| 29
years of the constitution of Bangladesh : today ( November 04) is our 'Constitution Day' By: A.H. Monjurul Kabir |
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| 29 years ago from 'today - 4 November 2001', the people of Bangladesh gave to themselves, a Constitution. "In our Constituent Assembly, this eighteenth day of Kartick 1379 BS, corresponding to the fourth day of November 1972 AD, do hereby adopt, enact and give to ourselves this Constitution", the preamble of the Constitution of the People's Republic of Bangladesh solemnly testifies. The quest of the Bengalis for political emancipation through constitutional rule and democracy culminated into a liberation war in 1971 out of which Bangladesh was born. The struggle was closely linked with the aspirations of the people for establishing a civil society with an orderly and just government elected through free and fair choice in a democracy where fundamental human rights are guaranteed and where an independent judiciary acts as the custodian of the constitution. This is the genesis of the Constitution of the People's Republic of Bangladesh as the people of Bangladesh made pledge to themselves after a heroic struggle for national liberation. The Constitution came into force on 16 December 1972.A voyage to the past | ||
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| Bangladesh was physically liberated on 16 December 1971. The government of Bangladesh immediately set up a Constituent Assembly composed of the members of the Pakistan National and East Pakistan Assemblies elected in 1970, to draft a Constitution for Bangladesh. The Constituent Assembly held its first session on 10 April 1972 and passed the Constitution on 4 November 1972. The Constitution was authenticated by the Speaker on 14 December 1972 and came into force on 16 December 1972. Our Constitution owes its origin in the Proclamation of Independence (10 April, 1971), which is, no doubt, the culmination of a long struggle of the people through history for achieving self-determination. In tracing the constitutional development in Bangladesh, it is important to first study the Proclamation of Independence itself.The original Constitution of Bangladesh introduced a parliamentary form of government with the President as its constitutional head. It provides a responsible executive, a non-sovereign legislature and an independent judiciary with appropriate separation of powers, and checks and balances among them. The supreme law of Bangladesh, the Constitution, confers only limited law making competence on Parliament. Unlike the British Parliament, the Bangladesh Parliament is created by, and operative under a written constitution. Parliament does not possess any intrinsic law-making power, which derives from the constitution. The parliament cannot make any law in contravention with the provisions of the constitution. Article 26(2) iterates, "The state shall not make any law inconsistent with any provision of this part, and any law so made shall, to the extent of such inconsistency, be void." | ||
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The
Constitution embodies the principle of ministerial responsibility,
both individual and collective, to the parliament and ultimately
to the people, the source of "all powers in the republic".
Bangladesh started its journey with a parliamentary form of democracy,
derailed afterwards from the fundamental aspiration of democratic
governance by introducing one-party
political system with an 'all powerful head of the state-the President'. The change took place in early 1975 by way of a notorious amendment to the Constitution. Through the infamous Constitution (Fourth Amendment) Act, 1975, one party dictatorial system known as 'BAKSAL' was substituted for a responsible parliamentary system. The 12th Amendment to the Constitution re-established the parliamentary form of government in 1991. The last amendment to the Constitution has added a unique feature. The Constitution (Thirteenth Amendment) Act, 1996 introduced the provision of 'Non-Party Caretaker Government' to the Constitution of Bangladesh. It will work during the period from the date of which the Chief Adviser of this government enters upon office after parliament is dissolved or stands dissolved by reason of expiration of its term till the date on which a new Prime Minister enters upon his office after the constitution of parliament The preamble of the Constitution |
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| The
preamble of the Constitution of Bangladesh proclaims that the high
ideals of 'absolute trust and faith in the almighty Allah', 'nationalism',
'democracy' and 'socialism meaning economic and social justice' shall
be the fundamental principles of the Constitution. It also states
that it shall be a fundamental aim of the State to realise a socialist
society in which the rule of law, fundamental human rights and freedom,
equality and justice will be ensured. The preamble recognises the
fundamental aim of the state as to realise the 'democratic process'
for establishing a socialist society, free from exploitation. The
framers conceived of a democratically run welfare state to eliminate
inequality of income and status and standards of life.The fundamental
principles of state policy |
