Bangladesh Constitution:

An Overview

Aynul Islam
Associate Professor
Department of Political Science
University of Dhaka
aynul.islam@du.ac.bd
 Learning goals:

• Understanding Constitution
• Constitution making and major features of Bangladesh
Constitution
• Major Amendments in Bangladesh Constitution
 Understanding Constitution [1]

• A constitution is a body of (i) fundamental rules, (ii)

written or unwritten, which (iii) determines the
organization or structure of the government, (iv)
distribute powers and (v) determines the relationship
among the organs of the government….
• Aristotle defines a Constitution as “the way of life
the state has chosen for itself”….

• According to Lord Bruce, “ Constitution is the

aggregate of laws and customs under which the
life of the state goes on”.

• According to K.C. Wheare, Hood Phillips and

Gilchrist: Constitution “ is used to denote all
written and unwritten principles regulating the
administration of the State”.
 Types of Constitution

- Written: The US Constitution, Indian

Constitution, Bangladesh Constitution provide
examples of written Constitution.
- Unwritten: The British Constitution provides the
glaring example of unwritten Constitution.

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- Flexible :The Constitution which can be amended
by ordinary law making procedure. The
Constitution of UK (unwritten) and New Zealand
(written) are flexible.
- Rigid: The Constitution which cannot be amended
by ordinary law making procedure but a special
(like two-thirds majority) procedure is needed, it
is called a rigid Constitution. For example, the US
Constitution is a rigid one.
Amendment of the Constitution

A constitutional amendment is a formal change to the text of the

written constitution of a nation or state. Normally, two-thirds vote is
required to amend the constitution…
o To establish more transparency, accountability, predictability and
participation in the governance system.
o Enhancing and expanding protection of human rights.
o Strengthening good governance through constitutional amendment.
 Constitution Making in Bangladesh
[2]

• Constitution Making Process

- “325 days after her liberation” (Huq, 1973)

- “The Constituent Assembly of Bangladesh Order” on
March 23, 1972 (P.O. No 22]: Total 430 MNA and MPA
Members from 1970/1971 Elections…[note]
- Constitution Drafting Committee (April 11, 1972):
A 34-member Draft Committee headed by the then
Law Minister Dr. Kamal Hossain
• 74 meetings and 300 hours (Huq, 1973)
• The last meeting- October 11-approved the draft
• Introducing the Bill-October 12
• “Debate”: Four different groups
• Parliamentary discussion- 8 working days/32 hours/48 MCAs
participated
o Original Constitution of Bangladesh was adopted
and enacted on November 4, 1972 and came
into effect on December 16,1972.

o Since then 17 amendments have been made to

the Constitution. And, indeed , they have basically
changed many of the important characteristics of
the Constitution

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 Important Features

1. “Synthesis between democracy and socialism” (Huq, 1973)

2. Written Constitution
The Constitution of the People’s Republic of Bangladesh is a
written document. It contains Articles from 1 to 153,a
Preamble and 3 schedules.

3. Rigid Constitution
No provision of it can be amended by ordinary law making
procedure; amendment can be passed only by votes of not
less than two-thirds of the total number of MPs.

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3. Preamble
The Constitution of Bangladesh starts with a
preamble which is described as the guiding star of the
Constitution. This very preamble contains the legal as
well as moral basis of the Constitution; it also
identifies the objectives and aims of the State. The
preamble is a part of our Constitution and cannot be
amended without a referendum.

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4. Supremacy of the Constitution.

Supremacy of the Constitution means that its

mandates shall prevail under all circumstances. As
it is the source of legitimacy of all actions,
legislative, executive or judicial, no action shall be
valid unless it conforms with the Constitution both
in letter and spirit. The supremacy of the
Constitution articulated in Article 7(2) -- “This
Constitution is, as the solemn expression of the
will of the people, the supreme law of the
Republic” is the cornerstone of the Constitution of
Bangladesh.
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5.Unitary System of Government
Article 1 of the Constitution provides that Bangladesh is a
unitary people's republic as opposed to federal republic. No
division of power has been provided for in he Constitution
unlike in federal constitutions. All the legislative, executive
and judicial power are vested in a single set of authorities.

