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Constitutional Law


Constitutional Law drawn primarily from the constitution, including from such sources as decisions of the Supreme Court, legislation like the Representation of People Order (1972), the Rules of Procedure of Jatiya Sangsad, and constitutional conventions like the convention of consultation with the Chief Justice regarding appointment of the judges of the Supreme Court. Adopted by the Constituent Assembly in November 1972, the Constitution of Bangladesh consists of 153 articles and 4 schedules arranged in eleven main parts to regulate the functioning of the state. To begin with, its preamble declares nationalism, socialism and democracy to be the fundamental principles of state, and envisages establishment through democratic process of an exploitation free society where the rule of law, fundamental human rights and freedom, equality and justice will be secured for all citizens.

Article 1 speaks of Bangladesh as a sovereign unitary Republic, and in Article 7 the Constitution is declared to be the supreme law of the land, and any other law inconsistent with it is void to the extent of inconsistency. The fundamental principles of state policy narrated in Part II set out the economic, social and political objectives of the polity. These principles, though not judicially enforceable, are fundamental to the state governance and are a guide to the interpretation of the Constitution, and also of ordinary legislation. The court is required to take note of these principles, and cannot construe any of the constitutional provisions contrary to these principles unless the language of a provision is so clear as to convince the court that in that particular instance the framers wanted to make a departure.

Part III of the Constitution includes a number of fundamental rights, and no law inconsistent with these rights can be made and no action can be taken by the governmental agencies in derogation of such rights. Right to equality before law and equal protection of law, protection against discrimination on grounds of religion, race, caste, sex and place of birth, right to equality of opportunity in public employment, freedom of movement, freedom of assembly, freedom of association, freedom of thought, speech and expression (including freedom of press), freedom of profession or occupation, freedom of religion, right to property, and protection of privacy of the home and correspondence are available to the citizens. Right to security of life and personal liberty, safeguard against arbitrary arrest and detention, protection against forced labour, protection in respect of trial and punishment which includes protection against retroactive penal laws, double jeopardy, self-incrimination, and cruel and inhuman punishment are available to both citizens and non-citizen residents. Article 31 guarantees in particular that the right of all citizens to be treated in accordance with law, which also includes judicial principles like the principles of natural justice laid down by the superior courts, but excludes laws relating to the discipline of the members of disciplined forces like army, navy, air force, police, and so on. The Constitution in its original text prescribed a parliamentary form of government, but later changed to presidential system under the provisions of the fourth amendment adopted in January 1975. The twelfth amendment, however, includes provisions purporting to restore the original parliamentary form of government since 1991.

The President, as the constitutional head, is elected for five years by the members of the Jatiya Sangsad. He has immunity from the process of courts and can be removed only by impeachment in the Sangsad. He has discretion in the matter of appointment of the Prime Minister and the Chief Justice, and in all other matters he is to act on the advice of the Prime Minister. All executive actions are to be taken in the name of the President, but the executive authority of the Republic vests in the Prime Minister who, along with the other ministers, is responsible to Jatiya Sangsad. The Prime Minister and the ministers must resign if a vote of no confidence is passed in the Sangsad. The President has the legislative power of making ordinances in case of emergency, including the power to make rules authorised by the Constitution and Acts. He also has the power of pardon and reprieve (Articles 48-58A). Speaker of the Sangsad discharges the functions of the President if a vacancy occurs in the office of the President during his absence, illness etc.'

'As the Constitution contemplates participation of the people through their elected representatives in the administration at all levels, Article 59 commands that the local government bodies shall be composed of elected representatives of the people, who are to perform certain executive functions including the exercise of the power to levy taxes and fees at the local level (Art. 60).

