LAW 201: Constitutional law of Bangladesh

Department of Law
Faculty: KAH

Introduction and Definition of Constitution:

A constitution is the legal document in which various governing principles are
established, functions and procedural aspects of the government are specified
under which different organs of the government work. Constitution is the
supreme law of the land which is ascertained by Kelsen as the "Grund Norm"
in his Pure theory of law. American Constitution is the pioneer of all the
federal constitutions followed by the Canadian and Australian constitution
respectively.

Not all nation states have codified constitutions, though all such states have a
jus commune, or law of the land, that may consist of a variety of imperative
and consensual rules. These may include customary law, conventions,
statutory law.

The Constitution of Bangladesh (Bangla: বাংলাদেশের সংবিধান Bangladesh

Shongbidhan) 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 declares Bangladesh to be a unitary, independent and

sovereign Republic, founded on a struggle for national liberation, which will be
known as the People's Republic of Bangladesh. It pledges nationalism,
democracy, socialism and secularity as the fundamental principles defining the
Republic and declares the pursuit of a society that ensures its citizens- the
rule of law, fundamental human rights and freedoms as well as equality and
justice, political, economic and social.

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 that defines Bangladesh as a secular
democracy.
LAW 201: Constitutional law of Bangladesh
Department of Law
Faculty: KAH

1.1 Study of constitutional law:

Constitutional law is a major focus of legal studies and research. For example,
most law students in the United States are required to take a class in
Constitutional Law during their first year, and several law journals are
devoted to the discussion of constitutional issues.
Judge-made law or international rules and norms, and so on:

1.2 Functions of constitutions

1.2.1 State and legal structure

Constitutional laws may often be considered second order rulemaking or rules

about making rules to exercise power. It governs the relationships between
the judiciary, the legislature and the executive with the bodies under its
authority. One of the key tasks of constitutions within this context is to
indicate hierarchies and relationships of power. For example, in a unitary
state, the constitution will vest ultimate authority in one central administration
and legislature, and judiciary, though there is often a delegation of power or
authority to local or municipal authorities. When a constitution establishes a
federal state, it will identify the several levels of government coexisting with
exclusive or shared areas of jurisdiction over lawmaking, application and
enforcement.

1.2.2 Human rights

Human rights or civil liberties form a crucial part of a country's constitution
and govern the rights of the individual against the state. Most jurisdictions,
like the United States and France, have a codified constitution, with a bill of
rights. A recent example is the Charter of Fundamental Rights of the
European Union which was intended to be included in the Treaty establishing
a Constitution for Europe that failed to be ratified. Perhaps the most important
example is the Universal Declaration of Human Rights under the UN Charter.
These are intended to ensure basic political, social and economic standards
that a nation state, or intergovernmental body is obliged to provide to its
citizens but many do include its governments.

Some countries like the United Kingdom have no entrenched document setting
out fundamental rights; in those jurisdictions the constitution is composed of
statute, case law and convention. A case named Entick v. Carrington[1] il a
constitutional principle deriving from the common law. John Entick's house
was searched and ransacked by Sherriff Carrington. Carrington argued that a
warrant from a Government minister, the Earl of Halifax was valid authority,
even though there was no statutory provision or court order for it. The court,
led by Lord Camden stated that,

"The great end, for which men entered into society, was to secure their
property. That right is preserved sacred and incommunicable in all
instances, where it has not been taken away or abridged by some
public law for the good of the whole. By the laws of England, every

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LAW 201: Constitutional law of Bangladesh
Department of Law
Faculty: KAH

invasion of private property, be it ever so minute, is a trespass... If no

excuse can be found or produced, the silence of the books is an
authority against the defendant, and the plaintiff must have judgment."

Inspired by John Locke, the fundamental constitutional principle is that the

individual can do anything but that which is forbidden by law, while the state
may do nothing but that which is authorized by law.

The commonwealth and the civil law jurisdictions do not share the same
constitutional law underpinnings.

1.2.3 Legislative procedure

Another main function of constitutions may be to describe the procedure by
which parliaments may legislate. For instance, special majorities may be
required to alter the constitution. In bicameral legislatures, there may be a
process laid out for second or third readings of bills before a new law can
enter into force. Alternatively, there may further be requirements for
maximum terms that a government can keep power before holding an election.

1.2.4 The Rule of Law

The doctrine of the rule of law dictates that government must be conducted
according to law.

Dicey identified three essential elements of the British Constitution which

were indicative of the rule of law:
1. Absence of arbitrary power;
2. Equality before the law;
3. The Constitution is a result of the ordinary law of the land.

1.3 The Separation of Powers

Often regarded as a second limb functioning alongside the Rule of Law to curb
the powers of the Government. In most modern nation states, power is divided
and vested into three branches of government: The Executive, the Legislature
and the Judiciary. The first and the second are harmonized in traditional
Westminster forms of government.