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Bangladesh

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The Constitution of Bangladesh (Bangla: , Bangladesh Shongbidhan) is the supreme law of Bangladesh. It declares Bangladesh as a sovereign popular republic and lays down the framework defining fundamental political principles, establishing the structure, procedures, powers and duties, of the government and spells out the fundamental rights of citizens. Passed by the Constituent Assembly of Bangladesh on November 4, 1972, it came into effect from December 16, 1972, the day commemorated as Victory Day in the country, marking the defeat of the Pakistan Army in the Bangladesh Liberation War. The constitution declares Bangladesh to be a unitary, independent and sovereign Republic, founded on a popular struggle for national liberation, which will be known as the People's Republic of Bangladesh. It pledges nationalism, secularity, democracy and socialism as the fundamental principles defining the Republic and declares the pursuit of a society that ensures its citizens- the rule of law, fundamental human rights and freedoms as well as equality and justice, political, economic and social.[1][2][3]

When enacted in 1972, the Constitution of Bangladesh was hailed by international jurists and legal historians and as one of the most progressive and democratic constitutions in modern history and one that inspired progressive political aspirations among third world countries and populations struggling for self-determination. However, amendments during socialist one party and military rule in Bangladesh, radically altered the secular and liberal democratic nature of the constitution. In August, 2005, the Bangladesh High Court passed a landmark judgement that declared constitutional amendments during military rule as illegal and unconstitutional, and hence nullified. After several legal protests, the Bangladesh Supreme Court, in January, 2010, ultimately announced that the historic verdict of the High Court will be upheld.[4] The judgement of Bangladesh's highest courts paved way for the return of the original nature of the constitution, that defines Bangladesh as a secular, democratic state.[5]

Contents

Background and Spirit

See Also: Six point movement, Bengali Language Movement, Bangladesh Liberation War

The ideals of the Bangladesh liberation movement inspired the formulation of the Constitution of Bangladesh

Bangladesh was established after East Pakistan broke away from Pakistan in 1971 after a twenty five year union that saw widespread economic and political discrimination against the ethnic Bengali majority; suppression of the secular Bengali culture and linguistic heritage; and military rule. In the early years of Pakistan's independence, Bengalis protested against attempts by West Pakistan to impose Urdu, a language remote to the eastern Indian subcontinent, as the sole state language of Pakistan. The subsequent Bengali Language Movement in 1952 gave rise to Bengali linguistic and cultural nationalism in the province of East Bengal, as opposed to Islamic nationalism in the rest of Pakistan. Bengali resentment aggravated over the years as the democratically elected provincial governments in East Bengal were dismissed, the name of the province was changed to East Pakistan, greater discrimination prevailed in recruitment and promotions in the civil services and armed forces, harsher restrictions were imposed on secular Bengali culture, economic disparity between East and West Pakistan widened and the increased suppression on Bengali political parties and leaders by the Pakistani military and its Islamic fundamentalist allies.[6]

In the late 1960s, the main Bengali political party, the Awami League, proposed the Six Point demands as the basis for a new constitution in Pakistan. Drafted by leading Bengali intellectuals and nationalists Rehman Sobhan, Govinda Chandra Dev, Mohammad Shamsuzzoha, Kamal Hossain and Tajuddin Ahmad, the six points envisioned Pakistan as a parliamentary democracy where supremacy lies with a legislature directly elected on the basis of universal suffrage. The Six Points were also based on the Two Economies Theory coined by economist Rehman Sobhan.[7] The theory argued that West and East Pakistan have essentially two different economies lying in different regions and with different characteristics, and therefore power cannot be vested with the central government. It argued that the survival of the union between East and West Pakistan depended on establishing a federation that guaranteed considerable economic and political autonomy for each province. But the Two-Economies Theory also evoked, among Bengalis, a nationalistic reminiscence similar to that of the Two-Nation Theory, that drove the founding of Pakistan. It served as the economic justification for Bengali nationalism and independence from the feudal and military establishment of West Pakistan. The Six point movement would be spearheaded by the charismatic Awami League leader Sheikh Mujibur Rahman in a popular movement that engulfed the entire province of East Pakistan. Afterwards, Sheikh Mujib along with senior leadership of the Awami League, would be arrested and tried for treason in the Agartala Conspiracy Case. Sheikh Mujib also placed the proposals at a meeting in 1966, between President Ayub Khan and all other opposition parties. The proposals were rejected by Ayub Khan and all major West Pakistan based political parties.[8]

Prime Minister Sheikh Mujibur Rahman signing the constitution into law on Victory Day, 1972

The tensions provoked by the Six point movement would contribute to the fall of the Ayub Khan regime and lead to the 1970 elections, which were overwhelmingly won by the Awami League.[9] The subsequent refusals by the Pakistani military to hand over power to the Awami League eventually culminated in the Bangladesh Liberation War. During the war the Pakistani military again imposed martial law and committed wide spread atrocities against the Bengali population. They were aided by Islamic fundamentalist parties and militias. The war ended in December, 1971 with the victory of Bengali nationalists and emergence of Bangladesh.[10] In 1972, the 300 members elected to the East Pakistan Legislative Assembly in the 1970 elections, were made members of the Constituent Assembly of Bangladesh. An all-party committee (except Islamic fundamentalist parties) headed by Dr. Kamal Hossain, the Minister of Law in the new government, was tasked to draft the constitution of the new country. The constitution drafting committee consisted of members of all parties in the constituent assembly, including the Awami League, National Awami Party, Jatiya Samajtantrik Dal and the seven independent lawmakers.