Jatiya Sangsad consists of three hundred members directly elected by the people on the basis of adult franchise, and forty five seats reserved for women, who are elected by the elected members of the Sangsad (Art. 65). In its first session after a general election, Sangsad elects from amongst the elected members a Speaker, and a Deputy Speaker (Art. 74). The Speaker and, in his absence, the Deputy Speaker, presides over the sittings of Jatiya Sangsad. The Speaker has extensive power to regulate the proceedings of the Sangsad under its rules of procedure. The ordinary interpretation of the procedural laws, rules and customs of the Sangsad is considered to be his function, and he allows no debate or criticism of his rulings except on a formal resolution.

Jatiya Sangsad is summoned, prorogued and dissolved by President, and between the two sessions there should not be more than sixty days gap (Art. 72). It is vested with the plenary legislative power of the Republic subject only to the limitations set by the Constitution. In the modern context, Sangsad does not have time and expertise to legislate on all subjects in detail. In many cases it enacts skeletal legislation, leaving the details to be filled in by the executive, and the Constitution expressedly permits this delegation of legislative power (Art. 65). The Sangsad has control over public finance and taxation, and no tax can be levied or collected except by or under the authority of the Sangsad (Art. 83). Sangsad has the exclusive power of determining the budget (Art. 87), and no expenditure can be made by the executive unless authorised by an Appropriation Act (Art. 90) passed by the Sangsad. To ensure stability of the government, Article 70 provides that a member of Jatiya Sangsad shall vacate his seat if he resigns from, or votes against the party on whose nomination he was elected (Art. 70). Any dispute in this regard has to be referred by the Speaker to the Election Commission for decision' [Art. 66(4)].

To facilitate free expression of views in the deliberations in the Jatiya Sangsad, the Constitution grants certain privileges and immunities to its members. The validity of the proceedings of Sangsad cannot be questioned in any court; the members and officers of Sangsad shall not be subject to the jurisdiction of any court in respect of exercise of power in regulating the proceedings of the Sangsad. No action of libel or slander or contempt of court can be brought against the members and officers of the Sangsad for what they say on the floor or in the Committees thereof or against any newspaper for publishing an authorised report of those proceedings (Art. 78). However, the rules of procedure framed by the Sangsad and any law made by the Sangsad in prescribing additional privileges and immunities pursuant to articles 76 and 78(5) must conform to the provisions of Part III which include a number of fundamental rights.

Jatiya Sangsad can amend the provisions of the Constitution (Art. 142) by a two-thirds majority, but in exercise of the power it cannot alter the basic features of the Constitution. Generally, sovereignty of the people, supremacy of the Constitution, power of judicial review of the Supreme Court, independence of the judiciary and the rule of law are considered to be the basic features. The fact remains, however, that martial law proclaimed in 1975 and 1982 by extra-constitutional ways, and the actions of the martial law authorities were all legalised by the 'fifth' and 'seventh' amendments of the Constitution.

The term of the Jatiya Sangsad is five years' [Art. 72(3)] and at the end of that term, or, if Sangsad is earlier dissolved, on such dissolution a non-party caretaker government is formed with the immediate former Chief Justice, if available or willing, as the Chief Adviser and not more than ten other Advisers appointed by the President on the advice of the Chief Adviser. The Chief Adviser and the Advisers perform the functions of Prime Minister and Ministers respectively in running the day-to-day administration till the new Prime Minister enters upon his or her office (Chapter IIA). To ensure free and fair polls in election, the offices of the Chief Election Commissioner and the Election Commissioners have been made non-removable during the term of their office except for causes and in the manner in which a judge of the Supreme Court may be removed (Art. 118).

Article 77 provides that the Jatiya Sangsad may by law establish the office of Ombudsman to investigate any action taken by a ministry, a public officer or a statutory public authority. Although an act titled 'Ombudsman Act, 1980' was adopted in 1980 empowering the government to bring it into force by notification in the official gazette, the office of Ombudsman has not yet been established.

The judicial power of the Republic is vested in the judiciary consisting of the Supreme Court and the subordinate courts. The guardianship of the Constitution is vested upon the Supreme Court which is invested with the power of judicial review. The Supreme Court consists of two divisions, namely the High Court Division and the Appellate Division (Art. 94). Each division is a court of record and can punish any person for contempt (Art.108). This power has been conferred upon not only for the purpose of retaining the confidence of the people in the administration of justice, but also for the purpose of enforcing the orders and directions of the Supreme Court.

