Preamble and miscellaneous of the constitution of the people’s republic of bangladesh

PREAMBLE and MISCELLANEOUS OF THE CONSTITUTION OF THE PEOPLE’S REPUBLIC OF BANGLADESH

Chapter1: Introduction 1.1 Constitution: Constitution has been defined in the Universal Standard Encyclopaedia, Volume 6 as, "In politics, a system of law established by a sovereign State for its own guidance. It fixes the limits and defines the relations of the legislative, the judicial, and the executive powers of the State, both among themselves and with the citizens of the State, thus setting up the basis for Government."

In the words of Cooley, in his Treatise on Constitutional Limitations', Constitution has been defined as "The fundamental law of a State, containing the principles upon which the Government is founded, regulating the division of sovereign powers, and directing to what persons each of these powers is to be confined and the manner in which it is to be exercised."

A Constitution is a bare statement as to the different organs of a State and its function within its sphere. Thus the Constitution is different from Constitutional law. The constitutional law of a country grows in the form of legislation, judicial decisions, conventions and practices. A Constitution cannot conceive of all eventualities but leaves them to be provided by legislation. Even our Constitution can not provide all exigencies and leave it to be determined by legislation. American Constitution has been developed through various decisions of the United States of Supreme Court. In like manner, our Constitution through judicial interpretations is also getting new colour and dimension.

1.2 Features of the Constitution of the People’s Republic of Bangladesh: Constitution of the People's Republic of Bangladesh was adopted by the Constituent Assembly on 4 November 1972 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 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.

The Constitution has declared Bangladesh a Republic committed to the principles of democracy and human rights; rule of law; freedom of movement, assembly and association; freedom of religion and international peace and harmony. Since 1972, the Constitution has undergone certain amendments and changes, some by way of constitutional amendments and some under Martial Law Proclamation Orders. The form of government has also undergone changes quite a number of times.

Bangladesh began its constitutional journey with an ad hoc constitution under the Proclamation of Independence Order (10 April 1971) investing the President (of the Mujibnagar Government) with all executive and legislative authority and the power to appoint a Prime Minister. This proclamation order was replaced by the Provisional Constitution of Bangladesh Order, 1972 which declared the members elected to the National Assembly and Provincial Assemblies of Pakistan in the elections held in December 1970 and March 1971 as the Constituent Assembly of the Republic. The Order changed the form of government to a parliamentary system with a cabinet of ministers headed by the Prime Minister.

Some salient features of our constitution are described below.

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

Rigid Constitution: The Constitution of Bangladesh is a rigid. An amended can be passed only by votes of two-thirds members in the total members of parliament.

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

Supremacy of the Constitution: The Constitution Supremacy has been ensured in the Constitution of Bangladesh. Article (7) provides that, 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 inconsistence with this Constitution that other law shell, to the extent of the inconsistency, be void.

Unitary Government System: Article (1) of the Constitution provides that Bangladesh is a unitary people’s republic. Unitary government means all power centralized under the constitution.

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

Fundamental Principle of State Policy: Article (8) of the Constitution provides for four major fundamental principle of state policy. a) Nationalism. b) Democracy. c) Socialism. d) Secularism (Absolute Faith in almighty Allah) Fundamental Right: Part 3 of the Constitution provides for 18 fundamental rights. The enjoyment and enforcement of those rights have been guaranteed in the Constitution. No authority can make any law which is inconsistent with the provisions of fundamental right and if any law made shell be void to the extent of inconsistency.

Parliamentary form of Government: The Constitution of Bangladesh provides for a Westminster type of parliamentary system. This form of government means that the government is run by cabinet of Ministers headed by the Prime Minister. President becomes a titular head but real executive power is exercised by the cabinet.

Firstly, Provision was made that the Chief Justice would be appointed by the President and other justice of the Supreme Court appointed after consultation with the Chief Justice. Appointment of subordinate judges and magistrates was also to be exercised with consultation of the Supreme Court.

Chapter 2: Historical Background and Birth of Bangladesh: Bangladesh remained a part of Pakistan (known as East Pakistan) during 1947 – 1971 and the experiences learnt in this period shaped the constitutional future of the country. Indian Independence Act, 1947, as passed by the British Parliament ushered in the creation of two dominions, namely, India and Pakistan from 15 August 1947. The Constitution of India was enacted on 26 January 1950.

The Constituent Assembly of Pakistan delayed the framing of the Constitution due to dissentions and hostilities amongst the politicians, bureaucrats and military personnel. Finally, the Constitution of Pakistan saw the light of the day in March, 1956. Soon thereafter, the Constitution of 1956 was abrogated by Ayub Khan by imposing Martial Law in 1958. Again, during Ayub's regime, the Constitution of 1962 was framed on 7 June 1962. In 1965, Ayub Khan got himself re-elected as President for the second term.

The economic disparities between East and West Pakistan prompted Sheikh Mujibur Rahman (Influential leader of Awami League and Later ‘The Father of The Nation’) to start political movement in East Pakistan with 6-point, which runs as follows: 1. The character of the Government shall be Federal and Parliamentary, in which the election to the federal legislature and to the legislatures of the federating units shall be direct and on the basis of universal adult franchise. The representation in the federal legislature shall be on the basis of population.

2. The Federal Government shall be responsible only for defence, foreign affairs and currency, subject to the conditions provided in (3) below.

3. Two separate but freely convertible currencies for the two wings may be introduced or (1) one currency for the whole country may be maintained. In this case effective constitutional provisions are to be made to stop flight of capital from East to West Pakistan. Separate Banking Reserve is to be made and separate fiscal and monetary policy to be adopted for East Pakistan.

4. The power of taxation and revenue collection shall vest in the federating units and the Federal Centre will have no such power. The Federation will have a share in the State taxes for meeting their required expenditures. The consolidated federal fund shall come out of a levy of certain percentage of all State taxes.

5. (I) (II)

There shall be two separate accounts for foreign exchange earnings of the two wings.

Earnings of East Pakistan shall be under the control of East Pakistan Government and that of West Pakistan under the control of West Pakistan Government.

(III) Foreign exchange requirements of the Federal Government shall be met by the two wings either equally or in a ratio to be fixed.

(IV) Indigenous products shall move free of duty between the two wings.

(V) The Constitution shall empower the unit Governments to establish trade and commercial relations with, set up trade missions in and enter into agreements with, foreign countries.

6. The setting up of a militia or a paramilitary force for East Pakistan.

As the political movement was gaining momentum, the Government of Pakistan started the 'Agartala Conspiracy Case' against Sheikh Mujibur Rahman and others to stop the political movement in East Pakistan by putting them behind prison bars. Due to heavy political activities, the Government of Pakistan was compelled to withdraw the case. In the back drop of political agitations, Ayub Khan relinquished his Presidency and handed over power to his Commander-in-Chief Yahya Khan, who under Martial Law Proclamations abrogated the Constitution of 1962 and promulgated Legal Framework Order (LFO). Under the provisions of LFO, elections were held between December 1970 to January 1971 to the National and Provincial Assemblies on the basis of adult franchise in East Pakistan. In these elections out of 169 seats, Awami League obtained 167 seats. The National Assembly was summoned by Yahya Khan on 3 March 1971 at Dhaka for framing of the Constitution.

Thereafter, Yahya Khan postponed the sessions at Dhaka indefinitely and an unjust and treacherous war was imposed on the innocent men and women in East Pakistan on the night of 25 March 1971.

Sheikh Mujibur Rahman was arrested and taken to West Pakistan prison. The war of liberation continued for about nine months and the freedom loving people of East Pakistan got independence on 16 December 1971. The Pakistan occupation forces were compelled to surrender at Dhaka. This war of liberation brought independence and Bangladesh emerged as an independent, sovereign state in the map of the world. The world at large recognised the birth of Bangladesh as a new country.

The members elected in the elections of 1970, proclaimed independence of Bangladesh through the instrument of 'The Proclamation of Independence, 10 April 1971, at Mujibnagar, Bangladesh and formed the Government with Sheikh Mujibur Rahman (in custody) as President and' Syed Nazrul Islam as Acting President till release of Sheikh Mujibur Rahman from the prison of Pakistan. This proclamation of Independence was issued by Professor Yusuf Ali by and under the authority of the Constituent Assembly. This document is in fact the Constitutional basis for the creation of sovereign Bangladesh as a State.