6. Unicameral Legislature
Article 65 of the Constitution provides a unitary, one-house
Parliament vested with all the legislative powers of the
Republic. Laws made by the Parliament are equally
applicable to the whole territory of Bangladesh.

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7. Fundamental Principles of State Policy

Part II (Art.8-25) of the Constitution contains a list of

‘Fundamental Principles of State Policy'. Article 8 provides
for 4 fundamental principles of state policy. Observance
of these principles is deemed essential for the welfare of
the people.

8. Fundamental Rights

Part III (Art.26-47A) of the Constitution provides for 18

fundamental rights. The enjoyment and enforcement of
these rights have been guaranteed in the Constitution.

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• Right to equality (arts. 27-30)
• Right to protection of law (arts.31-32)
• Safeguard as to arrest and detention(art.33)
• Protection against forced labour(art.34) 5) Protection in respect of trial
and punishment(art.35)
• Right to freedom(art.36-41)
• Right to property(art.42)
• Right to enforce fundamental rights(art.44)
• Saving for certain laws(art.47)
9.Parliamentary Form of Government

Constitution provides for a parliamentary form of

government. The executive authority of the
Republic is vested in the Prime Minister. The
President is only the constitutional head of the
state and does not possess much power to affect
the working of the Cabinet.

10.Independence of Judiciary

The Constitution devised a scheme of

independence of judiciary
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11.Ombudsman:
Provisions for the establishment of an ombudsman were
inserted in Article 77. The role of an ombudsman like a
citizen’s defender or watch-dog has been successful in
some countries.

12. State Religion

Article 2A says that the State religion of the Republic is
Islam, but other religions may be practiced in peace and
harmony in the Republic.

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13.Emergency Provisions
Emergency provisions have been provided in its Part IXA
which enable the executive to meet any emergency
situation. The truth is that there was no Article or
provisions for emergency in the constitution as originally
enacted in 1972.

14.Law-making Power of the President

Article 93 empowers the President to legislate by
Ordinances.

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•Amendments in Bangladesh
Constitution
o First Amendment) Act 1973: In Article 47, the
detention and trial of war criminals was kept out
of the purview of the provision of fundamental
rights.

o Second Amendment) Act 1973: In Article 33,

conferring power on Parliament and the Executive
to deal with emergency situations and providing for
suspension of enforcement of the fundamental
rights during the period of emergency.

o Third Amendment) Act 1974, about the agreement

with India giving up the claim in respect of Berubari
and retaining Dahagram and Angorpota.
o Fourth Amendment) Act 1975

-The presidential form of government was

introduced in place of the parliamentary system
-a one-party system in place of a multi-party
system was introduced;
-the powers of the Parliament 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
The Fifth Amendment Ac
1979:
All the 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
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.
• The expression ‘Bismillah ar-Rahman
ar-Rahim’ was added before the
Preamble of the Constitution.
• The expression ‘historic struggle for
national liberation’ in the Preamble
was replaced by ‘a historic war for
national independence.’
• One party system was replaced by
multiparty parliamentary system.
• Fundamental principles of state policy
were made as ‘absolute trust and faith
in the Almighty Allah, nationalism,
democracy and socialism meaning
economic and social justice.’
 • The Seventh Amendment, Act 1986:

The Proclamations and Proclamation

o The Sixth Orders and the amendments made
Amendment Act 1981: in the Constitution by such
Proclamations and Proclamations
Orders and all actions of the Martial
If the Vice President is law authorities and declaring those
elected as President, to have been validly made and done.
he shall be deemed to
have vacated his office
on the date on which By the same Act the retiring age of
he enters upon the the Judges of the Supreme Court was
office of President. fixed at 65 in place of 62.
 oSetting up six permanent Benches
of the High Court Division outside
The Eighth the capital and authorising the
President to fix by notification the
Amendment territorial jurisdiction of the
permanent Benches.
Act 1988 oBy the same Act, ‘Islam’ was made
the state religion of Bangladesh .
oThis Act also amended the word
'Bengali' into 'Bangla' and 'Dacca'
into 'Dhaka' in Article 5 of the
Constitution

The Ninth Amendment Act
1989:
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;
• The Tenth Amendment Act
1990:
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.

