) or (2)
will be sentenced with the highest punishment prescribed for other offences by the existing
laws.
The idea of Art 7A was migrated from the Constitution of Pakistan, Argentina and Mexico. But
in those states, such offence has been regarded as ‘High Treason’. A distinction has been made
between sedition and high treason in Pakistan. Sub Art(1) (a) of Art 7A of the Constitution of
Bangladesh is the replica of Art 6 of the Constitution of Pakistan.

2
Keshavananda Bharati v. State of Kerala AIR 1973 SC 1461
3
Anwar Hossain Chowdhury v. Bangladesh 41 DLR 1989 (AD) 165
4
M. Jashim Ali Chowdhury, An introduction to the Constitutional Law of Bangladesh, (Third Edition)
3. Fundamental Principles of the State Policy (FPSP): In France Constitution the term FPSP was
used as ‘Social Assistance’ which was judicially enforceable. Thereafter. This term was first
introduced in the Constitution of Ireland in 1937 which was not judicially enforceable as FPSP
was the principle only. In Indian Constitution, this term has been used as Directive Principles
which have been put as a non-enforceable provision. In Bangladesh Art 8-25 states about the
FPSP. Art 8(2) states about fundamental principles which has also kept as non-enforceable
provision.
Shahabuddin Ahmed J. in Kudrat-E-Elahi Panir v. Bangladesh, 21 CLS (AD) observed: The
reason for not making these principles judicially enforceable is obvious.
They are in the nature of People’s programme for socioeconomic development of the country in
peaceful manner, not overnight, but gradually. Implementations of these programmes required
resources, technical know-how and many other things including mass education all these
prerequisites for a peaceful socioeconomic revolution exist is for the State to decide.5

Are the FPSPs merely decorative? Justice Badrul Haider Chowdhury in Anwar Hossain v.
Bangladesh has stated that: Though the directive principles are not enforceable by any court,
the principles therein laid down are nevertheless fundamental in the Governance of the country
and it shall be the duty of the state to apply this principles making laws. It is a protected Article
(article 8- author) in our constitution and the legislature can’t amend this Article without
referendum. This alone shows that the executive cannot flout the directive principles. The
endeavour of the Government must be to realize these aims and not to whittle them down.6

South Africa
In Grootbroom Case, South African Constitutional Court observes “there can be no doubt that
human dignity, freedom and equality… are denied those who have no food, clothing and
shelter.” The court added that, “The state is obliged to take positive action to meet the needs
of those living in extreme conditions of proverty, homelessness or intolerable housing.”
Moreover, in Viceconte v. Ministry of Health and Social Welfare case, court made personally
liable the Ministry of Health and Economy for non-punctuality of fulfilling its obligations to
produce the vaccine.

5
S M Masum Billah, Fundamental Principles of State policy or Directive Principles, p-10
6
ibid
From the above two case of South African Constitutional court it can be said that the FPSPs
have been made judicially enforceable in South Africa.7

4. Fundamental Rights: The fundamental rights in the Constitution of Bangladesh have been
migrated from the Universal Declaration of Human Rights (UDHR), 1948. There are 18
fundamental Rights have been inserted in the Constitution of Bangladesh and 17 of them have
been migrated from the UDHR. The rights finding place in the Constitution are ART 27-29, 31-
44.

5. Public interest litigation: The introduction of PIL traced back in Blackburn case in 19th
century when the term ‘aggrieved person’ construed very restrictively in Britain. But in 1957 in
4 Blackburn case justice Parker and Lord Denning departed from the old concept. In this case
the concept of aggrieved person was extended and particularly the scope of locus standi.
Thereafter, In India SP Gupta V. Union of India, AIR 1982 SC 149 (Judges Transfer Case) first
revealed the door of PIL by finding out the term ‘sufficient interest’. In this case the court held
that PIL can be filed by any member of public having sufficient interest for public injury arising
from violation of legal rights so as to get judicial redress. C.J. Bhagwati was the author judge in
this case.
In Bangladesh, ‘locus standi’ issue was first drawn in Kazi Mukhlesur Rahman v. Bangladesh 26
DLR (1974) (AD) 44 case. But the implications of this decision have not yet been fully grasped.
However, after 22 years of this decision allowing PIL our Supreme Court has again moved
towards the positive turn of PIL in Dr. Mahiuddin Farooq v. Bangladesh 49 DLR 1997 (AD) 438
case. Following the decision in Dr. Mahiuddin Farooq case the Supreme Court has subsequently
expanded and confirmed the scope of locus standi.
6.Writ Jurisdiction: Writ jurisdiction is exercised by the High Court Division of Bangladesh
under Art 102. However, this provision has been emerged in our Constitution from Britain. In
the beginning of British legal system writ jurisdiction was exercised only by the King or Queen
of the Chancery Court. But in later time, this jurisdiction also exercised by the British people. In
Britain there are five kinds of writs and the name of these five kinds has also expressly stated in
the Constitution of Uk. But in our country name of these five kinds are not expressly stated only
because of keeping a scope for liberalisation.