The constitution drafting committee would take inspiration from the intellectual thought that drove the Six point movement and the liberation war; the heritage of democratic struggle by Bengalis in the Indian Subcontinent, during both the British Raj and the Pakistan era; and the secular Bengali culture in formulating the constitution. The drafters of the constitution also identified the features of the Pakistani state that created widespread discontent in its population, particularly the Bengalis. One such feature was the religion based polity that gave opportunity to the military to influence politics. They also felt that religious nationalism failed to establish a sustainable state in Pakistan. Keeping in mind the lack of democracy and powerful influence of the military in Pakistan, the drafters of the constitution envisioned Bangladesh as a secular democracy, in order to establish a progressive and sustainable state.[11]The secular nature of Bengali culture also served as an important motivation in inspiring a secular state for Bangladesh.

The drafters would also base the constitution on the objectives of the Two-Economies Theory. The theory argued economic autonomy for East Pakistan in order to attain greater equity in the distribution of income, as the Pakistan's economy was dominated by the West Pakistani feudal elite.[12] Bengali nationalists felt the idealism of a "socialist" or "social democratic" society while waging movements against the feudal elite of Pakistan. Influenced by this idealism, the leadership of Bangladesh felt that greater equity in the distribution of income in the economy of the new country would be possible either through social democracy or democratic socialism. They also felt that the war ravaged country needed a strong public sector to drive initial economic development.

The drafters of the constitution hence decided upon nationalism, secularity, democracy and socialism as the fundamental principles of the new state. The constitution also pays great attention to rural development, education rights and scientific temper, reflecting its commitment to rural Bengal as well as to modernization and progressivism. On November 4, 1971, the Constituent Aseembly of Bangladesh adopted by the constitution and on December 16, 1972, the first anniversary of victory of the Bengali nationalist forces over the Pakistani Army, the constitution was signed into law.[13]

Evolution

Main Artcile: Constitutional History of Bangladesh

Permeable

The preamble to the Constitution of Bangladesh is the introductory statement that sets out the guiding purpose and principles of the document. The preamble is not an integral part of the constitution in the sense that it is enforceable in a court of law.

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Full Text

We, the people of Bangladesh, having proclaimed our Independence on the 26th day of March, 1971 and through a historic struggle for national liberation, established the independent, sovereign People's Republic of Bangladesh;

Pledging that the high ideals of nationalism, secularity, democracy and socialism, which inspired our heroic people to dedicate themselves to, and our brave martyrs to sacrifice their lives in the struggle for national liberation, shall be fundamental principles of the Constitution;

Further pledging that it shall be a fundamental aim of the State to realise through the democratic process, a socialist society free from exploitation, a society in which the rule of law, fundamental human rights and freedoms, 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 co-operation 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, 1972 A.D., do hereby adopt, enact and give to ourselves this Constitution.

Amendments

In 1977, when Bangladesh was under martial law, President and Chief Martial Law Administrator Lieutenant General Ziaur Rahman passed a presedential decree that removed the principle of secularity from the permeable of the constitution and instead of it, placed "absolute trust and faith in the Almighty Allah". The decree was later legitamized by parliament during the quasi-military rule of Zia.

In January, 2010, the Bangladesh Supreme Court observed that parliament does not possess any authority to suspend the constitution and proclaim martial law and hence, it cannot legitamize actions of martial law regimes. The judgement paved way for restoring the original four fundamental principles declared in the permeable of the constitution, including secularity.[14][15]

Organs of the State

As per the constitution of the republic it comprises three basic organs:

  1. Legislative Branch
  2. Executive Branch
  3. Judicial Branch

Articles

The constitution of Bangladesh is divided into 11 parts, which are further subdivided into 153 articles. In addition, there are 4 schedules.

Part I: The Republic

This section defines the nature of the country, its state religion and other national issues. According to it, Peoples Republic of Bangladesh is a unitary republic consisting of the territories of the former East Pakistan and also included territories (some enclaves exchanged with India). The state religion is Islam, but all other religions can be practised in peace and harmony. The state language is Bangla and the national anthem is the first ten line of the song Amar Sonar Bangla written by Rabindranath Tagore. The national flag is a red circle on a green background. The national emblem is the national flower Shapla (nympoea-nouchali) resting on water, having on each side and ear of paddy and being surmounted by three connected leaves of jute with two stars on each side of the leaves. This section also mandates that the portrait of prime minister must be displayed in all government, semi-government and autonomous offices. The capital of the country is Dhaka. The citizens are to be known as Bangladeshis.