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.
 • The Constitution (12th Amendment) Act
1991:

• re-introduced the parliamentary form of

o
The Constitution (11th) Act 1991:
Amendment
Ratified all actions taken by the caretaker government
headed by Justice Shahabiuddin Ahmed.
government;
• the President became the constitutional
Head of the State;
• the Prime Minister became the executive
Head;
• the cabinet headed by the Prime Minister
became responsible to the Jatiya Sangsad;
• the post of the Vice-President was
abolished;
• the President was required to be elected
by the members of the Jatiya Sangsad.

The appointment of Chief Justice Shahabuddin Ahmed as the

Vice President who later became Acting President upon
Ershad’s resignation.

The Act also confirmed and made possible the return of

Acting President Shahabuddin Ahmed to his previous
position of the Chief Justice of Bangladesh.
• The Constitution (Thirteenth Amendment) Act 1996
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 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.
• The Constitutional (fourteenth Amendment)
Act 1994:

• reservation of 45 seats for women on a

proportional representation basis for the next 10
years;
• increase in the retirement age of Supreme Court
Judges from 65 to 67 years; and
• displaying of portraits of the President and the
Prime Minister in all government, semi-
government and autonomous offices and
diplomatic missions abroad.
15th Amendment of the Constitution of Bangladesh

Amendment Date Vote

• 15th amendment • 30th June 2011 • 291
Major changes
1)    Caretaker system abolished
2)    Islam as State religion, ‘Bismillah-Ar-Rahman-Ar-Rahim’
retained above the preamble and Removal of 'Absolute Faith and
Trust in Allah' from the constitution.
3)    Revival of Article 12 to restore Secularism and freedom of
religion.
4)    Denies recognizing the indigenous people, will be termed as
tribal and ethnic minorities
5)    The people of Bangladesh shall be known as Bangalees as a
nation and citizens of Bangladesh shall be known as Bangladeshis
6)    Inserted articles 7A and 7B in the Constitution after Article 7 in
a bid to end take-over of power through extra-constitutional
means and highest level of punishment would be awarded for
those power capturers by extra-constitutional means and Basic
provisions of the constitution are not amendable.
7)  In the case of a dissolution Parliament by any reason, election
should be held within 90 days of such dissolution.
8)  Increasing the number of women reserve seats to 50 from existing 45.
9)  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.
10)  The portrait of the 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.
11)  Incorporation of speech of Sheikh Mujibur Rahman on March 7, 1971,
declaration of independence by Mujibur Rahman after midnight of March
25, 1971 and the proclamation of Independence declared at Mujibnagar
on April 10, 1971.
•Challenges in the 15th
Amendment
o Article 7A.(1) says, “If any person reacts his confidence and trust in
this constitution or takes attempt of doing so or conspire against it, his
or her activities will be treated as acts of sedition, and the person
concerned will be guilty of sedition”.

o Article 7B says, “Notwithstanding anything contained in Article 142 of

the constitution, the preamble, all articles of Part l, ll, lll and the
provisions of articles relating to the basic structures of the constitution
including article 150 of part XI shall not be amendable by way of
insertion, modification, substitution, repeal or by any other means.”
• More than 50 articles of the constitution have been
made “beyond amendment”.
• No constitution in the world has such an instance.
• 16th Constitutional Amendment Act of 2014:

• Empower the Parliament to impeach Supreme Court

judges.

• Parliament will be able to remove judges if allegations of

incapability or misconduct against them are proved