THE PROCLAMATION OF INDEPENDENCE Mujibnagar, Bangladesh Dated 10 day of April, 1971 WHEREAS free elections were held in Bangladesh from 7th December, 1970 to 17th January 1971, to elect representatives for the purpose of framing a Constitution, AND

WHEREAS at these elections the people of Bangladesh elected 167 out of 169 representatives belonging to the Awami League, AND WHEREAS General Yahya Khan summoned the elected representatives of the people to meet on the 3 March 1971, for the purpose of framing a Constitution, AND WHEREAS the Assembly so summoned was arbitrarily and illegally postponed for an indefinite period, AND WHEREAS instead of fulfilling their promise and while still conferring with the representatives of the people of Bangladesh, Pakistan authorities declared an unjust and treacherous war, AND WHEREAS in the facts and circumstances of such treacherous conduct Banga Bandhu Sheikh Mujibur Rahman, the undisputed leader of 75 million of people of Bangladesh in due fulfilment of the legitimate right of self-determination of the people of Bangladesh, duly made a declaration of independence at Dacca on March 26, 1971 and urged the people of Bangladesh to defend the honour and integrity of Bangladesh, AND WHEREAS in the conduct of a ruthless and savage war the Pakistani authorities committed and are still continuously committing numerous acts of genocide and unprecedented tortures, amongst others on the civilian and unarmed people of Bangladesh, AND WHEREAS the Pakistan Government by levying an unjust war and committing genocide and by other repressive measures made it impossible for the elected representative of the people of Bangladesh to meet and frame a Constitution and give to themselves a Government, AND WHEREAS the people of Bangladesh by their heroism, bravery and revolutionary fervour have established effective control over the territories of Bangladesh, we the elected representatives of the people of Bangladesh, as honour bound by the mandate given to us by the people of Bangladesh whose will is supreme duly constituted ourselves into a Constituent Assembly, and

having held mutual consultations, and in order to ensure for the people of Bangladesh - equality, human dignity and social justice, declare and constitute Bangladesh to be a sovereign people's Republic and thereby confirm the declaration of independence already made by Banga Bandhu Sheikh Mujibur Rahman, and

do hereby affirm and resolve that till such time as a Constitution is framed Banga Bandhu Sheikh Mujibur Rahman shall be the President of the Republic and that Syed Nazrul Islam shall be the VicePresident of the Republic, and That the President shall be the Supreme Commander of all the armed forces of the Republic, Shall exercise all the executive and legislative powers of the Republic including the power to grant pardon, Shall have the power to appoint a Prime Minister and such other Ministers as he considers necessary, Shall have power to levy taxes and expend monies, Shall have the power to summon and adjourn the. Constituent Assembly, and Do all other things that may be necessary to give to the people of Bangladesh an orderly and just Government.

We, the elected representatives of the people of Bangladesh do further resolve that in the event of there being no President or the President being unable to enter upon his office or being unable to exercise his powers due to any reason - whatsoever, the Vice-President shall have and exercise all the powers, duties and responsibilities herein conferred on the President.

We further resolve that we undertake to observe and give effect to all duties and obligations that devolve upon us as a member of the family of nations and to abide by the charter of the United Nations.

We further resolve that this proclamation of independence shall be deemed to have come into effect from 26th day of March 1971.

We further resolve that in order to give effect to this instrument we appoint Prof. Yusuf Ali our duly constituted potentiary and to give to the President and the Vice-President oaths of office.

Mujibnagar, Bangladesh

PROF. YUSUF ALI Duly

10th April, 1971

Constituted Potentiary by and under the authority of the Constituent Assembly of Bangladesh.

As the war of liberation was continuing, 'Laws Continuance Enforcement Order, 1971' was promulgated by Syed Nazrul Islam, Acting President on 10 April 1971, so that the existing

laws which were in force could continue in Bangladesh from 25 March 1971 (on the day of crack down in East Pakistan).

Laws Continuance Enforcement Order, 1971 is as follows: Mujibnagar Dated 10th Day of April, 1972 "I, Syed Nazrul Islam, the Vice-President and Acting President of Bangladesh, in exercise of the powers conferred on me by the proclamation of independence dated tenth day of April, 1971 do hereby order that all laws that were in force in Bangladesh on 25th March, 1971 shall subject to the proclamation aforesaid continue to be so in force with such consequential changes as may be necessary on account of the creation of the sovereign independent state of Bangladesh formed by the will of the people of Bangladesh and that all Government officials, civil, military, judicial and diplomatic who take the oath of allegiance to Bangladesh shall continue in their offices on terms and conditions of service so long enjoyed by them and that all District Judges and District Magistrates, in the territory of Bangladesh and all diplomatic representatives elsewhere shall arrange to administer the oath of allegiance to all government officials within their jurisdiction.

This order shall be deemed to have come into effect from 26th day of March 1971.

Sd/- Syed Nazrul Islam Acting President

During the war of liberation Sheikh Mujibur Rahman was in prison of Pakistan. He was released from the prison of Pakistan on 8 January 1972. He came back to Dhaka on 10 January 1972. On 11 January 1972, 'Provisional Constitution of Bangladesh Order, 1972' was promulgated by Sheikh Mujibur Rahman as President of the People's Republic of Bangladesh.

The Provisional Constitution of Bangladesh Order, 1972 WHEREAS by the proclamation of Independence Order, dated the 10th April, 1971 provisional arrangements were made for the governance of the People’s Republic of Bangladesh; AND WHEREAS by the said proclamation the President is invested with all executive and legislative authority and the power to appoint a Prime Minister; AND WHEREAS the unjust and treacherous war as referred to in the said proclamation has now ended; AND WHEREAS it is the manifest aspiration of the people of Bangladesh that a parliamentary democracy shall function in Bangladesh,

AND WHEREAS in pursuance of the said objective it is necessary immediately to make certain provisions in that behalf.

NOW, THEREFORE, in pursuance of the proclamation of Independence Order dated the 10th April, 1971 and all other powers enabling him in that behalf the President is pleased to make and promulgate the following order: (1) This order may be called the Provisional Constitution of Bangladesh Order, 1972.

(1) It extends to the whole of Bangladesh.

(2) It shall come into force at once.

(3) Definition: Constituent Assembly referred to in this Order means the body comprising of the elected representative of the people of Bangladesh returned to the N.A. and P.A. seats in the elections held in December, 1970, January, 1971 and March, 1971 not otherwise disqualified by or under any law.

(5) There shall be a Cabinet of Ministers with the Prime Minister at the head.

(6) The President shall in exercise of all his functions act in accordance with the advice of the Prime Minister.

(7) The President shall commission as Prime Minister a member of the Constituent Assembly who commands the confidence of the majority of the members of the Constituent Assembly. All other Ministers, Ministers of State and Deputy Ministers shall be appointed by the President on the advice of the Prime Minister.

(8) In the event of a vacancy occurring in the office of the President at any time prior to the framing of the Constitution by the Constituent Assembly, the Cabinet shall appoint as President a citizen of Bangladesh who will hold the office of President until another President enters upon the office in accordance with the Constitution as framed by the Constituent Assembly.

(9) There shall be High Court of Bangladesh consisting of a Chief Justice and so many other Judges as may be appointed from time to time.

(10) The Chief Justice of the High Court of Bangladesh shall administer an oath of office to the President and the President shall administer an oath of office to the Prime Minister, other Ministers, Ministers of State and Deputy Ministers. The form of the oath shall be as prescribed by the Cabinet.

Dated this eleventh day of January one thousand nine hundred and seventy two, being the twentysixth day of Poush, one thousand three hundred and seventy eight.

Dacca

The 11th January, 1972 Sheikh Mujibur Rahman President of the People's Republic of Bangladesh

In this document, the manifest aspiration of the people of Bangladesh was to establish parliamentary democracy in Bangladesh. As a matter of fact, this pre-constitutional document is a declaration, affirmation and resolution for parliamentary democracy in Bangladesh. These three preconstitutional documents ultimately gave us the legal basis for creation of Bangladesh and the system of Government in accordance with which the country will be governed.

The Constituent Assembly by a resolution constituted a Constitution Drafting Committee on 11 APRIL 1972 with Dr. Kamal Hossain as Chairman and 33 members of the Constituent Assembly as members of the Commission. The Constitution of Bangladesh was adopted and enacted on 4 November 1972 and it came into effect on 16 December 1972, as the commencing day of the Constitution as per Article 153 of the Constitution of Bangladesh.

Chapter 3: The Preamble 3.1 Preamble to the Constitution of The People’s Republic of Bangladesh: Bismillah-ar-Rahman-ar-Rahim (In the name of Allah, The Beneficent, The Merciful) PREAMBLE We, the people of Bangladesh, having proclaimed our independence on the 26th day of March, 1971 and through [a historic war for national independence], established the independent sovereign People's Republic of Bangladesh; [Pledging that the high ideals of absolute trust and faith in the Almighty Allah, nationalism, democracy and socialism meaning economic and social justice, which inspired our heroic people to dedicate themselves to, and our brave martyrs to sacrifice their lives in the war for national independence, shall be the fundamental principles of the Constitution;] Further pledging that it shall be a fundamental aim of the State to realise the democratic process a socialist society, free from exploitation-a society in which the rule of law, fundamental human rights and freedom, equality and justice, political, economic and social, will be secured for all citizens; Affirming that it is our sacred duty to safeguard, protect and defend this Constitution and to maintain its supremacy as the embodiment of the will of the people of Bangladesh so that we may prosper in

freedom and may make our full contribution towards international peace and cooperation in keeping with the progressive aspirations of mankind; In our Constituent Assembly, this eighteenth day of Kartick, 1379 B.S. corresponding to the fourth day of November, 1942 A.D., do hereby adopt, enact and give to ourselves this Constitution.