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| Part II (Articles 8-25) of the Constitution gives an account of the fundamental principles of State policy. The four 'high ideals' mentioned in the preamble along with other specific economic, social and political goals shall be fundamental the governance of Bangladesh, shall be applied by the State in the making of laws and interpreting the Constitution. They will be the basis of work of the State and of its citizens. They will not be enforceable in the court of law. The principles, among others, include: I) promotion of local government institutions composed of representatives of the area concerned and with special representations of peasants, workers and woman to build democratic structures at the grass-root level, (b) participation of women in all spheres of national life, (c) guarantee of fundamental human rights and freedoms and respect for the dignity and worth of human persons and effective participation by the people through their elected representatives in administration at all levels .In short, the Republic is a people's one, and the process of governance is democratic. One of the most significant characteristics of the democratic governance is representative local government. It guarantees the right of the people to elect their representatives who take charge of the statecraft.Fundamental rights | ||
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| For realisation of the aim mentioned in the preamble and some of the fundamental principles of the state policy, Part III of the Constitution provides for a catalogue of rights as fundamental, which the state is mandated to guarantee for its citizenry. Provisions of the Constitutions including fundamental rights governing political activity and the ways in which they are operated/interpreted in practice can be summarised as follow:Equality before Law and Equal Protection of Law: Article 27 provides that all citizens are equal before the law and are entitled to equal protection of law. It combines the English concept of equality before law and the American concept of the equal protection of law. | ||
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| Freedom
of Movement: Article 36 provides that subject to reasonable restrictions
imposed by law in the public interest, every person has the right
to move freely through out Bangladesh, to reside and settle in any
place in Bangladesh and to leave and re-enter Bangladesh.Freedom of
Assembly: Article 37 provides that every citizen shall have the right
to assemble and participate in public meetings and processions peacefully
and without arms. This right can be restricted only by a law imposed
in the interest of the public order or public health.Freedom of Association:
Article 38 secures the freedom of association of citizens upon which
the very existence of democracy is dependent. Right to form associations
or unions is guaranteed subject to any reasonable restrictions imposed by law in the interests of morality or public order.Freedom of Expression: Freedom of expression is secured in Article 39, which provides guarantee for freedom of thought, conscience, speech and press. Restrictions on the exercise of freedom of speech and expression can be imposed by law on a number of grounds: security of the state, friendly relations with foreign states, public order, decency, morality or in relation to contempt of court, defamation, or intention to an offence. Enforcement of Fundamental Rights: Article 44 categorically states that the right to move the High Court Division in accordance with Article 102(1), for the enforcement of fundamental rights enumerated in Part III including the above-mentioned rights. |
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| There are other constitutionally guaranteed rights too. The future of the constitutional governance lies with the implementation of the liberal provisions of the Constitution. When rights will be guaranteed, scopes for social responsibilities will be widened. | ||
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| A
difficult journey towards constitutional governance. The whole process
of institutionalisation of democracy perhaps begins with the process of having representatives at various levels of governance. Being under military rule for almost one-third of the period since the independence of the country, when the supreme law of the land- the Constitution was either suspended or parts of it remained in abeyance, the people of Bangladesh hardly had the opportunity to exercise democratic rights and practice freedom. The local government units have been routinely manipulated by all the previous governments. The purpose was to create respective rural support base for the ruling party. The effective participation by the people through their elected representatives in administration at all levels, as envisaged in article 11 of the Constitution, has not yet been ensured. |
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| A
Constitutional government is enshrined with a value system, which
ensures societal change as well as justice. Every country has a constitution
but may not have a constitutional government. A constitutional government
requires primacy of rule of law. Bangladesh is abundant with constitutional
provisions and statutory laws guaranteeing political freedom. However,
the existence of a number of repressive laws undermines the 'de jure' pledges of freedom. Sadly the 'hard earned democracy' has not yet obtained an institutional shape. Bangladesh's politics remain confrontational and inimical to reform. There is no system of accountability within the existing 'political party mechanisms'. The judiciary is still not functionally independent of the executive. The aspiration of the Constitution as reflected in Article 22 ("The state shall ensure the separation of the judiciary from executive organ of the state") has not yet been materialised. With the installation of a newly elected government in power, it is the earnest hope of the people that they will act to preserve, protect and defend the Constitution both in letter and in spirit. |
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A.H.Monjurul Kabir, Director of LAW WATCH, a centre for studies on human rights |
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| Photo
: Abir Abdullah/ Drik ( Evicted slum dweller, from high court ground) |
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