Finally Part I asserts that all power belong to the people and the constitution, being the supreme law of the country, will supersede any other laws and regulations.

Part II: Fundamental principles of state policy

This part describes the fundamental principles. The original 1972 constitution had 4 basic principles: Secularity, Nationalism, Democracy and Socialism (meaning economic and social justice for all). However, later amendments replaced Secularity with "Absolute trust and faith in the Almighty Allah shall be the basis of all actions."[16]

Part II's article 9, 10, and 11 declares the rights of the people. Article 9 provides guidelines for quotas for the underrepresented communities, women, and peasants. Article 10 states the equal rights of women. Article 11 states that Bangladesh would be a democracy, with guaranteed human rights. Article 13, 14, 15, and 16 deal with principal of ownership, emancipation of workers and peasants, provision of basic necessities, and rural development. Article 17 states that the basic education will be free and compulsory for all children. The remaining articles (18-25) provide various guarantees for public health and morality, equality of opportunity, work as a right and duty, duties of citizens and of public servants, separation of Judiciary from the executive, national culture, national monuments, and promotion of international peace, security and solidarity, respectively.

Part III: Fundamental rights

Laws inconsistent with fundamental rights to be void

As per Constitution, Part III:

  1. Laws inconsistent with fundamental rights to be void.
  2. Equality before law.
  3. Discrimination on grounds of religion, etc.
  4. Equality of opportunity in public employment.
  5. Prohibition of foreign titles, etc. (No citizen shall, without the prior approval of the President, accept any title, honour, award or decoration from any foreign state.)
  6. Right to protection of law.
  7. Protection of right to life and personal liberty.
  8. Safeguards as to arrest and detention.
  9. Prohibition of forced labour.
  10. Protection in respect of trial and punishment.
  11. Freedom of movement.
  12. Freedom of assembly.
  13. Freedom of association.
  14. Freedom of thought and conscience, and of speech.
  15. Freedom of profession or occupation.
  16. Freedom of religion.
  17. Rights to property.
  18. Protection of home and correspondence.
  19. Enforcement of fundamental rights.
  20. Modification of rights in respect of disciplinary.
  21. Power to provide indemnity.
  22. Saving for certain laws.
  23. Inapplicability of certain articles.

Equality before law

This part states that all Bangladeshi citizens regardless of race, religion etc. are equal in before the judiciaryBangladesh.

Fundamental Foreign Policy

  • The State shall base its international relations on the principles of respect for national sovereignty and equality, non-interference in the internal affairs of other countries, peaceful settlements of international disputes, and respect for international law and the principles enunciated in the United Nations Charter, and on the basis of those principles shall:
    • Strive for the renunciation of the use of force in international relations and for general and complete disarmament,
    • Uphold the right of every people freely to determine and build up its own social, economic and political system by ways and means of its own free choice, and
    • Support oppressed peoples throughout the world waging a just struggle against imperialism colonialism or racialism.
  • The State shall endeavor to consolidate, preserve and strengthen fraternal relations among Muslim countries based on Islamic solidarity.

See also

References

  1. ^ http://www.thedailystar.net/newDesign/news-details.php?nid=124641
  2. ^ http://www.thedailystar.net/newDesign/news-details.php?nid=124640
  3. ^ http://www.pmo.gov.bd/pmolib/constitution/
  4. ^ http://www.thedailystar.net/newDesign/news-details.php?nid=120366
  5. ^ http://www.thedailystar.net/newDesign/news-details.php?nid=124640
  6. ^ http://www.newagebd.com/2005/dec/16/vd/01.html
  7. ^ http://www.cpd-bangladesh.org/activities/rs_book_launch.html
  8. ^ http://www.cpd-bangladesh.org/activities/rs_book_launch.html
  9. ^ (Source G.W. Choudhury (1974) The last days of United Pakistan p128-129)
  10. ^ (Source G.W. Choudhury (1974) The last days of United Pakistan p128-129)
  11. ^ http://www.newagebd.com/2005/dec/16/vd/01.html
  12. ^ http://un.org.pk/hdc/Speeches%20of%20Dr.%20Haq%20Folder/System%20is%20to%20blame.htm
  13. ^ http://www.pmo.gov.bd/pmolib/constitution/
  14. ^ http://www.thedailystar.net/newDesign/latest_news.php?nid=21972
  15. ^ http://www.thedailystar.net/newDesign/latest_news.php?nid=21979
  16. ^ "Constitution of Bangladesh: Part II: Fundamental Principles of State Policy". Chief Adviser's Office. Prime Minister's Office. Government of the People's Republic of Bangladesh. http://www.pmo.gov.bd/pmolib/constitution/part2.htm#P2. 

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