3.2 What is Preamble?

Generally preamble is an introductory paragraph or part in a statute or other document setting forth the grounds and intentions of it. Not only a Constitution but also most of the statutes contain a preamble. The preamble to an Act contains in a nutshell its ideals and aspirations; in other words, it sets out the main objectives which legislation is intended to achieve. It is a key to the intention of the maker of the Act. Likewise the preamble to a Constitution is its philosophy because it contains those ideals and principles on the basis of which the Constitution is structured. The preamble to a Constitution serves the following three main purposes: i) It indicates the source of the Constitution i.e. the legal and moral basis of the Constitution. ii) It expresses in a nutshell the ideas and aspirations of the objectives of the Constitution. iii) It works as the guiding star for the interpretation of the Constitution.

3.3 Basic Structure: High Ideals specified in the preamble contain the basic structure of our Constitution which cannot be amended in exercise of the power under Article 142 of the Constitution, wherein it has been held that preamble now is an entrenched provision of the Constitution which cannot be amended by the Parliament alone without a referendum as contemplated in Article 142(1A) of the Constitution.

The framers of our Constitution recognized the proclamation of Independence on the 26th day of March, 1971 and emergence of Bangladesh as an independent, sovereign nation through a historic war of national independence. The objectives specified as high ideals are, absolute trust and faith in the Almighty Allah, nationalism, democracy and socialism meaning economic and social justice which inspired our heroic people for the war of national independence.

One of the fundamental aims of our Constitution is to secure the rule of law for all citizens. Part VI (Judiciary), and other provisions have been incorporated in the Constitution in furtherance of that aim. The realization of all these objectives will increase manifold activities of the State for overall welfare of the citizens by establishing a welfare and socialistic State in Bangladesh.

3.4 Interpretation of Preamble: In interpreting a constitutional provision not only the grammatical construction but also the intentions of the framers of the Constitution are also to be looked into to avoid ambiguity. Preamble speaks of ideals of trust and faith in Almighty Allah, nationalism, democracy, socialism, rule of law,

fundamental human rights, political, social and economic rights. As a matter of fact the preamble may be invoked to determine the ambit of (a) fundamental rights and (b) fundamental principles of State Policy, which are supposed to secure civil, economic social and political rights of the citizens of Bangladesh. In consequence the preamble spells out the aspirations of the people of Bangladesh.

3.4.1 Foundation of the constitution: The first Paragraph of the preamble indicates the legal basis of the Constitution. It emphasizes that people is the source of all supreme power; people are the real makers of this Constitution. The members of the Constituent Assembly were all peoples' representatives. The preamble of our Constitution stands on a different footing from that of other Constitutions by the very fact of the essence of its birth which is different from others. It is in our Constitution a real and positive declaration of pledges, adopted, enacted and given to themselves by the people not by way of a presentation from skilful draftsmen but as reflecting the ethos of their historic war of independence.

In addition, Article 7 of the Constitution bestows the powers of the Republic with the people and the exercise of the people's power on behalf of the people shall be affected only under and by the authority of the Constitution. It means that all the legislative, executive and judicial powers conferred on the Parliament, the Executive and the Judiciary respectively are constitutionally the powers of the people themselves and the various functionaries and institutions created by the Constitution exercise not their own indigenous and native powers but the powers of the people on terms expressed by the Constitution. The person, again, is the repository of all power under this Article.

To elucidate the legal and the moral basis of our Constitution it is pertinent to mention here two illustrations. It is said in the preamble of the Indian Constitution -" We, the people of India in our Constituent Assembly do hereby adopt, enact and give ourselves the Constitution." The preamble of Indian Constitution, therefore, indicates the people of India both as the legal and moral basis of the Constitution. But in fact the legal basis of the Indian Constitution is the Indian Independence Act. 1947 and not the people of India. Again, there was no universal suffrage in the election of the Constituent Assembly. The people of India, therefore, had neither direct nor indirect involvement in the making of the Constitution.

Likewise the US Constitution was adopted in the Philadelphia Conference in 1774 which was represented by the owners of the government debentures, land lords, money-lenders, shipping business men and owners of slave trade. No labour-representative neither any representative of the cultivators was invited in that Conference. But the Conference adopted the Constitution declaring "We the people of United States do ordain and establish this Constitution for the USA." To compare the Bangladesh Constitution with the above mentioned two Constitutions it may be said that there is no doubt as to the source of the Bangladesh Constitution. It is certainly the people of Bangladesh. Because the people of Bangladesh have achieved their independence through a nine-month

bloody struggle and the Constitution was made and adopted by the representatives who were directly elected by the people. It is, of course, sometimes argued that the members of the Constituent Assembly were MNAs and MPAs of the former Pakistan; they were not elected to act as representatives in the Constituent Assembly of Bangladesh and no election was held after independence. However, a closer look may outweigh this argument. Though the members of the Constituent Assembly were not elected after the independence, they were elected as MNAs and MPAs for the autonomy of the erstwhile East Pakistan; it was their party (Awami League) which led all the movements since the creation of Pakistan and the people of Bangladesh fought the bloody independence war in response to the call for independence by this very party. And it was, therefore, the only party which could, after independence, command the landslide support of the people and it undoubtedly would have been the fact had any fresh election been held after independence.

3.4.2 Fundamental principles of the constitution: As the Constitution of Bangladesh has been adopted and accepted by the people of Bangladesh and as it is the reflection of the aspirations of the people of Bangladesh, it is also the duty of this very people to obey it. Again, as the supreme law of the land the constitution is the basis of law and order in the country. If it is violated, then the whole governmental order will be collapsed. It is, therefore, the moral duty of the people to obey this Constitution.

The Bangladesh constitution, which was adopted on the 4th of November 1972 and came into effect on16 December in the same year. Preamble and Article 8 of the original Constitution very correctly inserted four Fundamental Principles of the newly independent state and provided that secularism, (Bangali) nationalism; democracy and socialism would constitute the Fundamental Principles of People's Republic of Bangladesh. Democracy was demolished by the Fourth Amendment, later on partially revived during the martial law regimes. Secularism, (Bangali) nationalism, and socialism were exiled by the Fifth and the Eighth Amendments. Due to the whimsical courses taken by the successive rulers, the original Constitution lost its unique feature and complexion. The four fundamental principles on the basis of which the people of this land directed all social, cultural and political movements and finally liberated this country, all the principles except democracy were eliminated from the Constitution. The objective of the state was stated as absolute trust and faith in the Almighty Allah, nationalism, democracy and socialism meaning economic and social justice which inspired our heroic people for the war of national independence.

Principle 1. Absolute trust and faith in the Almighty Allah: The Bangladesh constitution begins with the Islamic words "BISMILLAH-AR-RAHAMANAR-RAHIM" (In the name of Allah, the Beneficent, the Merciful). This was inserted through the

Proclamation (Amendment) Order, 1977 (Proclamation Order No. 1 of 1977). In fact, since its inception, the constitution has undergone many amendments. Even for the gratification of self-interest of some individual politicians and army generals, the Supreme law of the land had to be cut to size.

But ironically when it comes to the question of the constitutional recognition of the national minorities, political elite who brought about such changes and amendments refuse to amend the constitution on the pretext that the national minorities are insignificantly few in number. But what they refuse to understand is the fact that it is for the greater interest of the whole country and not for a tiny section of it, that such a constitutional amendment has become necessary.

However, due to all these amendments the constitution has lost its original character and it has been highly Islamised. In fact this process of Islamisation of the constitution started during the rule of Ziaur Rahman with the insertion of Islamic words. But it was General Hussain Muhammad Ershad who has completed this process by declaring Islam as state religion through the Eighth Amendment.

Article 2A identified Islam as the state religion. With this insertion, one of the religions as practiced in this country has been placed above the other ones, and discrimination and religious prosecution against other religious groups intensified.

Again clause 1A of the said article provides that "Absolute trust and faith in the Almighty Allah shall be the basis of all actions". One can aptly ask: are the actions of the ministers and other persons in the service of the state, who belong to religions other than Islam, based on "absolute trust and faith in the Almighty Allah?" Whatever the intention of these amendments, at least theoretically, the nonMuslims are bound by this article, and in their actions relating to the service of the republic or the running of the state they are required by the constitution to place their faith and trust in the Almighty Allah.

Principle 2. Nationalism: Nationalism refers to an ideology, a sentiment, a form of culture, or a social movement that focuses on the nation. It is a type of collectivism emphasizing the collective of a specific nation. The new constitution provided a chance for defining the salient features of Bengali nationalism which was declared to be one of four state principles. However, neither Sheikh Mujib nor his party leaders clearly spelled out their views on Bengali nationalism. As most of the members of the parliament were all from the ruling AL, there was little debate regarding the definition of Bengali nationalism in the assembly and thus the concept remained ambiguous.