The High Court Division has statutory jurisdiction to entertain suits and petitions and hear appeals and revisions from the decisions of the subordinate civil and criminal courts and adjudicative bodies (Art. 101). Save in some specified situations, the High Court Division in exercise of its power of judicial review, can not only review the state actions to ensure that those do not contravene any provision of the Constitution or the laws of the land, but can also strike down any law for inconsistency with any provision of the Constitution including the provisions guaranteeing fundamental rights (Art. 102). The High Court Division can, in exercise of this power, issue writs in the nature of certiorari, mandamus, prohibition, habeas corpus and quo warranto. Only a person aggrieved by any state action can file a writ petition before the High Court Division. But this standing rule has been modified by the Appellate Division in case of public interest litigation allowing any enlightened person to espouse the cause of the poor and downtrodden to ventilate their grievance in the court and to bring before the court an issue of great importance and public interest.

The Appellate Division hears appeals from the decisions of the High Court Division and, if provided by law, from the decisions of any tribunal like the Administrative Appellate Tribunal (Art. 103). The Appellate Division has power to review its own judgment or order (Art. 105) and to do complete justice (Art. 104). It has jurisdiction to render opinion on legal questions of public importance, when sought by the President (Art. 106). Any decision rendered by the Appellate Division is binding on the High Court Division, and any decision given by any of these two Divisions is binding on the subordinate courts and tribunals (Art. 111). The executive is bound to act in aid of the Supreme Court and is as such bound by the decisions of the Supreme Court (Art. 112). The judges of Supreme Court are not transferable and not removable by the executive or the Jatiya Sangsad, and can only be removed for physical or mental incapability or misconduct proved before the Supreme Judicial Council consisting of the Chief Justice and the two next senior judges (Art. 96).

Besides the political executives, the Constitution provides for services consisting of civil and military posts in order to maintain the continuity of the executive government. The terms and conditions of service of the persons holding military posts are determined by laws made in terms of Article 62 and, in the absence of such laws, by rules made by the President. However, the tenure of service of a holder of a military post is subject to the pleasure of the President (Art. 134). Similarly the civil officers hold office during the pleasure of the President, but Article 135 stipulates that holders of the civil posts shall not be dismissed, removed or reduced in rank by an authority subordinate to that by which they were appointed and shall not be so punished until they have been given reasonable opportunity of showing cause as to why an action should not be taken. The terms and conditions of service of the holders of civil posts are to be determined by Jatiya Sangsad by law and until such law is made, the President makes rules in this regard (Art. 133). In case of disputes relating to the terms and conditions of service, the holders of civil posts may seek remedy from administrative tribunal constituted by law pursuant to Article 117, and no court including the High Court Division has any jurisdiction to entertain any complaint in matters over which the Administrative Tribunal has jurisdiction. The only exception is where a member of the civil service complains of violation of his fundamental right by any law or instrument having the force of law. Appeal lies to the Administrative Appellate Tribunal from the decision of the Administrative Tribunal, and on leave granted by the Appellate Division of the Supreme Court, appeal lies in the Appellate Division from the decision of the Administrative Appellate Tribunal.

The Constitution has provided for a Public Service Commission, entrusted with the duty of conducting tests and examinations for selection of suitable persons for appointment to the service of the Republic, and of advising the President in specified matters relating to the service of the Republic. To ensure the independence of the Commission, the chairman and members of the Commission cannot be removed during the term of their office except for causes and in the manner in which a judge of the Supreme Court may be removed (Arts. 137-39). [Mahmudul Islam]

Bibliography AKMS Huda, The Constitution of Bangladesh, 1997; Mahmudul Islam, Constitutional Law of Bangladesh, 1995; Justice Mustafa Kamal, Bangladesh Constitution: Trends and Issue, 1994.