7
Ibid p 32-33
Writ Jurisdiction against Private Organization: There raised a question in Abdul Hakim v.
Government of Bangladesh and Others 34 BLD (HCD) 129 case that whether a writ can be
issued against private organization. In this case it was held in the light of R (Dtafin plc) v Panel
on Take- overs and Mergers in Uk that – a body does not necessarily have to have its power

derived from statute to be amenable to review. It will suffice it the functions of that body are
“in connection with the affairs” of the State. In other words, one has to look into the nature of
the functions of the body concerned and not exclusively to the source of its power. The court
took cognizance of the reality that in certain sectors such as education and health, activities of
private bodies are essentially functions belonging to the public domain.

Suo Motu Writ Jurisdiction: In Mohammad Tayeeb and another v. Bangladesh and others 4
LNJ AD (2015) 48 case Supreme Court of our Country held that the meaning of ‘application’
under 102 is to know somehow the fact of violation of fundamental rights. As one of the Judges
of the Supreme Court has known the fact of violation of fundamental rights towards the victim
hence it will be deemed that application has been filed in the High Court Division. The idea of
this decision was taken from the Marbury v. Madision (1803) case in which John Marshal
declared The Judiciary Act, 1789 void on the ground that this Act was an ordinary Act that
extended the power of Constitution of USA which was unconstitutional because an ordinary law
cannot extend the power of the US Constitution. In case of interpretation in Tayeeb case, the
Supreme Court of Bangladesh migrated the interpretation of originalist judges of USA Supreme
Court.

7. Judicial Review: It is the power of a court to review a law or an official act of a government
employee or agent of constitutionality or for the violation of the basic principles of justice.8
In USA, judicial review was established by the case of Marbury v. Madision (1803). In the
Court’s opinion, C.J. John Marshall set forth three principles of judicial review:
1. The Constitution is the supreme law of the land.
2. If a law conflicts with the Constitution, the Constitution rules.

8
S M Masum Billah, Doctrine of Judicial Review Comepative Discussion of US, UK and Bangladeh Judisdictions, P-3
3. The judicial branch has a duty to uphold the Constitution. Thus, it must be able to determine
when a law conflicts with the Constitution and nullify that law.9

In Uk, - The main grounds of review are: illegality, irrationality, procedural impropriety, Human
Rights Act section 6, and breach of EC law.
- Irrationality is also known as Wednesbury unreasonableness after the case of Associated
Provincial Picture Houses Ltd v. Wednesbury Corp which stated that a decision would be
unreasonable if it “is so unreasonable that no reasonable authority could ever have come to it”
(Per Lord Greene).
- Not like US or Bangladesh or India, no constitutional question but review of administrative
actions are possible.
In Bangladesh, If any law is inconsistent with the Constitution10 or infringes the fundamental
rights of the citizens,11 The SC is empowered to invalidate the law under the Art 102 of the
Bangladesh Constitution. 8th Amendment Case, 5th Amendment Case, 7th Amendment Case are
the glaring examples of Judicial Review in Bangladesh.12
Conclusion
Migration of constitutional ideas is an important factor in the construction of constitutional law
as it helps to remove the anomalies of constitutional provisions specially where such a situation

9
Ibid p-4
10
Article 7 of Bangladesh Constitution.
11
Article 26 of the Bangladesh Constitution
12
S M Masum Billah, Doctrine of Judicial Review Comepative Discussion of US, UK and Bangladeh Judisdictions, P-4
comes to the court that cannot solve the situation by touching the concerning provision of the
Constitution and often the judges have to migrate the constitutional ideas of another
jurisdiction to overcome the situation harmoniously. But it is always to be mind that migration
of constitutional ideas from different jurisdiction has to be consistent with the Constitution of
one country.