However, although the careful avoidance of religious symbols in the explication of Bengali nationalism was welcomed by the religious minorities, the ‘Paharis’ of the Chittagong Hill Tracts were disturbed by the hegemonic concept of ‘Bengalines’ as they could not relate to it. Therefore, the

hegemonic formulation of Bengali nationalism within the constitutional framework denied the multicultural realities of Bangladesh.

The post-Mujib regime in Bangladesh immediately made some pro-Islamic and anti-Indian gestures which pleased the Islamic elements of the society and the Muslim world at large. General Ziaur Rahman, who came to power after a series of coup, tried to give his administration a civilian face. In June 1978, he became the President and soon after turned his attention toward the creation of his own political party. He and his party came out with the idea of ‘Bangladeshi Nationalism’.

The debate over Bengali/Bangladeshi nationalism has been so contesting that the whole nation seems to be sharply divided into two fractions. Even the history of 1971 has been plagued by these two opposing viewpoints. The manipulative politics of words, names and dates has been so huge that there exists many ‘versions’ (including Awami history and BNP history) of 1971. The past has been created in order to legitimize the present political order, while the difficult paths of creative interpretation of historical events have not been taken. Thus, the political history of Bangladesh, like all histories, is “constructed” by people who believes in the ‘usable past’ and interprets the history in order to legitimize their political project. What Bangladesh needs now is independent professional historical work that can challenge historical myths and the territorialisation of memory. Only then, it would be possible to expose the alternative histories and to provide new insights into the paradoxical nature of nationalism.

Principle 3. Democracy: Democracy guarantees its citizens a number of fundamental rights that non-democratic systems do not, and cannot, grant. It ensures its citizens a broader range of personal freedom. It provides a maximum opportunity for persons to exercise the freedom or self determination that is to live under laws of their own choosing. Only a democratic Government can foster a relatively high degree of political equality. It is seen that countries with democratic Governments tend to be more prosperous than countries with non-democratic Governments.

Democracy is, for most of us, a better system than any attainable alternative system. It is the best possible form of Government.

Though it may not be all perfect. Democracy in theory is based on a notion of equality of all citizens irrespective of race, colour, sex etc.

Principle 4. Economic and Social Justice: In all modern Constitution, social and economic rights are incorporated for the well being of common man. In keeping with the aspirations of the preamble, the Court should uphold legislation

which enables for establishment of social justice. Economic and social justice means, to remove economic inequalities to provide a decent standard of living to the working people and to protect the interests of weaker sections of the people in the society.

3.4.3 Fundamental aims of the state: Bangladesh pledged to achieve a socialist economy free from exploitation and a society where equity, justice and human rights shall prevail.

3.4.3.1 Instituting a socialist society through democratic practice: Bangladesh, like most of the third world countries, has a twin challenge to face: Institutionalization of a democratic order and at the same time attains a target rate of economic growth for development. So democracy and economic development has to develop in parallel. The form of democracy preferred in the early stages of political development in Bangladesh was that economy and society should be run democratically - to meet the needs of the whole community, not to make profits for a few. To achieve a more just society, many structures of government and economy must be transformed through greater economic and social democracy so that ordinary Bangladeshis can participate in the decisions that affect their lives.

Although the process to achieve a democratic socialist society started with great enthusiasm, but democracy in Bangladesh soon moved towards a complete standstill. Since independence in 1971, democracy has been in crisis in Bangladesh. The country was born out of a long democratic movement initially aimed at achieving autonomy for the rights of the majority population of Pakistan.

Towards the end of this movement almost the entire population of Bangladesh was drawn in an armed struggle to establish their rights of self-determination. The cherished goal of democratic rights of the people were enshrined in the constitution of the country in 1972 but in less than two years after the first parliament was elected, the structure and character of the fundamental law of the land was changed and the country’s political system was turned into a one-party monolithic structure. All political parties were dissolved and all newspapers were band except four to be retained by the state; the fundamental rights were suspended and made non-enforceable and the judiciary was reduced into a subservient agency of the executive branch of the state.

The crisis of democracy deepened further with successive army interventions when military leaders (Zia & Ershad) ruled the country. During all these years various social, economical and political forces have operated and influenced the course of democracy in Bangladesh. Not only did the leaders, both civil and military, create a crisis of democracy but they had aggravated it by trying to shape the laws and events to suit their own designs, disregarding the urgent need for development of democratic institutions and failing to provide the commitment required for accelerating the economic

growth. During the long term (1976-1990) of military rule the institutions which have been mostly damaged but which are considered as the pivotal force for developing constitutionalism is the party system in the country. Since the political activities were banned repeatedly, the strength and cohesion within the most famous parties was destroyed. On the one hand, mushroom growth political parties devoid of any ideology or program were created by money power just to give a democratic poster to the election of the military ruler. Finally, however, the Ershad regime was toppled by a popular manmovement in December 1990 when the military withdrew its support.

Thus in 1990 the country was freed from the clutches of military rule and the peoples’ sustained struggle for democracy has at last triumphed with autocrat president Ershad and the time came to lead the nation on a new journey in search of constitutionalism and democracy. The second start of constitutionalism had its democratic and peaceful transit through the historic 5 th parliamentary election under the Acting President Justice Sahabuddin Ahmed. 1991, by the 12 th Amendment of the constitution government was reverted again to parliamentary form after 16 years. The starting of the second parliamentary democracy seemed fine and enthusiastic but lastly the celebrated 5 th parliament also like every other previous parliament in the country could not complete its constitutional duration; it was to dissolve under the pressure of the opposition movements. The ruling party BNP has, in many ways, and failed to make a positive turn towards the development of constitutionalism and democracy. The BNP government denied holding the 6 th parliamentary election ignoring the opposition and it proceeded to contest the election with some sudden hand-picked parties as the military dictator Ershad frequently did. This was a flagrant wrong done by a democratically elected government and this showed the ruling elite’s lock of political foresight. This is why the 6 th parliament had only 7 days life. This negative trend in parliamentary democracy i.e. the trend of political intolerance done by the BNP government has proved the crisis of constructive leadership in the development of constitutionalism in Bangladesh. Later, the 7 th parliamentary election was held under the neutral Caretaker Government with some hopes and aspiration and the majority voted for the AL. The new government of Al (1996) also practiced like the before BNP govt. without opposition participation. After completing the term 5 years, the 8 th parliamentary election was held under the caretaker government of Justice Latifur Rahman on October 1, 2001 and BNP formed the qualision government. After formation of government they try to exercise democratic culture but massive level of corruption under this regime shocked the country to its core. The ninth parliamentary election was held on December 29, 2008 and AL again has the duty to return to path of socialist democracy.

Democracy is essentially a system of alternative programs and policies propagated by political parties. When a particular set of programs and policies fails to command the support of the people alternative programs and policies are tried. Elections are formal procedures to choose programs and policies at a particular point in time. Bangladesh has, however, inherited a political tradition where

mass movements and elections are entwined. During the last four decades there were a number of political movements, which crystallised certain issues and mobilised political forces. Elections were then held, not to choose between the alternative programs and policies, but merely to pick the winning political forces. The political parties now have the obligation to structure a system of social equality.

3.4.3.2 Establishing rule of law: The rule of law is a basic feature of the constitution of Bangladesh. The modern concept of the rule of law is fairly wide and therefore sets up an ideal for any government to achieve. There are seven principal meanings of the term ‘Rule of law’: (1) law and order; (2) fixed rules; (3) elimination of discretion; (4) due process of law or fairness; (5) natural law or observance of the principles of natural justice; (6) preference for judges and ordinary courts of law to executive authorities and administrative tribunals; and (7) Judicial review of administrative actions. The following provisions for rule of law have been incorporated in the constitution: Article 27 guarantees that all citizens are equal before law and are entitled to equal protection of law. Article 31 guarantees that to enjoy the protection of the law, and to be treated in accordance with law, is the inalienable right of every citizen, wherever he may be and of every other person for the time being with in Bangladesh, and in particular no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with Law.18 fundamental rights have been guaranteed in the constitutional arrangement for their effective enforcement has been ensured in Articles 44 and 102. Article 7 and 26 impose limitation on the legislature that no law which is inconsistent with any provision of the constitution can be passed. In accordance with Article 7, 26 and 102(2) of the constitution the Supreme Court exercise the power of judicial review whereby it can examine the extent and legality of the actions of both executive and legislative and con declare any of their actions void if they do anything beyond their constitutional limits. Right to be governed by a representative body answerable to the people have been ensured under Articles 7(1), 11, 55, 56, 57 and 65(2) of the constitution.18 All these provisions of constitution are effective for ensuring rule of law in Bangladesh. But facts on the ground tell a different story altogether.

Laws, rules and procedures framed under them exist to cover every walk of our national life, though there may be parities in number and shortcomings in scope. Some aspects of the rule of law in our society and politics should be mentioned as under: First, access to law as well as equality before it, are reserved for only those who are privileged.

For the rest of the population, more or less the Hobbsian law of nature prevails. They are the helpless victims of as unjust society that sets great story by privileges.

Second, the very principle that law should take its own course requires that in investigation and preparation and submission of the charge sheet, the investigating agency should be free from, encumbrances influences and threats of all kinds. Unfortunately, that situation is not obtained in today's Bangladesh. In recent years a large number of political killings have taken place. The national dailies have carried the stories of all the gruesome murders and the whole nation has been out raged.

What is however deplorable is that in most of these highly publicized cases the culprits have not been brought to justice. The reason is not far to seek. It is the interference by high ups in the political ladder.

Third, another aspect of rule of law relates to the limits of law making power of the parliament itself. Our constitution quite rightly declares the people as the repository of all power and they use it through their elected representatives. However, the question arises whether the parliament can make laws curbing the democratic rights the people, which are generally considered as unreasonable. The special power Act of 1974 the public safety Act passed former Awami Liege Government etc. which are used to put political opponents behind the bars, deserve special mention, so, the question arises can such pieces of legislation promote rule of law? Obviously, not.

Fourth, Rule of law postulates intelligence without passion and reason free from desire in any decision regarding matters concerned with governance. In our society, the principle is being ignored on many grounds as quotas for political activists by the name of honour to freedom fighters, special provision for individual security etc.

Fifth, Police is no doubt a very powerful institution for the endorsement of the rule of law. But in Bangladesh, the police have never been friendly with the public. The police serve the government and enjoy, in exchanges, the freedom to act arbitrarily and in the material interests of its own members.

Sixth, Ordinance making power can be supported only in emergency situation like national crisis, national calamity severe economic deflection etc. demanding for immediate legislative actions. But article 93 of the constitution allows the president to promulgate ordinances anytime during the recesses of parliament session. On the other hand Article 141(A) empowers the president to declare emergency whenever he wishes. By declaring emergency in peace time the government can suspend fundamental rights and suppress the opposition movement. This mounts to avowed arbitrary exercise of power on the part of the government which is contradictory to the concept of rule of law.

Seventh, Another aspect of our judicial system is that there is the charge of corruption against our judiciary. Moreover, justices are a costly commodity in our country. The poor people could not reach before the judges only because of mobility to meet the charge required for going through the complicated process of litigation. Thus, they prefer injustice than fatigue.

The rule of law in Bangladesh is not satisfactory. Government must be committed to ensure the security of life and property of the people, protection of individual rights and the dissention of justice on the basis of the equality and fairness. The opposition, civil society and social groups and organizations also have the moral obligations to help and cooperate with the government in this juncture.

3.4.3.3 Ensuring fundamental human rights and freedom: The rights and freedom of citizen is fully protected by the supreme law - the Constitution of the People's Republic of Bangladesh. According to article 39 (1, 2) of chapter-3 of this constitution, freedom of thought and conscience is guaranteed. Some reasonable restrictions found in these articles are as followsa) Against the interest of security of the State b) Against the friendly relation with foreign state c) Violation of public order d) Violation of decency or morality e) Anything related to contempt of court f) Defamation or incitement to any offense The human rights record of all the Bangladesh governments has been poor. Human Rights is exploited everywhere in Bangladesh. The true meaning of Human Rights which in simple words could be “Live & Let Live” exists nowhere in the perception of Bangladeshi people. Like most developing countries, Bangladesh too has its share of human rights issues and problems. While fundamental freedoms are enshrined in the constitution regardless of race, gender and religion, there are many instances where the rights are often ignored and at worst trampled.

Basic Human Rights All the governments were unable to secure basic rights of its population, such as; food, clothing, shelter, education etc. Many of Bangladesh’s men, women and children are profoundly affected by macro and micronutrient deficiencies. Every year, 30,000 children become blind due to Vitamin A deficiency. Over half the populations are affected by iodine deficiency. The effects of malnutrition are

also compounded by inadequate utilization of nutrients, given difficult conditions in terms of access to water, sanitation, health services. The literacy rate recently improved to about 48% and the access to higher education is still not within the grasp of mass.

Freedom of Religion The Constitution establishes Islam as the state religion and also stipulates the right--subject to law, public order, and morality--to practice the religion of one's choice, and the Government generally respected this right in practice. Although all the Governments try to maintain a secular nature, religion exerts a powerful influence on politics. The Government was sensitive to the Muslim consciousness of the majority (approximately 88 percent) of its citizens. It sometime failed to protect minority groups, contributing to an atmosphere of impunity. Discrimination against members of the religious minority existed at both the governmental and societal level. Violence, including killings and injuries, occurred both before and after the 2001 election. There were reports of harassment of Hindus, including killings, rape, looting, and torture related to post-election violence. During the transition of power from the caretaker government to the newly elected Government in 2001, BNP supporters raped at least 10 Hindu females in the island district of Bhola and looted several Hindu houses.

Freedom of Speech and Press The Constitution provides for freedom of speech and of the press. In practice, however, all governments in Bangladesh, be they civil or military, have interpreted the term ‘reasonable restrictions' according to their wishes and for their own benefit. All governments, while imposing ‘restrictions' on freedom of press, maintained that they had acted according to the rights stipulated in the Constitution. Noted lawyer Gazi Shamsur Rahman commented: ‘Where the extent of the restriction is left to the discretion of an executive authority, it amounts to negation of the right to freedom of speech and expression.'

Discrimination Based on Race, Sex, Religion, Disability, Language, or Social Status The Constitution states "All citizens are equal before the law and are entitled to equal protection by the law;" however, in practice the Government did not strongly enforce laws aimed at eliminating discrimination. Women, children, minority groups, and persons with disabilities often confronted social and economic disadvantages. According to Human Rights Watch, considerable official and societal discrimination existed against those who provided HIV prevention services, and against highrisk groups likely to spread HIV/AIDS.

Domestic violence was widespread, although violence against women was difficult to quantify because of unreliable statistics and societal inhibitions about reporting such violence. According to a research conducted by ICDDR, B, high levels of abuse were identified, as the study found that many of the women surveyed had been physically assaulted by their husbands: 40% in the urban area studied and 41% in the rural area studied. About 19% of the women in both areas had experienced severe physical violence.

The Government undertook programs in the areas of primary education, health, and nutrition.

Many of these efforts were supplemented by local and foreign NGOs. These joint efforts allowed the country to make significant progress in improving health, nutrition, and education; however, slightly more than one-half of all children were still chronically malnourished. Because of widespread poverty, many children were compelled to work at a very young age. This frequently resulted in abuse of children, mainly through mistreatment by employers during domestic service and occasionally included servitude and prostitution.

Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment 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. 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.

Arbitrary Arrest, Detention, and Exile 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.

3.4.4 Constitutional supremacy: The Constitutional supremacy means that the Constitution is supreme over the parliament and the parliament can exercise its functions being only within the bounds of the Constitution. Constitutional supremacy is possible only where the constitution is written and rigid.

Actually a constitution with constitutional supremacy not only defines the power of the legislature, it defines and establishes the principal organs of the state. It is a source of their authority.

It prescribes the manner in which and within their functions are to be exercised. The three organ of the state cannot do anything beyond the constitutional limitations. If any organ does anything in violation of the constitutional limitations then court can declare the action and this paramount power of the court is given by the Constitution it self. The Constitution has sanctity over everything in the realm.

This position is called Constitutional Supremacy.

The constitution stands supreme over all citizens, institutions and all branches of the government, federal as well as regional. No institution of the government is authorized to make a law or chalk out a policy that is against the constitution. In contrast to this practice, British constitution is not paramount, as the parliament can enact any law.

Limited Government means that the constitution eliminates all possibilities in respect of concentration of powers in any branch of the government, and all have to function within constitutional restraints. These restraints protect the rights of these governments from mutual encroachments and also regulate inter governmental relationships. Constitution gives fully protection to public liberties.

The supremacy of the Bangladesh constitution is indicated in article 7 as – (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 that other law shall, to the extent of the inconsistency, be void.

However, over the course of time many changes were brought to the constitution in keeping with the interest of the ruling party. As many as 15 amendments were made in the last four decades. The Fifth Amendment together with the Eighth Amendment, 1988 (made during a military ruler) successfully mutilated the provision of secularism and made the Constitution communal at the cost of the people of different religious denominations other than Muslims. Their status, in their language, has been relegated to that of second-class citizen. The above two amendments made some changes

along religious line which on the one hand undermined the spirit of all secular movements, on the other negated the different entities of Hindus, Buddhists, Christians and people of other religious identities. The Fifth Amendment changed the Preamble along religious line and the Eighth Amendment inserted Article 2A by which Islam was declared state religion of Bangladesh. Moreover, the Fifth Amendment deleted the proviso of Article 38, which banned the activities of some communal political parties who exploited religion to pursue their political goal. That was an onslaught on the magnificent sacrifice of the martyrs of liberation war and the absolute supremacy of the constitution.

During the first martial law regime (1975-79) many changes were brought to the Constitution by the Martial Law Proclamations which lacked constitutional validity. When the question as to the supremacy of the Constitution and Martial Law Proclamation came, unfortunately the judges held that the Constitution was subservient to Martial Law Proclamation. Instead of holding supremacy of the Constitution or at least that the Constitution and Martial Law Proclamation were co-extensive; the judges, who were oath-bound to preserve, protect and defend the Constitution, maintained the supremacy of the Martial Law Proclamation. All the changes made to the Constitution by the Martial Law Proclamations were validated by the Fifth Amendment, 1979.

Successive military rulers usurped state power and amended the Constitution through Martial Law Proclamations and then legalised those amendments and their unconstitutional regimes by manipulating the constitutional mechanism. The Constitution has become hapless victim of the operation of military rulers, which they did promiscuously to suit their needs. By manipulating the provisions of the Fourth Schedule they validated all the Martial Law Proclamations and all the activities of their regimes. Sections 3A, 18 and 19 of the Fourth Schedule declared that all the activities of two Martial Law Regimes "are hereby ratified and confirmed and are declared to have been validly made, done or taken and shall not be called in question in or before any court, tribunal or authority on any ground whatsoever." The Fourth Schedule is in fact a pre-constitutional mechanism to meet up the exigency of war situation. But this pre-constitutional mechanism was utilised to validate post constitutional situation. Both the Martial Law Regimes extending from 1975 to 1990 (with three years interruption) lacked constitutional validity and the processes through which those were validated those were also unconstitutional. Unfortunately the present Constitution has to bear all the vestiges of those unconstitutional activities.

3.4.5 Contribution towards international peace: Bound by its constitutional commitment to the cause of international peace and security and to the principles and purposes of the United Nations Charter, Bangladesh has always responded positively to UN's call for restoration, maintenance and strengthening peace and stability worldwide. It is widely

acclaimed that the most outstanding national achievement in independent Bangladesh is the name and fame earned for the country by the peacekeepers of Bangladesh Armed Forces. Despite negative publicity for the country as a whole, the indomitable valour, firm commitment, exemplary leadership, outstanding competence, unflinching patriotism, and superb discipline shown by the Bangladeshi peacekeepers have earned plaudits for the country.

It was 1988 when Bangladesh's modest contribution began, with 31 officers as part of UNIMOG (UN Iraq-Iran Military Observer Group) in Iraq. Since that modest beginning, Bangladesh today is the largest and most respected contributor to UN peacekeeping efforts. Of total 60 peace missions mounted so far by the UN, Bangladesh has successfully participated in 30 missions in 23 different countries. So far over 49,000 personnel from Bangladesh Armed Forces have participated in these missions from Bosnia to Haiti to Georgia to Cambodia. Currently, UN is operating 16 peace missions with 70,103 peacekeepers from 107 member states. Of them, despite the smallness of its size and economy, Bangladesh alone has contributed 9,758 peacekeepers (more than 14 percent of the total), who are operating in 12 different UN missions in countries like Congo, Sudan, Sierra Leone, Liberia, Ivory Coast, among others, including leadership to UN mission in Sudan.

One of the most important features in the global political and economic spheres during the recent years has been the rise of regionalism and concerted efforts being made to increasingly use regional cooperation to promote stability and economic development. Unfortunately, in South Asia complex fall out of geopolitical rivalry of major super powers and deep-seated political differences within the region impeded any tangible move towards harnessing the benefits from regional cooperation for better part of the post colonial period. The situation for the first time underwent a major change when under the visionary leadership of Shaheed President Ziaur Rahman; Bangladesh first mooted the idea of an association for regional cooperation in South Asia in November 1980. Under his direct guidance, Bangladesh took the first important steps to give a formal shape to the ideas of cooperation among the countries in South Asia within a definite institutional framework. Between 1980 and 1982.

Bangladesh played a pivotal role in identifying the areas of cooperation among the future members of SAARC as well as elaborating the principles, modalities and mechanisms through which the ideas of regional cooperation could be concretized.

Chapter 4: Miscellaneous: 4.1 What is Miscellaneous: The articles which are not covered in the main parts of the constitution but is significant enough to be included in the constitution is covered in the last part named Miscellaneous.

4.2 Articles & Interpretations: Article 143: Property of the Republic: (1) There shall vest in the Republic, in addition to any other land or property lawfully vested(a) all minerals and other things of value underlying any land of Bangladesh; (b) all lands, minerals and other things of value underlying the ocean within the territorial waters, or the ocean over the continental shelf, of Bangladesh; and (c) any property located in Bangladesh that has no rightful owner.

(2) Parliament may from time to time by law provide for the determination of the boundaries of the territory of Bangladesh and of the territorial waters and the continental shelf of Bangladesh.

Explanation: This article defines the property of the country. The article states that all land or things of value that are lawfully situated in the country are defined as the property of the Republic. All minerals and things of value that exist under the land of Bangladesh and under the ocean within the territorial waters or the ocean over the continental shelf of Bangladesh are also referred to as the property of the country. Any property that has no rightful owner but is located in Bangladesh is also included in the definition of the property of the country. For example, if a person dies without making a will of his property to his heirs or any other person or institution, then this property is assumed to be the property of the country as this property has no rightful owner.

The boundaries of the territory of Bangladesh, the territorial waters and the continental shelf mentioned in the definition of the property of the Republic are defined by the Parliament from time to time by means of law.

According to article 143(2) any things of value that fall within 10 fandom of depth (6feet or 1.8 miles) and 12 nautical mile radius of the Bay of Bengal are considered to be within the territorial waters of Bangladesh.

Article 144 Executive authority in relation to property, trade, etc. : The executive authority of the Republic shall extend to the acquisition, sale, transfer, mortgage and disposal of property, the carrying on of any trade or business and the making of any contract.

Explanation:

Article 144 deals with the executive authority of property, trade etc. According to this article, the Republic has all the right to acquire, sell, transfer, give mortgage and dispose the property of the Republic. Moreover, the Republic has the authority to carry on any trade or business and make any contract in relation to the property of the Republic.

Article 145 Contracts and deeds : (1) All contracts and deeds made in exercise of the executive authority of the Republic shall be expressed to be made by the President, and shall be executed on behalf of the President by such person and in such manner as he may direct or authorise.

(2) Where a contract or deed is made or executed in exercise of the executive authority of the Republic, neither the President nor any other person making or executing the contract or deed in exercise of the authority shall be personally liable in respect thereof, but this article shall not prejudice the right of any person to take proceedings against the Government.

Explanation: This article deals with the contracts and deeds made in relation to the executive authority of the Republic on the property. According to this article the President will make all the property contracts and deeds but he himself will not execute these contracts. Rather the President will authorize certain persons and prescribe certain manners in which the authorized persons will execute the contracts on behalf of the President.

According to Article 145(2) neither the President who makes the property contracts and deeds nor the authorized persons who execute the contracts will be personally liable in exercising the contracts. But such authorized people will enjoy their rights to take proceedings against the government.

Article 145(A) International treaties: All treaties with foreign countries shall be submitted to the President, who shall cause them to be laid before Parliament: Provided that any such treaty connected with national security shall be laid in a secret session of Parliament Explanation: It deals with international treaties. This article states that all treaties with foreign countries will be first submitted to the President and then the President will lay these before the parliament. It should be

noted that a secret session of parliament will be arranged if the treaty is connected with national security.

Criticism: It should be noted that there are three ways of making a decision of getting into a treaty with a foreign country. These are 1) Public opinion 2) Judiciary decision making 3) Placing the debate before the parliament In Bangladesh only judiciary decision making is done and there is no scope of taking public opinion and even placing the debate in the parliament. As a result the general public do not have even a slightest idea of whether the government is getting involved in a treaty which is against the interest of the republic or not.

Article 146 Suits in name of Bangladesh: The Government of Bangladesh may sue or be sued by the name of Bangladesh.

Explanation: In an application by a person in the service of the republic the correct method is to follow article 146 of the constitution which provides that the government of Bangladesh may sue or be sued by the name of Bangladesh. The applicant has of course to mention a competent official in the facts of a particular case who can represent Bangladesh. If the government or statutory public authority is not made party or is not properly described in the application, the opposite parties must raise objection if they want to at the earliest stage so that the applicant may get an opportunity to take necessary steps. If the proper party is not before, the Tribunal then whether any objection is raised or not the applicant will run the risk of having an effective order to his peril and his application may be adjudicated as incompetent.

Article 147 Remuneration, etc., of certain officers: (1) The remuneration, privileges and other terms and conditions of service of a person holding or acting in any office to which this article applies shall be determined by or under Act of parliament, but until they are so determined(a) They shall be those (if any) appertaining to the person holding or, as the case may be acting in the office in question immediately before the commencement of this Constitution; or (b) If the preceding sub-clause is not applicable, they shall be determined by order made by the President.

(2) The remuneration, privileges and other terms and conditions of service of a person holding or acting in any office to which this article applies shall not be varied to the disadvantage of any such person during his term of office.

(3) No person appointed to or acting in any office to which this article applies shall hold any office, post or position of profit or emolument or take any part whatsoever in the management or conduct of any company, association or body having profit or gain as its object: Provided that such person shall not for the purposes of this clause be deemed to hold any such office, post or position by reason only that he holds or is acting in the office first above-mentioned.

(4) This article applies to the offices of (a) President; (b) Prime Minister and Chief Advisor; (c) Speaker or Deputy Speaker; (d) Minister, Advisor, Minister of State or Deputy Minister; (e) Judge of the Supreme Court; (f) Comptroller and Auditor-General; (g) Election Commissioner; (h) Member of a public service commission.

Article 148 Oaths of office: (1) A person elected or appointed to any office mentioned in the Third Schedule shall before entering upon the office make and subscribe an oath or affirmation (in this article referred to as "an oath") in accordance with that Schedule.

(2) Where under this Constitution an oath is required to be administrated by a specified person, it may be administered by such other person and at such place as may be designated by that person.

(2A) If, within three days next after publication through official Gazette of the result of a general election of members of Parliament under clause (3) of article 123, the person specified under the Constitution for the purpose or such other person designated by that person for the purpose, is unable to, or does not, administer oath to the newly elected members of Parliament, on any account, the Chief Election Commissioner shall administer such oath within three days next thereafter, as if, he is the person specified under the Constitution for the purpose.

(3) Where under this Constitution a person is required to make an oath before he enters upon an office he shall be deemed to have entered upon the office immediately after he makes the oath.

Article 149 Saving for Existing law: Subject to the provisions of this Constitution all existing law shall continue to have effect but may be amended or repealed by law made under this Constitution.

Explanation: Laws existing in the Constitution are enforceable or continue to have effect until any amendment or revocation is made. In case of any amendment by the law made under the Constitution, the amended law will continue according to the amendment. And, in case of revocation by the law made under the Constitution, the repealed law will ceases to be enforceable by law.

Article 150 Transitional or temporary provisions: The transitional and temporary provision set out in the Fourth Schedule shall have effect notwithstanding any other provisions of this constitution Explanation: In order to maintain continuity, with the adaptation of a new constitution, necessity arises to make certain provisions for transition from old loyal system to the new order set up by the Constitution.

Hence, Article 150 of our Constitution provides for such transitional provisions in the fourth schedule and states that those provisions would be effective in spite of the inconsistency with the Constitutional provisions.

Article 151 Repeals: The following President’s orders are hereby repealed – (a) The laws Continuance Enforcement Order made on 10th April, 1971; (b) The Provisional Constitution of Bangladesh Order, 1972; (c) The High Court of Bangladesh Order, 1972 (P.O. No. 5 of 1972); (d) The Bangladesh Comptroller and Auditor-General Order, 1972 (P.O. No. 15 of 1972) (e) The Constituent Assembly of Bangladesh Order, 1972 (P.O. No. 22 of 1972) (f) The Bangladesh Election Commission Order, 1972 (P.O. No. 25 of 1972) (g) The Bangladesh Public Service Commissions Order 1972 (P.O. No. 34 of 1972) (h) The Bangladesh Transaction of Government Business Order, 1972 (P.O. No. 58 of 1972) Article 152 Interpretation: (1) In this Constitution, except where the subject or context otherwise requiresInterpretation "Administrative unit" means a district or other area designated by law for the purposes of article 59.

[Article 59: Local Government (1) Local Government in every administrative unit of the Republic shall be entrusted to bodies, composed of persons elected in accordance with law.

(2) Everybody such as is referred to in clause (1) shall, subject to this Constitution and any other law, perform within the appropriate administrative unit such functions as shall be prescribed by Act of Parliament, which may include functions relating toAdministration and the work of public officers; the maintenance of public order; the preparation and implementation of plans relating to public services and economic development. ] "Advisor" means a person appointed to that office under article 58C; [Article 58C. Composition of the Non-Party Care-taker Government, appointment of Advisers, etc.

(1) Non-Party Care-taker Government shall consist of the Chief Adviser at its head and not more than ten other Advisors, all of whom shall be appointed by the President.

(2) The Chief Adviser and other Advisers shall be appointed within fifteen days after Parliament is dissolved or stands dissolved, and during the period between the date on which Parliament is dissolved or stands dissolved and the date on which the Chief Adviser is appointed, the Prime Minister and his cabinet who were in office immediately before Parliament was dissolved or stood dissolved shall continue to hold office as such.

(3) The President shall appoint as Chief Adviser the person who among the retired Chief Justices of Bangladesh retired last and who is qualified to be appointed as an Adviser under this article: Provided that if such retired Chief Justice is not available or is not willing to hold the office of Chief Adviser, the President shall appoint as Chief Adviser the person who among the retired Chief Justices of Bangladesh retired next before the last retired Chief Justice.

(4) If no retired Chief Justice is available or willing to hold the office of Chief Advise, the President shall appoint as Chief Adviser the person who among the retired Judges of the Appellate Division retired last and who is qualified to be appointed as an Adviser under this article: Provided that if such retired Judge is not available or is not willing to hold the office of Chief Adviser, the President shall appoint as Chief Adviser the person who among the retired Judges of the Appellate Division retired next before the last such retired Judge.

(5) If no retired judge of the Appellate Division is available or willing to hold the office of Chief Adviser, the President shall, after consultation, as far as practicable, with the major political parties, appoint the Chief Adviser from among citizens of Bangladesh who are qualified to be appointed as Advisers under this article.

(6) Notwithstanding anything contained in this Chapter, if the provisions of clauses (3), (4) and (5) cannot be given effect to, the President shall assume the functions of the Chief Adviser of the NonParty Care-taker Government in addition to his own functions under this Constitution.

(7) The President shall appoint Advisers from among the persons who are-

Qualified for election as members of parliament; not members of any political party or of any organisation associated with or affiliated to any political party; Not, and have agreed in writing not to be, candidates for the ensuing election of members of parliament; Not over seventy-two years of age.

(8) The Advisers shall be appointed by the President on the advice of the Chief Adviser.

(9) The Chief Adviser or an Adviser may resign his office by writing under his hand addressed to the President.

(10) The Chief Adviser or an Adviser shall cease to be Chief Adviser or Adviser if he is disqualified to be appointed as such under this article.

(11) The Chief Adviser shall have the status, and shall be entitled to the remuneration and privileges, of a Prime Minister and an Adviser shall have the status, and shall be entitled to the remuneration and privileges, of a Minister.

(12) The Non-Party Care-taker Government shall stand dissolved on the date on which the prime Minister enters upon his office after the constitution of new parliament. ] "The Appellate Division" means the Appellate Division of the Supreme Court; The Appellate Division The Appellate Division shall have Jurisdiction to hear and determine appeals from judgements, decrees, orders or sentences of the High Court Division. It has rule making power for regulating the practice and procedure of each division and of any Court subordinate to it.

"Article" means an article of this Constitution; "Borrowing" includes the raising of money by annuity, and "loan" shall be construed accordingly; "The capital" has the meaning assigned to that expression in article 5; [Article 5. The capital.]

The capital of the Republic is [Dhaka].

The boundaries of the capital shall be determined by law.]

"Chief Adviser" means a person appointed to that office under article 58C. "Chief Election Commissioner" means a person appointed to that office under article 118;

[Article 118. Establishment of Election Commission (1) There shall an Election Commission for Bangladesh consisting of a Chief Election Commissioner and such number of other Election Commissioners, if any as the President may from time to time direct, and the appointment of the Chief Election Commissioner and other Election commissioners (if any) shall, subject to the provisions of any law made in that behalf, be made by the President.

(2) When the Election Commission consists of more than one person, the Chief Election Commissioner shall act as the chairman thereof.

(3) Subject to the provisions of this Constitution the term of office of an Election Commissioner shall be five years from the date on which he enters upon his office, and(a) A person who has held office as Chief Election Commissioner shall not be eligible for appointment in the service of the Republic; (b) Any other election Commissioner shall, on ceasing to hold office as such, be eligible for appointment as Chief Election Commissioner but shall not be otherwise eligible for appointment in the service of the Republic.

(4) The Election Commission shall be independent in the exercise of its functions and subject only to this Constitution and any other law.

(5) Subject to the provisions of any law made by Parliament, the conditions of service of Election Commissioners shall be such as the President may, by order, determine: Provided that an Election Commissioner shall not be removed from his office except in like manner and on the like grounds as a judge of the Supreme Court.]

"The Chief Justice" means the Chief Justice of Bangladesh; [Chief Justice Chief amongst the judges of the Supreme Court of Bangladesh, and also head of the whole judicial establishments, including subordinate courts. The Chief Justice is appointed by the president, who sits in the Appellate Division with other judges to hear and decide cases. ] "Citizen" means a person who is a citizen of Bangladesh according to the law relating to citizenship; [Bangladesh law grants citizenship to a person whose father or grandfather was born in the territories now comprised in Bangladesh and who was a permanent resident of such territories on 25 March, 1971 and continues to reside there. Citizenship is also granted to a person(s) who was a permanent resident of the territories now comprised in Bangladesh on 25 March, 1971, and continues to be so resident. The law also describes Bengalis who were in West Pakistan during the 1971 war and facing obstacles over returning as permanent residents eligible for Bangladeshi citizenship. ] "Clause" means a clause of the article in which the expression occurs;

"Court" means any court of law including Supreme Court; "Debt" includes any liability in respect of any obligation to repay capital sums by way of annuities and any liability under any guarantee, and "debt charge" shall be construed accordingly; "Disciplinary law" means a law regulating the discipline of any disciplined force; "Disciplined force" means(a) The army navy or air force; (b) The police force; (c) Any other force declared by law to be a disciplined force within the meaning of this definition; "District judge" includes additional district judge; District judge is the head of the judiciary in each of the district.

"Existing law" means any law in force in, or in any part of, the territory of Bangladesh immediately before the commencement of this Constitution, whether or not it has been brought into operation; "Financial year" means a year commencing on the first day of July; "Guarantee" includes any obligation undertaken before the commencement of this Constitution to make payments in the event of the profits of an undertaking falling short of a specified amount; "The High Court Division" means the High Court Division of the Supreme Court; "Judge" means a judge of a division of the Supreme Court; "Judicial service" means a service comprising person holding judicial posts not being posts superior to that of a district judge;

"Law" means any Act, ordinance, order rule, regulation, bye-law, notification or other legal instrument, and any custom or usage, having the force of law in Bangladesh; "Parliament" means the Parliament for Bangladesh established by article 65; [Article 65: Establishment of Parliament]

(1) There shall be a Parliament for Bangladesh (to be known as the House of the Nation) in which subject to the provisions of this Constitution, shall be vested the legislative powers of the Republic: Provided that nothing in this clause shall prevent Parliament from delegating to any person or authority, by Act of Parliament, power to make orders, rules, regulations, bye-laws or other instruments having legislative effect.

(2) Parliament shall consist of three hundred members to be elected in accordance with law from single territorial constituencies by direct election and, for so long as clause (3) is effective, the members provided for in that clause; the member shall be designated as Members of Parliament.

(3) Until the dissolution of Parliament occurring next after the expiration of the period of ten years beginning from the date of the first meeting of the Parliament next after the Parliament in existence at the time of the commencement of the Constitution (Fourteenth Amendment) Act, 2004, there shall be reserved forty five seats exclusively for women members and they will be elected by the aforesaid members in accordance with law on the basis of procedure of proportional representation in the Parliament through single transferable vote : Provided that nothing in this clause shall be deemed to prevent a woman from being elected to any of the seats provided for in clause (2) of this article.

(4) The seat of Parliament shall be in the capital.]

"Part" means a Part of this Constitution; "Pension" means a pension, whether contributory or not, of any kind whatsoever payable to or in respect of any person, and includes retired pay or gratuity so payable by way of the return or any addition thereto of subscriptions to a provident fund; "Political party" includes a group or combination of persons who operate within or outside Parliament under a distinctive name and who hold themselves out for the purpose of propagating a political opinion or engaging in any other political activity; "The President" means the President of Bangladesh elected under this Constitution or any person for the time being acting in that office;

"Property" includes property of every description movable or immovable corporeal or incorporeal, and commercial and industrial undertakings, and any right or interest in any such property or undertaking; "Public notification" means a notification in the Bangladesh Gazette.

"Public officer" means person holding or acting in any office of emolument in the service of the Republic; "The Republic" means the People's Republic of Bangladesh; "Schedule" means a schedule to this Constitution; "Securities" includes stock; "The service of the Republic" means any service, post or office whether in a civil or military capacity, in respect of the Government of Bangladesh, and any other service declared by law to be a service of the Republic; "Session", in relation to Parliament, means the sittings of Parliament commencing when it first meets after the commencement of this Constitution or after a prorogation or dissolution of Parliament and terminating when Parliament is prorogued or dissolved; "Sitting" in relation to Parliament, means a period during which Parliament is sitting continuously without adjournment; "The Speaker" means the person for the time being holding the office of Speaker pursuant to article 74; [Article 74. Speaker and Deputy Speaker (1) Parliament shall at the first sitting after any general election elect from among its members a Speaker and a deputy Speaker, and if either office becomes vacant shall within seven days or, if Parliament is not then sitting, at its first meeting thereafter, elect one of its members to fill the vacancy.

(2) The Speaker or Deputy Speaker shall vacate his office(a) if he ceases to be a member of Parliament; (b) If he becomes a Minister;

(c) If Parliament passes a resolution (after not less than fourteen days, notice has been given of the intention to move the resolution) supported by the votes of a majority of all the members thereof, requiring his removal from office; (d) if he resigns his office by writing under his hand delivered to the President; (e) if after a general election another member enters upon that office; or (f) in the case of the Deputy Speaker, if he enters upon the office of Speaker.

(3) While the office of the Speaker is vacant or the Speaker is 48 acting as President, or if it is determined by Parliament that the Speaker is otherwise unable to perform the functions of his office, those functions shall be performed by the Deputy Speaker or, if the office of the Deputy Speaker is vacant, by such member of Parliament as may be determined by or under the rules of procedure of Parliament; and during the absence of the Speaker from any sitting of Parliament the Deputy Speaker or, if he also is absent, such person as may be determined by or under the rules of procedure, shall act as Speaker.

(4) At any sitting of Parliament, while a resolution for the removal of the Speaker from his office is under consideration the Speaker (or while any resolution for the removal of the Deputy Speaker form his office is under consideration, the Deputy Speaker) shall not preside, and the provisions of clause (3) shall apply in relation to every such sitting as they apply in relation to a sitting from which the Speaker or, as the case may be the Deputy Speaker is absent.

(5) The Speaker or the Deputy Speaker, as the case may be, shall have the right to speak in, and otherwise to take part in, the proceedings of Parliament while any resolution for his removal from office is under consideration in Parliament, and shall be entitled to vote but only as a member.

(6) Notwithstanding the provisions of clause (2) the Speaker or, as the case may be, the deputy speaker, shall be deemed to continue to hold office until his successor has entered upon office.]

"The State" includes Parliament, the Government and statutory public authorities; "Statutory public authority" means any authority, corporation or body the activities or the principal activities of which are authorized by any Act, ordinance, order or instrument having the force of law in Bangladesh;

"Sub-clause" means a sub-clause of the clause in which the expression occurs; “The Supreme Court" means the Supreme Court of Bangladesh constituted by article 94;

[Article 94. Establishment of Supreme Court (1) There shall be a Supreme Court for Bangladesh (to be known as the Supreme Court of Bangladesh) comprising the Appellate Division and the High Court Division.

(2) The Supreme Court shall consist of the Chief Justice, to be known as the Chief Justice of Bangladesh and such number of other Judges as the President may deem it necessary to appoint to each division.

(3) The Chief Justice, and the Judges appointed to the Appellate Division, shall sit only in that division, and the other Judges shall sit only in the High Court Division.

(4) Subject to the provisions of this Constitution the Chief Justice and the other Judges shall be independent in the exercise of their judicial functions.]

"Taxation" includes the imposition of any tax, rate, duty or impost, whether general, local or special, and "tax" shall be construed accordingly ; (1) The General Clauses Act, 1897 shall apply in relation to(a) this Constitution as it applies in relation to an Act of Parliament; (b) any enactment repealed by this Constitution, or which by virtue thereof becomes void or ceases to have effect, as it applies in relation to any enactment repealed by Act of Parliament.

Article 153. Commencement, citation and authenticity: (1) This Constitution may be cited as the Constitution of the People's Republic of Bangladesh and shall come into force on the sixteenth day of December, 1972, in this Constitution referred to as the commencement of this Constitution.

(2) There shall be an authentic text of this Constitution in Bengali, and an authentic text of an authorized translation in English, both of which shall be certified as such by the Speaker of the Constituent Assembly.

(3) A text certified in accordance with clause shall be conclusive evidence of the provisions of this Constitution: Provided that in the event of conflict between the Bengali and the English text, the Bengali text shall prevail.

Chapter5: Conclusion Constitution of Bangladesh is the most fundamental and sacred document of our country. It is expected that all citizens should know it, because it is not only the solemn expression of the will of the people but also the highest law of the land and the people of Bangladesh are constitutionally

pledge bound to defend, protect and safeguard the constitution. People are not happy only knowing the provisions of the constitution, but also want to know the history of its framing and philosophy behind adoption of every Article therein. It is argued that preamble of a constitution explains its underlying principles. It is the legal as well as the moral basis of the constitution. It is the guiding star of the objectives and aims of the state. But merely going through this preamble a layman will struggle to understand the philosophy of the constitution. Some details and accessible articulations were necessary from the framers of the constitution to make the people understand the philosophy behind the constitution.